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KOA Corporation (ADA) AMENDMENT NO. 1 TO AGREEMENT FOR CONTRACTUAL SERVICES THIS AMENDMENT TO THE AGREEMENT FOR CONTRACTUAL SERVICES ("Amendment") by and between the CITY OF RANCHO PALOS VERDES ("City") and KOA Corporation, a California corporation ("Contractor") is effective as of the 20th day of February, 2018. RECITALS A. City and Contractor entered into that certain Agreement for Contractual Services dated February 7, 2017 ("Agreement") whereby Contractor agreed to provide ADA access improvements for the bus stop adjacent to the city hall/civic center complex(the"Services"). B. City has received Community Development Block Grant (CDBG) funds from LACDC that will be applied to the Services. LACDC requires that any contract between a CDBG fund recipient agency and a contractor for engineering/design, construction, and/or construction management include certain CDBG Provisions Certifications. C. City and Contractor now desire to amend the Agreement to include the applicable CDBG Provisions Certifications. TERMS 1. Contract Changes. The Agreement is amended as provided herein. Deleted text is indicated in s#ketlifettgh and added text in bold italics. a. Exhibit `B-1", CDBG Provisions Certifications, is added to the Agreement, attached hereto and incorporated herein by reference. 2. Continuing Effect of Agreement. Except as amended by this Amendment, all provisions of the Agreement shall remain unchanged and in full force and effect. From and after the date of this Amendment, whenever the term "Agreement" appears in the Agreement, it shall mean the Agreement,as amended by this Amendment to the Agreement. 3. Affirmation of Agreement; Warranty Re Absence of Defaults. City and Contractor each ratify and reaffirm each and every one of the respective rights and obligations arising under the Agreement. Each party represents and warrants to the other that there have been no written or oral modifications to the Agreement other than as provided herein. Each party represents and warrants to the other that the Agreement is currently an effective, valid, and binding obligation. Contractor represents and warrants to City that, as of the date of this Amendment, City is not in default of any material term of the Agreement and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement. 01203.0006/449174.1 City represents and warrants to Contractor that, as of the date of this Amendment, Contractor is not in default of any material term of the Agreement and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement. 4. Adequate Consideration. The parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment. 5. Authority. The persons executing this Agreement on behalf of the parties hereto warrant that(i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. [SIGNATURES ON FOLLOWING PAGE] 01203.0006/449174.1 -2- IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written. CITY: CITY OF RANCHO PALOS VERDES, a municipal corporation • Doug Willmore, City Manager ATTES414* IIERNIF110's+orn, City Clerk APPROVED AS TO FORM: ALESHIRE&WYNDER,LLP Dave Aleshire, City Attorney CONTRACTOR: KOA Corporation By: Y-Z Name: e • Title: Vht_g_ � � — By: op Name: Title: V Address: 1100 Corporate Center Drive, Suite 201 Monterey Park,CA 91754 Two corporate officer signatures required when Contractor is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONTRACTOR'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONTRACTOR'S BUSINESS ENTITY. 01203.0006/449174.1 -3- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document. STATE OF CALIFORNIA COUNTY OF LOS ANGELESEL7 . ,9 On j -I , 2018 befdre , persorially appeared proved to me on the basis of satisfactory eviden a to be the person whose names)is/subscribed to t i e within instrument and acknowledged to me that he/shelthey executed the same in hist authorized capacity(ies), and that by his/her their signatures}-on the instrument the person(s); or the entity upon behalf of which the personns)-acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the fore oin ara aph is true and correct. : 'r ELIZABETH BARBA • WITNESS m,i and and official seal. -�= '' \ Commission No.2133967 8 NOTARY PUBLIC-CM.IFORMA Signature: a COUNTY My Comm.Expos NOVEMBER 15;2018 OPTIONAL Though the data below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT El INDIVIDUAL El CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) El PARTNER(S) ❑ LIMITED El GENERAL NUMBER OF PAGES El ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR El OTHER DATE OF DOCUMENT SIGNER IS REPRESENTING: (NAME OF PERSON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE 01203.0006/449174.1 4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document. STATE OF CALIFORNIA COUNTY OF LOS ANGELES �/ -944144;On /A , 2018 befor a ��` 'c!iersonall appeared / , proved to me on the basis of satisfactory evidence o be the person,{�s Svhose names(s)is/ate subscribed the within instrument and acknowledged to me that he/she/they executed the same in 44s/her/thoip authorized capacity(ies)-and that by his'her/them signature(s) on the instrument the person(4, or the entity upon behalf of which the person(&)-acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. :��. �::. ELIZABETH IBARRA WITNESS m d and official seal. Ici , .� ;>, Commission No 2133967 . �.:: Signature: Z c, , ,. ',/ NOTARY PUBLIC-CALIFORNIA .. ;. % ORANGE COUNTY My Comm.Exp es NOVEMBER 15,2010 OPTIONAL Though the data below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL NUMBER OF PAGES ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER DATE OF DOCUMENT SIGNER IS REPRESENTING: (NAME OF PERSON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE 01203.0006/449174.1 5 EXHIBIT`B-1" CDBG PROVISIONS CERTIFICATIONS SOURCE OF FUNDS The CITY has applied for and received funds from the United States Government under Title 1 of the Housing and Community Development Act of 1974, Public Law 93-383 through the Community Development Block Grant Program. Such funds are being utilized for this project. RECORD-KEEPING AND REPORTING Pursuant to 24 C.F.R. Section 85.36(i)(10), the CONSULTANT shall maintain all books, documents, papers, and records that are directly pertinent to the Agreement for the purpose of making audits, examinations, excerpts and transcripts. All documents pertaining in whole or in part to this Agreement shall be clearly identified and readily accessible. Pursuant to 24 C.F.R. Section 85.36(i)(11) and the Los Angeles County Development Commission's Project Description and Activity Budget for the ADA Sidewalk Improvement Project and Senior Citizen Project (Project Nos. 601545-12 & 600804-13), CONSULTANT shall retain all required records for a period of five (5) years after the CITY makes final payments and all other pending matters are closed. At any time during normal business hours and as often as the CITY, County of Los Angeles ("County"), the State, HUD and/or Comptroller General of the United States ("Comptroller") may deem necessary, the CONSULTANT shall make available to the aforementioned entities or their representatives or agents for examination all of CONSULTANT's records with respect to all matters covered by this Agreement. CONSULTANT will permit the CITY, the County, the State, HUD, the Comptroller and/or any of their representatives or agents to audit, examine and make excerpts or transcripts from such records, including contracts, invoices, materials, payrolls, records of personnel, conditions of employment and any other data relating to the matters covered by this Agreement. CONSULTANT shall provide to the CITY, the County, the State, HUD, and/or the Comptroller all requested documentation resulting throughout the course of or under this Agreement. CDBG REGULATIONS CONSULTANT agrees to comply with the requirements of Part 570 of Title 24 of the Code of Federal Regulations, which states the U.S. Department of Housing and Urban Development's regulations concerning CDBG, and all federal regulations and policies issued pursuant to these regulations. FAIR EMPLOYMENT PRACTICES/EQUAL OPPORTUNITY ACTS 01203.0006/449174.1 6 In the performance of this Agreement, CONSULTANT shall comply with all applicable provisions of the California Fair Employment Practices Act (California Government Code Section 12940 et seq.), the applicable equal employment provisions of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101, et seq.). LABOR STANDARDS AND CIVIL RIGHTS CONSULTANT agrees to comply with the requirements of the Secretary of Labor and the latest amendments to: Executive Orders 11246 and 11375, as supplemented in Department of Labor regulations (41 C.F.R. chapter 60); the Copeland "Anti-Kickback" Act(18 U.S.C. 847) as supplemented in Department of Labor regulations (29 C.F.R. part 3); Section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701 et seq.); Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000); Section 109 of Title I of the Housing and Community Development Act of 1974 (42 U.S.C. 5301 et seq.);the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.); and Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.). CONSULTANT agrees to comply with the requirements of all other applicable federal, State and local laws and regulations. ENVIRONMENTAL CONDITIONS Pursuant to 24 C.F.R. Section 85.36(i)(13), CONSULTANT agrees to comply with the mandatory standards and policies relating to energy efficiency which are contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act(Pub.L. 94-163, 89 Stat. 871). LOBBYING CERTIFICATIONS The County Lobbyist Code Chapter 2.160 County Ordinance No. 93-0031 Certification is attached hereto as Exhibit "H" and incorporated herein by this reference. CONSULTANT shall complete and file this Certification as required. The Federal Lobbyist Requirements Certification is attached hereto as Exhibit "I" and incorporated herein by this reference. CONSULTANT shall complete and file this Certification with the CITY. CONFLICTS OF INTEREST CONSULTANT agrees, on behalf of itself and its family, and its members, officers, employees and agents and their families, not to accept any employment or representation or otherwise obtain a financial interest or benefit 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. CONSULTANT shall comply with all applicable federal, State, and County laws and regulations governing conflict of interest including but not limited to 24 CFR 01203.0006/449174.1 7 Part 570.611 and 24 CFR Part 85, Section 85.36(b). CONSULTANT shall take appropriate steps to assure compliance with paragraph (a) of this section, and will incorporate the following provision into every sub-contract: "Interest of Subcontractor and Employees. The Subcontractor covenants that no person who presently exercises any functions or responsibilities in connection with the Community Development Block Grant Program has any personal financial interest, direct or indirect, in this Contract. Any interest on the part of the Subcontractor or his employees must be disclosed to the Recipient and the City, provided, however, that this paragraph shall be interpreted in such a manner so as not to unreasonably impede the statutory requirement that maximum opportunity be provided for employment of and participation by residents of the area." CONSULTANT'S WARRANTY OF COMPLIANCE WITH COUNTY'S DEFAULTED PROPERTY TAX REDUCTION PROGRAM The CONSULTANT acknowledges that the County has established a goal of ensuring that all individuals and businesses that benefit financially from the County through contract are current in paying their personal and real property tax obligations (secured and unsecured roll) in order to mitigate the economic burden otherwise imposed upon the County and its taxpayers. Unless the CONSULTANT qualifies for an exemption or exclusion, the CONSULTANT warrants and certifies that to the best of its knowledge it is now in compliance, and during the term of this Agreement will maintain compliance, with the County's Defaulted Tax Program, found at County Ordinance No. 2009-0026 and codified at County Code Chapter 2.206 ("County Ordinance"). CONSULTANT shall keep County property taxes out of default status at all times during the term of this Agreement, as required by the County Ordinance. Failure of the CONSULTANT to maintain compliance with the requirements set forth in the County Ordinance shall constitute default under this Agreement. Without limiting the rights and remedies available to the CITY under any other provision of this Agreement, failure of the CONSULTANT to cure such default within ten (10) days of notice shall be grounds upon which the CITY may suspend or terminate this Agreement pursuant to the County's Defaulted Property Tax Reduction Program found at County Ordinance No. 2009-0026 and codified at County Code Chapter 2.206. Additionally, failure of the CONSULTANT to comply with the provisions of the County Ordinance may prevent the CONSULTANT from being awarded a new contract by the CITY. 01203.0006/449174.1 8 Community Development Commission County of Los Angeles COUNTY LOBBYIST CODE CHAPTER 2.160 COUNTY ORDINANCE NO. 93-0031 CERTIFICATION Name of Firm: No A C o af)ot2,4n on) Address: l 1 0 u CorDe;"<—/ SZot, h'lov.'rcrc l`�orl�. State: C 4 Zip Code: 5/ Telephone Number 0,/.3) UUO silo 3 Acting on behalf of the above named firm, as its Authorized Official, I make the following Certification to the County of Los Angeles and the Community Development Commission, County of Los Angeles. 1. It is understood that each person/entity/firm who applies for a Community Development Commission contract, and as part of that process, shall certify that they are familiar with the requirements of the Los Angeles County Code, Chapter 2.160 (Los Angeles County Ordinance 93-0031) and; 2. That all persons/entities/firms acting on behalf of the above named firm have and will comply with the County Code, and; 3. That any person/entity/firm who seeks a contract with the Community Development Commission shall be disqualified therefrom and denied the contract and, shall be liable in civil action, if any lobbyist, lobbying firm, lobbyist employer or any other person or entity acting on behalf of the named firm fails to comply with the provisions of the County Code. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into contract with the Los Angeles County and the Community Development Commission, County of Los Angeles. Authorized Official: Vo A (67, 670,---Vs-L- By: (Contractor/Scontractor) (Signature) ( fig 01203.0006/449174.1 9 a2/U 1 7Vie� Pie.Es�v�,�r (Date) (Title) 01203.0006/449174.1 10 FEDERAL LOBBYIST REQUIREMENTS CERTIFICATION Name of Firm: K 0'A C 21D2ATJ0IJ Date: 2721 /2 o I$ Address: . I 00 (o ora.-}-c. Cev c-'- c.. State: CA Zip Code: c1 I -c4 Phone No.: 3,2 3 - '?Go —`f 76_3 Acting on behalf of the above named firm, as its Authorized Official, I make the following Certification to the Department of Housing and Urban Development (HUD) and the Community Development Commission, County of Los Angeles: 1. No Federal appropriated funds have been paid, by or on behalf of the above named firm to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, themaking of and Federal grant, loan or cooperative agreement, and any extension, continuation, renewal, amendment, or modification thereof, and; 2. If any funds other than Federal appropriated funds have paid or will be paid to any person for influencing or attempting to influence an officer or employee or any agency, a Member of Congress an officer or employee of Congress or an employee of a Member of Congress in connection with this Federal contract, grant loan, or cooperative agreement, the above named firm shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying",in accordance with its instructions, and: 3. The above name firm shall require that the language of this certification be included in the award documents for all sub-awards at all tiers (including subcontracts, sub-grants, and contracts under grants, loans, and cooperative agreement) and that all sub-recipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into the transaction imposed by Section 1352 Title 31, U.S. Code. Any person who fails to 01203.0006/449174.1 11 file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than$100,000 for each such failure. Authorized Official: Name: A vcLL Sre.p n_ Title: ICC P�E51T��IUT Signatur : Date: Z l z) / 01i( 01203.0006/449174.1 12 CONTRACT SERVICES AGREEMENT By and Between CITY OF RANCHO PALOS VERDES and KOA CORPORATION for PROFESSIONAL ENGINEERING DESIGN SERVICES FOR ADA ACCESS IMPROVEMENTS—BUS STOP ADJACENT TO CITY HALL/CIVIC CENTER COMPLEX - 1 - AGREEMENT FOR CONTRACT SERVICES BETWEEN THE CITY OF RANCHO PALOS VERDES AND KOA CORPORATION THIS AGREEMENT FOR CONTRACT SERVICES (herein "Agreement") is made and entered into this 7th day of February 2017 by and between the City of Rancho Palos Verdes, a California municipal corporation ("City") and KOA Corporation, a California corporation ("Consultant"). City and Consultant are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the"Parties". RECITALS A. City has sought, by issuance of a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement. B. Consultant, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by the City to perform those services. C. Pursuant to the City of Rancho Palos Verdes' Municipal Code, City has authority to enter into and execute this Agreement. D. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein. OPERATIVE PROVISIONS NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows: ARTICLE 1. SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Consultant shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which may be referred to herein as the "services" or "work" hereunder. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the work and services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Consultant covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. - 2 - 1.2 Consultant's Proposal. The Scope of Service shall include the Consultant's scope of work or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement,the terms of this Agreement shall govern. 1.3 Compliance with Law. Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered. 1.4 Licenses,Permits,Fees and Assessments. Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder. 1.5 Familiarity with Work. By executing this Agreement, Consultant warrants that Consultant(i)has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Consultant discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the Contract Officer. 1.6 Care of Work. The Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials,papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified,neither party shall be responsible for the service of the other. 1.8 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by - 3 - altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Consultant. Any increase in compensation of up to ten percent (10%) of the Contract Sum or $25,000, whichever is less; or, in the time to perform of up to one hundred eighty (180) days, may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council. It is expressly understood by Consultant that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other contractors. No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provisions of this Agreement,the provisions of Exhibit"B"shall govern. ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT. 2.1 Contract Sum. Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed TWENTY-FOUR THOUSAND FIVE HUNDRED SEVENTY DOLLARS ($24,570) (the "Contract Sum"),unless additional compensation is approved pursuant to Section 1.8. 2.2 Method of Compensation. The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services, less contract retention; (iii) payment for time and materials based upon the Consultant's rates as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks, (b) contract retention is maintained, and (c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation. 2.3 Reimbursable Expenses. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City. Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings. - 4 - 2.4 Invoices. Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City's Director of Finance. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub- contractor contracts. Sub-contractor charges shall also be detailed by such categories. Consultant shall not invoice City for any duplicate services performed by more than one person. City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Consultant to be paid within forty-five (45) days of receipt of Consultant's correct and undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures,the City cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by City,the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by the Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law. 2.5 Waiver. Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant. ARTICLE 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "D" and incorporated herein by this reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively. 3.3 Force Majeure. The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no - 5 - event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant's sole remedy being extension of the Agreement pursuant to this Section. 3.4 Term. Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) year from the date hereof, except as otherwise provided in the Schedule of Performance(Exhibit"D"). ARTICLE 4. COORDINATION OF WORK 4.1 Representatives and Personnel of Consultant. The following principals of Consultant ("Principals") are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Charles Stephan Principal-In-Charge/Project Manager (Name) (Title) It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant's staff and subcontractors, if any, assigned to perform the services required under this Agreement. Consultant shall notify City of any changes in Consultant's staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance. 4.2 Status of Consultant. Consultant shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant's officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Consultant, nor any of Consultant's officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City's employees. Consultant expressly waives any claim Consultant may have to any such rights. 4.3 Contract Officer. The Contract Officer shall be Ron Dragoo, Principal Engineer, or Michael Throne, Director of Public Works, or such person as may be designated by the City Manager. It shall be the Consultant's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the - 6 - approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.4 Independent Consultant. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Consultant's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant. 4.5 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City. ARTICLE 5. INSURANCE AND INDEMNIFICATION 5.1 Insurance Coverages. The Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees and agents of City: (a) Commercial General Liability Insurance (Occurrence Form CG0001 or equivalent). A policy of comprehensive general liability insurance written on a per occurrence basis for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than $1,000,000.00 per occurrence or if a general aggregate limit is used, then the general aggregate limit shall be twice the occurrence limit. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for the Consultant against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Consultant in the course of carrying out the work or services contemplated in this Agreement. - 7 - (c) Automotive Insurance (Form CA 0001 (Ed 1/87) including "any auto" and endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than $1,000,000. Said policy shall include coverage for owned, non-owned, leased, hired cars and any automobile. (d) Professional Liability. Professional liability insurance appropriate to the Consultant's profession. This coverage may be written on a "claims made" basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to services performed under this Agreement. The insurance must be maintained for at least 5 consecutive years following the completion of Consultant's services or the termination of this Agreement. During this additional 5-year period, Consultant shall annually and upon request of the City submit written evidence of this continuous coverage. (e) Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall include all of the requirements stated herein. (f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit"B". 5.2 General Insurance Requirements. All of the above policies of insurance shall be primary insurance and shall name the City, its elected and appointed officers, employees and agents as additional insureds and any insurance maintained by City or its officers, employees or agents may apply in excess of, and not contribute with Consultant's insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. Moreover, the insurance policy must specify that where the primary insured does not satisfy the self-insured retention,any additional insured may satisfy the self-insured retention. All of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any party hereto without providing thirty (30) days prior written notice by certified mail return receipt requested to the City. In the event any of said policies of insurance are cancelled, the Consultant shall, prior to the cancellation date, submit new evidence of insurance in conformance with Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Consultant has provided the City with Certificates of Insurance, additional insured endorsement forms or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. City reserves the right to inspect complete, certified copies of and endorsements to all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City. All certificates shall name the City as additional insured (providing the appropriate endorsement) and shall conform to the following"cancellation"notice: CANCELLATION: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATED THEREOF, THE ISSUING COMPANY SHALL MAIL THIRTY (30)- DAY ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER NAMED HEREIN. - 8 - [to be initialed] 'p Consult t Initials City, its respective elected and appointed officers, directors, officials, employees, agents and volunteers are to be covered as additional insureds as respects: liability arising out of activities Consultant performs; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or any automobiles owned, leased, hired or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, employees or volunteers. Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. The Consultant agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages to any persons or property resulting from the Consultant's activities or the activities of any person or persons for which the Consultant is otherwise responsible nor shall it limit the Consultant's indemnification liabilities as provided in Section 5.3. In the event the Consultant subcontracts any portion of the work in compliance with Section 4.5 of this Agreement, the contract between the Consultant and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the Consultant is required to maintain pursuant to Section 5.1,and such certificates and endorsements shall be provided to City. 5.3 Indemnification. To the full extent permitted by law, Consultant agrees to indemnify, defend and hold harmless the City, its officers, employees and agents ("Indemnified Parties") against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable ("indemnitors"), or arising from Consultant's or indemnitors' reckless or willful misconduct, or arising from Consultant's or indemnitors' negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith: (a) Consultant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Consultant will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Consultant hereunder; and Consultant agrees to save and hold the City, its officers, agents, and employees harmless therefrom; - 9 - (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. Consultant shall incorporate similar indemnity agreements,with its subcontractors and if it fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Consultant in the performance of professional services hereunder. The provisions of this Section do not apply to claims or liabilities occurring as a result of City's sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City's negligence, except that design professionals' indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement. 5.4 Sufficiency of Insurer. Insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated"A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City ("Risk Manager") due to unique circumstances. If this Agreement continues for more than 3 years duration, or in the event the risk manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the Risk Manager. ARTICLE 6. RECORDS,REPORTS,AND RELEASE OF INFORMATION 6.1 Records. Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the "books and records"), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Consultant's business, custody of the books and records may be given to City, and access shall be provided by Consultant's successor in interest. Notwithstanding the above, the Consultant shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act. - 10 - 6.2 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed. 6.3 Ownership of Documents. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the "documents and materials") prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Consultant will be at the City's sole risk and without liability to Consultant, and Consultant's guarantee and warranties shall not extend to such use, reuse or assignment. Consultant may retain copies of such documents for its own use. Consultant shall have the right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, Consultant with respect to any documents and materials that may qualify as "works made for hire" as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed"works made for hire"for the City. 6.4 Confidentiality and Release of Information. (a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer. (b) Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorneys fees, caused by or incurred as a result of Consultant's conduct. - 11 - (d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response. ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION 7.1 California Law. This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of Los Angeles, State of California. 7.2 Disputes; Default. In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Consultant is in default,the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Consultant's default shall not be deemed to result in a waiver of the City's legal rights or any rights arising out of any provision of this Agreement. 7.3 Retention of Funds. Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Consultant's acts or omissions in performing or failing to perform Consultant's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein. - 12 - 7.4 Waiver. Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuant to Government Code Sections 905 et. seq. and 910 et. seq., in order to pursue a legal action under this Agreement. 7.7 Termination Prior to Expiration of Term. This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Contract at any time, with or without cause, upon thirty (30) days' written notice to Consultant, except that where termination is due to the fault of the Consultant, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Consultant reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60) days' written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2. 7.8 Termination for Default of Consultant. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and - 13 - prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated. 7.9 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly,which would conflict in any manner with the interests of City or which would in any way hinder Consultant's performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects her/his financial interest or the financial interest of any corporation, partnership or association in which (s)he is, directly or indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination. Consultant covenants that,by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status,national origin, ancestry or other protected class. 8.4 Unauthorized Aliens. - 14 - Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement,and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys'fees, incurred by City. ARTICLE 9. MISCELLANEOUS PROVISIONS 9.1 Notices. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer (with her/his name and City title), City of Rancho Palos Verdes, 30940 Hawthorne Blvd., California 90275 and in the case of the Consultant, to the person(s) at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 9.4 Integration; Amendment. This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Consultant and by the City Council. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void. 9.5 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. - 15 - 9.6 Warranty&Representation of Non-Collusion. No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of "financial interest" shall be consistent with State law and shall not include interests found to be "remote" or"noninterests" pursuant to Government Code Sections 1091 or 1091.5. Consultant warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement. Consultant further warrants and represents that(s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement. Consultant is aware of and understands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect. J Consultant's Authorized Initials .11i-' 9.7 Corporate Authority. VVV The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. [SIGNATURES ON FOLLOWING PAGE] - 16 - IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written. CITY: CITY OF RANCHO PALOS VERDES, a municipal corporation Doug Willmore, City Manager ATTEST: , City Clerk APPROVED AS TO FORM: ALESHIRE& WYNDER, LLP David J. Aleshire, City Attorney CONSULTANT: KOA Corporation By: ce/6 "( Nam : thik f. er- Title. She-4ror-1 By: Name: • °re- `- Title: CX---0 Address: 1100 Corporate Center Dr., Suite 201 Monterey Park, CA 91754 Two corporate officer signatures required when Consultant is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY. - 17 - CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) COUNTY OF XXXX 02,03. Aldo On Fd) � >0 17 before me, 1l 6ne4 /4/o* iypdL Date Here InsertNamean Title of Officer personally appeared doe - - An cJ (AaA ,4 . &a-ti e(re% Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that h&sl°te/they executed the same in Ilisfl°ter/their authorized capacity(ies), and that by hasher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California ,3.:., YI SHEN ' "ti` Commission#t 2094168 = that the foregoing paragraph is true and a �'� �aN Notary Public-California z correct. z :'*3'�,-,) r D z Los Angeles County .' My Comm ExpiresDec19.2o1e' WITNESS my hand and official seal. Sig ture of Notary Public Place Notary Seal Above EXHIBIT "A" SCOPE OF SERVICES Brief description of work to be performed: Consultant will provide engineering design services for the City's ADA Access Improvements — Bus Stop Adjacent to City Hall/Civic Center Complex Project. These services will include preparing complete construction ready and ADA Compliant plans, specifications and estimate for the proposed improvements. II. Consultant will perform the following Tasks: Tasks 1 —Research and Project Initiation. 1. Data Research—KOA will research compile, and review available record data relevant to the project. Data will include available maps, right of way, parcel data, GIS Information, and the ALTA survey of the City Hall campus performed in 2007. 2. Utility Coordination — KOA will investigate and request utility information from utility companies, and note visible utilities on site, including the Verizon vaults, irrigation, electrical, water and other utilities. 3. Topographic Survey and Map — KOA, with KDM Meridian, will conduct a detailed field survey of the project location. Data will be imported into AutoCAD for design use. Topo information will include: right of way, parcel boundaries, curb and flowline, pavement, visible utilities, landscape and irrigation, hardscape, pavement, striping, signing, and survey monuments. 4. Field Review—KOA will verify the compiled research at the job site. Tasks 2—Interim and final PS&E (Concept, 50%, 90%, 100% Document). 1. Preliminary Concept Plans—KOA will deliver these Plans via e-mail or in person. 2. 50% Plans and Estimate—KOA will deliver these Plans and this estimate via e-mail or in person. 3. 90% PS&E—KOA will deliver these Plans and this estimate via e-mail or in person. 4. 100% PS&E—KOA will deliver these Plans and this estimate via e-mail or in person. Task 3—Meetings and Coordination. 1. Kick-Off Meeting — KOA will supply the meeting agendas, sign in sheets and take minutes of the meeting. Maps and other presentation items will be supplied by KOA as needed. 2. 50% Review Meeting — KOA will supply the meeting agendas, sign in sheets and take minutes of the meeting. KOA will also bring the 50%plans and estimate. 3. 90% Review Meeting — KOA will supply the meeting agendas, sign in sheets and take minutes of the meeting. KOA will also bring the 50%plans and estimate. 4. Pre-Construction Meeting — The city has the option to have KOA attend the Pre- Construction meeting to help address any questions that the future construction contractor might have. Task 4—Bidding Services. 1. Respond to RFIs—KOA will supply e-mail responses to RFI questions. Task 5—Construction Support. 1. Respond to Construction RFIs—KOA will supply e-mail responses to RFI questions. 2. As-Built Drawings/Record Plans—KOA will deliver these Plans via e-mail or in person. III. As part of the Services, Consultant will prepare and deliver the following tangible work products to the City: Tasks 1 Deliverables 1. Record data list and pdf scans 2. Utility contact list and data 3. Topographic survey print, signed 4. Topographic survey CAD file Tasks 2 Deliverables 1. 50% Estimate 2. 90% PS&E 3. 100% PS&E, signed 4. Plan check sheets 5. CD with PDF and native digital files of all project documents including plans, specifications, estimate, utility information, correspondence, and other relevant data. Tasks 3 Deliverables 1. Agenda/Minutes Kickoff meeting 2. Agenda/Minutes 50% meeting 3. Agenda/Minutes 90%meeting 4. Agenda/Minutes 100%meetings Tasks 4 Deliverables 1. E-mailed responses to all RFI Questions throughout the project bidding phase. Tasks 5 Deliverables 1. E-mailed responses to all RFI Questions throughout the project construction phase. 2. Copy of the digital Record Plan. IV. Obligation to Meet Project Budget Consultant has been hired to perform the services described in this Agreement, which include the creation of one or more designs, drawings, or plans ("Designs"). Consultant acknowledges that City has budgeted the amount of One Hundred Thirty-Eight Thousand Three Hundred Seventy-Two Dollars ($138,372) for actual construction of the Project ("Project Budget"), which is described above. Consultant shall be responsible to do Project estimating to create Designs that will enable the Project to be constructed within the Project Budget. Notwithstanding the foregoing, Consultant is not responsible for changes in the scope of the Project initiated by the City and all such changes shall include appropriate mutually agreed changes to the Project Budget. V. Consultant will utilize the following personnel to accomplish the Services: A. Charles Stephan, KOA Corporation B. Ming Guan, KOA Corporation C. Andrew Osaki, KOA Corporation D. Rich Maher, KDM Meridian EXHIBIT "B" SPECIAL REQUIREMENTS (Superseding Contract Boilerplate) I. Section 4.5, Prohibition against Subcontracting or Assignment, is hereby amended to include the following: The City approves Consultant's use of KDM Meridian as a subcontractor for the purpose of providing surveying services, as described in Consultant's proposal. EXHIBIT"C" SCHEDULE OF COMPENSATION I. Consultant shall perform the following Services at the following rates: PRINC. P.M. DES. TECH TASKS KDM ADMIN SUB- $160/hr $160/hr $120/hr $90/hr MERID. COSTS TOTALS TASK 1: RESEARCH AND PROJECT INITIATION 1.1 Data Research 2 hr 4 hr 4 hr $ 1,160 1.2 Utility Coordination 2 hr 4 hr 4 hr $ 1,160 1.3 Topographic Survey and Map 2 hr $ 8,140 $ 8,460 1.4 Field Review 1 hr 4 hr 4 hr $ 50 $ 1,330 SUB-TOTAL 1 hr 10 hr 12 hr 8 hr $ 8,140 $ 50 $ 12,110 TASK 2: INTERIM AND FINAL PS&E (Concept,50%,90%, 100% Document) 2.1 Preliminary Concept Plans 1 hr 2 hr 2 hr 8 hr $ 1,440 2.2 50%Plans and Estimate 1 hr 2 hr 8 hr 16 hr $ 2,880 2.3 90%PS&E 1 hr 2 hr 8 hr 16 hr $ 2,880 2.4 100%PS&E 1 hr 2 hr 2 hr 8 hr $ 1,440 SUB-TOTAL 4 hr 8 hr 20 hr 48 hr $ 8,640 TASK 3: MEETINGS AND COORDINATION 3.1 Kick-Off Meeting 4 hr $ 50 $ 690 3.2 50%Review Meeting 4 hr $ 50 $ 690 3.3 90%Review Meeting 4 hr $ 50 $ 690 3.4 Pre-Construction Meeting 2 hr $ 50 $ 370 SUB-TOTAL 14 hr $ 200 $ 2,440 TASK 4: BIDDING SERVICES 4.1 Respond to RFIs 1 hr 1 hr 1 hr $ 440 SUB-TOTAL 1 hr 1 hr 1 hr $ 440 TASK 5: CONSTRUCTION SUPPORT 5.1 Respond to Construction RFIs 1 hr 1 hr 1 hr $ 440 5.2 As-Built Drawings/Record Plans 1 hr 1 hr 2 hr $ 500 SUB-TOTAL 2 hr 2 hr 1 hr 2 hr $ 940 TOTAL FEES $1,280 $5,600 $4,080 $5,220 $ 8,140 $ 250 $24,570 Item 1.3 work for KDM Meridian shall be payable in lump sum upon completion of the item. Admin Cost work in item 1.4 and items 3.1 — 3.4 shall be payable at not to exceed values for each item and upon completion of each individual item. II. With the approval of the Contract Officer, funds may be shifted from one task or subtask budget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.8. III. All work product is subject to review and acceptance by the City, and must be revised by the Consultant without additional charge to the City until found satisfactory and accepted by City. IV. The City will compensate Consultant for the Services performed upon submission of a valid invoice. Each invoice is to include: A. Line items for all the work performed. B. Line items for all materials and equipment properly charged to the Services. C. Line items for all other approved reimbursable expenses claimed, with supporting documentation. D. Line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services. V. The total compensation for the Services shall not exceed $ 24,570, as provided in Section 2.1 of this Agreement. EXHIBIT "D" SCHEDULE OF PERFORMANCE I. Consultant shall perform all Services, including delivery of tangible work products to the City, in accordance with the following schedule,which will begin on the day the City issues the Notice to Proceed. A. Consultant will have 40 working days or 8 calendar weeks to complete Task 1, Task 2, and Task 3 in Exhibit"A". B. Task 4 will be completed within the three calendar weeks that the City advertises this project for construction. C. Task 5 will commence at the Notice to Proceed for the construction contractor and conclude when the project's Notice of Completion is filed with Los Angeles County. II. The Contract Officer may approve extensions for performance of the services in accordance with Section 3.2.