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HomeMy WebLinkAboutAGMT - Moffatt & Nichol (PSA for Pier Renovation) AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT FOR PIER UPGRADES PROJECT NO. BP1002 Between ee SEA( BF�,+� Aft•I��cOPORgrFO q��++i i* i RECITALS A. City and Consultant are Parties to the Agreement, pursuant to which Consultant has provided professional services in connection with the design of the Seal Beach Pier Utility Upgrades Project ("Project"). B. The Parties wish to amend the Agreement to include additional services required in connection with the Project. C. Consultant has provided a letter dated December 13, 2012 (revised January 16, 2013) included hereto as Attachment 1, proposing additional services. AMENDMENT NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, the Parties agree to amend the Agreement as follows: Section 1. Section 1 .1 (Scope and Level of Services) of the Agreement is hereby amended to read as follows: "1.1 Scope and Level of Services. Subject to the terms and conditions set forth in this Agreement, City hereby engages Consultant to perform the professional services set forth in Exhibit A ("Original Services") and Exhibit C ("Additional Services"), collectively referred to hereinafter as "Services." Section 2. Section 3.1 (Compensation) of the Agreement is hereby amended to read as follows: "3.1 Compensation. City shall compensate Consultant for the Original Services at its standard hourly rates in accordance with the fee schedule set forth in Exhibit A and for the Additional Services at its standard hourly rates in accordance with the fee schedule set forth in Exhibit C, but in no event shall the City pay more than $86,500 for the Original Services or $55,508 for the Additional Services." Section 3. The Letter included as Attachment 1 to this Amendment shall be attached as a new Exhibit C to the Agreement. Section 4. All other terms and provisions of the Agreement, as previously amended, shall have full force and effect. Page 2 of 3 IN WITNESS WHEREOF, the Parties hereto have caused this Amendment No. 1 to be executed and attested by their proper officers thereunto. CITY OF SEAL BEACH CONSULTANT �•. Ingram, itEynager Michael J. McCarthy, Vice Pres. ent ATTEST: I,\DP i/j7/ / � Li Devine, City Clerk vTt�aoti J. Re laford, Secretary APPROVED FORM: inn M. Barrow, Cik Attorney Page 3 of 3 Attachment 1 Letter from Moffatt & Nichol dated December 13, 2012 (revised January 16, 2013) to be added as Exhibit C to the Agreement 3780 Kilroy Airport Way,Suite 600 ®" Long Beach,CA 90806 motto 11 & n c h of (562)426-9551 Fax(562)424-7489 YAW..mofattnichal.com December 13, 2012 (Revised January 16, 2013) City of Seal Beach 211 8th Street Seal Beach, CA 90740 Attn: Mr. David Spitz RE: Proposal for Amendment to Professional Services Agreement for Seal Beach Pier Renovation Dear Mr. Spitz: M&N is pleased to present this proposal for an Amendment to the Professional Services Agreement for Seal Beach Pier Renovation, per the City's request. Our proposed scope of additional services is attached. Our total fee for the Additional Scope of Services described including an hourly rate adjustment for the balance of the existing agreement, is$ 55,508 inclusive of reimbursable costs and allowances. This brings the total amount of the amended agreement to $ 142,008. A summary of the changes is attached after the scope of additional service along with the current Rate Schedule for Professional Services. Design services include design for current uses,preparation of construction drawings, preparation of specification and estimates, as well as field investigation,meetings and coordination, quality control reviews and reimbursable expenses. The existing scope includes all utility lines on the timber portion of the pier,but does not include utilities within the buildings. The additional scope includes miscellaneous structural repairs based on the 2008 inspection report and designer construction services. Thank you for the opportunity to present this proposal to provide engineering services for the Seal Beach Pier Renovation project. Please do not hesitate to contact me at any time during the evaluation process to answer any questions or provide additional information in support of this proposal or if the scope is not what the City intended. Sincerely, MOFFATT& NICHOL J� Crumpley fr Project Manager David Spitz,Associate Civil Engineer M&N if 7073 City of Seal Beach December 13,2012 January 16,2013(Revised) Scope of Additional Services The scope of services in the original Professional Service Agreement is still in effect, addition services include: Miscellaneous Structural Repairs 1. Review 2008 inspection report and field notes and indentify on a background pier plan items that need repair. 2. Prepare repair plans and details. 3. Revise Phase 4 pier re-decking plan to accommodate new restaurant footprint. Designer Construction Services 1. Review contractor submittals 2. Review and respond to contractor requests for information (RFI) 3. Periodic Site visits during construction to observe progress and respond to unexpected conditions. %/MI 2 David Spitz,Associate Civil Engineer M&N It 7073 City of Seal Beach December 13,2012 January 16,2013(Revised) Seal Beach Pier Contract Change Summary Original Utility Replacement Contract $86,500 Previously Billed(2010) 510,188 Original Contract Balance (2010) $76,312 Hourly Rate Change January 2010 to January 1013 $2,563 Utility Project Restart $1,304 Structural Repairs from 2008 Inspection $20,164 Revise Phase 4 Re-decking plan $5,320 Construction Services $25,808 Miscellaneous Expenses $349 Total 2013 Amount $121,820 Net Contract Amendment $55,508 Total Amended Contract Amount $142,008 ®„1 3 SAM! moffatt & nichol RATE SCHEDULE FOR PROFESSIONAL SERVICES Effective July 1,2012 Until Revised CLASSIFICATION HOURLY RATES PROFESSIONALS Supervisory Engineer/Scientist $ 224.00 Senior Engineer/Scientist $ 203.00 Engineer/Scientist III $ 191.00 Engineer/Scientist 11 $ 169.00 Engineer/Scientist 1 $ 147.00 Staff Engineer/Scientist $ 117.00 TECHNICIANS Senior Technician $ 163.00 Designer $ 153.00 CADD II $ 125.00 CADD I $ 95.00 CLERICAL Word Processing $ 95.00 General Clerical $ 76.00 SPECIAL Principal Engineer/Scientist $ 250.00 Deposition&Trial Testimony $ 315.00 REIMBURSABLE EXPENSES (Unless Otherwise Provided in Written Agreement) Subcontracts or Outside Services Cost+15% Reproductions -In House Mylar Plots(B/W) $2.00/SF Color Plots $4.00/SF Vellum Plots(B/W) $1.00/SF Bond Plots(B/W) $0.50/SF Drawing Reproduction Cost+15% Document Reproduction $0.10/sheet -Outside Reproduction Cost+15% Travel Company Auto Prevailing IRS Rental Vehicle Cost Airfare Cost Meals and Lodging Cost PROFESSIONAL SERVICES AGREEMENT FOR SEAL BEACH PIER RENOVATION between =�F SEA/ 4 ;. F `i,; cpaPOggr� q . , * * 'sue is 'tiyc Fq 2 ∎g9 City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 Moffatt & Nichol 3780 Kilroy Airport Way, Suite 600 Long Beach, CA 90806 P- (562) 426 -9551 THIS AGREEMENT is made and entered into this November 9 2009, by and between the City of Seal Beach, a municipal corporation ( "City ") and Moffatt & Nichol, a corporation ( "Consultant "). 1of14 57296- 0200 \1181659v1.doc • RECITALS A. City desires design professional services with respect to the Seal Beach Pier ( "Project ") in the City of Seal Beach. B. Pursuant to the authority provided by its City Charter and Government Code Section 37103, if applicable, City desires to engage Consultant to provide professional services in the manner set forth herein and more fully described in Section 1. C. Consultant represents that the principal members of Consultant firm are fully qualified to perform the services contemplated by this Agreement in a good and professional manner; and it desires to perform such services as provided herein. NOW, THEREFORE, in consideration of performance by the parties of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows: AGREEMENT 1. Consultant's Services. 1.1. Scope and Level of Services. Subject to the terms and conditions set forth in this Agreement, City hereby engages Consultant to perform the professional services ( "Services ") set forth in Exhibit A. 1.2. Time for Performance. Consultant shall perform all services under this Agreement on a timely, regular basis consistent with industry standards for professional skill and care. Services shall be provided so as not to cause undue delay of the project during the design and construction phases of the project. 1.3. Familiarity with Services. By executing this Agreement, Consultant represents that, to the extent required by the standard of practice, Consultant (a) has investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed, and (c) understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. Consultant represents that Consultant, to the extent required by the standard of practice, has investigated the subject site and is reasonably acquainted with the conditions therein. Should Consultant discover any latent or unknown conditions, which will materially affect the performance of services, Consultant shall immediately inform City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the City Representative. 2. Term of Agreement. This Agreement is effective as of September 28, 2009 (the "Effective Date "), and shall remain in full force and effect until Consultant has rendered the services required by this Agreement, unless sooner terminated as provided in Section 13 herein. 3. Compensation and Method of Payment. 3.1. Compensation. City shall compensate Consultant at its standard hourly rates in accordance with the fee schedule set forth in Exhibit A for Services but in no event will 2of14 57296- 0200 \1181659v1.doc the City pay more than $86,500.00. Any additional work authorized by the City pursuant to Section 3.2 will be compensated in accordance with the rate schedule set forth in Exhibit A. City shall not withhold any federal, state or other taxes, or other deductions. 3.2. Compensation for Additional Services. City will not compensate Consultant for any work performed not specified in Exhibit A unless the City authorizes such work in advance and in writing. The City Manager may authorize payment for such work up to a cumulative maximum of $10,000. Payment for additional work in excess of $10,000 requires prior City Council authorization. 3.3. Method of Payment. Consultant must submit to City monthly invoices for all services rendered pursuant to his Agreement. Such invoices must be submitted within 15 days of the end of the month during which the services were rendered and must describe in detail the services rendered during the period, the days worked, number of hours worked, the hourly rates charged, and the services performed for each day in the period. City will pay Consultant within 30 days of receiving Consultant's invoice. City will not withhold any applicable federal or state payroll and other required taxes, or other authorized deductions from payments made to Consultant. 3.4. Inspection of Records. Upon 24 hours notice from City, Consultant must allow City or City's agents or representatives to inspect at Consultant's offices during reasonable business hours all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with this Agreement. City's rights under this Section 3.4 shall survive for two years following the termination of this Agreement. 4. Representatives. 4.1. City Representative. For the purposes of this Agreement, the contract administrator and City's representative shall be the Director of Public Works, or such other person as the Director designates in writing (hereinafter the "City Representative "). It shall be Consultant's responsibility to assure that the City Representative is kept informed of the progress of the performance of the services, and Consultant shall refer any decisions that must be made by City to the City Representative. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the City Representative. 4.2. Consultant Representative. For the purposes of this Agreement, James R. Crumpley is hereby designated as the principal and representative of Consultant authorized to act in its behalf with respect to the services specified herein and make all decisions in connection therewith (the "Responsible Principal "). It is expressly understood that the experience, knowledge, capability, and reputation of the Responsible Principal were a substantial inducement for City to enter into this Agreement. Therefore, the Responsible Principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. Consultant may not change the Responsible Principal without the prior written approval of City, which approval shall not be unreasonably withheld. 3 of 14 87296- 0200 \1181659v1.doc • • 5. Consultant's Personnel. 5.1. All Services shall be performed by Consultant or under Consultant's direct supervision, and all personnel shall possess the qualifications, permits, and licenses required by State and local law to perform such Services, including, without limitation, a City of Seal Beach business license as required by the Seal Beach Municipal Code. Consultant personnel shall be those designated on Exhibit B. 5.2. Consultant shall be solely responsible for the satisfactory work performance of all personnel engaged in performing the Services and compliance with the standard of care set forth in Section 6 below. 5.3. Consultant shall be responsible for payment of all employees' and subconsultants' wages and benefits, and shall comply with all requirements pertaining to employer's liability, workers' compensation, unemployment insurance, and Social Security. 5.4. Consultant shall indemnify and hold harmless City and its elected officials, officers and employees, servants, designated volunteers, and agents serving as independent contractors in the role of city or agency officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant's violations of personnel practices. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section 5. 6. Standard of Care. As a material inducement to City to enter into this Agreement, Consultant hereby represents that it has the experience necessary to undertake the services to be provided. In light of such status and experience, Consultant hereby covenants that it shall follow the customary professional standards in performing all services and shall perform all services to such customary professional standards and in a manner reasonably satisfactory to City. 7. Status as Independent Contractor. Consultant is, and shall at all times remain as to City, a wholly independent contractor. Consultant will determine the means, methods, and details of performing the services. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant's employees, except as set forth in this Agreement. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act as an agent of City. Consultant shall not, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any manner employees of City. Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and shall indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant shall fully comply with the workers' compensation law regarding Consultant and Consultant's employees. Consultant further agrees to indemnify and hold City harmless from any failure of Consultant to comply with applicable workers' compensation laws. City shall have the right to offset against the amount of any fees due to Consultant under this 4of14 S7296- 0200 \1181659v1.doc • • Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section 7. 8. Confidentiality. Consultant may have access to financial, accounting, statistical, and personnel data of individuals and City employees. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without prior written authorization by City. City shall grant such authorization if applicable law requires disclosure. All City data shall be returned to City upon the termination of this Agreement. Consultant's covenant under this section shall survive the termination of this Agreement. 9. Conflict of Interest. 9.1. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services. Consultant shall not accept any employment or representation during the term of this Agreement which is or may likely make Consultant "financially interested" (as provided in California Government Code § §1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained. 9.2. Consultant further represents that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, to solicit or obtain this Agreement. Nor has Consultant paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Consultant hereunder the full amount or value of any such fee, commission, percentage or gift. 9.3. Consultant has no knowledge that any officer or employee of City has any interest, whether contractual, noncontractual, financial, proprietary, or otherwise, in this transaction or in the business of Consultant, and that if any such interest comes to the knowledge of Consultant at any time during the term of this Agreement, Consultant shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibited "conflict of interest" under applicable laws as described in this subsection. 10. Indemnification. 10.1. Indemnity for Design Professional Services. In connection with its design professional services, Consultant shall defend, hold harmless and indemnify City, and its elected officials, officers, employees, servants, designated volunteers, and those City agents serving as independent contractors in the role of city or agency officials (collectively, "Indemnitees "), with 5 of 14 S7296 -0200\1 181659v1.doc • • respect to any and all claims, demands, damages, liabilities, losses, costs or expenses (collectively, "Claims" hereinafter), including but not limited to Claims relating to death or injury to any person and injury to any property, to the extent to which they arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Consultant or any of its officers, employees, subcontractors, or agents in the performance of its design professional services under this Agreement, but not to the extent the result of the sole active negligence or willful misconduct of the City. Consultant's obligation to defend pursuant to this Section shall apply independent of any prior, concurrent or subsequent misconduct, negligent acts, errors or omissions of Indemnitees. Consultant shall defend Indemnitees in any action or actions filed in connection with any of said claims with counsel of Consultant's choice, subject to City's reasonable approval, and shall pay all costs and expenses, including all attorneys' fees actually incurred in connection with such defense, provided that in the event that any damages are determined by the court to have been caused in part by persons or entities other than Consultant, Consultant's obligation hereunder shall be in proportion to Consultant's share of fault. 10.2. Other Indemnities. In connection with all Claims not covered by Section 10.1, Consultant shall defend, hold harmless and indemnify the Indemnitees with respect to any and all Claims including but not limited to Claims relating to death or injury to any person and injury to any property, which arise out of, pertain to, or relate to the acts or omissions of. Consultant or any of its officers, employees, subcontractors, or agents in the performance of this Agreement, including the City's active or passive negligence, except for such loss or damage arising from the sole negligence or willful misconduct of the City. Consultant shall defend Indemnitees in any action or actions filed in connection with any such Claims with counsel of Consultant's choice, subject to City's reasonable approval, and shall pay all costs and expenses, including all attorneys' fees and experts' costs actually incurred in connection with such defense. Consultant's duty to defend pursuant to this Section shall apply independent of any prior, concurrent or subsequent misconduct, negligent acts, errors, or omissions of Indemnitees. 10.3. Acknowledgment of Indemnity Duties. By affixing his or her initials below, each party representative hereby acknowledges that the representative has read and accepted the provisions set forth in this Section 10. City Consultant onsultant 10.4. Nonwaiver of Rights. Indemnitees do not, and shall not, waive any rights that they may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required - pursuant to this Agreement. 10.5. Waiver of Right of Subrogation. Consultant, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation against the Indemnitees, while acting within the scope of their duties, from all claims, losses, and liabilities arising out of or incident to activities or operations performed by or on behalf of the Indemnitor. 6of14 57296- 0200\1181659v1.doc • • 10.6. Survival. The provisions of this Section 10 shall survive the termination of the Agreement and are in addition to any other rights or remedies that Indemnitees may have under the law. Payment is not required as a condition precedent to an Indemnitee's right to recover under this indemnity provision, and an entry of judgment against a Consultant shall be conclusive in favor of the Indemnitee's right to recover under this indemnity provision. 11. Insurance. 11.1. Liability Insurance. Consultant shall procure and maintain in full force and effect for the duration of this Agreement insurance against claims for injuries to persons or damages to property and professional negligence which may arise from or in connection with the performance of the services hereunder by Consultant, and its agents, representatives, employees and subconsultants. 11.2. Minimum Scope of Insurance. Unless otherwise approved by City, coverage shall be at least as broad as: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). Worker's Compensation insurance as required by the State of California and Employer's Liability Insurance. Professional Liability insurance. Consultant shall provide to City the standard form issued by the carrier. 11.3. Minimum Limits of Insurance. Consultant shall maintain limits no less than: General Liability: $2,000,000 per occurrence and in the aggregate for bodily injury, personal injury and property damage. Commercial General Liability Insurance or other form with a general aggregate limit shall apply separately to this Agreement or the general limit shall be twice the required occurrence limit. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. Employer's Liability: $1,000,000 per accident and in the aggregate for bodily injury or disease and Workers' Compensation Insurance in the amount required by law. Professional Liability: $1,000,000 per claim/aggregate. 7of14 S7296- 0200 \1181659v1.doc • 11.4. Deductibles and Self- Insured Retentions. Consultant shall inform City of any deductibles or self - insured retentions except with respect to professional liability insurance. At the sole option of the City: (1) the City may accept such deductibles; (2) the insurer shall reduce or eliminate such deductibles or self - insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (3) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 11.5. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 11.5.1. City, its officers, officials, employees, designated volunteers and agents serving as independent contractors in the role of city or agency officials, are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Consultant; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired or borrowed by Consultant. The coverage shall contain no limitations on the scope of protection afforded to City, its officers, officials, employees, designated volunteers or agents serving as independent contractors in the role of city or agency officials which are not also limitations applicable to the named insured. 11.5.2. For any claims related to this Agreement, Consultant's insurance coverage shall be primary insurance as respects City, its officers, officials, employees, designated volunteers and agents serving as independent contractors in the role of city or agency officials. Any insurance or self - insurance maintained by City, their officers, officials, employees, designated volunteers or agents serving as independent contractors in the role of city or agency officials shall be excess of Consultant's insurance and shall not contribute with it. 11.5.3. Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 11.5.4. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled or materially modified except after 30 days prior written notice by first class mail has been given to City, or 10 days prior written notice by express overnight mail if cancellation is due to nonpayment of premiums. 11.5.5. Each insurance policy required by this clause, except for the professional liability policy, shall expressly waive the insurer's right of subrogation against City and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of city or agency officials. 11.6. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII unless waived in writing by City's Risk Manager. 11.7. Verification of Coverage. All insurance coverages shall be confirmed by execution of endorsements on forms approved by the City. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be 8 of 14 S7296- 0200 \1181659v1.doc received and approved by City before services commence. As an alternative to City forms, Consultant's insurer may provide complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications. 11.8. Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subconsultant. All coverages for subconsultants shall be subject to all of the requirements stated herein unless otherwise approved in advance in writing by City. 12. Cooperation. In the event any claim or action is brought against City relating to Consultant's performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation that City might require. City shall compensate Consultant for any litigation support services in an amount to be mutually agreed upon by the parties. 13. Termination. 13.1. This Agreement may be terminated by City, without cause, or by Consultant based on reasonable cause, upon giving the other party written notice thereof not less than thirty 30 days prior to the date of termination. 13.2. This Agreement may be terminated by City upon 10 days' notice to Consultant if Consultant fails to provide satisfactory evidence of renewal or replacement of comprehensive general liability insurance as required by this Agreement at least 20 days before the expiration date of the previous policy. 13.3. In the event either party exercises its right to terminate this Agreement, City shall pay Consultant for any services rendered prior to the effective date of the termination. Consultant shall have no other claim against City by reason of such termination, including any claim for compensation. 14. Suspension. City may, in writing, order Consultant to suspend all or any part of the Consultant's Services for the convenience of City or for work stoppages beyond the control of City or Consultant. Subject to the provisions of this Agreement relating to termination, a suspension of the Services does not void this Agreement. 15. Notices. Any notices, bills, invoices, or reports authorized or required by this Agreement shall be in writing and shall be deemed received on (a) the day of delivery if delivered by hand or overnight courier service during Consultant's and City's regular business hours or by facsimile before or during Consultant's regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section. All notices shall be addressed as follows: 9of14 87296- 0200 \1181659v1.doc • If to City: City Clerk City of Seal Beach 211 8th Street Seal Beach, California 90740 Fax: (562) 493 -9857 With a copy to: Public Works Director City of Seal Beach 211 8th Street Seal Beach, California 90740 If to Consultant: Moffatt & Nichol 3780 Kilroy Airport Way, Suite 600 Long Beach, CA 90806 Attn: James R. Crumpley 16. Non - Discrimination and Equal Employment Opportunity. In the performance of this Agreement, Consultant shall not discriminate against any employee, subconsultant, or applicant for employment because of race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. Consultant will take affirmative action to ensure that subconsultants and applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. 17. Non - Assignability; Subcontracting. 17.1. Consultant shall not assign or transfer any interest in this Agreement, whether by assignment or novation, or the performance of any of Consultant's obligations hereunder. Any attempt by Consultant to so assign or transfer any rights, duties, or obligations arising hereunder shall be null, void and of no effect. 17.2. No portion of Consultant's responsibilities shall be subcontracted without the prior written approval of the City. Consultant is fully responsible to City for the performance of any and all subcontractors. 18. Compliance with Laws. Consultant shall comply with all applicable federal, state and local laws, ordinances, codes and regulations in force at the time Consultant performs the Services. 19. Non - Waiver of Terms, Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Consultant constitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Consultant, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default. 10 of 14 57296- 0200 \1181659v1.doc • 20. Attorneys' Fees. In the event that either party to this Agreement shall commence any legal action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including attorneys' fees actually incurred in connection with such enforcement or interpretation. 21. Exhibits Precedence. All documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, including but not limited to the Consultant's Proposal dated July 16, 2009, the provisions of this Agreement shall prevail. 22. Construction. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California. In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted the Agreement or who drafted that portion of the Agreement. 23. Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Worker's Compensation or to undertake self - insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 24. Severability. The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement. 25. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 26. No Third Party Rights. No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement. 27. Entire Agreement. This Agreement, including any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Consultant and City. This Agreement supersedes all prior oral or written negotiations, representations, or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the parties which expressly refers to this Agreement. 11 of 14 S7296- 0200 \1181659v1.doc • • IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Agreement as of the date first written above. CITY OF SEAL BEACH Moffatt & Nichol By: By: / / Y 712 l David Carmany,'City, Manager Name: Michael J. cCarthy, PE Attest: Title: Vice Pres' • - BY: _��/ By. "' Al ' Na . f� J Rellaford Linda Devine, City Clerk Title: Secretary /Chief Financial Officer Approved as to Form: (Two signatures required for corporations under California Corporations Code § 313) BY: a 1____ Quinn Barrow, City Attorney 12 of 14 67296 -0200\1 181659v1.doc • • EXHIBIT A Consultant's Proposal Dated July 16, 2009 (Including Scope of Services) 13 S7296-0200\I181659vLdoe • • EXHIBIT A „�c 3780 Kilroy Airport Way, Suite 600 Long Beach, CA 90806 MOFFATT&NICHOL (562) 426-9551 P (562)424-7489 F July 16, 2009 City of Seal Beach 211 8th Street Seal Beach, CA 90740 Attn: Mr. David Spitz RE: Proposal for the Design and Construction Documents for Replacement of Utilities on the Seal Beach Pier Deck Dear Mr. Spitz: M&N is pleased to present this proposal for replacement of utilities on the Seal Beach Pier per the City's request. Our proposed scope of services is attached. Our total fee for the Scope of Work described, is $ 86,500 inclusive of reimbursable costs and allowances. Design services include design for current and proposed uses,preparation of construction drawings,preparation of specification and estimates, as well as field investigation, meetings and coordination, quality control reviews and reimbursable expenses. The scope includes all utility lines on the timber portion of the pier,but does not include utilities within the buildings. Thank you for the opportunity to present this proposal to provide engineering services for the Seal Beach Pier utility replacement project. Please do not hesitate to contact me at any time during the evaluation process to answer any questions or provide additional information in support of this proposal or if the scope is not what the City intended. Sincerely, MOFFATT& NICHO James R. Crumple Project Manager • IP July 16,2009 11/NCI Mr. David Spitz Page 2 of 2 MOFFATT&NICHOL Scope of Services Field Investigation 1. Field verify existing utility sizes, materials,and points of connection. 2. Evaluate the condition and capacity of existing electrical switchgear. Design & Construction Documents 1. Design new potable water, fire water, sewer,natural gas,electrical power, and communication facilities based on current code requirements and current and proposed uses on the pier. 2. Prepare construction drawings to remove old and construct new utilities of the Seal Beach Pier. 3. Prepare construction specifications estimate of probable construction costs. 4. Prepare bidding documents based on schedules provided by the City. Design Schedule 1. A 60% submittal will be made six weeks after receipt of Notice to Proceed from the City. 2. A 100% submittal will be made four weeks after receiving comments on the 60% submittal. 3. Final documents will be submitted to the City one week after receiving comments on the 100%submittal. Design Meetings & Coordination 1. Kick-off meeting. We will attend a kick-off meeting with the City to clarify the project goals, design scope,and design schedule. 2. Coordinate with City regarding restaurant utility requirements. 3. Coordinate with the various utility providers regarding construction standards,design requirements, and service schedules. 4. Progress meetings. We will meet with the City to discuss their comments on the 60%and 100% submittals. • • Exhibit A h c MOFFATT & NICHOL RATE SCHEDULE FOR PROFESSIONAL SERVICES Effective June 27, 2009 Until Revised CLASSIFICATION HOURLY RATES PROFESSIONALS Supervisory Engineer/Scientist $ 215.00 Senior Engineer/Scientist $ 197.00 Engineer/Scientist III $ 185.00 Engineer/Scientist II $ 164.00 Engineer/Scientist I $ 143.00 Staff Engineer/Scientist $ 114.00 TECHNICIANS Senior Technician $ 158.00 Designer $ 147.00 CADD II $ 121.00 CADD I $ 92.00 CLERICAL Word Processing $ 92.00 General Clerical $ 74.00 SPECIAL Principal Engineer/Scientist $ 240.00 Court Appearances $ 300.00 REIMBURSABLE EXPENSES (Unless Otherwise Provided in Written Agreement) Subcontracts or Outside Services Cost+15% Reproductions -In House Mylar Plots(B/W) $2.00/SF Color Plots $4.00/SF Vellum Plots(B/W) $1.00/SF Bond Plots(B/W) $0.50/SF Drawing Reproduction Cost+15% Document Reproduction $0.10/sheet -Outside Reproduction Cost+15% Travel Company Auto Prevailing IRS Rental Vehicle Cost Airfare Cost Meals and Lodging Cost • • EXHIBIT B Consultant's Personnel Moffatt & Nichol Project Team Seal Beach Pier—Utility Renovation James R. Crumpley, P.E. Project Manager Julia Hornby, P.E. Mechanical Project Engineer Tyler Sparks, P.E. Electrical Project Engineer Daniel Martin Mechanical Design Gary Martin Electrical Design 14 57296-0200A11816590.doc