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CONTRACT 5641 Professional Services Agreement CLOSED Agreement No. 5641 AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF EL SEGUNDO AND KIMLEY-HORN AND ASSOCIATES, INC. CEQA DETERMINATION FOR THE LAKES SPECIFIC PLAN AND TOPGOLF PROJECT 2018 This AGREEMENT is entered into and takes effect this-JL""day of December, 2018, by and between the CITY OF EL SEGUNDO, a general law city and municipal corporation("CITY") and KIMLEY-HORN AND ASSOCIATES, INC., a North Carolina Corporation ("CONSULTANT"). The parties agree as follows: 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 for CONSULTANT's services. CONSULTANT acknowledges that it will be paid by funds received by the CITY from the Developer and/or Applicant associated with The Lakes Specific Plan and Topgolf project for which CONSULTANT performs services on behalf of the CITY. 2. SCOPE OF SERVICES. A. CONSULTANT will perform services listed in the attached Exhibit A. which is incorporated herein. & CONSULTANT will, using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals, with a level of experience and training similar to CONSULTANT, performing under circumstances similar to those required by this Agreement, 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 as specified in Exhibit A, Scope of Services, necessary or proper to perform and complete the work and provide the professional services required of CONSULTANT by this Agreement. 3. PAYMENTS. For CITY to pay CONSULTANT as specified by this Agreement, CONSULTANT must submit a detailed invoice to CITY that lists the hours worked and hourly rates for each personnel category and reimbursable costs (all as set forth in Exhibit B) the tasks Agreement No. 5641 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. If the CITY agrees with all of the information listed in the invoice, CITY will then pay CONSULTANT from the Developer/ Applicant account created for the project. In the event that the Developer/Applicant account does not have sufficient funds for payment of CONSULTANT's services, CITY will notify CONSULTANT in writing to suspend any work under this Agreement until the account is replenished by the Developer/Applicant. The CITY is not responsible for the cost of any of CONSULTANT's services after the date of such written notice, unless and until the Developer / Applicant account is replenished with sufficient funds. This Agreement will cover only those costs incurred for which Developer/Applicant funds are available. 4. POLITICAL REFORM ACT. CONSULTANT agrees that it will be considered a public official subject to the Political Reform Act of 1974 for purposes of this Agreement. CONSULTANT agrees and warrants that it has no financial interests which may be materially affected by the project(s) for which it is performing services. Such financial interests may include, without limitation, interests in business entities, real property, or sources of income exceeding $500 received within the past year. CONSULTANT further warrants that, before executing this Agreement, it reviewed the Political Reform Act of 1974 and the Fair Political Practices Commission regulations, including, without limitation, Chapter 7 of Title 2 of the California Administrative Code, Section 18700, et seq., in order to determine whether any conflict of interest would require CONSULTANT to refrain from performing the services or in any way attempting to use its official position to influence the governmental decisions underlying the subject proj ect(s). 5. FAMILIARITY WITH WORK. A. By executing this Agreement, CONSULTANT represents that CONSULTANT has i. Thoroughly investigated and considered the scope of services to be performed; ii. 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 represents 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. C. Although CITY has a duty to the public to independently review any environmental document, including, without limitation a negative declaration or draft EIR, prepared by CONSULTANT,that duty to the public, or the breach thereof, will not Page 2 of 1 l Agreement No. 5641 relieve CONSULTANT of its duties under this Section or any representation provided by CONSULTANT in this Agreement. 6. KEY PERSONNEL. A. CONSULTANT's key personnel assigned to perform work under this Agreement and their level of responsibility are as follows but is not limited to: Rita Garcia, Project Manager B. In the event CITY objects to the continued involvement with this Agreement by any of the persons listed in this Section, or any other person selected by CONSULTANT to perform services under this AGREEMENT, CONSULTANT agrees that it will replace such persons with individuals that are agreed to by CITY. 7. TERM. The term of this Agreement will start on the effective and end on April 1,2019. 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; & Termination as stated in Section 15. 8. TIME FOR PERFORMANCE. CONSULTANT will not perform any work under this Agreement until: A. CONSULTANT furnishes proof of insurance as required by this Agreement; and B. CITY gives CONSULTANT a written Notice to Proceed. C. 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 CITY within 48 hours, in writing, of the cause and the extent of the delay and how such delay interferes with the Agreement's schedule. CITY may,but is not required to,extend the completion time,when appropriate,for the completion of the contracted services. 10. 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. Page 3 of 11 Agreement No. 5641 11. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a Taxpayer Identification Number. 12. 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. 13. PROJECT COORDINATION AND SUPERVISION. A. Datil Arinstronu will be responsible for negotiations and contractual matters with CITY's Project Manager. B. Jolm lZaiiairez will be assigned as Project Manager and will be responsible for job performance and coordination with CITY's Project Manager. C. CI �l McClain, Planning Manager, will be assigned as CITY's Project Manager and will be personally in charge of and personally supervise or perform the technical execution of the Project on a day-to-day basis on behalf of CITY and will maintain direct communication with CONSULTANT's Project Manager. 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 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. Notice of termination will be in writing. B. CONSULTANT may terminate this Agreement at any time with CITY's mutual consent. Notice will be in writing at least thirty days before the effective termination date. C, 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 rendered in accordance with the terms and conditions of this agreement up to the effective date of notice of termination, not to exceed the total costs under Section 1(C). Page 4 of 11 Agreement No. 5641 D. Should the Agreement be terminated pursuant to this Section, CITY may procure on its own terms services similar to those terminated. E. 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 city without CITY's prior written approval. All press releases, 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: i, Indemnification for Professional Services. CONSULTANT will save harmless and indemnify, including, without limitation, CITY's defense costs (including reasonable attorney's fees), 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,except for such loss or damage arising from CITY's sole negligence or willful misconduct. ii. Indemnification for other Damages.CONSULTANT indemnifies and holds CITY harmless from and against any claim, action, damages, costs (including, without limitation, reasonable attorney's fees), injuries, or liability, arising out of this Agreement, or its performance, except for such loss or damage arising from CITY's sole negligence or willful misconduct. 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. Page 5 of l 1 Agreement No. 5641 iii. Exclusion for CEQA Actions. Notwithstanding the foregoing, CONSULTANT need not indemnify, defend, or hold CITY harmless in CEQA actions initiated pursuant to Public Resources Code §§ 21167 and 21168 where CONSULTANT's work may form the basis of a lawsuit. However, should CONSULTANT's work, as contemplated by this Agreement, contain errors or omissions that results in an adverse ruling against CITY, CONSULTANT agrees to indemnify and hold CITY harmless to the extent provided for in Section 18(A)(i). B, For purposes of this section "CITY" includes CITY's officers, officials and employees. 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 22, 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. 19. ASSIGNABILITY. 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. A. CONSULTANT agrees that CITY, or designee, has the right to review, obtain, and copy all records pertaining to the performance of this Agreement. CONSULTANT agrees to provide CITY, or designee, with any relevant information requested and will permit CITY, or designee, access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpose of determining compliance with this Agreement. CONSULTANT further agrees to maintain such records for a period of three years following final payment under this Agreement. Page 6 of]] Agreement No. 5641 B. Upon inspection, CONSULTANT will promptly implement any corrective measures required by CITY regarding the requirements of this Section. CONSULTANT will be given a reasonable amount of time to implement said corrective measures. Failure of CONSULTANT to implement required corrective measures will result in immediate termination of this Agreement. C. CONSULTANT will keep all books, records, accounts and documents pertaining to this Agreement separate from other activities unrelated to this Agreement. 22. INSURANCE. A. Before commencing performance under this Agreement, and at all other times this Agreement is effective, CONSULTANT must procure and maintain the following types of insurance with coverage limits complying, at a minimum, with the limits set forth below: of Insurance [.�ipiit ._,C nibined :sinsde) Commercial general liability: $1,000,000 Professional Liability $1,000,000 Business automobile liability $1,000,000 Workers compensation Statutory requirement. B. Commercial general liability insurance will meet or exceed the requirements of the most recent ISO-CGL Form. 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 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 30 days prior written notice to CITY C. Automobile coverage will be written on ISO Business Auto Coverage Form CA 00 0106 92, including symbol 1 (Any Auto) or an acceptable equivalent. D. 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 maintain the insurance in effect for a period of three years after this Agreement expires or is terminated ("extended insurance"). Such extended 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. Page 7 of 11 Agreement No. 5641 E. CONSULTANT will furnish to City duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement, endorsements as required herein, 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 terminate. 23. USE OF CONSULTANT. 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: CITY: CONSULTANT: El Segundo Planning & Building Safety Dept. Kimley-Horn and Associates, Inc. 350 Main Street 765 The City Drive, #200 El Segundo, CA 90245-3813 Orange, CA 92868 Attn: Gregg McClain, Planning Manager Attn: Serine Ciandella, Sr. Vice President 310-524-2393 714-939-1030 gmcclain@elsegundo.org Serine.ciandella@kimley-horn.com 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. 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. 27. 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. Page 8 of 11 Agreement No. 5641 There will be no incidental or other beneficiaries of any of CONSULTANT's or CITY's obligations under this Agreement. 28. 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 or in the Federal District Court in the District of California in which Los Angeles County is located. 29. ENTIRE AGREEMENT. This Agreement, and its Exhibits, sets forth the entire understanding of the parties. There are no other understandings, terms or other agreements expressed or implied, oral or written. There are three Exhibits to this Agreement. This Agreement will bind and inure to the benefit of the parties to this Agreement and any subsequent successors and assigns. 30. 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: I A. Exhibit A: Proposal for Services/Scope of Work;o"l B. Exhibit B: Budget; 31. 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. 32. 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. 33. 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 signed by both parties. CITY's city manager, or designee, may execute any such amendment on behalf of CITY. 34. EXECUTION OF AGREEMENT; COUNTERPARTS; ELECTRONIC SIGNATURES. This Agreement may be executed in several counterparts, each of which will be deemed to be an original and all of which will constitute one and the same instrument. 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 mail in "portable document format" (i.e., .pdf) form, or by facsimile transmission. Such signature will be deemed to be and treated in all respects as an original signature. Page 9 of 11 Agreement No. 5641 35. COVENANTS AND CONDITIONS. The parties agree that all of the provisions hereof will be construed as both covenants and conditions,the same as if the words importing such covenants and conditions had been used in each separate paragraph. 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. FORCE MAJEURE. In no event shall either CONSULTANT or the CITY have any claim or right against the other for any failure of performance where such failure of performance is caused by or is the result of causes beyond the reasonable control of the other party due to any occurrence commonly known as a "force majeure," including, but not limited to: acts of God; fire, flood, or other natural catastrophe; acts of any governmental body, labor dispute or shortage; national emergency; insurrection; riot; or war. 38. 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 using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals,with a level of experience and training similar to CONSULTANT, performing under circumstances similar to those required by this Agreement. 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 agency. [SIGNATURES ON FOLLOWING PAGE] Page 10 of 11 Agreement No. 5641 IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first hereinabove written. CITY OF EL SEGUNDO KIMLEY-HORN AND ASSOCIATES, INC, a g iieml law city a North Carolina Corporation Taxpayer ID No. 56-0885615 Gee ai,p tei'. Serine Ciandella, C a 4aiiagger• Sr. Vice President December 27, 2018 Date A'T"1'EST I l"I icy Weaver, City Clerk APPROVED AS TO FORM: V \ l for Mark D. Hensley, City Attorney Page 11 of 11 Agreement No. 5641 Exhibit A: Proposal for Services/Scope of Work 1. See Attached. Agreement No. 5641 rumley))) Horn December 27, 2018 Mr. Eduardo Schonborn Principal Planner City of EI Segundo 350 Main Street EI Segundo, CA 90245 Re: Proposal to Provide Environmental Consulting Services for The Lakes Specific Plan and Topgolf Project, City of EI Segundo, California Dear Mr. Schonborn: Kimley-Horn and Associates, Inc. ("Kimley-Horn" or "Consultant") is pleased to submit this Proposal to the City of EI Segundo("Client")to provide Environmental Consulting Services for The Lakes Specific Plan and Topgolf Project. PROJECT UNDERSTANDING This Project understanding is based on conversations with Mr. Eduardo Schonborn, review of Client- provided documentation, and Kimley-Horn's understanding of the Project issues. On September 5, 2017, the EI Segundo City Council adopted Resolution No. 5054 certifying The Lakes Specific Plan and Topgolf Project Environmental Impact Report(EA-1135)(EIR).The September 5,2017 actions did not include Project approval. EIR Section 3.0 details the Project analyzed in the certified EIR, hereinafter referred to as the"Proposed Project."The Proposed Project would replace an existing driving range and hitting bays at The Lakes Country Club with a three-story Topgolf facility and involve approximately 70,680 gross square feet of new development(EIR Table 3-4).The Project Applicant is considering modifications to the Proposed Project. The current proposal, hereinafter referred to as the "Proposed Modified Project," is presented in the Client-provided December 2018 Project plans (Area Group Architects, Inc., December 2018). The Client is seeking a Consultant to evaluate the Proposed Modified Project concerning the appropriate CEQA compliance. SCOPE OF SERVICES Kimley-Horn will provide the Scope of Services specifically set forth below. The Scope assumes the baseline conditions, Project Description (i.e., Proposed Modified Project), and approach will not change once the City issues the Authorization to Proceed.The Scope also assumes the City will provide one reconciled set of comments for each deliverable, and that the comments will not raise new substantive issues requiring re-analysis. Agreement No. 5641 Ir e , Mr. Eduardo Schonborn, December 27,2018, Page 2 TASK . CONSULTING Kimley-Horn will provide as-needed consulting services to the Client. This task is intended for Rita Garcia and other key Kimley-Horn staff to provide technical support to the Client concerning CEQA compliance for the Proposed Modified Project. Kimley-Horn will: • Evaluate the Proposed Modified Project to determine if any of the conditions requiring preparation of a subsequent EIR have been met pursuant to State CEQA Guidelines §15162, Subsequent EIRs and Negative Declarations. • Prepare a Technical Memorandum (TM) that presents the findings of the Proposed Modified Project's evaluation and makes recommendations concerning the Proposed Modified Project's CEQA compliance. • Answer Client inquiries and provide technical input via telephone/email. • Participate in conference calls/attend in-person meetings, as requested by the Client. ADDITIONAL SERVICES 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. Additional services we can provide include, but are not limited to,the following: • Trip Generation TM; « Subsequent EIR; and • Addendum EIR. INFORMATION ICLIENT 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, including but not limited to the following: • Proposed Project Plans; and • Applicant-Prepared Studies. PRELIMINARY SCHEDULE We are prepared to begin work upon receipt of Authorization to Proceed (ATP). We anticipate completion of an internal draft of the TM that presents the findings of the Proposed Modified Project's evaluation no later than January 7, 2019, assuming ATP no later than January 2, 2019. u, „ ill u ® - ® o® o . W-11 o 0 Agreement No. 5641 KimleY Mr. Eduardo Schonborn, December 27,2018, Page 3 FEE AND EXPENSES Kimley-Horn will perform the Services in Task 1.0 on a labor fee plus expense basis. Labor fee will be billed on an hourly basis according to our then-current rates. Direct reimbursable expenses such as express delivery services, fees, air travel, and other direct expenses will be billed at 1.10 times cost. A percentage of labor fee will be added to each invoice to cover certain other expenses such as telecommunications, in-house reproduction, postage, supplies, project related computer time, and local mileage. Administrative time related to the project will be billed hourly. 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. Based on current information, Kimley-Horn estimates that labor fees will be approximately $5,300. Fee estimates in this Agreement are for general budgeting purposes only. Actual fees may be less or more than the estimates. Payment will be due within 30 days of your receipt of the invoice and should include the invoice number and Kimley-Horn Project Number. CLOSURE 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 City of EI Segundo. To expedite invoices and reduce paper waste, Kimley-Horn 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 the Agreement and return to us. We will commence services only after Agreement No. 5641 KrimIeyoHorn Mr. Eduardo Schonborn, December Z7,2018, Page 4 we have received a fully-executed agreement. Fees and times stated in this Proposal are valid for sixty (60) days after the date of this letter. To ensure proper set up of your project so that we can get started, please complete and return with the signed copy of this Agreement the attached Request for Information. Failure to supply this information could result in delay in starting work on your project. We appreciate the opportunity to provide these services to you. Please contact Rita Garcia at 714.786.6116 or rita.garcia@kimley-horn.com, if you have any questions. Sincerely, KIMLEY-HORN AND ASSOCIATES, INC. By: Rita Garcia Serine Ciandella Project Manager Senior Vice President Client's Federal Tax ID.- Client's D:Client's Business License No.: Client's Street Address: Attachment—Request for Information Attachment—Standard Provisions 113 Il Agreement No. 5641 Request for Information Please return this information with your signed contract; failure to provide this information could result in delay in starting your project Client Identification ............ .. Full, Legal Name of Client Mailing Address for Invoices Contact for Billing Inquiries Contact's Phone and e-mail Client is (check one) Owner Agent for Owner Unrelated to Owner �._ . Property Identificatio i ....... .... .....................__.._........................._...... Parcell Parcel2 Parcel Parcel Street Address ....................... County in which Property is Located Tax Assessor's Number(s) Property Owner Identification Owner 1 Owner 2 Owner 3 Owner 4 Owner(s) Name . __._ .... ........... OWner(s) Mailing Address Owner's Phone No. Owner of Which Parcel#? Project Funding Identification —List Funding Sources for the Project .... ............................... _..................._........... . ..-.. .........� ............................................... Attach additional sheets if there are more than 4 parcels or more than 4 owners Agreement No. 5641 KIMLEY-HORN AND ASSOCIATES, INC. STANDARD PROVISIONS (1) Consultant's Scope of Services and Additional Services. The Consultant will perform only the services specifically described in this Agreement. If requested by the Client and agreed to by the Consultant, the Consultant will perform Additional Services, which shall be governed by these provisions. Unless otherwise agreed to in writing, the Client shall pay the Consultant for any Additional Services an amount based upon the Consultant'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 1.10 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 the Consultant all available studies, plans, or other documents pertaining to the project, such as surveys, engineering data, environmental information, etc., all of which the Consultant may rely upon. (d) Arrange for access to the site and other property as required for the Consultant to provide its services. (e) Review all documents or reports presented by the Consultant and communicate decisions pertaining thereto within a reasonable time so as not to delay the Consultant. (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 the Consultant whenever the Client becomes aware of any development that affects the Consultant's services or any defect or noncompliance in any aspect of the project. (3) Period of Services. Unless otherwise stated herein, the Consultant 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 the Consultant does not control. If such delay or suspension extends for more than six months, Consultant's compensation shall be renegotiated. (4) Method of Payment. Client shall pay Consultant as follows: (a) Invoices will be submitted periodically for services performed and expenses incurred. Invoices are due and payable upon presentation. Client shall pay Consultant 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 the Consultant 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,the Consultant 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 Consultant and Client does not pay Consultant's invoice within 60 days of receipt, Consultant may communicate directly with such third party to secure payment. (c) If the Client objects to an invoice, it must advise the Consultant 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 the Consultant 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 the Consultant's normal hourly billing rates, of the time devoted to such proceedings by its employees. (e) The Client agrees that the payment to the Consultant is not subject to any contingency or condition. The Consultant 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 the Consultant to collect additional amounts from the Client. (5) Use of Documents. All documents and data prepared by the Consultant 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 the Consultant's documents, or any reuse of the documents without written authorization by the Consultant will be at the Client's sole risk and without liability to the Consultant, and the Client shall indemnify, defend and hold the Consultant harmless from all claims, damages, losses and expenses, including but not limited to attorneys' fees, resulting therefrom. The Consultant's electronic files and source code remain the property of the Consultant and shall be provided to the Client only if expressly provided for in Rev 01/18 1' Agreement No. 5641 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 the Consultant,the hardcopy shall govern. (6) Opinions of Cost. Because the Consultant 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. The Consultant 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. Consultant's services required to bring costs within any limitation established by the Client will be paid for as Additional Services. (7) 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. The Consultant shall be paid for all services rendered and expenses incurred to the effective date of termination,and other reasonable expenses incurred by the Consultant as a result of such termination. (8) Standard of Care. The standard of care applicable to Consultant'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 the Consultant's performance of services, and it is agreed that the Consultant is not a fiduciary with respect to the Client. (9) LIMITATION OF LIABILITY. In recognition of the relative risks and benefits of the Project to the Client and the Consultant, 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 the Consultant and the Consultant'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 the Consultant or the Consultant's officers, directors, employees, agents, and subconsultants, shall not exceed twice the total compensation received by the Consultant under this Agreement or $50,000, whichever is greater. Higher limits of liability may be negotiated for additional fee. This Section 9 is intended solely to limit the remedies available to the Client or those claiming by or through the Client,and nothing in this Section 9 shall require the Client to indemnify the Consultant. (10) 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. (11) Construction Costs. Under no circumstances shall the Consultant 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. Consultant shall have no liability whatsoever for any costs arising out of the Client's decision to obtain bids or proceed with construction before the Consultant 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. (12) Certifications. The Consultant shall not be required to execute certifications or third-party reliance letters that are inaccurate, that relate to facts of which the Consultant does not have actual knowledge, or that would cause the Consultant to violate applicable rules of professional responsibility. (13) Dispute Resolution. All claims by the Client 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. (14) Hazardous Substances and Conditions. Consultant shall not be a custodian, transporter, handler, arranger, contractor, or remediator with respect to hazardous substances and conditions. Consultant's services will be limited to analysis, recommendations, and reporting, including, when agreed to, plans and specifications for isolation, removal, or remediation. The Consultant will notify the Client of unanticipated hazardous substances or conditions of which the Consultant actually becomes aware. The Consultant may stop affected portions of its services until the hazardous substance or condition is eliminated. Rev 01/18 2 Agreement No. 5641 (15) Construction Phase Services. (a) If the Consultant prepares construction documents and the Consultant 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 the Consultant in any way connected thereto. (b) The Consultant shall have no responsibility for any contractor's means, methods, techniques, equipment choice and usage, sequence, schedule, safety programs, or safety practices, nor shall Consultant have any authority or responsibility to stop or direct the work of any contractor.The Consultant'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 the Consultant. Consultant 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) The Consultant 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 the Consultant for all claims and liability arising out of job site accidents; and that the Client and the Consultant shall be made additional insureds under the contractor's general liability insurance policy. (16) No Third-Party Beneficiaries; Assignment and Subcontracting. This Agreement gives no rights or benefits to anyone other than the Client and the Consultant, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole benefit of the Client and the Consultant. 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 Consultant,without the written consent of the Consultant. The Consultant reserves the right to augment its staff with subconsultants as it deems appropriate due to project logistics, schedules, or market conditions. If the Consultant exercises this right,the Consultant 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. (17) Confidentiality. The Client consents to the use and dissemination by the Consultant of photographs of the project and to the use by the Consultant of facts, data and information obtained by the Consultant in the performance of its services. If, however, any facts, data or information are specifically identified in writing by the Client as confidential, the Consultant shall use reasonable care to maintain the confidentiality of that material. (18) Miscellaneous Provisions. This Agreement is to be governed by the law 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 additional terms on any purchase order issued by the Client shall be void and are hereby expressly rejected by the Consultant. 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 01/18 3 Agreement No. 5641 Exhibit : Budget 1. See Attached. Agreement No. 5641 i• ey Mr. Eduardo Schonborn, December 27, 2018, Page 3 FEE AND EXPENSES Kimley-Horn will perform the Services in Task 1.0 on a labor fee plus expense basis. Labor fee will be billed on an hourly basis according to our then-current rates. Direct reimbursable expenses such as express delivery services, fees, air travel, and other direct expenses will be billed at 1.10 times cost. A percentage of labor fee will be added to each invoice to cover certain other expenses such as telecommunications, in-house reproduction, postage, supplies, project related computer time, and local mileage. Administrative time related to the project will be billed hourly. 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. Based on current information, Kimley-Horn estimates that labor fees will be approximately $5,300. Fee estimates in this Agreement are for general budgeting purposes only. Actual fees may be less or more than the estimates. Payment will be due within 30 days of your receipt of the invoice and should include the invoice number and Kimley-Horn Project Number.