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VH Properties Corporation 2003 fiba I` C AGREEMENT BETWEEN THE CITY OF RANCHO PALOS VERDES AND V.H. PROPERTIES, CORPORATION THIS AGREEMENT is made and entered this 2nd day of September 2003,by and between the City of Rancho Palos Verdes, a California municipal corporation("City") and V.H. Properties, Corporation("Developer"). City and Developer are sometimes referred to singularly herein as "Party" and collectively as the "Parties." RECITALS A. Developer is the owner of that certain real property encompassed within Tentative Tract Map No. 50666, a portion of which is proposed for single-family residential development (the"Property"). The Property is part of a larger development,which is owned by Developer and is generally located at 1 Ocean Trails Drive,Rancho Palos Verdes, California, commonly known as the Ocean Trails Project("Ocean Trails"). Ocean Trails consists of a 258-acre site bounded by Palos Verdes Drive South on the north, the Portuguese Bend Club on the west,the Pacific Ocean on the south and Shoreline Park on the east. B. City approved various applications for the Ocean Trails project to allow the construction of a Residential Planned Development of 75 single family dwelling units and the development of an 18-hole golf course with associated clubhouse and parking facilities. C. The Property encompasses three landslide areas. Because portions of the Property that are being developed for residential purposes may be affected by one or more landslides on the Property, the public safety, health and welfare require that the geological and geotechnical conditions of the Property be thoroughly analyzed and addressed before construction of the proposed residences may proceed. D. City and Developer have each retained experts to analyze the geological conditions that underlie the site of the proposed residential units and to make recommendations regarding the potential development of the Property. However, given the inherent complexity of the geology on the Property and the inherent subjectivity of the science of geology, the Parties' respective experts have not always agreed on the geologic conditions on the Property or the actions that are necessary to achieve a factor of safety of at least 1.5 for the development of the residential lots. E. In the past, the Parties have found it useful to utilize a three-member panel of independent experts to review the geological and geotechnical data for the Ocean Trails Project in order to resolve any differences between the Parties' respective experts. However,the former panel of experts did not provide the definitive guidance desired by either City or Developer regarding the development of the residential lots in Tentative Tract 50666. Accordingly, City and Developer desire to form a new three-member panel (the"Panel") to resolve any disputes regarding the geotechnical and geological issues affecting the Property. J r 410 • F. City and Developer desire to cooperate to select three new geological/geotechnical experts to comprise the Panel. City and Developer further desire to enter into this Agreement to memorialize their understanding with respect to this subject matter and their commitment to proceed with the review of the geotechnical and geological conditions of the Property and to be bound by the recommendations and conclusions of the Panel. NOW, THEREFORE, in consideration of the mutual promises, obligations and covenants hereinafter set forth, the Parties hereto agree as follows: Section 1. Incorporation of Recitals. Each and every recital set forth above is hereby incorporated by this reference as though set forth in full and expressly made a part of this Agreement. Section 2. Selection of Panel Experts. City and Developer hereby agree that the three experts who will be members of the Panel will be selected as follows: City and Developer each shall provide a list of experts who are eligible for selection to the panel. Each Party shall have the right to veto any expert included on the other party's list. Each Party shall select one geologist from the other party's approved list to participate on the Panel. The two geologists who have been selected to participate on the Panel are set forth on Exhibit A,which is attached hereto and incorporated herein by this reference. These two geologists then shall select the third expert from a list of geotechnical engineers who have been approved by both Parties pursuant to the process set forth in this Section 2. The final list of individuals who will comprise the three- member Panel are set forth on Exhibit B to this Agreement,which is attached hereto and incorporated herein by this reference. Section 3. Impartial Review. The Parties hereby acknowledge and agree that although City shall retain the three experts who will comprise the Panel, the Panel shall be charged with providing an impartial analysis of the geological and geotechnical data related to the Property and to resolve disagreements between City's geological and geotechnical experts and the experts that are performing work on behalf of Developer. The Parties further acknowledge and agree that the Panel shall be instructed not to meet, either individually or as a panel,privately with either the City, its geologists or its geotechnical engineers or the Developer, its geologists or its geotechnical engineers. City and Developer further agree that: (i) City and Developer shall limit their contact with the Panel to times when both Parties are present; (ii) City and Developer shall have equal input into the Panel's performance of its impartial review; and(iii) City and Developer shall provide joint instructions to the Panel. However, nothing in this Section 3 shall be construed to prevent the members of the Panel from meeting with one another privately to discuss the geological and geotechnical data,nor shall this Section 3 prevent the Panel from seeking additional input from the Parties, so long as such requested input shall be either communicated to the City and the Developer in a meeting at which both parties are present or in writing, which is provided to both Parties simultaneously. Section 4. Compensation for Panel. Upon execution of this Agreement, Developer shall deposit with the City the sum of$25,000. City shall hold these funds in a trust account established for the purpose of compensating the members of the Panel for their services rendered 746172-2 2 0 • pursuant to this Agreement. When the balance in the trust account drops below $5,000, City shall notify Developer and request additional funds. Developer shall deposit such additional funds with City within ten(10)business days of receipt of the written request from the City. Notwithstanding the immediately preceding sentence, Developer shall not be in default hereunder if it fails to deposit such additional funds with City,but either party shall have the right to terminate this Agreement if Developer fails to deposit such additional funds with City, all as more specifically set forth in Section 5 below. Nothing herein shall be construed to permit Developer to fail to reimburse City for work that already has been performed by the Panel. Section 5. Termination. If Developer fails to deposit any additional funds contemplated by Section 4 above or Section 8 below, then Developer shall not be default hereunder,but either Developer or City shall have the right to terminate this Agreement by providing at least thirty(30) days advance written notice to the other Party. Additionally, if Developer sells or otherwise transfers substantially all of the residential property contained within Tentative Tract Map No. 50666 to a person or entity that is not affiliated with or related to Developer,then Developer shall have the right to terminate this Agreement by providing at least thirty(30) days advance written notice to the City. If this Agreement is terminated prior to the resolution of the geologic issues concerning the Property, the members of the Panel shall be compensated for the work that has been performed as provided in Section 4, and City again shall use its standard process of having its geologists and geotechnical engineers review the reports and recommendations of the Developer's experts. Developer further acknowledges that if this Agreement is terminated prior to the resolution of the geologic issues concerning the Property, Developer shall not have the right to rely on this Agreement, that the issue of the developability of the residential lots in Tract 50666 may not have been resolved to City's satisfaction, and that City shall not be bound by this Agreement. Section 6. Scope of Panel's Review. The focus of the Panel is to determine the stability of the residential portions of Tract 50666 and whether those lots are impacted by the geological and geotechnical conditions of Landslide A. However, City and Developer hereby acknowledge and agree not to restrict the areas that the Panel may explore to make such determination and to defer to the judgment of the Panel with respect to what additional geologic studies and tests, if any, should be conducted and what additional changes or improvements, if any, should be incorporated into the Project in order to permit such residential development. Section 7. Hold Harmless and Covenant not to Sue. The Parties hereby acknowledge that the Panel is being retained to resolve differences between the respective geological/ geotechnical experts retained by the Parties in order to allow Developer to complete the development of the Project, and that the Panel is solely providing impartial analysis and recommendations based on their combined professional judgment and are not preparing geotechnical designs for any future residential structures on those lots or insuring that the stability is sufficient to safely support such structures. The Parties further acknowledge that the members of the Panel are not in any way interested in the development of the Property, either financially or otherwise, and would not provide the advice contemplated by this Agreement absent assurances by the Parties that they will not sue the Panel or its individual members based on the advice provided. Accordingly, City and Developer hereby covenant and agree not to sue the Panel or any of its individual members for any advice, opinions, conclusions or 746172-2 5 1 � • • recommendations the Panel makes with respect to the geological and geotechnical conditions underlying the Property and the stability of the proposed residential sites. Developer further agrees to indemnify, defend and hold the Panel and each member thereof harmless from any claims, losses, costs or damages that results from geological instability on the Property. The members of the Panel are third party beneficiaries of this Agreement, and the provisions of this Section 7 shall also run to the benefit of the members of the Panel as if made directly to them. This Covenant shall survive the termination of this Agreement. Section 8. Covenant to be Bound. City and Developer hereby covenant and agree that any decisions and recommendations rendered by the Panel shall be binding on both City and Developer, including,but not limited to: (i) any decisions supporting, or disagreeing with, the recommendations or conclusions of one Party's experts; and(ii) any conclusions or recommendations arrived at independently by the Panel, including any recommendations regarding additional studies,borings or analysis to be performed or improvements to be constructed. The Parties further agree to take all steps reasonably necessary to diligently pursue and implement the recommendations of the Panel. Notwithstanding the foregoing,Developer shall not be in default hereunder if Developer elects not to incur any additional cost or expense as a result of any such recommendations provided that, in such event, either Party shall have the right to terminate this Agreement as more specifically provided in Section 5 above. This Agreement shall inure to the benefit of and bind the Parties to this Agreement and each of their respective heirs, assigns and successors in interest. Nothing herein shall be construed to grant the Panel any authority to obligate the City to incur any expense whatsoever; and except as expressly provided herein,nothing herein shall be construed to grant the Panel any authority to obligate the Developer to incur any expense whatsoever. Section 9. Further Assurance. Each Party hereto agrees to take such actions, and to execute such certificates and other instruments, as may be necessary or appropriate to give effect to and carry out the provisions of this Agreement. Section 10. Integration and Amendment. 10.1 This Agreement, and any documents incorporated herein by specific reference, represents the entire and integrated agreement between Developer and City with respect to the subject matter hereof. This Agreement supersedes all prior negotiations, representations or agreements,whether oral or written. 10.2 This Agreement may not be amended,modified, or expanded except by a written instrument signed by each of the Parties hereto. 10.3 The City has entered into an agreement with each of the members of the Panel. Those three agreements are attached hereto as Exhibits C, D, and E and are incorporated herein by this reference, and shall not be amended without Developer's prior written consent. This Agreement shall not be amended, terminated or 746172-2 4 t 1 0 0 otherwise modified without thirty days advance written notice first being provided to all of the members of the Panel. Section 11. Assignment. Neither Party shall assign its interest in this Agreement, or any portion of this Agreement,without the prior written consent of the other Party,which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Developer shall have the right to assign this Agreement to any person or entity to whom Developer sells substantially all of the residential portions of Tentative Tract Map No. 50666 provided that at least fifteen days prior to the effective date of such assignment,Developer shall give written notice thereof to City, and provided, further, that Developer shall deliver to City a copy of the proposed assignment and assumption agreement for City's review and approval, which shall not be unreasonably withheld, and Developer shall deliver a copy of the executed assignment and assumption agreement, in the form approved by the City,prior to the effective date of the assignment. Section 12. Interpretation. This Agreement is deemed to have been prepared by both of the Parties hereto, after consulting with legal counsel, and any uncertainty or ambiguity herein shall not be interpreted against the drafter,but rather, if such ambiguity or uncertainty exists, shall be interpreted according to the applicable rules of interpretation of contracts under the law of the State of California. Section 13. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Section 14. Notices. Any notice required or authorized to be given by this Agreement shall, unless otherwise specified herein,be in writing, shall be served on the receiving Party either by personal delivery or deposit in the United States mail with first-class postage prepaid, and shall be addressed to the receiving party's specified contact person and address listed below, unless written notice is provided of a change of address as to either party. For the purposes of this Agreement,notices delivered in person shall be deemed communicated as of the date of actual receipt; notices sent via regular mail shall be deemed communicated as of three (3) days after deposit thereof in the United States mail, addressed as shown on the addressee's registry or certificate of receipt. All notices served pursuant to this Agreement shall be addressed as follows: If to City: Les Evans, City Manager City of Rancho Palos Verdes 30940 Hawthorne Boulevard Rancho Palos Verdes, California 90275 With a copy to: Carol W. Lynch, City Attorney Richards, Watson& Gershon 355 South Grand Avenue, 40th Floor Los Angeles, California 90071 746172-2 5 1 , • 0 If to Developer: V.H. Properties Corporation 1 Ocean Trails Drive Rancho Palos Verdes, California 90275 Attn: Jeff Kaplinski With a copy to: Kenneth Wolfson, Esq. Latham&Watkins 650 Town Center Drive, 20th Floor Costa Mesa, California 92626-1925 Either City or Developer may change its mailing address at any time by giving written notice of such change to the other party in the manner provided herein at least ten(10) days prior to the date such change is effected. IN WITNESS WHEREOF, Developer and City have executed this Agreement as of the date first hereinabove written. CITY OF RAN‘ 0 P.' LOS V rIES By: ititiv A du Douglas Stern, Mayor ATTEST: , 7') 0 V/,' ti, "c --e.-( L-- J Purcell, City Clerk V. H. PROPERTIES CORPORATION By: Name: .l/f, pe4/F6-0/9/1i,/v/- Title: i „ad.. By: , Name: M I� i/A, Title: C- ./241/4v�-/2. M,4 &i.-4z.., 746172-2 6 i . . • III EXHIBIT A GEOLOGISTS THAT HAVE BEEN APPROVED BY BOTH PARTIES Eldon Gath of Earth Consultants International Scott Kerwin of AMEC Earth and Environmental, Inc. i . , • 0 EXHIBIT B FINAL MEMBERS OF THE PANEL Eldon Gath of Earth Consultants International Scott Kerwin of AMEC Earth and Environmental, Inc. Glenn Tofani of Geokinetics 0 0 EXHIBIT C AGREEMENT WITH AMEC EARTH &ENVIRONMENTAL,INC. 1 ` t AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT is made and entered into as of this 2nd day of September 2003, by and between the City of Rancho Palos Verdes, a municipal corporation, hereinafter designated as "City", and AMEC Earth & Environmental, Inc., hereinafter designated "Consultant." RECITALS A. City desires to utilize the services of one of Consultant's employees, Mr. Scott Kerwin, to be a member of a panel of three experts that will provide City and V.H. Properties Corporation ("Developer") with independent third-party review of certain geological and/or geotechnical data that has been prepared in connection with the golf course and single-family development commonly known as Ocean Trails (the "Ocean Trails Project"). City and Developer have entered into an Agreement regarding this process, which is attached hereto as Exhibit "A" and incorporated herein by this reference. B. Consultant represents that Mr. Kerwin is qualified to perform such services by virtue of his experience, training, education and expertise. NOW, THEREFORE, in consideration of performance by the parties of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows: R6876\0001\745756.3 1 410 Services. 1.1 Scope and Level of Services. Subject to the terms and conditions set forth in this Agreement, Consultant has been requested to provide independent third- party review of the geological and/or geotechnical data that has been prepared in connection with the Ocean Trails Project and to resolve disagreements between City's geological and geotechnical experts and the experts that are performing work on behalf of Developer. Mr. Scott Kerwin is the individual who is assigned by Consultant to be its representative in connection with this Agreement and the work that Consultant will perform. 1.2 City Representative and Developer Representative. For the purposes of this Agreement, the City Representative shall be the Director of Planning Building and Code Enforcement, or such other person designated in writing by the Director (the "City Representative"), and Developer's Representative shall be Jeff Kaplinski, or such other person designated in writing by Developer (the "Developer's Representative"). 1.3 Time for Performance. Consultant shall commence the services under this Agreement immediately upon receipt of a written request for such services from the City Representative (a copy of which shall be provided by City to Developer's Representative) and shall perform all services with reasonable diligence. 1.4 Impartial Review. Consultant hereby acknowledges and agrees that although City has retained Consultant, Consultant is charged with providing R6876\0001\745756.3 2 an impartial analysis of the geological and geotechnical data related to the Ocean Trails Project and to resolve disagreements between City's geological and geotechnical experts and the experts that are performing work on behalf of Developer. Consultant further acknowledges and agrees that he shall not, either individually or with other members of the panel, meet privately with either the City, its geologists or its geotechnical engineers or Developer, its geologists or its geotechnical engineers. Consultant and City further agree that both City and Developer shall have equal input into Consultant's performance under the Agreement, and that Consultant shall take joint instructions from City and Developer. Nothing in this provision shall be construed to prohibit members of the panel from meeting with one another privately to discuss the geological and geotechnical data. 1.5 Third Party Beneficiary. Developer is a third party beneficiary of this Agreement, and this Agreement shall not be amended, terminated or otherwise modified without Developer's prior written consent, which shall not be unreasonably withheld. 2. Term This Agreement shall commence on September 2, 2003 (the "Effective Date"), and shall continue in full force and effect until terminated by either of the parties hereto in accordance with the provisions of Section 11 of this Agreement. The parties anticipate that a significant amount of work will be required of Consultant and the other members of the panel between the Effective Date and December 31, 2003. R6876\0001\745756.3 3 • 1 3. Compensation. City shall pay Consultant at the hourly rates that are specified in Exhibit "B" to this Agreement, which is attached hereto and incorporated herein by this reference, for all services provided under this Agreement. Consultant hereby acknowledges and agrees that City shall pay Consultant's compensation under this Agreement solely from funds that have been deposited with City by Developer and are held in trust for this purpose. City shall not withhold applicable federal or state payroll or other required taxes, or other authorized deductions from each payment made to Consultant. 4. Method of Payment. 4.1 Invoices. Consultant shall submit to City, with a copy to Developer, invoices for all services performed pursuant to this Agreement during the preceding month. The invoices shall describe the services rendered during the period and shall show the number of hours worked, and the services that were performed. 4.2 City and Developer shall review such invoices and shall notify Consultant in writing, with a copy to City or Developer, as applicable, of any disputed amounts. City shall pay all undisputed portions of the invoice within thirty (30) calendar days after receipt of the invoice. 5. Standard of Performance. Consultant shall perform all services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances. 6. Status as Independent Contractor. Consultant is, and shall at all times remain as to City, a wholly independent contractor. Consultant shall have no power to R6876\0001\745756.3 4 • I . I incur any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant's employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that he or any of his agents or employees are in any manner the agents or employees of City. Consultant agrees to pay all required taxes on payments City makes to Consultant for services provided pursuant to this Agreement. Consultant shall fully comply with the workers' compensation laws regarding Consultant and Consultant's employees. Consultant agrees to indemnify and hold City harmless from any failure of Consultant to comply with applicable workers' compensation laws. 7. Ownership of Work Product. All reports, documents or other material developed or discovered by Consultant in the performance of this Agreement shall be and remain the joint property of City and Developer without restriction or limitation upon their use. Such material shall not be the subject of a copyright application by Consultant. 8. Confidentiality. Consultant in the course of its duties may have access to financial and statistical data of private entities. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without prior written authorization by City and Developer. City and Developer shall grant such authorization if disclosure is required by law. All data provided by City shall be returned to City upon the termination of this Agreement, and all data provided by Developer shall be returned to Developer upon the termination of R6876\0001\745756.3 5 41110 • this Agreement. Consultant's covenant under this section shall survive the termination of this Agreement. Nothing herein shall be construed as preventing City from retaining a copy of all of the documents or data that were provided by, and returned to, Developer. 9. Conflict of Interest. Consultant and his employees, if any, will comply with all conflict of interest statutes of the State of California applicable to Consultant's services under this agreement, including, but not limited to, the Political Reform Act (Government Code Sections 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Consultant and his employees shall not perform work for another person or entity for whom Consultant is not currently performing work (including, without limitation, any person or entity that is affiliated with or related to Developer) that would require Consultant or one of his employees to abstain from a decision under this Agreement pursuant to a conflict of interest statute. 10. Cooperation. In the event any claim or action is brought against City or Developer relating to Consultant's performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation that City or Developer might require. The time required from Consultant to assist City shall be remunerated by City in accordance with Section 3. If this Agreement is no longer in effect, so that Consultant is not performing work for City, and Developer requests Consultant's assistance, Developer and Consultant may enter into a separate agreement regarding compensation for those services. 11. Termination. City shall have the right to terminate this Agreement for any reason on fifteen (15) calendar day's written notice to Consultant. Consultant shall have R6876\0001\745756.3 6 the right to terminate this Agreement for any reason on thirty (30) calendar day's written notice to City. Consultant shall be paid for services satisfactorily rendered to the last working day the Agreement is in effect, and Consultant shall have no other claim against City by reason of such termination. 12. Notices. Any notices, bills, invoices, or reports authorized or required by this Agreement shall be in writing and shall be deemed received on (a) the day of delivery, if delivered by hand or overnight courier service during Consultant's, Developer's and City's regular business hours or by facsimile before Consultant's regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section. If to City: City Manager City of Rancho Palos Verdes 30940 Hawthorne Boulevard Rancho Palos Verdes, California 90275 If to Consultant: Scott T. Kerwin Principal Engineering Geologist AMEC Earth & Environmental, Inc. 1290 Hancock Street, Suite 102 Anaheim, California 92807-1924 With a copy to: Jeff Kaplinski V.H. Properties Corporation 1 Ocean Trails Drive Rancho Palos Verdes, California 90275 13. Non-Discrimination and Equal Employment Opportunity. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, creed, religion, sex, R6876\0001\745756.3 7 • marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. 14. Non-Assignability; Subcontracting. Consultant shall not assign or subcontract all or any portion of this Agreement without the written permission of City and Developer. Any attempted or purported assignment or sub-contracting by Consultant shall be null, void and of no effect. However, this Section shall not prevent Consultant from having other employees at AMEC Earth & Environmental, Inc. perform certain work pursuant to this Agreement under Mr. Kerwin's supervision and direction. 15. Compliance with Laws. Consultant shall comply with all applicable federal, state and local laws, ordinances, codes and regulations. 16. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Consultant constitute or be construed as a waiver by City or Developer of any breach of covenant, or any default which may then exist on the part of Consultant, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City or Developer with regard to such breach or default. Consultant acknowledges that no waiver by City shall be effective unless Developer agrees to such waiver in writing. 17. Attorney's Fees. In the event that either party to this Agreement shall commence any legal action or proceeding to enforce or interpret the provisions of this R6876\0001\745756.3 8 • 1 , 411/ 111 Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney's fees. 18. Insurance. During the term of this Agreement, Consultant shall maintain in effect automobile insurance in accordance with the requirements of California State law. 19. Entire Agreement. This Agreement, and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Consultant and City. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the parties to this Agreement. 20. Section Headings. The section and subsection headings used herein are for reference and convenience only and shall not be used in any manner in the interpretation hereof. IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Agreement as of the date first written above. CITY OF RA. C PALOS -DES By: A), 3 Mayor ATT • By: (N s � ' City Clerk R6876\0001\745756.3 9 • 1 ► AMEC EARTH & ENVIRONMENTAL, INC. "CONSULTANT" Y W V (..) r By: R6876\0001\745756.3 10 • Exhibit " A" Agreement Between City and Developer R6876\0001\745756.3 11 1 • l Exhibit "B" AMEC Earth & Environmental, Inc.'s Fee Schedule for Services Performed Pursuant to this Agreement R6876\0001\745756.3 12 110 11, amec° 1290 N.Hancock Street 4201 Santa Ana Street 5510 Morehouse Drive Suite 102 Suite F San Diego,CA 92121 Anaheim,CA 92807 Ontario,CA 91761 Tel(858)458-9044 Tel(714)779-2591 Tel(909)605-6500 Fax(858)458-0943 Fax(714)779-8377 Fax(909)605-6502 STANDARD FEE SCHEDULE - GEOTECHNICAL & ENVIRONMENTAL SERVICES PERSONNEL CHARGES Staff Engineer/Staff Geologist/Staff Environmental Specialist $ 92.00/hour Sr.Staff Engineer/Sr.Staff Geologist/Sr.Staff Environmental Specialist 103.00/hour Project Engineer/Project Engineering Geologist/Project Environmental Specialist 107.00/hour Sr.Project Engineer/Sr.Project Engineering Geologist/Sr.Project Environmental Specialist 117.00/hour Senior Engineer/Senior Engineering Geologist/Environmental Project Mgr/Health&Safety Officer. 130.00/hour Supervising Engineer/Supervising Engineering Geologist/Environmental Mgr./Certified Industrial Hygienist 140.00/hour Principal Engineer/Principal Engineering Geologist/Principal Environmental Scientist 156.00/hour Field Technician I $ 57.00/hour Field Technician I I/Environmental Technician 68.00/hour Senior Field Technician I 79.00/hour Senior Field Technician II/Senior Environmental Technician 84.00/hour Field Services Manager 93.00/hour Laboratory Technician I $ 60.00/hour Laboratory Technician ll 70.00/hour Senior Laboratory Technician 82.00/hour Laboratory Manager/Environmental Laboratory Supervisor 92.00/hour Geotechnical/Environmental Draftsperson I $ 60.00/hour Geotechnical/Environmental Draftsperson II 66.00/hour Senior Geotechnical/Environmental Draftsperson 77.00/hour Geotechnical/Environmental Clerk-Typist $ 50.00/hour Word Processor 57.00/hour Senior Word Processor 66.00/hour Depositions and Court Testimony(minimum charge of two hours) $325.00/hour Overtime Premium is 30%of PERSONNEL CHARGE EXPENSES Vehicle Use for Field Services(added to appropriate"PERSONNEL CHARGE") $ 7.00/hour Per Diem for Living Expenses 105.00/pers Postage,Reproduction,Long Distance Telephone,and Miscellaneous Supplies 6%of1abor Outside Services(Consultants,Surveys,Chemical Lab Tests,etc.) Cc+2C'% Reimbursables(Travel Expenses,Maps,Photos,Permits,Expendable Supplies,etc.) Cost+20% Personnel Protective Equipment(daily charge) $130.00/pers EQUIPMENT CHARGES BAT Permeameter $145.00/day CADD 10.00/hour Concrete/Asphalt Core Drill $12.00/core plus 22.00/hour Exploratory Equipment Rental(Drill Rig,Backhoe,etc.) Cost+20% Ground Penetrating Radar 600.00 /day Groundwater Transducer and Dataloggers *32.00/hour HNU(Photoionization Meter) 100.00 /day Monitoring Equipment Rental(Air,Water,Hazardous Materials,etc.) Cost+2tP/o OVA(Organic Vapor Analyzer) 125.00 /day Penetrometer-Dynamic 27.00/hour Penetrometer-Pneumatic 39.00/hour Single-Channel Seismic or Resistivity Equipment 21.00/hour Twelve-channel Seismic or Resistivity Equipment 30.00/hour Slope Indicator(Inclinometer) 27.00/hour *Reduced rates will apply to extended usage Schedule FO Effective 01-01-01 STANDARD FEE SCHEDULE - GEOTECHNICAL & ENVIRONMENTAL SERVICES (cont'd) PERMITS.FEES AND BONDS The costs of all permits and fees required by government agencies and performance or other bonds are to be paid by the Client,unless stated otherwise in an accompanying proposal. PROPOSAL PERIOD Unless otherwise stated,a proposal accompanying this schedule is effective for sixty(60)days. If authorization to proceed is not received within this period,AMEC reserves the right to renegotiate the fee. LABORATORY TESTING California Bearing Ratio(with moisture-density curve) $ 420.00 /test California Bearing Ratio(individual point-excluding moisture-density curve) 115.00/point Chloride Content 50.00 /test Consolidation Test(single point) 80.00 /test Consolidation Test(without rate data) 125.00 /test Consolidation Test Rate Data(per load increment) 55.00/each Direct Shear Test(at natural moisture-constant strain rate) 45.00/point Direct Shear Test(saturated-constant strain rate) 55.00/point Direct Shear Test(saturated,recycled-constant strain rate) 110.00/point Direct Shear Test(ASTM 3080-consolidated drained,3 points/test) 375.00 /test Direct Shear Test(ASTM 3080-consolidated drained,residual,3 points/test) 630.00 /test Durability Index-Coarse and Fine 150.00 /test Expansion Index Test 100.00 /test Grain-Size Analysis-Sand-Clay,including Hydrometer 135.00 /test Grain-Size Analysis-Gravel-Clay,including Hydrometer 175.00 /test Liquid Limit or Plastic Limit 50.00 /test Los Angeles Abrasion Test(500 revolutions) 135.00 /test Los Angeles Abrasion Test(1000 revolutions) 160.00 /test Mechanical Analysis-ASTM D1140(wash 200 sieve) 50.00 /test Mechanical Analysis-Sand or Gravel(dry sieve) 70.00 /test Mechanical Analysis-Sand or Gravel(wash sieve) 90.00 /test Mechanical Analysis-Sand and Gravel(wash sieve) 130.00 /test Moisture Content 10.00 /test Moisture-Density Curve(Calif.216) 140.00 /test Moisture-Density Curve for Compacted Fills(4-inch Mold) 155.00 /test Moisture-Density Curve for Compacted Fills(6-inch Mold) 175.00 /test Moisture-Density Single Point 70.00 /test Permeability(falling head) 135.00 /test Permeability(constant head) 229.00 /test Permeability(triaxial:EPA Method 9100) 360.00 /test Resistance Value 199.00 /test Resistance Value(lime or cement-treated) 245.00 /test Resistivity Test(Calif.532 or 643) 85.00 /test Sand Equivalent 70.00 /test Specific Gravity and Absorption-Gravel 65.00 /test Specific Gravity-Fine-Grained Soils 70.00 /test Sulphate Content 45.00 /test Triaxial Compression Test(U-U) 115.00 /test Triaxial Compression Tests(CD and CU with pore pressure) 400.00/point Unconfined Compression Test(undisturbed sample) 60.00 /test Unit Dry Weight and Moisture Content(undisturbed sample) 20.00 /test Special Sample Preparation and Laboratory Testing not listed above charged at applicable hourly rates for personnel Schedule FO (Continued) Effective 01-01-01 • • EXHIBIT D AGREEMENT WITH EARTH CONSULTANTS INTERNATIONAL ti 411/ AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT is made and entered into as of this 2nd day of September 2003, by and between the City of Rancho Palos Verdes, a municipal corporation, hereinafter designated as "City", and Earth Consultants International, hereinafter designated "Consultant." RECITALS A. City desires to utilize the services of one of Consultant's employees, Mr. Eldon Gath, to be a member of a panel of three experts that will provide City and V.H. Properties Corporation ("Developer") with independent third-party review of certain geological and/or geotechnical data that has been prepared in connection with the golf course and single-family development commonly known as Ocean Trails (the "Ocean Trails Project"). City and Developer have entered into an Agreement regarding this process, which is attached hereto as Exhibit "A" and incorporated herein by this reference. B. Consultant represents that Mr. Gath is qualified to perform such services by virtue of his experience, training, education and expertise. NOW, THEREFORE, in consideration of performance by the parties of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows: R6876\0001\745755.3 1 r r Services. • 1.1 Scope and Level of Services. Subject to the terms and conditions set forth in this Agreement, Consultant has been requested to provide independent third- party review of the geological and/or geotechnical data that has been prepared in connection with the Ocean Trails Project and to resolve disagreements between City's geological and geotechnical experts and the experts that are performing work on behalf of Developer. Mr. Eldon Gath is the individual who is assigned by Consultant to be its representative in connection with this Agreement and the work that Consultant will perform. 1.2 City Representative and Developer Representative. For the purposes of this Agreement, the City Representative shall be the Director of Planning Building and Code Enforcement, or such other person designated in writing by the Director (the "City Representative"), and Developer's Representative shall be Jeff Kaplinski, or such other person designated in writing by Developer (the "Developer's Representative"). 1.3 Time for Performance. Consultant shall commence the services under this Agreement immediately upon receipt of a written request for such services from the City Representative (a copy of which shall be provided by City to Developer's Representative) and shall perform all services with reasonable diligence. 1.4 Impartial Review. Consultant hereby acknowledges and agrees that although City has retained Consultant, Consultant is charged with providing R6876\0001\745755.3 2 an impartial analysis of the geological and geotechnical data related to the Ocean Trails Project and to resolve disagreements between City's geological and geotechnical experts and the experts that are performing work on behalf of Developer. Consultant further acknowledges and agrees that he shall not, either individually or with other members of the panel, meet privately with either the City, its geologists or its geotechnical engineers or Developer, its geologists or its geotechnical engineers. Consultant and City further agree that both City and Developer shall have equal input into Consultant's performance under the Agreement, and that Consultant shall take joint instructions from City and Developer. Nothing in this provision shall be construed to prohibit members of the panel from meeting with one another privately to discuss the geological and geotechnical data. 1.5 Third Party Beneficiary. Developer is a third party beneficiary of this Agreement, and this Agreement shall not be amended, terminated or otherwise modified without Developer's prior written consent, which shall not be unreasonably withheld. 2. Term This Agreement shall commence on September 2, 2003 (the "Effective Date"), and shall continue in full force and effect until terminated by either of the parties hereto in accordance with the provisions of Section 11 of this Agreement. The parties anticipate that a significant amount of work will be required of Consultant and the other members of the panel between the Effective Date and December 31, 2003. R6876\0001\745755.3 3 • • 3. Compensation. City shall pay Consultant at the hourly rates that are specified in Exhibit "B" to this Agreement, which is attached hereto and incorporated herein by this reference, for all services provided under this Agreement. Consultant hereby acknowledges and agrees that City shall pay Consultant's compensation under this Agreement solely from funds that have been deposited with City by Developer and are held in trust for this purpose. City shall not withhold applicable federal or state payroll or other required taxes, or other authorized deductions from each payment made to Consultant. 4. Method of Payment. 4.1 Invoices. Consultant shall submit to City, with a copy to Developer, invoices for all services performed pursuant to this Agreement during the preceding month. The invoices shall describe the services rendered during the period and shall show the number of hours worked, and the services that were performed. 4.2 City and Developer shall review such invoices and shall notify Consultant in writing, with a copy to City or Developer, as applicable, of any disputed amounts. City shall pay all undisputed portions of the invoice within thirty (30) calendar days after receipt of the invoice. 5. Standard of Performance. Consultant shall perform all services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances. 6. Status as Independent Contractor. Consultant is, and shall at all times remain as to City, a wholly independent contractor. Consultant shall have no power to R6876\0001\745755.3 4 incur any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant's employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that he or any of his agents or employees are in any manner the agents or employees of City. Consultant agrees to pay all required taxes on payments City makes to Consultant for services provided pursuant to this Agreement. Consultant shall fully comply with the workers' compensation laws regarding Consultant and Consultant's employees. Consultant agrees to indemnify and hold City harmless from any failure of Consultant to comply with applicable workers' compensation laws. 7. Ownership of Work Product. All reports, documents or other material developed or discovered by Consultant in the performance of this Agreement shall be and remain the joint property of City and Developer without restriction or limitation upon their use. Such material shall not be the subject of a copyright application by Consultant. 8. Confidentiality. Consultant in the course of its duties may have access to financial and statistical data of private entities. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without prior written authorization by City and Developer. City and Developer shall grant such authorization if disclosure is required by law. All data provided by City shall be returned to City upon the termination of this Agreement, and all data provided by Developer shall be returned to Developer upon the termination of R6876\0001\745755.3 5 • this Agreement. Consultant's covenant under this section shall survive the termination of this Agreement. Nothing herein shall be construed as preventing City from retaining a copy of all of the documents or data that were provided by, and returned to, Developer. 9. Conflict of Interest. Consultant and his employees, if any, will comply with all conflict of interest statutes of the State of California applicable to Consultant's services under this agreement, including, but not limited to, the Political Reform Act (Government Code Sections 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Consultant and his employees shall not perform work for another person or entity for whom Consultant is not currently performing work (including, without limitation, any person or entity that is affiliated with or related to Developer) that would require Consultant or one of his employees to abstain from a decision under this Agreement pursuant to a conflict of interest statute. 10. Cooperation. In the event any claim or action is brought against City or Developer relating to Consultant's performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation that City or Developer might require. The time required from Consultant to assist City shall be remunerated by City in accordance with Section 3. If this Agreement is no longer in effect, so that Consultant is not performing work for City, and Developer requests Consultant's assistance, Developer and Consultant may enter into a separate agreement regarding compensation for those services. 11. Termination. City shall have the right to terminate this Agreement for any reason on fifteen (15) calendar day's written notice to Consultant. Consultant shall have R6876\0001\745755.3 6 1 the right to terminate this Agreement for any reason on thirty (30) calendar day's written notice to City. Consultant shall be paid for services satisfactorily rendered to the last working day the Agreement is in effect, and Consultant shall have no other claim against City by reason of such termination. 12. Notices. Any notices, bills, invoices, or reports authorized or required by this Agreement shall be in writing and shall be deemed received on (a) the day of delivery, if delivered by hand or overnight courier service during Consultant's, Developer's and City's regular business hours or by facsimile before Consultant's regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section. If to City: City Manager City of Rancho Palos Verdes 30940 Hawthorne Boulevard Rancho Palos Verdes, California 90275 If to Consultant: Eldon Gath Earth Consultants International 150 El Camino Real, Suite 212 Tustin, California 92780 With a copy to: Jeff Kaplinski V.H. Properties Corporation 1 Ocean Trails Drive Rancho Palos Verdes, California 90275 13. Non-Discrimination and Equal Employment Opportunity. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, creed, religion, sex, R6876\0001\745755.3 7 0 marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. 14. Non-Assignability; Subcontracting. Consultant shall not assign or subcontract all or any portion of this Agreement without the written permission of City and Developer. Any attempted or purported assignment or sub-contracting by Consultant shall be null, void and of no effect. However, this Section shall not prevent Consultant from having other employees at Earth Consultants International perform certain work pursuant to this Agreement under Mr. Gath's supervision and direction. 15. Compliance with Laws. Consultant shall comply with all applicable federal, state and local laws, ordinances, codes and regulations. 16. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Consultant constitute or be construed as a waiver by City or Developer of any breach of covenant, or any default which may then exist on the part of Consultant, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City or Developer with regard to such breach or default. Consultant acknowledges that no waiver by City shall be effective unless Developer agrees to such waiver in writing. 17. Attorney's Fees. In the event that either party to this Agreement shall commence any legal action or proceeding to enforce or interpret the provisions of this R6876\0001\745755.3 8 • Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney's fees. 18. Insurance. During the term of this Agreement, Consultant shall maintain in effect automobile insurance in accordance with the requirements of California State law. 19. Entire Agreement. This Agreement, and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Consultant and City. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the parties to this Agreement. 20. Section Headings. The section and subsection headings used herein are for reference and convenience only and shall not be used in any manner in the interpretation hereof. IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Agreement as of the date first written above. CITY OF CH PALOS ERDES By: Mayor ATT, T: tit-L • By. �p City Clerk R6876 0001\745755.3 9 1 � • 1 • EARTH CONSULTANT'S INTERNATIONAL "CONSULTANT" By: Eldon Gath By: tf- bi R6876\0001\745755.3 10 Exhibit " A" Agreement Between City and Developer R6876\0001\745755.3 11 l � Exhibit "B" Consultant's Hourly Rates for Services Performed Pursuant to this Agreement R6876\0001\745755.3 12 AiK IMMEMIENIMMI MI= <>i Earth 1 Consu Ita 2003 Professional Fee Schedule International PROFESSIONAL STAFF FEES (per hour) Senior Consultant $ 200 Project Consultant $ 150 Staff Consultant $100 GIS Technician $ 80 Expert witness deposition and trial testimony will be charged at $300/hour, with a minimum charge of four hours. REIMBURSABLE EXPENSES Vehicle Usage $0.50/mile Plotter-generated maps $25/sheet • Heavy equipment, subcontractor fees and expenses, travel, shipping, reproduction, and other reimbursable expenses will be invoiced at cost plus 20%. • Field equipment (total station, GPS instruments, lap top computers, digital cameras, water level, etc.) may be expensed against the project at normal depreciation rates. • Consumable field supplies will be invoiced as purchased. INVOICES • Invoices are rendered monthly, payable upon receipt. Larger projects may be invoiced bi-weekly. • If payments are not received in 40 days, work on the project will be suspended. PROPOSAL ACCEPTANCE PERIOD Proposals are valid for 60 days unless otherwise stated. DISCLOSURE Client agrees to provide all information in Client's possession pertinent to actual or possible presence of hazardous chemicals on site, and agrees to reimburse ECI for all costs associated with the unanticipated discovery of such substances. Client also agrees to disclose all potential security concerns associated with the work place. If security protection of either personnel or equipment is required, it shall be obtained and either reimbursed, or paid for directly, by Client. At no time shall ECI field personnel be required to enter into a situation that they consider dangerous. OVERTIME Overtime for all field personnel will be charged at 1.25 times the basic rate, only if overtime is required by the client. Overtime is defined as the excess of 8 hours on weekdays, hours before 7am or after 5pm, and all Saturdays, Sundays, and Holidays, excluding travel time in all situations. This fee schedule is effective January 1 through December 31, 2003 and is subject to modification after that period. 150 El Camino Real, Suite 212 Tustin California © 92780 TEL (714) 544-5321 -Vet FAX(714) 544-5553 Ift www.earthconsultants.com •4 . . 10 0 EXHIBIT E AGREEMENT WITH GEOKINETICS I p 4110 • AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT is made and entered into as of this 2nd day of September 2003, by and between the City of Rancho Palos Verdes, a municipal corporation, hereinafter designated as "City", and Geokinetics, Inc., hereinafter designated "Consultant." RECITALS A. City desires to utilize the services of one of Consultant's employees, Mr. Glenn Tofani, to be a member of a panel of three experts that will provide City and V.H. Properties Corporation ("Developer") with independent third-party review of certain geological and/or geotechnical data that has been prepared in connection with the golf course and single-family development commonly known as Ocean Trails (the "Ocean Trails Project"). City and Developer have entered into an Agreement regarding this process, which is attached hereto as Exhibit "A" and incorporated herein by this reference. B. Consultant represents that Mr. Tofani is qualified to perform such services by virtue of his experience, training, education and expertise. NOW, THEREFORE, in consideration of performance by the parties of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows: R6876\0001\745760.3 1 40 Services. 1.1 Scope and Level of Services. Subject to the terms and conditions set forth in this Agreement, Consultant has been requested to provide independent third- party review of the geological and/or geotechnical data that has been prepared in connection with the Ocean Trails Project and to resolve disagreements between City's geological and geotechnical experts and the experts that are performing work on behalf of Developer. Mr. Glenn Tofani is the individual who is assigned by Consultant to be its representative in connection with this Agreement and the work that Consultant will perform. 1.2 City Representative and Developer Representative. For the purposes of this Agreement, the City Representative shall be the Director of Planning Building and Code Enforcement, or such other person designated in writing by the Director (the "City Representative"), and Developer's Representative shall be Jeff Kaplinski, or such other person designated in writing by Developer (the "Developer's Representative"). 1.3 Time for Performance. Consultant shall commence the services under this Agreement immediately upon receipt of a written request for such services from the City Representative (a copy of which shall be provided by City to Developer's Representative) and shall perform all services with reasonable diligence. 1.4 Impartial Review. Consultant hereby acknowledges and agrees that although City has retained Consultant, Consultant is charged with providing R6876\0001\745760.3 2 40 di an impartial analysis of the geological and geotechnical data related to the Ocean Trails Project and to resolve disagreements between City's geological and geotechnical experts and the experts that are performing work on behalf of Developer. Consultant further acknowledges and agrees that he shall not, either individually or with other members of the panel, meet privately with either the City, its geologists or its geotechnical engineers or Developer, its geologists or its geotechnical engineers. Consultant and City further agree that both City and Developer shall have equal input into Consultant's performance under the Agreement, and that Consultant shall take joint instructions from City and Developer. Nothing in this provision shall be construed to prohibit members of the panel from meeting with one another privately to discuss the geological and geotechnical data. 1.5 Third Party Beneficiary. Developer is a third party beneficiary of this Agreement, and this Agreement shall not be amended, terminated or otherwise modified without Developer's prior written consent, which shall not be unreasonably withheld. 2. Term This Agreement shall commence on September 2, 2003 (the "Effective Date"), and shall continue in full force and effect until terminated by either of the parties hereto in accordance with the provisions of Section 11 of this Agreement. The parties anticipate that a significant amount of work will be required of Consultant and the other members of the panel between the Effective Date and December 31, 2003. R6876\0001\745760.3 3 411/ 3. Compensation. City shall pay Consultant at the hourly rates that are specified in Exhibit "B" to this Agreement, which is attached hereto and incorporated herein by this reference, for all services provided under this Agreement. Consultant hereby acknowledges and agrees that City shall pay Consultant's compensation under this Agreement solely from funds that have been deposited with City by Developer and are held in trust for this purpose. City shall not withhold applicable federal or state payroll or other required taxes, or other authorized deductions from each payment made to Consultant. 4. Method of Payment. 4.1 Invoices. Consultant shall submit to City, with a copy to Developer, invoices for all services performed pursuant to this Agreement during the preceding month. The invoices shall describe the services rendered during the period and shall show the number of hours worked, and the services that were performed. 4.2 City and Developer shall review such invoices and shall notify Consultant in writing, with a copy to City or Developer, as applicable, of any disputed amounts. City shall pay all undisputed portions of the invoice within thirty (30) calendar days after receipt of the invoice. 5. Standard of Performance. Consultant shall perform all services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances. 6. Status as Independent Contractor. Consultant is, and shall at all times remain as to City, a wholly independent contractor. Consultant shall have no power to R6876\0001\745760.3 4 • • incur any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant's employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that he or any of his agents or employees are in any manner the agents or employees of City. Consultant agrees to pay all required taxes on payments City makes to Consultant for services provided pursuant to this Agreement. Consultant shall fully comply with the workers' compensation laws regarding Consultant and Consultant's employees. Consultant agrees to indemnify and hold City harmless from any failure of Consultant to comply with applicable workers' compensation laws. 7. Ownership of Work Product. All reports, documents or other material developed or discovered by Consultant in the performance of this Agreement shall be and remain the joint property of City and Developer without restriction or limitation upon their use. Such material shall not be the subject of a copyright application by Consultant. 8. Confidentiality. Consultant in the course of its duties may have access to financial and statistical data of private entities. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without prior written authorization by City and Developer. City and Developer shall grant such authorization if disclosure is required by law. All data provided by City shall be returned to City upon the termination of this Agreement, and all data provided by Developer shall be returned to Developer upon the termination of R6876\0001\745760.3 5 this Agreement. Consultant's covenant under this section shall survive the termination of this Agreement. Nothing herein shall be construed as preventing City from retaining a copy of all documents or data that were provided by, and returned to Developer. 9. Conflict of Interest. Consultant and his employees, if any, will comply with all conflict of interest statutes of the State of California applicable to Consultant's services under this agreement, including, but not limited to, the Political Reform Act (Government Code Sections 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Consultant and his employees shall not perform work for another person or entity for whom Consultant is not currently performing work (including, without limitation, any person or entity that is affiliated with or related to Developer) that would require Consultant or one of his employees to abstain from a decision under this Agreement pursuant to a conflict of interest statute. 10. Cooperation. In the event any claim or action is brought against City or Developer relating to Consultant's performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation that City or Developer might require. The time required from Consultant to assist City shall be remunerated by City in accordance with Section 3. If this Agreement is no longer in effect, so that Consultant is not performing work for City, and Developer requests Consultant's assistance, Developer and Consultant may enter into a separate agreement regarding compensation for those services. 11. Termination. City shall have the right to terminate this Agreement for any reason on fifteen (15) calendar day's written notice to Consultant. Consultant shall have the right to terminate this Agreement for any reason on thirty (30) calendar day's written R6876\0001\745760.3 6 • notice to City. Consultant shall be paid for services satisfactorily rendered to the last working day the Agreement is in effect, and Consultant shall have no other claim against City by reason of such termination. 12. Notices. Any notices, bills, invoices, or reports authorized or required by this Agreement shall be in writing and shall be deemed received on (a) the day of delivery, if delivered by hand or overnight courier service during Consultant's, Developer's and City's regular business hours or by facsimile before Consultant's regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section. If to City: City Manager City of Rancho Palos Verdes 30940 Hawthorne Boulevard Rancho Palos Verdes, California 90275 If to Consultant: Glenn Tofani Geokinetics 15510 Rockfield Boulevard, Suite C3 Irvine, California 92619 With a copy to: Jeff Kaplinski V.H. Properties Corporation 1 Ocean Trails Drive Rancho Palos Verdes, California 90275 13. Non-Discrimination and Equal Employment Opportunity. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, creed, religion, sex, R6876\0001\745760.3 7 r marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. 14. Non-Assignability; Subcontracting. Consultant shall not assign or subcontract all or any portion of this Agreement without the written permission of City and Developer. Any attempted or purported assignment or sub-contracting by Consultant shall be null, void and of no effect. However, this Section shall not prevent Consultant from having other employees at Geokinetics perform certain work pursuant to this Agreement under Mr. Tofani's supervision and direction. 15. Compliance with Laws. Consultant shall comply with all applicable federal, state and local laws, ordinances, codes and regulations. 16. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Consultant constitute or be construed as a waiver by City or Developer of any breach of covenant, or any default which may then exist on the part of Consultant, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City or Developer with regard to such breach or default. Consultant acknowledges that no waiver by City shall be effective unless Developer agrees to such waiver in writing. 17. Attorney's Fees. In the event that either party to this Agreement shall commence any legal action or proceeding to enforce or interpret the provisions of this R6876\0001\745760.3 8 r . , 4110 6 Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney's fees. 18. Insurance. During the term of this Agreement, Consultant shall maintain in effect automobile insurance in accordance with the requirements of California State law. 19. Entire Agreement. This Agreement, and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Consultant and City. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the parties to this Agreement. 20. Section Headings. The section and subsection headings used herein are for reference and convenience only and shall not be used in any manner in the interpretation hereof. IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Agreement as of the date first written above. CITY OF R CHO ALOS V - IES ) if k By: t _ ! - Mayor o l ATTE T: 'j r' ) /' ' (- By ,-. p. City Clerk R6876 0001\745760.3 9 • GEOKINETICS "CONSULTANT Ale By: ALT r By: R6876\0001\745760.3 10 Exhibit " A" Agreement Between City and Developer R6876\0001\745760.3 11 Exhibit "B" Geokinetic's Fee Schedule for Services Performed Pursuant to this Agreement R6876\0001\745760.3 12 2003 PROFESSIONAL FEE SCHEDULE GEOTECHNICAL CONSULTING SERVICES FEES FOR PROFESSIONAL,TECHNICAL AND SUPPORT STAFF GeoKinetics Inc.charges our clients for professional,technical and support services for time directly related to a project. Charges are not made for ordinary secretarial services,office management,accounting,maintenance or other activities not directly related to a project. Current personnel classifications and rates are summarized below: Personnel Classification Rate(per hour) Principal Engineer $165.00 Principal Geologist 150.00 Senior Engineer or Geologist' 125.00 Project Engineer or Geologist' 105.00 Staff Engineer or Geologist' 90.00 Senior Technician' 75.00 Staff Technician' 60.00 Senior Technical Illustrator' 85.00 Technical Illustrator' 65.00 Project Coordinator' 55.00 Field Laborer' 45.00 (1) Overtime will be charged at 1.3 times the above listed rates for these personnel classifications. Overtime is defined as time charged to a project in excess of 8 hours per day,time worked on weekends,holidays,or night shifts. Deposition and trial testimony by Glenn Tofani will be charged at the rate of$300.00 per hour. PROJECT-RELATED EXPENSES Expenses directly related to a project will be billed as follows: Subcontractors (drilling, trenching, surveying, testing, etc.), and travel related expenses(hotels, meals,vehicle rentals,air travel,etc.)and other project expenses(e.g.,aerial photographs,outside reprographics,equipment rental, overnight shipping,project-related expendable supplies,etc.)will be charged at cost plus 15 percent. Field equipment and expendables will be charged in accordance with GeoKinetics'Standard Field Equipment Cost schedule. Travel time to and from a project will be invoiced in accordance with the hourly rates listed above. Mileage for project —related travel will be billed at$0.40 per mile. -Continued on Reverse- r r 1110 In-house photocopy/reproduction will be billed at$.08/page,for 1-100 pages,$.05/page for 101+pages. Black& White Digital LaserJet 1200-dpi prints for 81/2"x l 1"and 11"x17"paper sizes will be billed at$.08/page,for 1-100 pages,$.05/page for 101+pages;and$0.20/page for 1-100 pages,$.15/page for 101+pages,respectively. Color,8 '/2"x 11" digital prints will be billed at$1.70/page for 2-5 pages, $1.50/page for 6-10 pages, $1.25/page for 11-49 pages,$1.05/page for 50-99 pages,and$.85/page for 101+pages. Color 11"x17"digital prints will be billed at$2.95/ page for 2-5 pages, $2.55/page for 6-10 pages, $2.15/page for 11-49 pages, $1.90/page for 50-99 pages, and $1.70/page for 101+pages,respectively. Oversize,digital color 600-dpi prints will be billed at$12.00/ft2. Photograph development and printing will be billed at$.40/photo. CHANGES TO FEE SCHEDULE This fee schedule applies to services rendered in the current year and/or until a new schedule is issued. GeoKinetics Inc.reviews and revises its fee schedule periodically. Unless other arrangements have been made,charges for services(including continuing projects initiated in the prior year)will be based on the most recently published fee schedule. INVOICES Invoices will be issued monthly,or at other specified intervals for some projects,and will be payable upon receipt,unless other arrangements have been previously agreed upon. Interest of 1 percent per month(but not exceeding the maximum rate allowed by law)will be payable on accounts not paid within 60 days. Any attorney's fees or other costs incurred in collecting delinquent accounts shall be paid by the client. CONDITIONS GeoKinetics Inc.warrants that its services are performed in accordance with generally accepted standards of care and diligence normally practiced by recognized consulting firms performing services of a similar nature. No other warranty, either express or implied,is included or intended in GeoKinetics Inc.'s proposals,contracts or reports. GeoKinetics Inc.will not be liable for any loss,damage or liability to persons or property arising out of performance of its services, other than for professional errors and omissions within the stated limits, coverage or conditions of its insurance. For any damage resulting from any error, omission, or other professional negligence, our liability will be limited to$25,000 or GeoKinetics Inc.'s total billing on the project in question,whichever is less. If higher limits are required,arrangement should be made with GeoKinetics prior to the initiation of the project. The client should discuss higher limits,and the charges involved,with GeoKinetics Inc.