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Willdan Engineering (2008) Ciret . • OY PROFESSIONAL SERVICES AGREEMENT THIS. ROFESSIONAL SERVICES AGREEMENT("Agreement") is made and entered into this 3 day of flame 2/0 8, by and between the Cl OF RANCHO PALOS VERDES ("CITY") and Willdan "CONTRACTOR"). IN CONSIDERATION of the covenants hereinafter set forth,the parties agree as follows: ARTICLE 1 SCOPE OF SERVICES 1.1 Project Description The Project is described as follows: Residential streets Overlay and Slurry Seal project FY 07-08 (Area 7) 1.2 Description of Services CONTRACTOR shall provide construction management and inspection services for Residential streets Overlay and Slurry Seal project FY 07-08 (Area 7) for the CITY as described in the attached Exhibit A that is incorporated by this reference. 1.3 Schedule of Work Upon receipt of CITY'S written Notice to Proceed with any item of work set forth in Exhibit A, CONTRACTOR shall perform with due diligence the services included in that item. No work shall be done on any item of Exhibit A for which CONTRACTOR has not received a written Notice to Proceed.Contractor shall perform all services under this Agreement in a timely manner consistent with industry standards for professional skill and care. ARTICLE 2 COMPENSATION 2.1 Fee (a) CITY will compensate CONTRACTOR for items in Exhibit A for which CITY has issued to CONTRACTOR a Notice to Proceed in writing an amount not to exceed the maximum amount set forth in Exhibit B. Total compensation to be paid by CITY to CONTRACTOR shall not exceed $75,000. (b) CITY may request additional specified work under this Agreement. All such work must be authorized in writing by the Director of Public Works prior to commencement. (c) CONTRACTOR'S final invoice must be submitted within 30 days of completion of the stated scope of services. 2.2 Payment Address All payments due CONTRACTOR shall be paid to: W:\Bindu\Pavement management\Area 7perPMS2007(area7 encroachment permit)\CM\CM for construction\Professional services Agreement for design serviceschangesbywilldanrevl.doc Page 1 of 7 • • Willdan 13191 Crossroads Parkway North, Suite 405 Industry, CA 91746-3497 2.3 Terms of Compensation CONTRACTOR will submit invoices monthly for the percentage of work completed in the previous month. CITY will pay all undisputed invoice amounts within 60 days of receipt of the invoice. CITY will use its best efforts to notify CONTRACTOR of any disputed invoice amounts or claimed completion percentages within 15 days of the receipt of each invoice. However, CITY's failure to timely notify CONTRACTOR of a disputed amount of claimed completion percentage shall not be deemed a waiver of CITY's right to challenge that amount or percentage. Additionally, if CITY fails to pay any undisputed amounts due CONTRACTOR within 90 days after invoices are received by CITY,then CONTRACTOR shall have the right to consider that default a total breach of this Agreement, and this Agreement may be terminated by CONTRACTOR upon 10 working days' advance written notice. 2.4 Additional Services CITY may request in writing that CONTRACTOR perform additional services not covered by the Scope of Contract Services set forth in Exhibit A, and CONTRACTOR shall perform those services and will be paid for those additional services in accordance with CONTRACTOR'S Current Hourly Rate Schedule set forth in Exhibit B. The schedule of hourly rates shall be in effect through the end of this project, or June 30, 2010,whichever occurs first. 2.5 Term of Agreement This Agreement shall commence on the day it is signed, and shall terminate on December 30, 2010. Certificates of Insurance must be current on the day this Agreement commences and, if scheduled to lapse prior to the termination date, must be updated before final payment is made to CONTRACTOR. ARTICLE 3 INDEMNIFICATION AND INSURANCE 3.1 Indemnification In the connection with the professional services to be performed under this Agreement, Contractor shall defend, hold harmless, and indemnify CITY and its elected officials, officers, employees, servants, designated volunteers, and independent contractors serving in the role of city or agency officials (collectively "Indemnitees"), from any claim, demand,damage, liability, loss,cost or expense(collectively,"claims"), including but not limited to death or injury to any person and injury to any property, arising out of, pertaining to, or relating to the negligence, recklessness, or willful misconduct of CONTRACTOR or any of its officers, employees, subcontractors, or agents in the performance of professional services under this Agreement. CONTRACTOR shall defend the Indemnitees in any action or actions filed in connection with any such claims with counsel reasonably approved by, and CONTRACTOR shall pay all costs and expenses, including actual attorneys'fees, incurred in W:\Bindu\Pavement management\Area 7perPMS2007(area7 encroachment permit)\CM\CM for construction\Professional services Agreement for design serviceschangesbywilldanrevl.doc Page 2of7 • • connection with such defense in proportion to CONTRACTOR's share of fault as determined by the court. 3.2 General Liability Insurance CONTRACTOR shall at all times during the term of this Agreement obtain, maintain, and keep in full force and effect, a policy or policies of Commercial General Liability Insurance,with minimum limits of One Million ($1,000,000) Dollars for each occurrence and in the aggregate, combined single limit, insuring against any personal injury, death, loss, or damage resulting from wrongful or negligent acts by CONTRACTOR. The policy or policies shall be issued by an insurer admitted to do business in the State of California and rated in Best's Insurance Guide with a rating of A-VII or better. 3.3 Professional Liability Insurance CONTRACTOR shall at all times during the term of this Agreement obtain, maintain, and keep in full force and effect a policy or policies of professional liability insurance with a minimum limit of One Million ($1,000,000) Dollars. The policy or policies shall be issued by an insurer admitted to do business in the State of California and rated in Best's Insurance Guide with a rating of A-VII or better. 3.4 Workers' Compensation Insurance CONTRACTOR will maintain in force at all times during the performance of work under this Agreement workers' compensation insurance as required by law. CONTRACTOR shall require any subcontractor similarly to provide such workers' compensation insurance for its employees. 3.5 Notice of Cancellation A. All insurance policies shall provide that the insurance coverage shall not be canceled by the insurance carrier without 30 days prior written notice to CITY, 10 days notice if cancellation is due to nonpayment of premium. CONTRACTOR agrees that it will not cancel or reduce the required insurance coverage.. B. If CONTRACTOR does not keep the required insurance in full force and effect, CITY may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, CITY may obtain the necessary insurance and pay, at CONTRACTOR'S expense, the premium thereon. 3.6 Certificate of Insurance At all times during the term of this Agreement, CONTRACTOR shall maintain on file with the CITY Clerk certificates of insurance showing that the required policies are in effect in the required amounts. The Commercial General Liability Insurance shall contain endorsements naming the CITY, its officers, agents and employees, as additional insureds. W:\Bindu\Pavement management\Area 7perPMS2007(area7 encroachment permit)\CM\CM for construction\Professional services Agreement for design serviceschangesbywilldanrevl.doc Page 3 of 7 • • 3.7 Primary Coverage The Commercial General Liability Insurance provided by CONTRACTOR 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. ARTICLE 4 TERMINATION 4.1 Termination of Agreement (a) This Agreement may be terminated at any time,with or without cause, by either party upon 60 days prior written notice. Notice shall be deemed served upon deposit in the United States Mail of a certified or registered letter, postage prepaid, return receipt requested, addressed to the other party, or upon personal service of that notice to the other party, at the address set forth in Article 6.11. (b) In the event of termination or cancellation of this Agreement by CONTRACTOR or CITY, due to no fault or failure of performance by CONTRACTOR, CONTRACTOR shall be paid compensation for all services performed in an amount to be determined as follows: for work done in accordance with all of the terms and provisions of this Agreement, CONTRACTOR 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 of total compensation that would have been paid to CONTRACTOR for the full performance of the services, as specified in Article 2.1.(a). ARTICLE 5 OWNERSHIP OF DOCUMENTS 5.1 Ownership of Documents and Work Product All plans, specifications, reports and other design documents prepared by CONTRACTOR pursuant to this Agreement are instruments of service which shall be deemed the CITY'S property. CITY acknowledges and agrees that all plans, specifications, reports and other design documents prepared by CONTRACTOR pursuant to this Agreement shall be used exclusively on this Project and shall not be used for any other work without the written consent of CONTRACTOR. If CITY and CONTRACTOR permit the reuse or other use of the plans, specifications, reports or other design documents, CITY shall require the party using them to indemnify and hold harmless CITY and CONTRACTOR regarding such reuse or other use. Additionally, CITY shall require the party using them to eliminate any and all references to CONTRACTOR from the plans, specifications, reports and other design documents. If a document is prepared by CONTRACTOR on a computer, CONTRACTOR shall prepare such document in a Microsoft® Word 2003 or lower format for text, and AutoCAD 2006 or lower format for plans. In addition,CONTRACTOR shall provide CITY with those documents both in a printed format and on disks. ARTICLE 6 GENERAL PROVISIONS W:\Bindu\Pavement management\Area 7perPMS2007(area7 encroachment permit)\CM\CM for construction\Professional services Agreement for design serviceschangesbywilldanrevl.doc Page 4 of 7 • 6.1 Representation A CITY representative shall be designated by the City Manager, and a CONTRACTOR representative shall be designated by CONTRACTOR,as the primary contact person for each party regarding performance of this Agreement. 6.2 Fair Employment Practices/Equal Opportunity Acts In the performance of this Agreement, CONTRACTOR shall comply with all 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 1992 (42 U.S.C. § 11200, et seq.). 6.3 Personnel CONTRACTOR represents that it has, or shall secure at its own expense, all personnel required to perform CONTRACTOR'S services under this Agreement. Any person who performs traffic engineering services pursuant to this Agreement shall be licensed as a Traffic Engineer by the State of California and shall be in good standing. CONTRACTOR shall make reasonable efforts to maintain the continuity of CONTRACTOR'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 those services. CONTRACTOR may associate with or employ associates or subcontractors in the performance of its services under this Agreement, but at all times CONTRACTOR shall be responsible for their services. 6.4 Conflicts of Interest CONTRACTOR agrees not to accept any employment or representation during the term of this Agreement, or within 12 months after completion of the work under this Agreement,which is or may likely make CONTRACTOR"financially interested"(as provided in California Government Code Section 1090 and 87100)in any decisions made by CITY on any matter in connection with which CONTRACTOR has been retained pursuant to this Agreement. 6.5 Legal Action (a) Should either party to this Agreement bring legal action against the other, the case shall be brought in a court of competent jurisdiction in Los Angeles County, California, and the party prevailing in that action shall be entitled to recover its costs of litigation, including reasonable attorneys'fees, which shall be fixed by the judge hearing the case, and such fees shall be included in the judgment. (b) Should any legal action involving the Project be brought against CITY by a party other than CONTRACTOR, and should that action require the testimony of CONTRACTOR when there is no allegation that CONTRACTOR was negligent,then CITY shall compensate CONTRACTOR for its testimony and preparation to testify at the hourly rates in effect at the time of such testimony. W:\Bindu\Pavement management\Area 7perPMS2007(area7 encroachment permit)\CM\CM for construction\Professional services Agreement for design serviceschangesbywilldanrevl.doc Page 5 of 7 • 6.6 Assignment This Agreement shall not be assignable by either party without the prior written consent of the other party. Notwithstanding the above, CONTRACTOR may use the services of persons and entities not in CONTRACTOR'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 contractors, and testing laboratories. CONTRACTOR'S use of subcontractors for additional services shall not be unreasonably restricted by the CITY provided that CONTRACTOR notifies the CITY in advance. 6.7 Independent Contractor CONTRACTOR 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 CONTRACTOR or any of the CONTRACTOR'S employees, except as herein set forth. CONTRACTOR expressly warrants not to, 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, it being understood that CONTRACTOR is, and shall at all times remain to CITY, a wholly-independent CONTRACTOR and that CONTRACTOR'S obligations to CITY are solely those set forth in this Agreement. 6.8 Hazardous Materials Unless otherwise provided in this Agreement, CONTRACTOR and its subcontractors shall have no responsibility for the discovery, presence, handling, removal or disposal of, or exposure of persons to, hazardous materials in any form at the site of the Project. 6.9 Captions The captions used in this Agreement are for general reference only and are not part of the Agreement. 6.10 Entire Agreement This Agreement represents the entire and integrated Agreement between CITY and CONTRACTOR and supersedes all prior negotiations, representations, or agreements, whether written or oral. This Agreement may be modified or amended only by a subsequent written agreement signed by both parties. 6.11 Notices All notices pertaining to this Agreement shall be in writing and addressed as follows: If to CONTRACTOR: Mr. Adel M. Freij, P.E. Willdan W:\Bindu\Pavement management\Area 7perPMS2007(area7 encroachment permit)\CM\CM for construction\Professional services Agreement for design serviceschangesbywilldanrevl.doc Page 6 of 7 13191 Crossroads Parkway North, Suite 405 Industry, CA 91746-3497 If to CITY: Mr. Jim Bell, Director of Public Works City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes, CA 90275 TO EFFECTUATE THIS AGREEMENT,the parties have executed this Agreement as of the dates set forth below. P "CONTRACTOR"Willdan ���""" E49,4 4 e-'4y • BY: L A 0 �_ CJ% _e Title 62 I 9/6 S Date CITY O' R A CHO Pi GS VERDES A Munic •al C. poratio • Lit)BY: aI MAYOR City of Rancho Palos Verdes , /oie Date ATTEST: eeviik /, /1 CITY CLERIC W:\Bindu\Pavement management\Area 7perPMS2007(area7 encroachment permit)\CM\CM for construction\Professional services Agreement for design serviceschangesbywilldanrevl.doc Page 7 of 7