McGee Surveying Consulting (2013) CITY OF RANCHO PALOS VERDES
PROFESSIONAL/TECHNICAL SERVICES AGREEMENT
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THIS AGREEMENT ("Agreement") is made and entered into this _3 day of
, 2013, by and between the City of Rancho Palos Verdes, a California
unicipal corporation (hereinafter referred to as the "CITY")and Michael R. McGee, PLS,
d/b/a McGee Surveying Consulting (hereafter referred to as "CONSULTANT").
IN CONSIDERATION of the covenants hereinafter set forth, the parties hereto agree
as follows:
ARTICLE 1
SCOPE OF SERVICES
1.1 Project Description
The Project is described as engineering and land surveying services to
monitor land movements in the Portuguese Bend, Klondike Canyon and Abalone Cove
landslide areas.
1.2 Description of Services
CONSULTANT shall provide surveying services which include using GPS
survey techniques to identify movement within the Abalone Cove, Klondike Canyon and
Portuguese Bend landslide areas for CITY, as described in the CONSULTANT's Proposal,
which is attached hereto as Exhibit "A" and incorporated herein by this reference. In the
event of any conflict between the terms of this Agreement and incorporated documents,
the terms of this Agreement shall control.
1.3 Schedule of Work
Upon receipt of written Notice to Proceed from the CITY, CONSULTANT
shall perform with due diligence the services requested by the CITY. Time is of the
essence in this Agreement. CONSULTANT shall not be responsible for delay, nor shall
CONSULTANT be responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish timely
information or to approve or disapprove CONSULTANT's work promptly, or delay or faulty
performance by CITY, other consultants/contractors, or governmental agencies, or any
other delays beyond CONSULTANT's control or without CONSULTANT's fault.
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ARTICLE 2
COMPENSATION
2.1 Fee
CITY agrees to compensate CONSULTANT an amount not to exceed forty-
nine thousand and ten dollars ($49,010) for services as described in Article 1.
2.2 Payment Address
All payments due CONSULTANT shall be paid to:
McGee Surveying Consulting
5290 Overpass Road, Suite #107
Santa Barbara, CA 93111
2.3 Terms of Compensation
CONSULTANT shall submit monthly invoices for the percentage of work
completed in the previous month. CITY agrees to authorize payment for all undisputed
invoice amounts within thirty (30) days of receipt of each invoice. CITY agrees to use its
best efforts to notify CONSULTANT of any disputed invoice amounts or claimed
completion percentages within ten (10) days of the receipt of each invoice. However,
CITY's failure to timely notify CONSULTANT of a disputed amount or claimed completion
percentage shall not be deemed a waiver of CITY's right to challenge such amount or
percentage.
Additionally, in the event CITY fails to pay any undisputed amounts due
CONSULTANT within forty-five (45) days after invoices are received by CITY then CITY
agrees that CONSULTANT shall have the right to consider said default a total breach of
this Agreement and be terminated by CONSULTANT without liability to CONSULTANT
upon ten (10) working days advance written notice.
2.4 Additional Services
CITY may request additional specified work under this Agreement. All such
work must be authorized in writing by the CITY's Director of Public Works prior to
commencement. CONSULTANT shall perform such services, and CITY shall pay for such
additional services in accordance with CONSULTANT's Rate Schedule, which is within
Exhibit "A." The Rate Schedule in Exhibit "A" shall be in effect through the end of this
Agreement.
2.5 Term of Agreement
This Agreement shall commence on the day after this Agreement is executed
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and shall terminate on June 30, 2014, unless sooner terminated pursuant to Article 4 of
this Agreement.
ARTICLE 3
INDEMNIFICATION AND INSURANCE
3.1 Indemnification, Hold Harmless, and Duty to Defend
(a) Indemnity for Design Professional Services. In connection with its
design professional services and to the maximum extent permitted by law, CONSULTANT
shall hold harmless and indemnify CITY, and its officials, officers, employees, agents and
independent contractors serving in the role of CITY officials, and designated volunteers
(collectively, "Indemnitees"), with respect to any and all claims, demands, causes of action,
damages, injuries, liabilities, losses, costs or expenses, including reimbursement of
attorneys' fees and costs of defense (collectively, "Claims" hereinafter), including but not
limited to Claims relating to death or injury to any person and injury to any property, which
arise out of, pertain to, or relate to in whole or in part to the negligence, recklessness, or
willful misconduct of CONSULTANT or any of its officers, employees, subcontractors, or
agents in the performance of its design professional services under this Agreement.
(b) Other Indemnities. In connection with any and all claims, demands,
causes of action, damages, injuries, liabilities, losses, costs or expenses, including
attorneys' fees and costs of defense (collectively, "Damages" hereinafter) not covered by
Section 3.1(a), and to the maximum extent permitted by law, CONSULTANT shall defend,
hold harmless and indemnify the Indemnitees with respect to any and all Damages,
including but not limited to, Damages relating to death or injury to any person and injury to
any property, which arise out of, pertain to, or relate to the acts or omissions of
CONSULTANT or any of its officers, employees, subcontractors, or agents in the
performance of this Agreement, except for such loss or damage arising from the sole
negligence or willful misconduct of the CITY, as determined by final arbitration or court
decision or by the agreement of the parties. CONSULTANT shall defend Indemnitees in
any action or actions filed in connection with any such Damages with counsel of CITY's
choice, and shall pay all costs and expenses, including all attorneys' fees and experts'
costs actually incurred in connection with such defense. Consultant's duty to defend
pursuant to this Section 3.1(b) shall apply independent of any prior, concurrent or
subsequent misconduct, negligent acts, errors or omissions of Indemnitees.
(c) All duties of CONSULTANT under Section 3.1 shall survive termination
of this Agreement.
3.2 General Liability
CONSULTANT shall at all times during the term of the Agreement carry,
maintain, and keep in full force and effect, a policy or policies of Commercial General
Liability Insurance, with minimum limits of one million dollars ($1,000,000) for each
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occurrence and two million dollars($2,000,000)general aggregate for bodily injury, death,
loss or property damage for products or completed operations and any and all other
activities undertaken by CONSULTANT in the performance of this Agreement. Said policy
or policies shall be issued by an insurer admitted to do business in the State of California
and rated in A.M. Best's Insurance Guide with a rating of A:VII or better.
3.3 Automobile Liability
CONSULTANT shall at all times during the term of this Agreement obtain,
maintain, and keep in full force and effect, a policy or policies of Automobile Liability
Insurance, with minimum of one million dollars($1,000,000) per claim and occurrence and
two million dollars ($2,000,000) in the aggregate for bodily injuries or death of one person
and five hundred thousand dollars ($500,000) for property damage arising from one
incident.
3.4 Notice of Cancellation
(a) All insurance policies shall provide that the insurance coverage shall
not be cancelled or modified by the insurance carrier without thirty (30)days prior written
notice to CITY, or ten (10) days notice if cancellation is due to nonpayment of premium.
Additionally, CONSULTANT shall provide immediate notice to the City if it receives a
cancellation or policy revision notice from the insurer.
(b) CONSULTANT agrees that it will not cancel or reduce any required
insurance coverage. CONSULTANT agrees that if it does not keep the aforesaid
insurance in full force and effect, CITY may either immediately terminate this Agreement
or, if insurance is available at a reasonable cost, CITY may take out the necessary
insurance and pay, at CONSULTANT's expense, the premium thereon.
3.5 Entire Policy and Certificate of Insurance
At all times during the term of this Agreement, CONSULTANT shall maintain
on file with the CITY Clerk both a copy of the entire policy and a certificate of insurance
showing that the aforesaid policies are in effect in the required amounts. The commercial
general liability policy shall contain endorsements naming the CITY, its officers, agents and
employees as additional insureds.
3.6 Primary Coverage
The insurance provided by CONSULTANT shall be primary to any coverage
available to CITY. The insurance policies (other than workers compensation and
professional liability) shall include provisions for waiver of subrogation.
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ARTICLE 4
TERMINATION
4.1 Termination of Agreement
(a) This Agreement may be terminated at any time,with or without cause,
by the CITY upon thirty(30)days prior written notice or by CONSULTANT upon ninety(90)
days prior written notice. Notice shall be deemed served if completed in compliance with
Section 6.14.
(b) In the event of termination or cancellation of this Agreement by
CONSULTANT or CITY, due to no fault or failure of performance by CONSULTANT,
CONSULTANT shall be paid compensation for all services performed by CONSULTANT,
in an amount to be determined as follows: for work satisfactorily done in accordance with
all of the terms and provisions of this Agreement as determined by the CITY,
CONSULTANT shall be paid an amount equal to the percentage of services performed
prior to the effective date of termination or cancellation in accordance with the work items;
provided, in no event shall the amount of money paid under the foregoing provisions of this
paragraph exceed the amount which would have been paid to CONSULTANT for the full
performance of the services described in this Agreement.
ARTICLE 5
OWNERSHIP OF DOCUMENTS
5.1 Ownership of Documents and Work Product
All final documents, plans, specifications, reports, information, data, exhibits,
photographs, images, video files and media created or developed by CONSULTANT
pursuant to this Agreement ("Written Products") shall be and remain the property of the
CITY without restriction or limitation upon its use, duplication or dissemination by the CITY.
All Written Products shall be considered "works made for hire," and all Written Products
and any and all intellectual property rights arising from their creation, including, but not
limited to, all copyrights and other proprietary rights, shall be and remain the property of the
CITY without restriction or limitation upon their use, duplication or dissemination by the
CITY. CONSULTANT shall not obtain or attempt to obtain copyright protection as to any
Written Products.
CONSULTANT hereby assigns to the CITY all ownership and any and all
intellectual property rights to the Written Products that are not otherwise vested in the CITY
pursuant to the paragraph directly above this one.
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CONSULTANT warrants and represents that it has secured all necessary
licenses, consents or approvals to use any instrumentality, thing or component as to which
any intellectual property right exists, including computer software, used in the rendering of
the services and the production of all Written Products produced under this Agreement,
and that the CITY has full legal title to and the right to reproduce the Written Products.
CONSULTANT shall defend, indemnify and hold the CITY, and its elected officials,officers,
employees, servants, attorneys, designated volunteers, and agents serving as independent
contractors in the role of CITY officials, harmless from any loss, claim or liability in any way
related to a claim that CITY's use of any of the Written Products is violating federal, state
or local laws, or any contractual provisions, or any laws relating to trade names, licenses,
franchises, copyrights, patents or other means of protecting intellectual property rights
and/or interests in products or inventions. CONSULTANT shall bear all costs arising from
the use of patented, copyrighted, trade secret or trademarked documents, materials,
equipment, devices or processes in connection with its provision of the services and
Written Products produced under this Agreement. In the event the use of any of the
Written Products or other deliverables hereunder by the CITY is held to constitute an
infringement and the use of any of the same is enjoined, CONSULTANT, at its expense,
shall: (a) secure for CITY the right to continue using the Written Products and other
deliverables by suspension of any injunction, or by procuring a license or licenses for CITY;
or (b) modify the Written Products and other deliverables so that they become non-
infringing while remaining in compliance with the requirements of this Agreement. This
covenant shall survive the termination of this Agreement.
Upon termination, abandonment or suspension of the Project, the
CONSULTANT shall deliver to the CITY all Written Products and other deliverables related
to the Project without additional cost or expense to the CITY. If CONSULTANT prepares a
document on a computer, CONSULTANT shall provide CITY with said document both in a
printed format and in an electronic format that is acceptable to the CITY.
ARTICLE 6
GENERAL PROVISIONS
6.1 Representation
The CITY representative shall be the Director of Public Works or his or her
designee, and CONSULTANT shall notify CITY of CONSULTANT's designated
representative. These individuals shall be the primary contact persons for the parties
regarding performance of this Agreement.
6.2 Fair Employment Practices/Equal Opportunity Acts
In the performance of this Agreement, CONSULTANT shall comply with all
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applicable provisions of the California Fair Employment Practices Act (California
Government Code Sections 12940-48), the applicable equal employment provisions of the
Civil Rights Act of 1964 (42 U.S.C. 200e-217), and the Americans with Disabilities Act of
1990 (42 U.S.C. § 11200, et seq.).
6.3 Personnel
CONSULTANT represents that it has, or shall secure at its own expense, all
personnel required to perform CONSULTANT's services under this Agreement. Any
person who performs engineering services pursuant to this Agreement shall be licensed as
a Civil Engineer by the State of California and in good standing. CONSULTANT shall
make reasonable efforts to maintain the continuity of CONSULTANT's staff who are
assigned to perform the services hereunder and shall obtain the approval of the Director of
Public Works of all proposed staff members who will perform such services.
CONSULTANT may associate with or employ associates or subconsultants in the
performance of its services under this Agreement, but at all times shall CONSULTANT be
responsible for its associates or subconsultants' services.
6.4 CONSULTANT's Representations
CONSULTANT represents, covenants and agrees that: a)CONSULTANT is
licensed, qualified, and capable of furnishing the labor, materials, and expertise necessary
to perform the services in accordance with the terms and conditions set forth in this
Agreement; b)there are no obligations, commitments, or impediments of any kind that will
limit or prevent CONSULTANT's full performance under this Agreement; c) to the extent
required by the standard of practice, CONSULTANT has investigated and considered the
scope of services performed, has carefully considered how the services should be
performed, and understands the facilities, difficulties and restrictions attending
performance of the services under this Agreement.
6.5 Conflicts of Interest
CONSULTANT agrees not to accept any employment or representation
during the term of this Agreement or within twelve(12) months after completion of the work
under this Agreement which is or may likely make CONSULTANT "financially interested"
(as provided in California Government Code Sections 1090 and 87100) in any decisions
made by CITY on any matter in connection with which CONSULTANT has been retained
pursuant to this Agreement.
6.6 Legal Action
(a) Should either party to this Agreement bring legal action against the
other, the validity, interpretation, and performance of this Agreement shall be controlled by
and construed under the laws of the State of California, excluding California's choice of law
rules. Venue for any such action relating to this Agreement shall be in the Los Angeles
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County Superior Court.
(b) If any legal action or other proceeding, including action for declaratory
relief, is brought for the enforcement of this Agreement or because of an alleged dispute,
breach, default or misrepresentation in connection with this Agreement,the prevailing party
shall be entitled to recover reasonable attorneys' fees, experts' fees, and other costs, in
addition to any other relief to which the party may be entitled.
(c) Should any legal action about a project between CITY and a party
other than CONSULTANT require the testimony of CONSULTANT when there is no
allegation that CONSULTANT was negligent, CITY shall compensate CONSULTANT for its
testimony and preparation to testify at the hourly rates in effect at the time of such
testimony.
6.7 Assignment
Neither this Agreement nor any part thereof shall be assigned by
CONSULTANT without the prior written consent of the CITY. Any such purported
assignment without written consent shall be null and void, and CONSULTANT shall hold
harmless, defend and indemnify the CITY and its officers, officials, employees, agents and
representatives with respect to any claim, demand or action arising from any unauthorized
assignment.
Notwithstanding the above, CONSULTANT may use the services of persons
and entities not in CONSULTANT's direct employ, when it is appropriate and customary to
do so. Such persons and entities include, but are not necessarily limited to, surveyors,
specialized consultants, and testing laboratories. CONSULTANT's use of subconsultants
for additional services shall not be unreasonably restricted by the CITY provided
CONSULTANT notifies the CITY in advance.
6.8 Independent Contractor
CONSULTANT is and shall at all times remain, as to the CITY, a wholly
independent contractor. Neither the CITY nor any of its agents shall have control over the
conduct of CONSULTANT or any of the CONSULTANT's employees, except as herein set
forth, and CONSULTANT is free to dispose of all portions of its time and activities which it
is not obligated to devote to the CITY in such a manner and to such persons, firms, or
corporations as the CONSULTANT wishes except as expressly provided in this Agreement.
CONSULTANT shall have no power to incur any debt, obligation,or liability on behalf of the
CITY or otherwise act on behalf of the CITY as an agent. CONSULTANT shall not, at any
time or in any manner, represent that it or any of its agents, servants or employees, are in
any manner agents, servants or employees of CITY. CONSULTANT agrees to pay all
required taxes on amounts paid to CONSULTANT under this Agreement, and to indemnify
and hold the CITY harmless from any and all taxes, assessments, penalties, and interest
asserted against the CITY by reason of the independent contractor relationship created by
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this Agreement. CONSULTANT shall fully comply with the workers' compensation law
regarding CONSULTANT and its employees. CONSULTANT further agrees to indemnify
and hold the CITY harmless from any failure of CONSULTANT to comply with applicable
workers' compensation laws. The CITY shall have the right to offset against the amount of
any fees due to CONSULTANT under this Agreement any amount due to the CITY from
CONSULTANT as a result of its failure to promptly pay to the CITY any reimbursement or
indemnification arising under this Article.
6.9 Titles
The titles used in this Agreement are for general reference only and are not
part of the Agreement.
6.10 Entire Agreement .
This Agreement, including any other documents incorporated herein by
specific reference, represents the entire and integrated agreement between CITY and
CONSULTANT and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be modified or amended, or provisions or
breach may be waived, only by subsequent written agreement signed by both parties.
6.11 Construction
In the event of any asserted ambiguity in, or dispute regarding the
interpretation of any matter herein, the interpretation of this Agreement shall not be
resolved by any rules of interpretation providing for interpretation against the party who
causes the uncertainty to exist or against the party who drafted the Agreement or who
drafted that portion of the Agreement.
6.12 Non-Waiver of Terms, Rights and Remedies
Waiver by either party of any one or more of the conditions of performance under
this Agreement shall not be a waiver of any other condition of performance under this
Agreement. In no event shall the making by the CITY of any payment to CONSULTANT
constitute or be construed as a waiver by the CITY of any breach of covenant, or any
default which may then exist on the part of CONSULTANT, and the making of any such
payment by the CITY shall in no way impair or prejudice any right or remedy available to
the CITY with regard to such breach or default.
6.13 Severability
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
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6.14 Notice
Except as otherwise required by law, any notice or other communication authorized
or required by this Agreement shall be in writing and shall be deemed received on (a)the
day of delivery if delivered by hand or overnight courier service during CONSULTANT's or
CITY's regular business hours or (b) on the third business day following deposit in the
United States mail, postage prepaid, to the addresses listed below, or at such other
address as one party may notify the other:
To CITY:
Mr. Les Jones III, Interim Director of Public Works
City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
To CONSULTANT:
McGee Surveying Consulting
Attn: Michael McGee
5290 Overpass Road, Suite # 107
Santa Barbara, CA 93111
[Signatures on next page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
Dated: (4/!Z/ I 3 MICHAEL R. MCGEE, PLS, d/b/a
� MCGEE SURVEYING CONSULTING
("CONSULTANT")
Michael R. McGee, PLS
Vgt) //1)
Dated: CITY OF RANCHO PALOS VERDES
("CITY")
By:
yor.
ATTEST: APPROVED AS TO FORM:
By: ( n/k22SJLe'J( y
City Clerk City Attorr4, 44/ ,__
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Exhibit "A":
Consultant's Proposal, including Rate Schedule
Exhibit "A"
R6876-0001\1617471 v2.doc
McGEE SURVEYING CONSULTING
5290 Overpass Road,Ste#107-Santa Barbara,CA 93111
Telephone 805-964-3520
Date: August 25, 2013
Ron Dragoo, P.E.
Senior Engineer
City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
Subject: Ranch Palos Verdes: Portuguese Bend Land Slide Monitoring Survey in September 2013 and
April 2014.
The Portuguese Bend Land Slide Monitoring Program for the City of Rancho Pales Verdes has been
ongoing since the 1990's. About 162 points have been measured and analyzed for tracking ground
movement over the years. Points AB 15, AB 18, AB52, AB54, CR52, KCO4 and PB53 have been
discontinued after the September 2012 monitoring and replaced by new points. In September 2013, 65
points will be included in the survey as shown below on the attached "Monitoring points Status for
2013".
Aerial View of Monitorin• Points
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McGEE SURVEYING CONSULTING
5290 Overpass Road,Ste#107-Santa Barbara,CA 93111
Telephone 805-964-3520
Accuracy is the primary consideration and higher accuracy surveys require a diligent effort to mitigate
errors and assure the integrity of the measurements. Over the last decade, many of the points in the
central drainage have moved several hundred feet. About 40 points,mostly in the western and eastern
areas may move only a few inches in a year. These points are measured to a higher standard of
accuracy because the movements are small, whereas the remaining points need not be so precise
because of their larger annual movements. The western area also has considerable tree cover which
interferes with satellite signals requiring more effort to achieve the required accuracies.
The monitoring is based at point AB61 to reference the movement of other points. AB61 was
established and the reference frame updated in 2007 to the North American Datum of 1983, 2007.00
Adjustment. Three CGPS Network Stations(permanently fixed Continuously Operated GPS reference
stations related to the national grid) are included in the survey to insure the long term integrity of the
reference frame and validate the recovery of the reference frame at the time of each survey. These
stations (one situated south of the City Hall) are within 6 miles of the slide area but well outside the
slides influence.
The data collection and processing is based on multiple independent observations where the error
sources are identified, tested and mitigated. QAQC is an integral part of the survey from collecting
field observations to the final network adjustments that develop precise relative and absolute
movements of the slides. This process is planned and designed with the intent of being defensible in
the event of a challenge to the accuracy or integrity of the measurements.
The scope of services are listed as follows.
1- Review reports for prior years, assess the present status of monitoring points and plan the field
campaign.
2- Perform field site reconnaissance to check condition and access to points. Perform maintenance as
necessary to preserve the monitoring points, clear access, and clear obstructions to the sky if
permissible.
3- Perform GNSS field surveys utilizing three dual frequency geodetic quality GN S S receivers and
fixed height poles to collect static data on 65 monitoring points and connect to three CGPS stations.
Each point will be observed for 10-15 minutes, at different times of the day, and on different days to
obtain independent checks on the data quality.
4- Post process the field observations, compare measurements with the CGPS Stations to validate the
recovery of the reference frame,data analysis, and data QAQC, followed by network adjustments to
determine latitude, longitude, ellipsoid heights, elevations and California State Plane Coordinates.
5-Analyze previous monitoring results relative to present movements,prepare spreadsheet summaries
of the annual and overall movements, perform final QAQC, and update the status, descriptions and
photos of the monitoring points in preparation for future surveys.
2
r
McGEE SURVEYING CONSULTING
5290 Overpass Road,Ste#107-Santa Barbara,CA 93111
Telephone 805-964-3520
6- Prepare a Report detailing the specifications and procedures for the field observations, data analysis,
QAQC and proof of accuracy. The Report follows on the previous years work and summarizes the
present history,results of the survey campaign and recommendations for future monitoring.
Cost of Services for Monitoring in September 2012
1. Research, Planning, Field Reconnaissance $ 3040.00
2. GPS Field Surveys $ 14060.00
3. Processing, Analysis, Reports $ 11590.00
4. GPS Receivers $ 3240.00
5. Expenses $ 1600.00
TOTAL COST $ 33,530.00
Cost of Services for Monitoring a subset of 30 Points in the Spring of 2014
Spring 2014 Monitoring option: An optional partial monitoring in the spring of 2014 is provided here.
The cost for providing the services listed as 1 through 5 above for monitoring 30 points would be
$15,480.00. The cost is based on$516.00 per point and will be invoiced on a per point basis should a
lesser number of points be requested. .
Rate Schedule (per hour)
McGee: Licensed Surveyor, GPS Specialists, Expert Witness: $190
Second GPS crew $136
Technician $ 76
If you have any question or require additional information do not hesitate to call on me.
Regards,
Michael McGee, PLS3945
3