Charles Abbott Associates Inc On-call (2012) CITY OF RANCHO PALOS VERDES
ON-CALL PROFESSIONAL/TECHNICAL SERVICES AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 18th day of September,
2012 by and between the City of Rancho Palos Verdes (hereinafter referred to as the
"CITY") and Charles Abbott Associates, Inc. (hereafter referred to as "CONSULTANT").
IN CONSIDERATION of the covenants hereinafter set forth, the parties hereto
agree as follows:
ARTICLE 1
SCOPE OF SERVICES
1.1 Project Description
The Project is described as on-call engineering and public works support
services.
1.2 Description of Services
CONSULTANT shall provide civil engineering, transportation engineering,
water and wastewater services, architectural services and inspection services.
1.3 Schedule of Work
Upon receipt of written Notice to Proceed from the CITY, CONSULTANT
shall perform with due diligence the services requested by the CITY. Time is of the
essence in this Agreement. CONSULTANT shall not be responsible for delay, nor shall
CONSULTANT be responsible for damages or be in default or deemed to be in default
by reason of strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish
timely information or to approve or disapprove CONSULTANT's work promptly, or delay
or faulty performance by CITY, other consultants/contractors, or governmental
agencies, or any other delays beyond CONSULTANT's control or without
CONSULTANT's fault.
ARTICLE 2
COMPENSATION
2.1 Fee
Upon CITY's request, CONSULTANT shall submit a proposal for a
particular project, including a scope of work and total cost for services ("Proposal").
Once CITY accepts a Proposal as submitted or amended and issues a written Notice to
Proceed therefor, CITY agrees to compensate CONSULTANT in accordance with the
total cost for services listed in the Proposal, and in any case an amount not to exceed
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twenty-five thousand dollars ($25,000) for a single service and sixty thousand dollars
($60,000) per fiscal year for services as described in Article 1. On-call services that are
reimbursed by a trust deposit shall not count towards the maximum amounts
CONSULANT shall be paid for such services. If the CITY requests any work that is
beyond the scope of work listed in the Proposal, the CITY and CONSULTANT shall
negotiate the scope of work and fees for this extra work in accordance with
CONSULTANT's Schedule of Fees, which is attached hereto as Exhibit "A" and
incorporated herein by this reference, up to the twenty-five thousand dollars ($25,000)
for a single service maximum amount. Upon mutual agreement of the scope of work
and fees, the City shall issue a written Notice to Proceed therefor. The rates in Exhibit
"A" shall remain in effect through at least June 19, 2013. Thereafter, if CONSULTANT
wishes to increase the rates set forth in Exhibit "A," CONSULTANT shall give CITY
ninety (90) days prior written notice of the rate increase.
2.2 Payment Address
All payments due CONSULTANT shall be paid to:
Charles Abbott Associates, Inc.
27401 Los Altos, Suite 220
Mission Viejo, CA 92691
2.3 Terms of Compensation
CONSULTANT shall submit monthly invoices for the work completed in
the previous month. CITY agrees to authorize payment for all undisputed invoice
amounts within thirty (30) days of receipt of each invoice. CITY agrees to use its best
efforts to notify CONSULTANT of any disputed invoice amounts within ten (10) days of
the receipt of each invoice. However, CITY's failure to timely notify CONSULTANT of a
disputed amount shall not be deemed a waiver of CITY's right to challenge such
amount.
Additionally, in the event CITY fails to pay any undisputed amounts due
CONSULTANT within forty-five (45) days after invoices are received by CITY then CITY
agrees that CONSULTANT shall have the right to consider said default a total breach of
this Agreement and be terminated by CONSULTANT without liability to CONSULTANT
upon ten (10) working days advance written notice.
2.4 Term of Agreement
This Agreement shall commence on September 19, 2012 and shall
terminate on June 19, 2015 unless sooner terminated pursuant to Article 4 of this
Agreement.
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• a
ARTICLE 3
INDEMNIFICATION AND INSURANCE
3.1 Indemnification, Hold Harmless, and Duty to Defend
(a) Indemnity for Design Professional Services. In connection with its
design professional services, CONSULTANT shall hold harmless and indemnify CITY,
and its officials, officers, employees, agents and independent contractors serving in the
role of CITY officials, and designated volunteers (collectively, "Indemnitees"), with
respect to any and all claims, demands, causes of action, damages, injuries, liabilities,
losses, costs or expenses, including reimbursement of attorneys' fees and costs of
defense (collectively, "Claims" hereinafter), including but not limited to Claims relating to
death or injury to any person and injury to any property, which arise out of, pertain to, or
relate to in whole or in part to the negligence, recklessness, or willful misconduct of
CONSULTANT or any of its officers, employees, subcontractors, or agents in the
performance of its design professional services under this Agreement.
(b) Other Indemnities. In connection with any and all claims, demands,
causes of action, damages, injuries, liabilities, losses, costs or expenses, including
attorneys' fees and costs of defense (collectively, "Damages" hereinafter) not covered
by Section 3.1(a), CONSULTANT shall defend, hold harmless and indemnify the
Indemnitees with respect to any and all Damages, including but not limited to, Damages
relating to death or injury to any person and injury to any property, which arise out of,
pertain to, or relate to the acts or omissions of CONSULTANT or any of its officers,
employees, subcontractors, or agents in the performance of this Agreement, except for
such loss or damage arising from the sole negligence or willful misconduct of the CITY,
as determined by final arbitration or court decision or by the agreement of the parties.
CONSULTANT shall defend Indemnitees in any action or actions filed in connection
with any such Damages with counsel of CITY's choice, and shall pay all costs and
expenses, including all attorneys' fees and experts' costs actually incurred in connection
with such defense. Consultant's duty to defend pursuant to this Section 3.1(b) shall
apply independent of any prior, concurrent or subsequent misconduct, negligent acts,
errors or omissions of Indemnitees.
(c) All duties of CONSULTANT under Section 3.1 shall survive
termination of this Agreement.
3.2 General Liability
CONSULTANT shall at all times during the term of the Agreement carry,
maintain, and keep in full force and effect, a policy or policies of Commercial General
Liability Insurance, with minimum limits of one million dollars ($1,000,000) for each
occurrence and two million dollars ($2,000,000) general aggregate for bodily injury,
death, loss or property damage for products or completed operations and any and all
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other activities undertaken by CONSULTANT in the performance of this Agreement.
Said policy or policies shall be issued by an insurer admitted to do business in the State
of California and rated in A.M. Best's Insurance Guide with a rating of A:VII or better.
3.3 Professional Liability
CONSULTANT shall at all times during the term of this Agreement, carry,
maintain, and keep in full force and effect a policy or policies of professional liability
insurance with a minimum limit of one million dollars ($1,000,000) per claim and
aggregate for errors and/or omissions of CONSULTANT in the performance of this
Agreement. Said policy or policies shall be issued by an insurer admitted to do business
in the State of California and rated in Best's Insurance Guide with a rating of A:VII or
better. If a "claims made" policy is provided, such policy shall be maintained in effect
from the date of performance of work or services on the CITY's behalf until three (3)
years after the date of work or services are accepted as completed. Coverage for the
post-completion period may be provided by renewal or replacement of the policy for
each of the three (3) years or by a three-year extended reporting period endorsement,
which reinstates all limits for the extended reporting period. If any such policy and/or
policies have a retroactive date, that date shall be no later than the date of first
performance of work or services on behalf of the CITY. Renewal or replacement
policies shall not allow for any advancement of such retroactive date. •
3.4 Automobile Liability
CONSULTANT shall at all times during the term of this Agreement obtain,
maintain, and keep in full force and effect, a policy or policies of Automobile Liability
Insurance, with minimum of one million dollars ($1,000,000) per claim and occurrence
and two million dollars ($2,000,000) in the aggregate for bodily injuries or death of one
person and five hundred thousand dollars ($500,000) for property damage arising from
one incident.
3.5 Worker's Compensation
CONSULTANT agrees to maintain in force at all times during the
performance of work under this Agreement worker's compensation insurance as
required by the law. CONSULTANT shall require any subcontractor similarly to provide
such compensation insurance for their respective employees.
3.6 Notice of Cancellation
(a) All insurance policies shall provide that the insurance coverage
shall not be cancelled by the insurance carrier without thirty (30) days prior written
notice to CITY, or ten (10) days notice if cancellation is due to nonpayment of premium.
CONSULTANT agrees that it will not cancel or reduce said insurance coverage.
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(b) CONSULTANT agrees that if it does not keep the aforesaid
insurance in full force and effect, CITY may either immediately terminate this Agreement
or, if insurance is available at a reasonable cost, CITY may take out the necessary
insurance and pay, at CONSULTANT's expense, the premium thereon.
3.7 Certificate of Insurance
At all times during the term of this Agreement, CONSULTANT shall
maintain on file with the CITY Clerk a certificate of insurance showing that the aforesaid
policies are in effect in the required amounts. The commercial general liability policy
shall contain endorsements naming the CITY, its officers, agents and employees as
additional insureds.
3.8 Primary Coverage
The insurance provided by CONSULTANT shall be primary to any
coverage available to CITY. The insurance policies (other than workers compensation
and professional liability) shall include provisions for waiver of subrogation.
ARTICLE 4
TERMINATION
4.1 Termination of Agreement
(a) This Agreement may be terminated at any time, with or without
cause, by the CITY upon thirty (30) days prior written notice or by CONSULTANT upon
ninety (90) days prior written notice. Notice shall be deemed served if completed in
compliance with Section 6.14.
(b) In the event of termination or cancellation of this Agreement by
CONSULTANT or CITY, due to no fault or failure of performance by CONSULTANT,
CONSULTANT shall be paid compensation for all services performed by
CONSULTANT, in an amount to be determined as follows: for work satisfactorily done
in accordance with all of the terms and provisions of this Agreement, CONSULTANT
shall be paid an amount equal to the percentage of services performed prior to the
effective date of termination or cancellation in accordance with the work items; provided,
in no event shall the amount of money paid under the foregoing provisions of this
paragraph exceed the amount which would have been paid to CONSULTANT for the
full performance of the services described in this Agreement.
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ARTICLE 5
OWNERSHIP OF DOCUMENTS
5.1 Ownership of Documents and Work Product
All documents, plans, specifications, reports, information, data, exhibits,
photographs, images, video files and media created or developed by CONSULTANT
pursuant to this Agreement ("Written Products") shall be and remain the property of the
CITY without restriction or limitation upon its use, duplication or dissemination by the
CITY. All Written Products shall be considered "works made for hire," and all Written
Products and any and all intellectual property rights arising from their creation,
including, but not limited to, all copyrights and other proprietary rights, shall be and
remain the property of the CITY without restriction or limitation upon their use,
duplication or dissemination by the CITY. CONSULTANT shall not obtain or attempt to
obtain copyright protection as to any Written Products.
CONSULTANT hereby assigns to the CITY all ownership and any and all
intellectual property rights to the Written Products that are not otherwise vested in the
CITY pursuant to the paragraph directly above this one.
CONSULTANT warrants and represents that it has secured all necessary
licenses, consents or approvals to use any instrumentality, thing or component as to
which any intellectual property right exists, including computer software, used in the
rendering of the services and the production of all Written Products produced under this
Agreement, and that the CITY has full legal title to and the right to reproduce the Written
Products. CONSULTANT shall defend, indemnify and hold the CITY, and its elected
officials, officers, employees, servants, attorneys, designated volunteers, and agents
serving as independent contractors in the role of CITY officials, harmless from any loss,
claim or liability in any way related to a claim that CITY's use of any of the Written
Products is violating federal, state or local laws, or any contractual provisions, or any
laws relating to trade names, licenses, franchises, copyrights, patents or other means of
protecting intellectual property rights and/or interests in products or inventions.
CONSULTANT shall bear all costs arising from the use of patented, copyrighted, trade
secret or trademarked documents, materials, equipment, devices or processes in
connection with its provision of the services and Written Products produced under this
Agreement. In the event the use of any of the Written Products or other deliverables
hereunder by the CITY is held to constitute an infringement and the use of any of the
same is enjoined, CONSULTANT, at its expense, shall: (a) secure for CITY the right to
continue using the Written Products and other deliverables by suspension of any
injunction, or by procuring a license or licenses for CITY; or (b) modify the Written
Products and other deliverables so that they become non-infringing while remaining in
compliance with the requirements of this Agreement. This covenant shall survive the
termination of this Agreement.
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Upon termination, abandonment or suspension of the Project, the
CONSULTANT shall deliver to the CITY all Written Products and other deliverables
related to the Project without additional cost or expense to the CITY. If CONSULTANT
prepares a document on a computer, CONSULTANT shall provide CITY with said
document both in a printed format and in an electronic format that is acceptable to the
CITY.
ARTICLE 6
GENERAL PROVISIONS
6.1 Representation
The CITY representative shall be the Director of Public Works or his or her
designee, and CONSULTANT shall notify CITY of CONSULTANT's designated
representative. These individuals shall be the primary contact persons for the parties
regarding performance of this Agreement.
6.2 Fair Employment Practices/Equal Opportunity Acts
In the performance of this Agreement, CONSULTANT shall comply with all
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
CONSULTANT represents that it has, or shall secure at its own expense,
all personnel required to perform CONSULTANT's services under this Agreement. Any
person who performs engineering services pursuant to this Agreement shall be licensed
as a Civil Engineer by the State of California and in good standing. CONSULTANT
shall make reasonable efforts to maintain the continuity of CONSULTANT's staff who
are assigned to perform the services hereunder and shall obtain the approval of the
Director of Public Works of all proposed staff members who will perform such services.
CONSULTANT may associate with or employ associates or subconsultants in the
performance of its services under this Agreement, but at all times shall CONSULTANT
be responsible for its associates or subconsultants' services.
6.4 CONSULTANT's Representations
CONSULTANT represents, covenants and agrees that: a) CONSULTANT
is licensed, qualified, and capable of furnishing the labor, materials, and expertise
necessary to perform the services in accordance with the terms and conditions set forth
in this Agreement; b) there are no obligations, commitments, or impediments of any kind
that will limit or prevent CONSULTANT's full performance under this Agreement; c) to
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the extent required by the standard of practice, CONSULTANT has investigated and
considered the scope of services performed, has carefully considered how the services
should be performed, and understands the facilities, difficulties and restrictions
attending performance of the services under this Agreement.
6.5 Conflicts of Interest
CONSULTANT agrees not to accept any employment or representation
during the term of this Agreement or within twelve (12) months after completion of the
work under this Agreement which is or may likely make CONSULTANT "financially
interested" (as provided in California Government Code Sections 1090 and 87100) in
any decisions made by CITY on any matter in connection with which CONSULTANT
has been retained pursuant to this Agreement.
6.6 Legal Action
(a) Should either party to this Agreement bring legal action against the
other, the validity, interpretation, and performance of this Agreement shall be controlled
by and construed under the laws of the State of California, excluding California's choice
of law rules. Venue for any such action relating to this Agreement shall be in the Los
Angeles County Superior Court.
(b) If any legal action or other proceeding, including action for
declaratory relief, is brought for the enforcement of this Agreement or because of an
alleged dispute, breach, default or misrepresentation in connection with this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees, experts' fees,
and other costs, in addition to any other relief to which the party may be entitled.
(c) Should any legal action about a project between CITY and a party
other than CONSULTANT require the testimony of CONSULTANT when there is no
allegation that CONSULTANT was negligent, CITY shall compensate CONSULTANT
for its testimony and preparation to testify at the hourly rates in effect at the time of such
testimony.
6.7 Assignment
Neither this Agreement nor any part thereof shall be assigned by
CONSULTANT without the prior written consent of the CITY. Any such purported
assignment without written consent shall be null and void, and CONSULTANT shall hold
harmless, defend and indemnify the CITY and its officers, officials, employees, agents
and representatives with respect to any claim, demand or action arising from any
unauthorized assignment.
Notwithstanding the above, CONSULTANT may use the services of
persons and entities not in CONSULTANT's direct employ, when it is appropriate and
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customary to do so. Such persons and entities include, but are not necessarily limited
to, surveyors, specialized consultants, and testing laboratories. CONSULTANT's use of
subconsultants for additional services shall not be unreasonably restricted by the CITY
provided CONSULTANT notifies the CITY in advance.
6.8 Independent Contractor
CONSULTANT is and shall at all times remain, as to the CITY, a wholly
independent contractor. Neither the CITY nor any of its agents shall have control over
the conduct of CONSULTANT or any of the CONSULTANT's employees, except as
herein set forth, and CONSULTANT is free to dispose of all portions of its time and
activities which it is not obligated to devote to the CITY in such a manner and to such
persons, firms, or corporations as the CONSULTANT wishes except as expressly
provided in this Agreement. CONSULTANT shall have no power to incur any debt,
obligation, or liability on behalf of the CITY or otherwise act on behalf of the CITY as an
agent. CONSULTANT shall not, at any time or in any manner, represent that it or any of
its agents, servants or employees, are in any manner agents, servants or employees of
CITY. CONSULTANT agrees to pay all required taxes on amounts paid to
CONSULTANT under this Agreement, and to indemnify and hold the CITY harmless
from any and all taxes, assessments, penalties, and interest asserted against the CITY
by reason of the independent contractor relationship created by this Agreement.
CONSULTANT shall fully comply with the workers' compensation law regarding
CONSULTANT and its employees. CONSULTANT further agrees to indemnify and
hold the CITY harmless from any failure of CONSULTANT to comply with applicable
workers' compensation laws. The CITY shall have the right to offset against the amount
of any fees due to CONSULTANT under this Agreement any amount due to the CITY
from CONSULTANT as a result of its failure to promptly pay to the CITY any
reimbursement or indemnification arising under this Article.
6.9 Titles
The titles used in this Agreement are for general reference only and are
not part of the Agreement.
6.10 Entire Agreement
This Agreement, including any other documents incorporated herein by
specific reference, represents the entire and integrated agreement between CITY and
CONSULTANT and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be modified or amended, or provisions or
breach may be waived, only by subsequent written agreement signed by both parties.
6.11 Construction
In the event of any asserted ambiguity in, or dispute regarding the
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interpretation of any matter herein, the interpretation of this Agreement shall not be
resolved by any rules of interpretation providing for interpretation against the party who
causes the uncertainty to exist or against the party who drafted the Agreement or who
drafted that portion of the Agreement.
6.12 Non-Waiver of Terms, Rights and Remedies
Waiver by either party of any one or more of the conditions of performance under
this Agreement shall not be a waiver of any other condition of performance under this
Agreement. In no event shall the making by the CITY of any payment to
CONSULTANT constitute or be construed as a waiver by the CITY of any breach of
covenant, or any default which may then exist on the part of CONSULTANT, and the
making of any such payment by the CITY shall in no way impair or prejudice any right or
remedy available to the CITY with regard to such breach or default.
6.13 Severability
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
6.14 Notice
Except as otherwise required by law, any notice or other communication
authorized or required by this Agreement shall be in writing and shall be deemed
received on (a) the day of delivery if delivered by hand or overnight courier service
during CONSULTANT's or CITY's regular business hours or (b) on the third business
day following deposit in the United States mail, postage prepaid, to the addresses listed
below, or at such other address as one party may notify the other:
To CITY:
Jim Hendrickson, Interim Public Works Director
City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
To CONSULTANT:
Charles Abbott Associates, Inc.
Atten: Alan Rigg
27401 Los Altos, Suite 220
Mission Viejo, AC 92691
(Continued on next page.)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
Dated: by9/20-o/L CHARLES ABBOTT ASSOCIATES,
INC.
("CONSULTANT")
By: _Orr/ OP OF- #
Printed Name: • AaLe s71 /P /t .e421
Title:
By:
Printed Name:
Title:
Dated: '" Z CITY OF RANCHO PALOS VERDES
("CITY")
By: -44/44/114t4111
Mayor
ATTEST: APPROVED AS TO FORM:
By: giagO- A4AW-k By:
City Clerk City Attorney
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Exhibit "A":
Consultant's Schedule of Fees
Exhibit "A"
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Exhibit"A":
Consultant's Hourly Billing Rates
STANDARD HOURLY RATE
SCHEDULE
Effective July 1, 2012
CLASSIFICATION HOURLY HOUR '
CLASSIFICATION L�
RATES RATES
Principal Engineer 175.00 Principal Building Official cjal 145.00City Engineer
165.00 BuildingOfficial
122.00
Project Supervisor 145.00 Senior BuildingInspector p for 110.00
Project Manager 135.00 BuildingPlan Checker
97.00
Project Engineer 130.00 BuildingInspector/Plan p n Checker 90.00
Sr. Registered Engineer 125.00 Code Enforcement Officer cer 75.00
Senior Design Engineer 115.00 Permit Specialist P 66.00
Associate Engineer 110.00
Assistant/Design Engineer 98.00 CommunityDevelopment Director p t Director 145.00
Principal Planner 132.00
Senior Traffic Engineer/Manager 150.00 Senior Planner
107.00
Transportation Planner 110.00 Associate Planner
97.00
Traffic Engineer Associate 95.00 Planning Technician
68.00
Sr. Draftsperson (CADD) 90.00 Landscape Director
116.00
Draftsperson (CADD) 80.00 Associate Landscape Architect
P 95.00
Computer Technician 80.00 City Forester
88.00
Senior Environmental Consultant 145.00 Expert Witness Services
200.00
Environmental Engineer/Scientist 1I 115.00 Senior Contract Administrator
107.00
Environmental Engineer/Scientist 1 92.00 Administrative Assistant
57.00
Associate Environmental Engineer 87.00 Word Processor
50.00
Clerical 45.00
Senior Public Works Inspector 98.00
Public Works Inspector 94.00
3-Person Survey Crew 270.00
2-Person Survey Crew 210.00
The above hourly rates include general and administrative overhead and fees and
ee emI'to y payroll
burden.
The above hourly rates are subject to an annual adjustment based upon increases adopted byCharles
Abbott Associates, Inc. as reflected in the Consumer Price Index(CPI).
Exhibit "A"