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CONTRACT 6851 Professional Services Agreement CLOSEDA reement No. 6851 greement No. PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF EL SEGUNDO AND KIMLEY-HORN AND ASSOCIATES, INC. This AGREEMENT is entered into this day of December 2023, by and between the CITY OF EL SEGUNDO, a municipal corporation and general law city ("CITY") and KIMLEY-HORN AND ASSOCIATES, INC., a North Carolina corporation ("CONSULTANT"). 1. CONSIDERATION. A. As partial consideration, CONSULTANT agrees to perform the work listed in the SCOPE OF SERVICES, below; B. As additional consideration, CONSULTANT and CITY agree to abide by the terms and conditions contained in this Agreement; C. As additional consideration, CITY agrees to pay CONSULTANT a sum not to exceed $47,300 for CONSULTANT's services. CITY may modify this amount as set forth below. Unless otherwise specified by written amendment to this Agreement, CITY will pay this sum as specified in the attached Exhibit 'A" which is incorporated by reference. 2. SCOPE OF SERVICES. A. CONSULTANT will perform services listed in the attached Exhibit "A," which is incorporated by reference. B. CONSULTANT will, in a professional manner, furnish all of the labor, technical, administrative, professional and other personnel, all supplies and materials, equipment, printing, vehicles, transportation, office space and facilities, and all tests, testing and analyses, calculation, and all other means whatsoever, except as herein otherwise expressly specified to be furnished by CITY, necessary or proper to perform and complete the work and provide the professional services required of CONSULTANT by this Agreement. 3. PERFORMANCE STANDARDS. While performing this Agreement, CONSULTANT will use the appropriate generally accepted professional standards of practice existing al the time of performance utilized by persons engaged in providing similar services. CITY will continuously monitor CONSULTANT's services. CITY will notify CONSULTANT of any deficiencies and CONSULTANT will have fifteen (15) days after such notification to cure any shortcomings to CITY's satisfaction. Costs associated with curing the deficiencies will be borne by CONSULTANT. -1- Rev 3/28/23 Agreement No. 6851 Agreement No. 4. PAYMENTS. For CITY to pay CONSULTANT as specified by this Agreement, CONSULTANT must submit a detailed invoice to CITY which lists the hours worked and hourly rates for each personnel category and reimbursable costs (all as set forth in Exhibit "A") the tasks performed, the percentage of the task completed during the billing period, the cumulative percentage completed for each task, the total cost of that work during the preceding billing month and a cumulative cash flow curve showing projected and actual expenditures versus time to date. 5. NON -APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of the CITY. In the event the CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this Agreement will cover only those costs incurred up to the conclusion of the current fiscal year. 6. FAMILIARITY WITH WORK. A. By executing this Agreement, CONSULTANT agrees that it has: i. Carefully investigated and considered the scope of services to be performed; Carefully considered how the services should be performed; and iii. Understands the facilities, difficulties, and restrictions attending performance of the services under this Agreement. B. If services involve work upon any site, CONSULTANT agrees that CONSULTANT has or will investigate the site and is or will be fully acquainted with the conditions there existing, before commencing the services hereunder. Should CONSULTANT discover any latent or unknown conditions that may materially affect the performance of the services, CONSULTANT will immediately inform CITY of such fact and will not proceed except at CONSULTANT's own risk until written instructions are received from CITY. 7. TERM. The term of this Agreement will be from December 13, 2023, to June 30, 2024. Unless otherwise determined by written amendment between the parties, this Agreement will terminate in the following instances: A. Completion of the work specified in Exhibit "A"; B. Termination as stated in Section 15. -2- Rev 3/28/23 Agreement No. 6851 Agreement No. 8. TIME FOR PERFORMANCE. A. CONSULTANT will not perform any work under this Agreement until: CONSULTANT furnishes proof of insurance as required under Section 23 of this Agreement; and ii. CITY gives CONSULTANT a written notice to proceed. B. Should CONSULTANT begin work on any phase in advance of receiving written authorization to proceed, any such professional services are at CONSULTANT's own risk. 9. TIME EXTENSIONS. Should CONSULTANT be delayed by causes beyond CONSULTANT's control, CITY may grant a time extension for the completion of the contracted services. If delay occurs, CONSULTANT must notify the Manager within forty-eight hours (48 hours), in writing, of the cause and the extent of the delay and how such delay interferes with the Agreement's schedule. The Manager will extend the completion time, when appropriate, for the completion of the contracted services. 10. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement takes precedence over the attached Exhibits; this Agreement supersedes any conflicting provisions. Any inconsistency between the Exhibits will be resolved in the order in which the Exhibits appear below: A. Exhibit A: Proposal for Consulting Services for the City of El Segundo Housing Element Update Phase 2, dated December 13, 2023 11. CHANGES. CITY may order changes in the services within the general scope of this Agreement, consisting of additions, deletions, or other revisions, and the contract sum and the contract time will be adjusted accordingly. All such changes must be authorized in writing, executed by CONSULTANT and CITY. The cost or credit to CITY resulting from changes in the services will be determined in accordance with written agreement between the parties. 12.TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a Taxpayer Identification Number. 13. PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and maintain during the term of this Agreement, all necessary permits, licenses, and certificates that may be required in connection with the performance of services under this Agreement. 14. WAIVER. CITY's review or acceptance of, or payment for, work product prepared by CONSULTANT under this Agreement will not be construed to operate as a waiver of any rights CITY may have under this Agreement or of any cause of action arising from -3- Rev 3/28/23 Agreement No. 6851 Agreement No. CONSULTANT's performance. A waiver by CITY of any breach of any term, covenant, or condition contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained in this Agreement, whether of the same or different character. 15. TERMINATION. A. Except as otherwise provided, CITY may terminate this Agreement at any time with or without cause. B. CONSULTANT may terminate this Agreement at any time with CITY's mutual consent. Notice will be in writing at least thirty (30) days before the effective termination date. C. Upon receiving a termination notice, CONSULTANT will immediately cease performance under this Agreement unless otherwise provided in the termination notice. Except as otherwise provided in the termination notice, any additional work performed by CONSULTANT after receiving a termination notice will be performed at CONSULTANT" own cost; CITY will not be obligated to compensate CONSULTANT for such work. D. Should termination occur, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by CONSULTANT will, at CITY's option, become CITY's property, and CONSULTANT will receive just and equitable compensation for any work satisfactorily completed up to the effective date of notice of termination, not to exceed the total costs under Section 1(C). E. Should the Agreement be terminated pursuant to this Section, CITY may procure on its own terms services similar to those terminated. F. By executing this document, CONSULTANT waives any and all claims for damages that might otherwise arise from CITY's termination under this Section. 16.OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models, photographs and reports prepared by CONSULTANT under this Agreement are CITY's property. CONSULTANT may retain copies of said documents and materials as desired, but will deliver all original materials to CITY upon CITY's written notice. CITY agrees that use of CONSULTANT's completed work product, for purposes other than identified in this Agreement, or use of incomplete work product, is at CITY's own risk. 17. PUBLICATION OF DOCUMENTS. Except as necessary for performance of service under this Agreement, no copies, sketches, or graphs of materials, including graphic art work, prepared pursuant to this Agreement, will be released by CONSULTANT to any other person or public CITY without CITY's prior written approval. All press releases, -4- Rev 3/28/23 Agreement No. 6851 Agreement No. including graphic display information to be published in newspapers or magazines, will be approved and distributed solely by CITY, unless otherwise provided by written agreement between the parties. 18.INDEMNIFICATION. A. CONSULTANT agrees to the following: Indemnification for Professional Services. CONSULTANT will save harmless and indemnify and at CITY's request reimburse defense costs for CITY and all its officers, volunteers, employees and representatives from and against any and all suits, actions, or claims, of any character whatever, brought for, or on account of, any injuries or damages sustained by any person or property resulting or arising from any negligent or wrongful act, error or omission by CONSULTANT or any of CONSULTANT's officers, agents, employees, or representatives, in the performance of this Agreement. ii. Indemnification for other Damages. CONSULTANT indemnifies and holds CITY harmless from and against any claim, action, damages, costs (including, without limitation, attorney's fees), injuries, or liability, arising out of this Agreement, or its performance. Should CITY be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of this Agreement, or its performance, CONSULTANT will defend CITY (at CITY's request and with counsel satisfactory to CITY) and will indemnify CITY for any judgment rendered against it or any sums paid out in settlement or otherwise. B. For purposes of this section "CITY" includes CITY's officers, officials, employees, agents, representatives, and certified volunteers. C. It is expressly understood and agreed that the foregoing provisions will survive termination of this Agreement. D. The requirements as to the types and limits of insurance coverage to be maintained by CONSULTANT as required by Section 222, and any approval of said insurance by CITY, are not intended to and will not in any manner limit or qualify the liabilities and obligations otherwise assumed by CONSULTANT pursuant to this Agreement, including, without limitation, to the provisions concerning indemnification. -5- Rev 3/28/23 Agreement No. 6851 Agreement No. MASSIGNABILITY. This Agreement is for CONSULTANT's professional services. CONSULTANT's attempts to assign the benefits or burdens of this Agreement without CITY's written approval are prohibited and will be null and void. 20.INDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that CONSULTANT will act as an independent contractor and will have control of all work and the manner in which is it performed. CONSULTANT will be free to contract for similar service to be performed for other employers while under contract with CITY. CONSULTANT is not an agent or employee of CITY and is not entitled to participate in any pension plan, insurance, bonus or similar benefits CITY provides for its employees. Any provision in this Agreement that may appear to give CITY the right to direct CONSULTANT as to the details of doing the work or to exercise a measure of control over the work means that CONSULTANT will follow the direction of the CITY as to end results of the work only. 21.AUDIT OF RECORDS. CONSULTANT will maintain full and accurate records with respect to all services and matters covered under this Agreement. CITY will have free access at all reasonable times to such records, and the right to examine and audit the same and to make transcript therefrom, and to inspect all program data, documents, proceedings and activities. CONSULTANT will retain such financial and program service records for at least three (3) years after termination or final payment under this Agreement. 22.INSURANCE. A. Before commencing performance under this Agreement, and at all other times this Agreement is effective, CONSULTANT will procure and maintain the following types of insurance with coverage limits complying, at a minimum, with the limits set forth below: Commercial general liability: Professional Liability Business automobile liability Workers compensation Limits $1,000,000 $1,000,000 $1,000,000 Statutory requirement B. Commercial general liability insurance will meet or exceed the requirements of ISO-CGL Form No. CG 00 01 11 85 or 88. The amount of insurance set forth above will be a combined single limit per occurrence for bodily injury, personal injury, and property damage for the policy coverage. Liability policies will be endorsed to name CITY, its officials, and employees as "additional insureds" under said insurance coverage -6- Rev 3/28/23 Agreement No. 6851 Agreement No. and to state that such insurance will be deemed "primary" such that any other insurance that may be carried by CITY will be excess thereto. Such endorsement must be reflected on ISO Form No. CG 20 10 11 85 or 88, or equivalent. Such insurance will be on an "occurrence," not a "claims made," basis and will not be cancelable or subject to reduction except upon thirty (30) days prior written notice to CITY. C. Professional liability coverage will be on an "occurrence basis" if such coverage is available, or on a "claims made" basis if not available. When coverage is provided on a "claims made basis," CONSULTANT will continue to renew the insurance for a period of three (3) years after this Agreement expires or is terminated. Such insurance will have the same coverage and limits as the policy that was in effect during the term of this Agreement, and will cover CONSULTANT for all claims made by CITY arising out of any errors or omissions of CONSULTANT, or its officers, employees or agents during the time this Agreement was in effect. D. Automobile coverage will be written on ISO Business Auto Coverage Form CA 00 01 06 92, including symbol 1 (Any Auto). E. CONSULTANT will furnish to CITY duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement and such other evidence of insurance or copies of policies as may be reasonably required by CITY from time to time. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of "A:VII." F. Should CONSULTANT, for any reason, fail to obtain and maintain the insurance required by this Agreement, CITY may obtain such coverage at CONSULTANT's expense and deduct the cost of such insurance from payments due to CONSULTANT under this Agreement or terminate pursuant to Section 15. 23. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written approval to use any consultants while performing any portion of this Agreement. Such approval must approve of the proposed consultant and the terms of compensation. 24.INCIDENTAL TASKS. CONSULTANT will meet with CITY monthly to provide the status on the project, which will include a schedule update and a short narrative description of progress during the past month for each major task, a description of the work remaining and a description of the work to be done before the next schedule update. 25. NOTICES. All communications to either party by the other party will be deemed made when received by such party at its respective name and address as follows: -7- Rev 3/28/23 Agreement No. 6851 Agreement No. If to CONSULTANT: Attention: Michael Schmitt Kimley-Horn and Associates, Inc. 555 Capital Mall, Suite 300 Sacramento, CA 95820 916-330-3009 Michael.Schmitt@Kimley-Horn.com If to CITY: Attention: Michael Allen. City of El Segundo 350 Main Street El Segundo, CA 90245 310-524-2345 Mallen@ElSegundo.org Any such written communications by mail will be conclusively deemed to have been received by the addressee upon deposit thereof in the United States Mail, postage prepaid and properly addressed as noted above. In all other instances, notices will be deemed given at the time of actual delivery. Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this paragraph. 26. CONFLICT OF INTEREST. CONSULTANT will comply with all conflict of interest laws and regulations including, without limitation, CITY's conflict of interest regulations. 27.SOLICITATION. CONSULTANT maintains and warrants that it has not employed nor retained any company or person, other than CONSULTANT's bona fide employee, to solicit or secure this Agreement. Further, CONSULTANT warrants that it has not paid nor has it agreed to pay any company or person, other than CONSULTANT's bona fide employee, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Should CONSULTANT breach or violate this warranty, CITY may rescind this Agreement without liability. 28.THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is generally for the exclusive benefit of CONSULTANT and CITY and not for the benefit of any other party. There will be no incidental or other beneficiaries of any of CONSULTANT's or CITY's obligations under this Agreement. 29.INTERPRETATION. This Agreement was drafted in, and will be construed in accordance with the laws of the State of California, and exclusive venue for any action involving this agreement will be in Los Angeles County. 30. COMPLIANCE WITH LAW. CONSULTANT agrees to comply with all federal, state, and local laws applicable to this Agreement. 31. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the entire understanding of the parties. There are no other understandings, terms or other agreements expressed or implied, oral or written. This Agreement will bind and inure to the benefit of the parties to this Agreement and any subsequent successors and assigns. -8- Rev 3/28/23 Agreement No. 6851 Agreement No. 32. RULES OF CONSTRUCTION. Each Party had the opportunity to independently review this Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a whole, and in accordance with its fair meaning; it will not be interpreted strictly for or against either Party. 33. SEVERABILITY. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect. 34.AUTHORITY/MODIFICATION. The Parties represent and warrant that all necessary action has been taken by the Parties to authorize the undersigned to execute this Agreement and to engage in the actions described herein. This Agreement may be modified by written amendment. CITY's executive manager, or designee, may execute any such amendment on behalf of CITY. 35. ELECTRONIC SIGNATURES. This Agreement may be executed by the Parties on any number of separate counterparts, and all such counterparts so executed constitute one Agreement binding on all the Parties notwithstanding that all the Parties are not signatories to the same counterpart. In accordance with Government Code § 16.5, the Parties agree that this Agreement, Agreements ancillary to this Agreement, and related documents to be entered into in connection with this Agreement will be considered signed when the signature of a party is delivered by electronic transmission. Such electronic signature will be treated in all respects as having the same effect as an original signature. 36. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement. 37. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this Agreement. 38. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood, explosion, acts of terrorism, war, embargo, government action, civil or military authority, the natural elements, or other similar causes beyond the Parties' reasonable control, then the Agreement will immediately terminate without obligation of either party to the other. 39. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT represents that it has demonstrated trustworthiness and possesses the quality, fitness and capacity to perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that its financial resources, surety and insurance experience, service experience, completion ability, personnel, current workload, experience in dealing with private consultants, and experience in dealing with public agencies all suggest that CONSULTANT is capable of performing the proposed contract and has a demonstrated capacity to deal fairly and effectively with and to satisfy a public CITY. -9- Rev 3/28/23 Agreement No. 6851 Agreement No. [Signatures on next page] -1 0- Rev 3/28/23 Agreement No. 6851 Agreement No. IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first hereinabove written. CITY OF EL SEGUNDO Darrell George, City Manager ATTEST• ,, Tracy Weaver, City Clerk KIMLEY-HORN AND ASSOCIATES, INC. By: Michael Schmitt, AICP CTP, PTP, RSPi Title: Project Manager Taxpayer ID No. 56-0885615 APPROVED AS TO FORM: MARK D. HENSLEY, City Attorney By: - Jo I quin Vazquez, Assistant City Attorney -1 1- Rev 3/28/23 EXHIBIT A Agreement No. 6851 Mr. Michael Allen, AICP Community Development Director City of El Segundo 350 Main Street El Segundo, CA 90245 RE: Proposal for Consulting Services for the City of El Segundo Housing Element Update Phase 2 Dear Michael: Kimley-Horn and Associates, Inc. ("Kimley-Horn" or "Consultant") is pleased to submit this letter agreement (the "Agreement") to the City of El Segundo ("Client" or "City") to provide consulting services for the City of El Segundo's Housing Element Update (the "Project"). UNDERSTANDINGPROJECT Kimley-Horn understands that the City of El Segundo is working on a rezoning project as a part of the City's Housing Element implementation. The City's Housing Element calls for increasing the density of specific zoning categories such as the R-3 category (multi -family residential) and rezoning certain commercial properties to a high -density Mixed -Use Overlay zone (commercial and residential). In support of this effort, Kimley-Horn understands that the City requires a transportation analysis to be completed that accomplishes the following: 1) A vehicle miles traveled (VMT) analysis of the rezoned parcels for inclusion in the City's CEOA document 2) A level of service (LOS) analysis for General Plan compliance and determination of potential intersection improvements that may be needed Kimley-Horn will provide the Scope of Services specifically set forth below. This Scope of Services has been prepared based upon Kimley-Horn's understanding of the Project issues, and experience with similar projects and issues. This Scope assumes that the City will provide Kimley-Horn with the location and number of units for each parcel included in the Project. This Scope also assumes that at a future date the City will provide Kimley-Horn with the percentage of the additional non-residential development by employment category (e.g., commercial, office, etc.). TASK ® ANALYSIS Task .1a Vehicle Miles Traveled Isis Kimley-Horn will perform an evaluation of the Project's Vehicle Miles Traveled (VMT) as pertains to Senate Bill 743 (SB 743). Kimley-Horn will use the City's VMT Analysis Tool to determine the average VMT per capita, VMT per employee, and total VMT for each land use at each overlay site, as applicable. Each land use type's VMT performance will be compared to the City of El Segundo's thresholds to determine whether the Project results in a significant impact. Kimley-Horn will provide the results of the VMT analysis to the Client, as well as the total VMT by overlay site in a format such as VMT by speed bin that can be for air quality and greenhouse gas analyses to be performed by others. Agreement No. 6851 Kimley)))Horn Michael Allen, AICP, City of El Segundo, December 13, 2023 Consulting Services for El Segundo Housing Element Update Phase 2, Page 2 `task a m Documentation Kimley-Horn will prepare a brief technical memorandum summarizing the efforts and findings resulting from the efforts described in Task 2.1. Kimley-Horn will provide the Client with a draft memorandum in electronic (PDF) format and will respond to one set of non -conflicting comments and provide the Client with a final memorandum. Task 1.0 Deliverables: Draft and Final Memorandum, VMT Information for Air Quality and Greenhouse Gas Analyses Task 2.1: Determination of Study Intersections Kimley-Horn will work with City staff to determine which City intersections to include in the level of service (LOS) analysis for General Plan compliance and determination of potential intersection improvements. This task assumes up to twenty (20) intersections will be analyzed as a part of this effort. This task also assumes that up to twenty (20) traffic counts will be collected to determine Existing Conditions at the study intersections. Task Level of Service S) Analysis Project generated traffic will be distributed and assigned to the local roadway network based on the existing traffic volumes and/or engineering judgement. A weekday AM and PM peak -hour Level of Service (LOS) and queuing analysis will be conducted for the following scenarios: A. Existing 2023 Conditions Scenario will be evaluated using counts to be collected/established per Task 3.1 above. B. Existing (2023)_plus Proposed Project Conditions Scenario will be evaluated by manually adding the proposed project's trips, as developed and distributed per Task 2 above, to the Existing (2023) Conditions (Scenario "A"). The LTA analysis will be completed for the study intersections determined per Task 3.1 above. LOS and queuing for study intersections will be determined for the time periods and analysis scenarios listed above. LOS and queuing for each scenario will be determined using methods defined in the most recent edition of the Highway Capacity Manual, using appropriate traffic analysis software (Synch ro®/Simtraffic°). Recommendations for intersection improvements will be based on intersection LOS and queuing reports. Task 23: Documentation Kimley-Horn will prepare a brief technical memorandum summarizing the efforts and findings resulting from the efforts described in Tasks 3.1 and 3.2. Kimley-Horn will provide the Client/City with a draft memorandum in electronic (PDF) format and will respond to one set of non -conflicting comments and provide the Client/City with a final memorandum. Task 2.0 Deliverables: Draft and Final Memorandum Task 3.1: Project Management Michael Schmitt will be responsible for overall team management and coordination, and ongoing consultation with the City. Agreement No. 6851 K I e / Michael Allen, AICP, City of El Segundo, December 13, 2023 r Consulting Services for El Segundo Housing Element Update Phase 2, Page 3 Task Meetings All meetings will be virtual. It is anticipated that up to five (5)progress meetings will be scheduled to for coordination purposes and to present the findings of the efforts described above. This Scope also includes attendance at up to one (1) public hearing to present the findings, either in person or virtual. Assumed Meetings/Hearings: 5 Progress Meetings and 1 Public Hearing Task 3.0 Deliverables: Agenda (per meeting, as appropriate), and Minutes and Action Items (per meeting, as appropriate) Any services not specifically provided for in the above scope, if requested by the Client, will be billed as additional services and performed at our then -current hourly rates. InformationvClient Kimley-Horn shall be entitled to rely on the completeness and accuracy of all information provided by the Client or the Client's consultants or representatives. The Client shall provide all information requested by Kimley-Horn during the Project. Kimley-Horn is prepared to begin work immediately upon receipt of a signed Agreement and Client's Notice to Proceed (NTP), and we will endeavor to meet your scheduling needs. We anticipate completion of Tasks 1.0 and 2.0 within eight (8) weeks of receipt of the NTP and all requested data and Project information. Completion of each subsequent task deliverable will depend on the nature and extent of Client and City comments; however, all efforts will be made to expedite any revisions and assist with response to comments. Agreement No. 6851 Klmley)))Horn Michael Allen, AICP, City of EI Segundo, December 13, 2023 Consulting Services for El Segundo Housing Element Update Phase 2, Page 4 Kimley-Horn will perform the services specified in the Scope of Services in Tasks 1.0 through 3.0 for the total lump sum labor fee below. Individual task amounts are informational only. In addition to the lump sum labor fee, direct reimbursable expenses such as express delivery services, fees, air travel, sub -consultant costs, and other direct expenses will be billed at 1.10 times cost. All permitting, application, and similar project fees will be paid directly by the Client. Should the Client request Kimley-Horn to advance any such project fees on the Client's behalf, a separate invoice for such fees, with a ten percent (10%) markup, will be immediately issued to and paid by the Client. TASK DESCRIPTION TASK 1.0: CEO,A/SB 743 ANALYSIS FEE ryy®IIIII ITTY 1.1 Vehicle Miles Traveled (VMT) Analysis $ 8,200 1.2 Documentation $ 3,700 Task 2.0: LOCAL TRANSPORTATION ANALYSIS (LTA) 2.1 Determination of Study Intersections $ 2,500 2.2 Level of Service (LOS) Analysis $ 9,800 2.3 Documentation $ 4,100 TASK 3.0: PROJECT MANAGEMENT AND MEETINGS 3.1 3.2 Project Management Meetings $ 2,500 $ 8,500 Traffic Counts, Assumes 20 Intersections (Task 2.1) $8,000 TOTAL 47 00 This breakdown by task is provided for informational purposes only and is not intended to represent a firm budget for each task. Budgets may be reallocated among tasks, as necessary, according to the Project's requirements. Lump sum labor fees will be invoiced monthly based upon the overall percentage of services performed. Reimbursable expenses will be invoiced based upon expenses incurred. Payment will be due within 30 days of your receipt of the invoice and should include the invoice number and Kimley- Horn project number. Agreement No. 6851 Kimley)))Horn Michael Allen, A1CP, City of El Segundo, December 13, 2023 Consulting Services for El Segundo Housing Element Update Phase 2, Page 5 In addition to the matters set forth herein, our Agreement shall include and be subject to, and only to, the attached Standard Provisions, which are incorporated by reference. As used in the Standard Provisions, "Consultant" shall refer to Kimley-Horn and Associates, Inc., and "Client" shall refer to the City of El Segundo. Kimley-Horn, in an effort to expedite invoices and reduce paper waste, submits invoices via email in an Adobe PDF format. We can also provide a paper copy via regular mail, if requested. Please provide the following information: Please email all invoices to Please copy If you concur in all the foregoing and wish to direct us to proceed with the services, please have authorized persons execute this Agreement in the spaces provided below, and return to us. We will commence services only after we have received a fully -executed agreement. Fees and times stated in this Agreement are valid for sixty (60) days after the date of this letter. We appreciate the opportunity to provide these services to you. Please contact Mike at 916.330.3009 or at michael.schmitt kimle-horn.com, if you have any questions. Sincerely, Michael Schmitt, AICP CTP, PTP, RSPi Project Manager Attachments: Request for Information Kimley-Horn Standard Provisions �ItP Chr" ''Gregers PE, TE, PTP, PTOE PE No. C86812 & TR2860 Agreement No. 6851 K Michael Allen, AICP, City of El Segundo, December 13, 2023 Consulting Services for El Segundo Housing Element Update Phase 2, Page 6 Agreed to this day of City of El Segundo SIGNED:. PRINTED NAME: TITLE: Client's Federal Tax ID:. Client's Business License No.: Client's Street Address: Agreement No. 6851 KIMLEY-HORN AND ASSOCIATES, INC. STANDARD PROVISIONS 1) Kimley-Horn's Scope of Services and Additional Services. Kimley-Horn will perform only the services specifically described in this Agreement. If requested by the Client and agreed to by Kimley-Horn, Kimley-Horn will perform Additional Services, which shall be governed by these provisions. Unless otherwise agreed to in writing, the Client shall pay Kimley-Horn for any Additional Services an amount based upon Kimley-Hor's then -current hourly rates plus an amount to cover certain direct expenses including telecommunications, in-house reproduction, postage, supplies, project related computer time, and local mileage. Other direct expenses will be billed at 1.15 times cost. 2) Client's Responsibilities. In addition to other responsibilities herein or imposed by law, the Client shall: a. Designate in writing a person to act as its representative, such person having complete authority to transmit instructions, receive information, and make or interpret the Client's decisions. b. Provide all information and criteria as to the Client's requirements, objectives, and expectations for the project and all standards of development, design, or construction. c. Provide Kimley-Horn all available studies, plans, or other documents pertaining to the project, such as surveys, engineering data, environmental information, etc., all of which Kimley-Horn may rely upon. d. Arrange for access to the site and other property as required for Kimley-Horn to provide its services. e. Review all documents or reports presented by Kimley-Horn and communicate decisions pertaining thereto within a reasonable time so as not to delay Kimley-Horn. f. Furnish approvals and permits from governmental authorities having jurisdiction over the project and approvals and consents from other parties as may be necessary. g. Obtain any independent accounting, legal, insurance, cost estimating, and feasibility services required by Client. h. Give prompt written notice to Kimley-Horn whenever the Client becomes aware of any development that affects Kimley- Horn's services or any defect or noncompliance in any aspect of the project. 3) Period of Services. Unless otherwise stated herein, Kimley-Horn will begin work after receipt of a properly executed copy of this Agreement. This Agreement assumes conditions permitting continuous and orderly progress through completion of the services. Times for performance shall be extended as necessary for delays or suspensions due to circumstances that Kimley-Horn does not control. If such delay or suspension extends for more than six months, Kimley- Horn's compensation shall be renegotiated. 4) Method of Payment. Client shall pay Kimley-Horn as follows: a. Invoices will be submitted periodically for services performed and expenses incurred. Invoices are due and payable upon presentation. Client shall pay Kimley-Horn a time price differential of one and one-half percent (1.5%) of the outstanding amount of each invoice that is overdue for more than 30 days. The Client shall also pay any applicable sales tax. All retainers will be held by Kimley-Horn and applied against the final invoice. If the Client fails to make any payment due under this or any other agreement within 30 days after presentation, Kimley-Horn may, after giving notice to the Client, suspend services and withhold deliverables until all amounts due are paid, and may commence legal proceedings including filing liens to secure payment. b. If the Client relies on payment or proceeds from a third party to pay Kimley-Horn and Client does not pay Kimley-Horn's invoice within 60 days of receipt, Kimley-Horn may communicate directly with such third party to secure payment. c. If the Client objects to an invoice, it must advise Kimley-Horn in writing giving its reasons within 14 days of receipt of the invoice or the Client's objections will be waived, and the invoice shall conclusively be deemed due and owing. If the Client objects to only a portion of the invoice, payment for all other portions remains due. d. If Kimley-Horn initiates legal proceedings to collect payment, it may recover, in addition to all amounts due, its reasonable attorneys' fees, reasonable experts' fees, and other expenses related to the proceedings. Such expenses shall include the cost, at Kimley-Horn's normal hourly billing rates, of the time devoted to such proceedings by its employees. e. The Client agrees that the payment to Kimley-Horn is not subject to any contingency or condition. Kimley-Horn may negotiate payment of any check tendered by the Client, even if the words "in full satisfaction" or words intended to have similar effect appear on the check without such negotiation being an accord and satisfaction of any disputed debt and without prejudicing any right of Kimley-Horn to collect additional amounts from the Client. 5) Use of Documents. All documents and data prepared by Kimley-Horn are related exclusively to the services described in this Agreement and may be used only if the Client has satisfied all of its obligations under this Agreement. They are not intended or represented to be suitable for use or reuse by the Client or others on extensions of this project or on any other project. Any modifications by the Client to any of Kimley-Horn's documents, or any reuse of the documents without written authorization by Kimley-Horn will be at the Client's sole risk and without liability to Kimley-Horn, and the Client shall indemnify, defend and hold Kimley-Horn harmless from all claims, damages, losses and expenses, including but not limited to attorneys' fees, resulting therefrom. Kimley-Hour's electronic files and source code remain the Rev 06/2023 Agreement No. 6851 Kimley»>Horn property of Kimley-Horn and shall be provided to the Client only if expressly provided for in this Agreement. Any electronic files not containing an electronic seal are provided only for the convenience of the Client and use of them is at the Client's sole risk. In the case of any defects in the electronic files or any discrepancies between them and the hardcopy of the documents prepared by Kimley-Horn, the hardcopy shall govern. 6) Intellectual Property. Kimley-Horn may use or develop its proprietary software, patents, copyrights, trademarks, trade secrets, and other intellectual property owned by Kimley-Horn or its affiliates ("Intellectual Property") in the performance of this Agreement. Unless explicitly agreed to in writing by both parties to the contrary, Kimley-Horn maintains all interest in and ownership of its Intellectual Property and conveys no interest, ownership, license to use, or any other rights in the Intellectual Property to Client. Any enhancements of Intellectual Property made during the performance of this Agreement are solely owned by Kimley-Horn and its affiliates. If Kimley-Horn's services include providing Client with access to or a license for Kimley-Horn's (or its affiliates') proprietary software or technology, Client agrees to the terms of the Software License Agreement set forth at httDs://www.kimley-hom.comtkhts�softwareµlucense-a regiment, ("the License Agreement") which terms are incorporated herein by reference. 7) Opinions of Cost. Because Kimley-Horn does not control the cost of labor, materials, equipment or services furnished by others, methods of determining prices, or competitive bidding or market conditions, any opinions rendered as to costs, including but not limited to the costs of construction and materials, are made solely based on its judgment as a professional familiar with the industry. Kimley-Horn cannot and does not guarantee that proposals, bids or actual costs will not vary from its opinions of cost. If the Client wishes greater assurance as to the amount of any cost, it shall employ an independent cost estimator. Kimley-Horn's services required to bring costs within any limitation established by the Client will be paid for as Additional Services. 8) Termination. The obligation to provide further services under this Agreement may be terminated by either party upon seven days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof, or upon thirty days' written notice for the convenience of the terminating party. Kimley-Horn shall be paid for all services rendered and expenses incurred to the effective date of termination, and other reasonable expenses incurred by Kimley-Horn as a result of such termination. 9) Standard of Care. The standard of care applicable to Kimley-Horn's services will be the degree of care and skill ordinarily exercised by consultants performing the same or similar services in the same locality at the time the services are provided. No warranty, express or implied, is made or intended by Kimley-Horn's performance of services, and it is agreed that Kimley-Horn is not a fiduciary with respect to the Client. 10) LIMITATION OF LIABILITY. In recognition of the relative risks and benefits of the Project to the Client and Kimley- Horn, the risks are allocated such that, to the fullest extent allowed by law, and notwithstanding any other provisions of this Agreement or the existence of applicable insurance coverage, that the total liability, in the aggregate, of Kimley- Horn and Kimley-Horn's officers, directors, employees, agents, and subconsultants to the Client or to anyone claiming by, through or under the Client, for any and all claims, losses, costs or damages whatsoever arising out of or in any way related to the services under this Agreement from any causes, including but not limited to, the negligence, professional errors or omissions, strict liability or breach of contract or any warranty, express or implied, of Kimley-Horn or Kimley-Horn's officers, directors, employees, agents, and subconsultants, shall not exceed twice the total compensation received by Kimley-Horn under this Agreement or $50,000, whichever is greater. Higher limits of liability may be negotiated for additional fee. This Section is intended solely to limit the remedies available to the Client or those claiming by or through the Client, and nothing in this Section shall require the Client to indemnify Kimley-Horn. 11) Mutual Waiver of Consequential Damages. In no event shall either party be liable to the other for any consequential, incidental, punitive, or indirect damages including but not limited to loss of income or loss of profits. 12) Construction Costs. Under no circumstances shall Kimley-Horn be liable for extra costs or other consequences due to unknown conditions or related to the failure of contractors to perform work in accordance with the plans and specifications. Kimley-Horn shall have no liability whatsoever for any costs arising out of the Client's decision to obtain bids or proceed with construction before Kimley-Horn has issued final, fully approved plans and specifications. The Client acknowledges that all preliminary plans are subject to substantial revision until plans are fully approved and all permits obtained. 13) Certifications. All requests for Kimley-Horn to execute certificates, lender consents, or other third -party reliance letters must be submitted to Kimley-Horn at least 14 days prior to the requested date of execution. Kimley-Horn shall not be required to execute certificates, consents, or third -party reliance letters that are inaccurate, that relate to facts of which Rev 06/2023 Agreement No. 6851 miff �, 17 Kimley-Horn does not have actual knowledge, or that would cause Kimley-Horn to violate applicable rules of professional responsibility. 14) Dispute Resolution. All claims arising out of this Agreement or its breach shall be submitted first to mediation in accordance with the American Arbitration Association as a condition precedent to litigation. Any mediation or civil action by Client must be commenced within one year of the accrual of the cause of action asserted but in no event later than allowed by applicable statutes. 15) Hazardous Substances and Conditions. Kimley-Horn shall not be a custodian, transporter, handler, arranger, contractor, or remediator with respect to hazardous substances and conditions. Kimley-Horn's services will be limited to analysis, recommendations, and reporting, including, when agreed to, plans and specifications for isolation, removal, or remediation. Kimley-Horn will notify the Client of unanticipated hazardous substances or conditions of which Kimley- Horn actually becomes aware. Kimley-Horn may stop affected portions of its services until the hazardous substance or condition is eliminated. 16) Construction Phase Services. a. If Kimley-Horn prepares construction documents and Kimley-Horn is not retained to make periodic site visits, the Client assumes all responsibility for interpretation of the documents and for construction observation, and the Client waives any claims against Kimley-Horn in any way connected thereto. b. Kimley-Horn shall have no responsibility for any contractor's means, methods, techniques, equipment choice and usage, equipment maintenance and inspection, sequence, schedule, safety programs, or safety practices, nor shall Kimley-Horn have any authority or responsibility to stop or direct the work of any contractor. Kimley-Horn's visits will be for the purpose of endeavoring to provide the Client a greater degree of confidence that the completed work of its contractors will generally conform to the construction documents prepared by Kimley-Horn. Kimley-Horn neither guarantees the performance of contractors, nor assumes responsibility for any contractor's failure to perform its work in accordance with the contract documents. c. Kimley-Horn is not responsible for any duties assigned to it in the construction contract that are not expressly provided for in this Agreement. The Client agrees that each contract with any contractor shall state that the contractor shall be solely responsible for job site safety and its means and methods; that the contractor shall indemnify the Client and Kimley-Horn for all claims and liability arising out of job site accidents; and that the Client and Kimley-Horn shall be made additional insureds under the contractor's general liability insurance policy. 17) No Third -Party Beneficiaries; Assignment and Subcontracting. This Agreement gives no rights or benefits to anyone other than the Client and Kimley-Horn, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole benefit of the Client and Kimley-Horn. The Client shall not assign or transfer any rights under or interest in this Agreement, or any claim arising out of the performance of services by Kimley-Horn, without the written consent of Kimley-Horn. Kimley-Horn reserves the right to augment its staff with subconsultants as it deems appropriate due to project logistics, schedules, or market conditions. If Kimley-Horn exercises this right, Kimley-Horn will maintain the agreed -upon billing rates for services identified in the contract, regardless of whether the services are provided by in-house employees, contract employees, or independent subconsultants. 18) Confidentiality. The Client consents to the use and dissemination by Kimley-Horn of photographs of the project and to the use by Kimley-Horn of facts, data and information obtained by Kimley-Horn in the performance of its services. If, however, any facts, data or information are specifically identified in writing by the Client as confidential, Kimley-Horn shall use reasonable care to maintain the confidentiality of that material. 19) Miscellaneous Provisions. This Agreement is to be governed by the law of the State of California. This Agreement contains the entire and fully integrated agreement between the parties and supersedes all prior and contemporaneous negotiations, representations, agreements, or understandings, whether written or oral. Except as provided in Section 1, this Agreement can be supplemented or amended only by a written document executed by both parties. Any conflicting or additionalterms on any purchase order issued by the Client shell be void and are hereby expressly rejected by Kimley-Horn. If Client requires Kimley-Horn to register with or use an online vendor portal for payment or any other purpose, any terms included in the registration or use of the online vendor portal that are inconsistent or in addition to these terms shall be void and shall have no effect on Kimley-Horn or this Agreement. Any provision in this Agreement that is unenforceable shall be ineffective to the extent of such unenforceability without invalidating the remaining provisions. The non -enforcement of any provision by either party shall not constitute a waiver of that provision nor shall it affect the enforceability of that provision or of the remainder of this Agreement. Rev 06/2023