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Kling Consulting Group (Jun 2013) PROFESSIONAL SERVICES AGREEMENT FOR GEOTECHNICAL CONSULTING SERVICES THIS AGREEMENT is made and entered into this 18th day of June, 2013, by and between the CITY OF RANCHO PALOS VERDES, hereinafter referred to as "CITY", and Kling Consulting Group., hereinafter referred to as "CONSULTANT". RECITALS The City wishes to use the professional services of Consultant to provide geology, soils engineering and geotechnical engineering consulting services to City on an as-needed basis; and, Consultant has represented that it has a unique and specialized knowledge and understanding of, and experience with, geotechnical engineering, soils engineering and engineering geology and is qualified to perform said services for City; and, IN CONSIDERATION of the foregoing recitals and the covenants hereinafter set forth, the parties hereto mutually agree as follows: ARTICLE I SCOPE OF CONSULTANT'S SERVICES Consultant shall, in a professional and timely manner, perform the following services, when requested by the City, by or under the direct supervision of Consultant's licensed engineering geologist and/or soils engineer: A. Field Reviews. Perform site field inspections of proposed construction as requested by the Building Official, City Engineer or other City official. Make a visual evaluation and submit a written memorandum stating findings and recommendations. Such site field inspections are typically performed during plan check to determine if soils and/or geologic reports are required. Field review of a given site shall be performed only where City has established a valid plan check, trust deposit, or other payment schedule for billing time charges. Field review reports shall be submitted to the City no later than the following working day. B. Review Geotechnical Reports. Review the following types of soils and geology reports presented to Consultant by City: Soils and/or geology investigation reports performed for proposed construction in the City; ii. As-built geotechnical reports for construction, such as, for caissons, retaining walls, etc.; iii As-graded reports for grading of single lots and/or larger subdivisions in the City; iv. Other reports of inspection and testing of compacted fills that are placed in the City. -1- Review of reports of hazardous wastes or materials is outside the provisions of this agreement. Consultant shall review and evaluate reports, checking the consistency of the findings, conclusions and recommendations, and ascertain whether the provisions of the Rancho Palos Verdes Municipal Code are satisfied. Consultant may also perform site field inspections, logging of borings and trenches, sampling and laboratory tests, engineering analysis, and other tasks, as Consultant deems appropriate to assist in Consultant's reviews. No later than two (2) weeks after Consultant receives a report to review, Consultant shall submit a written review letter to City stating the results of Consultant's review and Consultant's recommendations of either: • Non-approval. Consultant shall state why approval was not recommended and shall list questions to be addressed by subsequent reports. • Approval. Consultant shall recommend to City the conditions of approval of projects, issuing of permits and certifications of occupancy, as appropriate. C. Special Studies. As occasions arise, Consultant may be called upon to perform special geologic or geotechnical studies or other work requested by City. Charges shall be billed as defined under Article IV (Compensation) either to a trust deposit account or budget account, or a specific contract proposal shall be prepared and agreed to in writing by City and shall define the scope of work and payment schedule. D. Records. All costs are to be allocated to the appropriate trust deposit, plan check number or other special fund to which they pertain. The tract, lot or parcel numbers, address or other designation to identify the project site to which the costs pertain shall be indicated on all records and documents. ARTICLE II PERFORMANCE OF SERVICES Consultant shall perform all services and duties pursuant to this Agreement in a professional and timely manner, at the direction of the Director of Planning, Building and Code Enforcement or Director of Public Works or the Directors' designee. All directives, instructions, or other communications from City to Consultant shall be through only the Director of Planning, Building and Code Enforcement or Director of Public Works or the Directors' designee. ARTICLE III TERM This Agreement shall commence on July 1, 2013, and shall terminate on June 30, 2014, unless otherwise extended by the parties hereto. -2- • ARTICLE IV COMPENSATION FOR SERVICES City shall pay Consultant for its professional services rendered and costs incurred pursuant to this Agreement in accordance with the rates and amounts set forth in the fee and cost schedule attached hereto as Exhibit "A" and incorporated herein by reference. The schedule of hourly rates shall be good through the term of this contract, pursuant to Article III. City may request in writing that Consultant perform additional services not covered by the specific Scope of Work set forth in this agreement, and Consultant shall perform such services and will be paid for such additional services in accordance with Consultant's schedule of hourly rates attached hereto as Exhibit "A" and incorporated herein by reference. Consultant shall submit to City, by not later than the tenth (10th) day of each month, its bill for services rendered and costs incurred during the previous month. If Consultant's bill is properly prepared and received by City by not later than the tenth (10th) day of the month, City shall pay Consultant all uncontested amounts set forth in Consultant's bill by not later than 30 days from the date that the bill was received. All other properly billed and uncontested invoices received after the 10th of the month shall be paid by City not later than forty-five (45) days after receipt of Consultant's bill by City. It is further agreed that the periodic billings are correct, conclusive and binding unless Consultant is notified in writing by City ten (10) days from the date of receipt of the billing of any alleged inaccuracies, discrepancies or errors in billing. All payments due Consultant shall be paid to: Kling Consulting Group, Inc. 18008 Sky Park Circle, Suite 250 Irvine, California 92614 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 breach of this Agreement and may be terminated by Consultant without liability to Consultant upon ten (10) working days advance notice to City. ARTICLE V PERSONNEL Consultant shall provide all personnel necessary to properly perform the services and duties required under this Agreement, and shall at all times direct such personnel in the performance of such services and duties. Henry F. Kling, James M. Lancaster, Jeffery Tyson, Christopher Sandoval, and Dante Domingo shall be principally responsible for Consultant's obligations and performance under this Agreement and shall serve as the principal liaisons between City and Consultant. Consultant shall not designate representatives or liaisons other Henry F. Kling, James M. Lancaster, Jeffery Tyson, Christopher Sandoval, and Dante Domingo without the prior written consent of either the Director of Community Development or the Director of Public Works of City, except for temporary re-assignments in the case of vacation, illness or emergency, where consultant shall provide verbal notification to either the Director of Community Development or the Director of Public Works of City. -3- Consultant shall notify City in writing of its recommendation of the retention of any supplemental subconsultants and the need therefor. However, City shall have the exclusive authority to determine whether such subconsultants shall be retained pursuant to Consultant's recommendation. ARTICLE VI DUTIES OF CITY City shall provide or make available to Consultant, without charge or expense, all information, data, records, maps, reports, plans, equipment, or other material in its possession necessary for carrying out the services and duties contemplated under this Agreement. ARTICLE VII OWNERSHIP OF DOCUMENTS City and Consultant agree that all final records, data, reports or other documentation prepared by, in response to, or as a result of the performance of this Agreement shall be the sole property of City, and are to remain confidential, and shall not be released or otherwise made available to any person, entity or organization without the express prior written approval of City. Copies of any data, records, reports or other documents held by Consultant shall be delivered to City upon demand. During the term of this Agreement, Consultant may retain one copy of each document for its records. No reports, maps or other documents produced in whole or in part under this Agreement shall be the subject of an application for copyright by or on the behalf of Consultant. It is agreed that all records, data, reports or other documents generated by Consultant for City can only be used for the specific location and/or specific improvement without the written consent of Consultant. ARTICLE VIII CONFLICT OF INTEREST Consultant agrees not to accept any employment or representation during the term of this Agreement which is or may likely make Contractor"financially interested" (as provided in California Government Code Sections 1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained pursuant to this Agreement. Consultant also warrants that it is not, at the time this Agreement is entered into, engaged in any employment or representation which will or may likely make Consultant "financially interested" in any decision made by City on any matter in connection with which Consultant has been retained pursuant to this Agreement. ARTICLE IX A. Indemnification, Hold Harmless, and Duty to Defend In connection with its professional services, CONSULTANT shall hold harmless, defend and indemnify CITY, and its officials, officers, employees, agents and -4- 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 professional services under this Agreement. All duties of CONSULTANT under this Sub-section A shall survive termination of this Agreement. B. 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 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. C. 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 authorized 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. D. 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. E. Worker's Compensation -5- 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. F. Notice of Cancellation (1) 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. Additionally, CONSULTANT shall provide immediate notice to the City if it receives a cancellation or policy revision notice from the insurer. (2) CONSULTANT agrees that it will not cancel or reduce any required insurance coverage. CONSULTANT agrees that if it does not keep the aforesaid insurance in full force and effect, CITY may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, CITY may take out the necessary insurance and pay, at CONSULTANT's expense, the premium thereon. G. Entire Policy and Certificate of Insurance At all times during the term of this Agreement, CONSULTANT shall maintain on file with the CITY Clerk both a copy of the entire policy and a certificate of insurance showing that the aforesaid policies are in effect in the required amounts. The commercial general liability policy shall contain endorsements naming the CITY, its officers, agents and employees as additional insureds. H. 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 X TERMINATION This Agreement may be terminated at any time, with or without cause, by either party upon sixty (60) days prior written notice. Notice shall be deemed serviced upon deposit in the United States Mail or a certified or registered letter, postage prepaid, return receipt requested, addressed to the other party, or upon personal service of such notice to the other party, at the address set forth in Article Xl. In the event of termination or cancellation of the 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 done in accordance with all of the terms and provisions of this Agreement, Consultant shall be paid an amount equal to the amount of services performed prior to the effective date of termination or cancellation in accordance with the schedule attached hereto as Exhibit "A"; provided, in no event shall the amount of money paid under the foregoing provisions of this paragraph exceed -6- the amount which would have been paid to consultant for the full performance of the services described in Article IV and the particular purchase order. In the event of such termination, all finished or unfinished documents, reports, charts, data, studies, surveys, in the possession of Consultant under this agreement shall be returned to City, at City's option. ARTICLE XI GENERAL PROVISIONS A. 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) and the applicable equal employment provisions of the Civil Rights Act of 1964 (42 U.S.C. 200e-217), whichever is more restrictive. B. Non-discrimination. Consultant shall not discriminate as to race, creed, religion, gender, color or national origin in the performance of its services and duties pursuant to this Agreement, and will comply with all rules and regulations of the City relating thereto. C. Legal Action. (1) Should either party to this Agreement bring legal action against the other, the case shall be handled in Los Angeles County, California, and the party prevailing in such action shall be entitled to reasonable attorney's fees, which shall be fixed by the judge hearing the case, and such fee shall be included in the judgment. (2) 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. D. Compliance with Applicable Law. Consultant and City shall comply with all applicable laws, ordinances and codes of the Federal, State and local Governments. E. Assignment. This Agreement shall not be assignable by either party without the prior written consent of the other party. Notwithstanding the foregoing, Consultant may use the services of persons and entities not in its employ, when it is appropriate and customary to do so upon prior approval by City. Such persons and entities include, but are not limited to, surveyors, specialized consultants and testing laboratories. Consultant's use of others for additional services shall not be unreasonably restricted by City, provided Consultant notifies City in advance. F. Independent Consultant. Consultant is and shall at all times remain, as to City, a wholly independent Consultant. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant's employees, except as herein set forth. Consultant expressly warrants not to, at any time or in any manner, represent that it, or any of its agents, servants or employees, are in any manner the agents, servants or employees of City, it being distinctly understood that Consultant is, and shall at all times remain to City, a wholly -7- independent contractor and Consultant's obligations to City are solely such as are prescribed by this Agreement. G. Titles. That titles used in this Agreement are for general reference only and are not part of this Agreement. H. Extent of Agreement. This Agreement and Exhibit "A" represents the entire and integrated Agreement between City and Consultant and supersedes all prior negotiations, representations or agreements, written or oral. This Agreement may be modified or amended only by a subsequent written agreement signed by both parties. Legal Construction (1) This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced and governed under the laws of the State of California. (2) This Agreement shall be construed without regard to the identity of the persons who drafted its various provisions. Each and every provision of this Agreement shall be construed as though each of the parties participated equally in the drafting of same, and any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement. (3) The article and section, captions and headings herein have been inserted for convenience only, and shall not be considered or referred to in resolving questions of interpretation or construction. (4) Whenever in this Agreement the context may so require, each gender shall be deemed to refer to and include any other gender and the singular shall refer to and include the plural. J. Notices. All notices pertaining to this Agreement shall be in writing and addressed as follows: If to Consultant: Mr. Henry Kling President Kling Consulting Group, Inc. 18008 Sky Park Circle, Suite 250 Irvine, California 92614 If to City: Joel Rojas Director of Community Development City of Rancho Palos Verdes 30940 Hawthorne Boulevard Rancho Palos Verdes, California 90275 -8- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. ::G CONSU G GROUP C. W45.1(W-- (Title) Dated: ` LAN, ' t '20 By: (Title) Dated: CITY OF RANCHO PALOS VERDES By: Mayor Dated: 9//:3 Attest: 712,1Le-S City Clerk -9- EXHIBIT "A" FEE SCHEDULE ZEISER KLING CONSULTANTS Rate Personnel Classification (per hour) Principal Geologist or Engineer $165.00 Associate Geologist or Engineer $150.00 Project Engineer or Geologist $125.00 Senior Engineer or Geologist $115.00 Senior Staff Engineer or Geologist $100.00 Staff Engineer or Geologist $88.00 Supervisory Technician $105.00 Senior Technician $95.00 Field Technician $82.00 Technician Assistant $65.00 Draftsman $85.00 Administrative Support $50.00 Word Processing $58.00