Contract No.11475 (CCS)
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (“Agreement”), entered into as of _________________(“Execution Date”), by and between the City of Santa Monica (“City”) and Stantec Consulting Services, Inc. (“Stantec”), is made with reference to the following:
RECITALS:
A. The City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. Stantec is qualified to do business, and is doing business, in the State of California.
Stantec represents it has the background, knowledge, experience and expertise necessary to provide the services set forth in this Agreement.
C. The City and Stantec now desire to enter into an agreement for Stantec to provide professional services to the City.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
TERMS AND CONDITIONS
1. Term. This Agreement begins on the Execution Date and terminates two (2) years after the Execution Date, unless sooner terminated in accordance with Section 14. In the event of delays in the performance of the services beyond the control of Stantec, the City may, at its sole and complete discretion, extend the Expiration Date for a limited time period in writing pursuant to a Notice of Extension issued by the Director of Public Works, City Engineer, Capital Program Manager, or other designee of the City Manager. The Notice of Extension shall specify the revised Expiration Date and must be issued prior to Expiration Date of the Agreement.
1.1 Option to Extend. The City, in its sole and absolute discretion, shall have the option to extend this Agreement for up to two (2) additional 1-year periods (“Extension Term”) under the same terms and conditions.
2. Stantec Services. Stantec will perform all of the services (“Services”) described in Exhibit A, Scope of Services. Stantec will complete the Services in accordance with Exhibit B, Budget.
3. City Services. The City agrees to:
3.1 Make available to Stantec any currently existing documents, data or information required for the performance of the Services.
3.2 Designate a representative authorized to act on behalf of City.
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3.3 Promptly examine and render findings on all documents submitted for staff review by Stantec.
4. Compensation. The City will compensate Stantec for the Services performed in an amount not to exceed THREE MILLION, THREE HUNDRED FIFTY-THREE THOUSAND, NINE HUNDRED AND TWO DOLLARS ($3,353,902), as set forth in Exhibit B.
5. Invoices. Stantec will invoice the City for the Services in accordance with Exhibit B and the City will pay any undisputed amount within 30 days of receipt.
6. Notices. All notices, demands, requests or approvals to be given under this Agreement, must be in writing and will be deemed served when delivered personally, by email, or on the third business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as follows:
6.1 All notices, demands, requests or approvals to the City:
Engineering and Street Services Division
City of Santa Monica
1685 Main Street, Mail Stop #15
Santa Monica, California 90401
Attention: Tom Shahbazi
Re: Contract No. 11475(CCS)
with a copy to:
Santa Monica City Attorney’s Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: City Attorney
Re: Contract No.11475(CCS)
6.2 All notices, demands, requests or approvals to Stantec:
Stantec Consulting Services Inc.
1687 114th Ave., SE, Suite 100
Bellevue, WA 98004-6965
Attention: Tyler Hadacek, PE
[email protected]
Re: Contract No. 11475(CCS)
7. Independent Parties. Both parties to this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers of one another.
Neither the City nor its officers or employees will have any control over the conduct of Stantec or any of Stantec’s agents, employees, or subconsultants, except as otherwise provided in this Agreement.
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8. Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties. Any preliminary negotiations and agreements of any kind or nature are merged into this Agreement. No oral agreement or implied covenant may be held to vary the provisions of this Agreement.
This Agreement may be modified only by written agreement signed by City and Stantec, and approved as to form by the City Attorney.
9. Insurance. Prior to commencing work, Stantec must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services by Stantec or Stantec’s agents, representatives, employees or subconsultants for the duration of this Agreement. Stantec must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit C, Insurance Requirements and Verifications.
10. Defense and Indemnification.
10.1 Indemnification.
10.1.1 Hold Harmless for Design Professional Services.
To the fullest extent permitted by law (including, without limitation California Civil Code Section 2782.8), Design Consultant agrees to defend, indemnify, and hold harmless the City, its board and council members, officers, employees and agents (“City Indemnitees”) from and against any and all losses, costs, liabilities, claims, damages, actions, judgments, settlements, expenses, defense costs, reasonable attorneys’ fees, costs, fines and penalties (“Losses”) that arise out of, pertain to, or relate to the Design Consultant’s negligence, recklessness or willful misconduct in the performance of professional services under this Agreement.
10.1.2 For Other Claims.
Except as otherwise set forth in the preceding paragraph, Design Consultant agrees to defend, indemnify and hold harmless the City Indemnitees from and against any and all Losses to the extent caused or claimed to be caused by the acts, errors and/or omissions of the Design Consultant (other than professional negligence, which is covered under Section 10.1.1, above), or recklessness or willful misconduct by Design Consultants (or its contractors or subcontractors, if any). Design Consultant’s responsibilities under this provision include liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, which may be in combination with the acts or omissions of Design Consultant (or its contractors or subconsultants); provided, however, that Design Consultant’s duty to defend, indemnify, protect and hold harmless shall not include any Losses arising from the sole negligence or willful misconduct of the City.
The provisions of the above indemnification obligations shall survive any termination of this Agreement.
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10.2 Enforcement Costs. Design Consultant agrees to pay any and all costs the City incurs enforcing the indemnity, defense and hold harmless provisions set forth in Section 10.1.
11. Prohibition Against Transfers.
11.1 Stantec may not assign, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City. Any attempt to do so without the City’s consent will be null and void, and any assignee, hypothecatee or transferee acquires no right or interest by reason of such attempted assignment, hypothecation or transfer.
11.2 The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Stantec or of any general partner or joint venturer or syndicate member of Stantec, if a partnership or joint venture or syndicate exists, which results in changing the control of Stantec, will be construed as an assignment of this Agreement. Control means 50% or more of the voting power of the corporation.
12. Permits and Licenses. Stantec, at its sole expense, must obtain and maintain during the term of this Agreement all required business and professional permits, licenses and certificates.
13. Waiver. A waiver of any breach of this Agreement may not be deemed a waiver of any subsequent breach of the same or any other term, covenant, or condition of this Agreement.
14. Default and Termination.
14.1 If Stantec fails or refuses to perform any of the provisions of this Agreement, and if the default is not cured within a period of five days after the City’s written notice of default specifying the nature of the default, City may immediately terminate this Agreement by written notice to Stantec.
14.2 The City has the option, at its sole discretion and without cause, of terminating this Agreement by giving ten days’ written notice to Stantec. Upon termination of this Agreement, City will pay Stantec any compensation earned and unpaid up to the effective date of termination.
15. Compliance with Law. Stantec must comply with all laws of the State of California and the United States, and all ordinances, rules, and regulations enacted or issued by City.
16. Discrimination. Stantec may not discriminate in the provision of services hereunder because of race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability.
17. Nuisance. Stantec may not maintain, commit, or permit the maintenance or commission of any nuisance in connection with the performance of services under this Agreement.
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18. Records.
18.1 Stantec must maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by the City for any services provided where compensation is on the basis of hourly rates, subconsultant costs, or other direct costs. Stantec must keep the records, together with supporting documents, separate from other documents and records and maintain them for a period of three years after receipt of final payment.
18.2 Stantec must maintain records in sufficient detail to permit an evaluation of the Services and in accordance with generally accepted accounting principles.
Stantec must clearly identify all records and make them readily accessible to the City. At the City’s request, Stantec must provide records in an electronic format and, if necessary, access to any proprietary software to view such electronic records.
18.3 Stantec must allow the City to have free access to Stantec’s books and records and to inspect all work, data, documents, proceedings and activities related to this Agreement. The City has the right to examine or audit Stantec’s records, and Stantec agrees to cooperate with any examination or audit of its records. If a City audit discloses an error of 5% or more in information reported by Stantec, Stantec agrees to pay the cost of the City’s audit computed on the basis of four times the direct payroll of the audit staff completing the audit and audit report.
19. Work Product; Reports.
19.1 Any work product prepared or caused to be prepared by Stantec or any subconsultant for this Agreement will be the exclusive property of City. No work product given to or prepared by Stantec or any subconsultant pursuant to this Agreement may be made available to any individual or organization by Stantec without prior written approval by City.
19.2 At the City’s request, Stantec must furnish reports concerning the status of the Services.
20. Standard of Care. Stantec agrees to provide all Services, including services performed by any subconsultant, in a manner consistent with the level of care and skill ordinarily exercised by members of Stantec’s profession currently practicing in the same locality under similar conditions.
21. Subconsultants.
21.1 If Stantec proposes to have any subconsultant perform any part of the Services, Stantec must submit a request for approval in writing, describing the scope of work to be subcontracted, the name of the proposed subconsultant, and the total price or hourly rates used in preparing an estimated cost for the DocuSign Envelope ID: E219E01D-DB09-47B8-9FED-5EADFE9D28DB subconsultant’s services. The City, in its sole discretion, may grant or deny the request.
21.2 Stantec will be responsible for the quality of any subconsultant’s work. Every subcontract or agreement of any kind entered into between Stantec and any subconsultant (or between any subconsultant and others) must contain the following provision:
This agreement is consistent with all terms and conditions of the Agreement No. 11475(CCS) entered into between the City of Santa Monica and Stantec on^^____________________.
22. Governing Law. The laws of the State of California, without regard to any choice of law provisions, will govern this Agreement.
23. Venue and Jurisdiction. The City and Stantec agree that the Services will take place in Los Angeles County. Any litigation arising out of this Agreement may only be brought in either the United States District Court, Central District of California, or the Superior Court of California, County of Los Angeles, West District, as appropriate. The parties agree that venue exists in either court, and each party expressly waives any right to transfer to another venue. The parties further agree that either court will have personal jurisdiction over the parties to this Agreement.
24. Survival of Provisions and Obligations. Any provision of this Agreement, which by its nature must be exercised after termination of this Agreement, will survive termination and remain effective for a reasonable time. Any obligation that accrued prior to termination of this Agreement will survive termination of this Agreement.
25. Execution in Counterparts. This Agreement may be executed in counterparts with the same effect as if both parties hereto had executed the same document. All counterparts shall be construed together and shall constitute a single modification. Any signature to this Agreement transmitted electronically through DocuSign or PDF shall be deemed an original signature and be binding upon the parties hereto (it being agreed that such electronic signature shall have the same force and effect as an original signature).
26. Exhibits. The following exhibits are incorporated by reference into this Agreement as though fully set forth herein.
Exhibit A Scope of Services
Exhibit B Budget
Exhibit C Insurance Requirements
In witness whereof, the parties have caused this Agreement to be executed the day and year first above written.
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ATTEST:
______________________________
DENISE ANDERSON-WARREN Clerk
APPROVED AS TO FORM:
______________________________
LANE DILG
CITY OF SANTA MONICA,
a municipal corporation
By: ______________________________
RICK COLE
City Manager
Stantec Consulting Services Inc.
#VENDOR
By: ________________________________
DocuSign Envelope ID: E219E01D-DB09-47B8-9FED-5EADFE9D28DB City Attorney
DOUGLAS SLOAN 11/29/2023
Sr Principal Engineer
Sarah Munger
Stantec Consulting Services
12/11/2023
12/12/2023
City Manager
David White
City Clerk
Denise Anderson-Warren 12/18/2023
EXHIBIT A - SCOPE OF WORK
DocuSign Envelope ID: E219E01D-DB09-47B8-9FED-5EADFE9D28DB EXHIBIT A - SCOPE OF WORK See Exhibit B for Budget.
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EXHIBIT B - BUDGET
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EXHIBIT C
Insurance Requirements
DocuSign Envelope ID: E219E01D-DB09-47B8-9FED-5EADFE9D28DB 1 Exhibit C
Insurance Requirements
Professional Services Agreement Insurance Requirements – Template 1 Professional Liability Insurance Required
Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, employees or subcontractors.
Minimum Scope and Limits of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury, with limits of no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (Insurance Services Office Form CG 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and Code 9 (non-owned), with limits of no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: Workers’ Compensation insurance as required by the State of California, with Statutory Limits and Employers’ Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease (see footnote #1).
4. Professional Liability: Insurance appropriate to the Consultant’s profession with limits of no less than $1,000,000 per occurrence or claim/$2,000,000 in the annual aggregate.
If the Consultant maintains broader coverage or higher limits than the minimums shown above, the City of Santa Monica requires and shall be entitled to any broader coverage and higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Monica.
Other Insurance Provisions
1. The insurance policies are to contain, or be endorsed to contain, the following provisions:
DocuSign Envelope ID: E219E01D-DB09-47B8-9FED-5EADFE9D28DB 2 a. Additional Insured Status: The City of Santa Monica, its officers, officials, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Consultant including materials, parts, or equipment furnished in connection with such work or operations. CGL coverage can be provided in the form of an endorsement to the Consultant’s insurance (at least as broad as Insurance Services Office Form CG 20 10 11 85, or if not available, through the addition of a combination of (1) CG 20 10, CG 20 26, CG 20 33, or CG 20 38 and (2) CG 20 37).
b. Primary Coverage: For any claims related to this Agreement, the Consultant’s insurance shall be primary coverage at least as broad as Insurance Services Offices Form CG 20 01 04 13 as respects the City of Santa Monica, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City of Santa Monica, its officers, officials, employees or volunteers shall be in excess of the Consultant’s insurance and shall not contribute with it. c. Notice of Cancellation: Each insurance policy required herein shall state that coverage shall not be cancelled except after notice has been given to the City of Santa Monica.
d. Waiver of Subrogation: Consultant hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said Consultant may acquire against the City of Santa Monica by virtue of payment of any loss. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Santa Monica has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa Monica may require the Consultant to purchase coverage with a lower retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City of Santa Monica.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in California with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to the City of Santa Monica.
Claims Made Policies
1. If the Professional Liability policy provides “claims made” coverage:
DocuSign Envelope ID: E219E01D-DB09-47B8-9FED-5EADFE9D28DB 3 a. The Retroactive Date must be shown and must be before the date of this Agreement or the start of work.
b. The insurance must be maintained, and evidence of insurance must be provided for at least 5 years after completion of work.
c. If the policy is cancelled or not renewed, and not replaced with another “claims made” policy form with a Retroactive Date prior to the effective Agreement date, the Consultant must purchase “extended reporting” coverage for a minimum of 5 years after completion of work.
Verification of Coverage
Consultant shall furnish the City of Santa Monica with original certificates and amendatory endorsements (or copies of the applicable policy language effecting coverage provided by this clause). All certificates and endorsements are to be received and approved by the City of Santa Monica before work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them.
The City of Santa Monica reserves the right to require complete, certified copies of all required insurance policies, including the endorsements required herein, at any time.
Failure to Maintain Insurance Coverage
If Consultant, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. The City of Santa Monica, at its sole option, may terminate this Agreement and obtain damages from the Consultant resulting from said breach.
Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein. All exceptions must be approved in writing by the Risk Manager.
Footnotes
# 1: Workers’ Compensation insurance coverage is not required if the Consultant does not have employees. The Consultant must, however, execute the City’s Workers’ Compensation Coverage Exemption Declaration Form.
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