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Kling Consulting Group Inc • • PROFESSIONAL SERVICES AGREEMENT FOR GEOTECHNICAL CONSULTING SERVICES THIS AGREEMENT ("Agreement") is made and entered into this 17th day of May, 2011, by and between the CITY OF RANCHO PALOS VERDES, hereinafter referred to as "CITY", and Kling Consulting Group, Inc., 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. AGREEMENT 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 When requested by the City, Consultant shall perform the following services in a professional manner: A. Field Reviews. Perform site field inspections of proposed construction as requested by the Building Official, City Engineer or their designee. 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. Consultant shall perform field review of a given site only where the City has established a valid plan check, trust deposit, or other payment schedule for billing time charges. Consultant shall submit field review reports no later than the following working day. B. Review Geotechnical Reports. Review the following types of soils and geology reports presented by City: a. Soils and/or geology investigation reports performed for proposed construction in the City; b. As-built geotechnical reports for construction, including but not limited to reports for caissons, retaining walls, and so forth; c. As-graded reports for grading of single lots and/or larger subdivisions in the City; and d. Other reports of inspection and testing of compacted fills that are placed in the City. R6876.0001\1355641 v3.doc 1 • ii. Review of reports of hazardous wastes or materials is outside the provisions of this Agreement and is not required. iii. For each report, Consultant shall review and evaluate the report, 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. iv. No later than two (2) weeks after Consultant receives a report to review, Consultant shall submit a written review letter to the City stating the results of Consultant's review and Consultant's recommendations of either: a. Non-approval. Consultant shall state why approval was not recommended and shall list questions to be addressed by subsequent reports; or b. Approval. Consultant shall recommend to City the conditions of approval of projects, issuance of permits and certifications of occupancy, as appropriate. C. Special Studies. Consultant shall perform special geologic or geotechnical studies or other work requested by City in writing. D. Records. Consultant shall allocate all costs to the appropriate trust deposit, plan check number or other special fund. Consultant shall indicate on all records and documents the tract, lot or parcel number, address or other designation to identify the project site to which the costs pertain. ARTICLE II PERFORMANCE OF SERVICES Consultant shall perform all services and duties pursuant to this Agreement in a timely manner, at the direction of the Director of Community Development, 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 Community Development, Director of Public Works, or the Directors' designee. Time is of the essence in this Agreement. ARTICLE III TERM This Agreement shall commence on July 1, 2011, and shall terminate on June 30, 2013, unless sooner terminated pursuant to Article X of this Agreement. ARTICLE IV COMPENSATION FOR SERVICES For the professional services rendered and costs incurred pursuant to this Agreement, the City shall pay Consultant in accordance with the rates and amounts set forth in Consultant's Fee Schedule, which is attached hereto as Exhibit "A" and incorporated herein by this reference. The schedule of hourly rates shall be in effect through the end of this Agreement. R6876.0001\1355641 v3.doc 2 1 0 0 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. City shall pay Consultant for such additional services in accordance with the rates in Exhibit "A," unless otherwise agreed upon in writing by both parties. 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 thirty (30) days from the date that the bill was received. 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 properly prepared and timely received undisputed invoice amount due to Consultant within forty-five (45) days after City receives the invoice, then City agrees that Consultant shall have the right to consider said default a breach of this Agreement and Consultant may terminate the Agreement without liability upon ten (10) working days advance written notice to City. 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. 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 than those listed in this Article without the prior written consent of either the Director of Community Development or the Director of Public Works of the City, except for temporary re- assignments in the case of vacation, illness or emergency, where Consultant shall provide oral notification to either the Director of Community Development or the Director of Public Works. All staff changes recommended by Consultant shall be requested a minimum of thirty (30) days in advance of the proposed change. At all times Consultant shall be responsible for its liaisons and employees' services. Consultant shall notify City in writing of its recommendation of the retention of any supplemental subconsultants and the need therefor. City shall have the exclusive authority to determine whether such subconsultants shall be retained pursuant to Consultant's recommendation and shall have the ability to pre-approve all subconsultants. At all times Consultant shall be responsible for its subconsultants' services. R6876.0001\1355641 v3.doc 3 l t , 0 0 ARTICLE VI DUTIES OF CITY City shall provide or make available to Consultant, without charge or expense, all information, data, files, documents, studies, records, maps, reports, plans, equipment, computer programs or other material in its possession necessary for carrying out the services and duties contemplated under this Agreement ("City Products"). ARTICLE VII OWNERSHIP OF DOCUMENTS City and Consultant agree that all documents, plans, specifications, files, reports, information, data, exhibits, photographs, images, video files and media prepared by, in response to, or as a result of, in whole or in part, the performance of this Agreement ("Written Products") shall be the sole property of City without restriction or limitation upon use, duplication or dissemination by the City. Written Products are to remain confidential and are not to be released or otherwise made available to any third party without express prior written approval of City. Consultant shall deliver copies of any Written Products or City Products to the City upon demand without additional cost or expense to the City. During the term of this Agreement, Consultant may retain one copy of each City Product for its records. No Written Products or City Products shall be the subject of an application for copyright by or on the behalf of Consultant. 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 this Article. Upon termination, abandonment or suspension of the project, Consultant shall deliver to the City all Written Products, City 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 the City with said document both in a printed format and in an electronic format that is acceptable to the City. 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 INDEMNIFICATION AND INSURANCE A. Indemnification. i. Indemnity for Design Professional Services. In connection with its design R6876.000111355641 v3.doc 4 0 0 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. ii. 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 Article IX(A)(i), Consultant shall defend, hold harmless and indemnify the lndemnitees 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 Article IX(A)(ii) shall apply independent of any prior, concurrent or subsequent misconduct, negligent acts, errors or omissions of lndemnitees. iii. All duties of Consultant under this Article 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 Comprehensive General Liability Insurance with minimum limits of one million dollars ($1,000,000.00) for each occurrence and two million dollars ($2,000,000.00) general aggregate for personal injury, death, loss or property damage for any and all activities undertaken by Consultant in the performance of this Agreement. Said policy or policies shall be issued by an insurer admitted in the State of California and rated in 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 ($1,000,000.00) per claim and in the aggregate for errors and omissions of Consultant in the performance of this Agreement. Said policy or policies shall be issued by an insurer admitted in the State of California and rated in Best's Insurance Guide with a rating of A:VII or better. D. Automobile 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 automobile liability R6876.0001\1355641 v3.doc 5 • 0 insurance with a minimum limit of one million dollars ($1,000,000.00) per accident for bodily injury, death and property damage. Said policy or policies shall be issued by an insurer admitted in the State of California and rated in Best's Insurance Guide with a rating of A:VII or better. E. 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. F. Notice of Cancellation. i. All insurance policies shall provide that the insurance coverage shall not be canceled 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. ii. 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. Certificate of Insurance. At all times during the term of this Agreement, Consultant shall maintain on file with the City Clerk certificates of insurance showing that the aforesaid policies are in effect in the required amounts. The comprehensive general liability policy or policies and any professional liability insurance policy shall contain an endorsement naming the City as an additional insured. H. Primary Coverage. The insurance provided by Consultant shall by primary to any coverage available to City in relation to the services provided under this Agreement. The insurance policies (other that worker's 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 served if completed in compliance with Article Xl(K). In the event of termination or cancellation of the Agreement by Consultant or City due to no fault or failure of performance by Consultant, City shall pay 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 fees listed in Exhibit "A." In the event of such termination, Consultant shall return to City at City's option all finished or unfinished Written Products and City Products in Consultant's possession. ARTICLE XI R6876.0001\1355641 v3.doc 6 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), 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.). B. Non-discrimination. Consultant shall not discriminate as to race, creed, religion, sex, gender, sexual orientation, color, national origin, physical or mental disability, or any other status protected by federal, state or local laws in the performance of its services and duties pursuant to this Agreement. C. Legal Action. 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. ii. 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. iii. 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 reasonable hourly rates. 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 and all parts of it shall not be assignable by either party without the prior written consent of the other party. Any such purported assignment without written consent shall be null and void, and the assigning party shall hold harmless, defend and indemnify the other party and its officers, officials, employees, agents and representatives with respect to any claim, demand or action arising from any unauthorized assignment. F. Independent Consultant. 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 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 R6876.0001\1355641 v3.doc 7 0 III 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 Xl(F). 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 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 any provision or breach thereof waived only by a subsequent written agreement signed by both parties. I. Legal Construction ii. 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. iii. 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. iii. 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. iv. 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. J. 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. K. Notices. 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 R6876.0001\1355641 v3.doc 8 States mail, postage prepaid, to the addresses listed below, or at such other address as one party may notify the other: If to Consultant: Mr. Henry Kling President Kling Consulting Group, Inc. 18008 Sky Park Circle, Suite 250 Irvine, California 92614 If to City: Carolyn Lehr City Manager City of Rancho Palos Verdes 30940 Hawthorne Boulevard Rancho Palos Verdes, California 90275 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: KLING NSULTIN ROUP, INC. By. Signature PI &iIIffrI Title By: Signature Title Dated: THE C OF A N HO P A LOS VERDES By: vogiA.1 Mayor ATTEST: APPROVED AS TO FORM: By: By: City Clerk City Attorney R6876.0001\1355641 v3.doc 9 0 0 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 R6876.0001\1355641 v3.doc Exhibit"A"