Zeiser Kling Consultants Inc 2009 1 `
PROFESSIONAL SERVICES AGREEMENT
FOR GEOTECHNICAL CONSULTING SERVICES
This Agreement is made and entered into this 2nd day of June, 2009, by and
between the City of Rancho Palos Verdes (hereinafter referred to as "City") and Zeiser
Kling Consultants, 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; 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:
i. 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; and
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iv. Other reports of inspection and testing of compacted fills that are placed
in the City.
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; or
• 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.
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ARTICLE III
TERM
This Agreement shall commence on July 1, 2009, and shall terminate on June
30, 2011, unless otherwise extended by the parties hereto.
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 thirty(30) days from the date that the bill was received.
All other properly billed and uncontested invoices received after the tenth (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:
Zeiser Kling Consultants, Inc. ,1,.1- - /.5/ Kl c L's, Su, /46
C.vsta Hess,, cA 924oi4,
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.
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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. Frederick L. Zeiser, Henry F. Kling, James
M. Lancaster, Gail Vogt 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 Frederick L. Zeiser, Henry F. Kling, James M.
Lancaster, Gail Vogt and Dante Domingo without the prior written consent of either the
Director of Planning, Building and Code Enforcement 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 Planning,
Building and Code Enforcement or the Director of Public Works of City.
Consultant shall notify City in writing of its recommendation of the retention of
any supplemental subconsuitants 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 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.
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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. Consultant will defend, indemnify and hold harmless City, its
City Council, Boards, Commissions and its officers, employees and agents
(collectively "City"), against any claim, loss or liability that arises because of the
sole or primary negligence or willful misconduct of Consultant, its agents, officers
or employees, in performing any of the services under this Agreement. City will
indemnify and hold harmless Consultant, its agents, officers or employees
against any claim, loss or liability that arises because of the sole or primary
negligence or willful misconduct of City personnel or its other agents or if
Consultant is named as a party in a lawsuit simply because Consultant is
performing work on City's behalf and there is no allegation of any wrongdoing on
the part of the Consultant.
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 in the aggregate, combined
single limit, against any personal injury, death, loss or damage resulting from the
wrongful or negligent acts by Consultant. 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 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). 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 insurance with a minimum limit of one million dollars
($1,000,000.00) per accident for bodily injury and property damage. Said policy
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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. 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,which Consultant shall maintain on file with the City Clerk.
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 XI(J).
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 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.
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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.
i. 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.
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 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
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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 independent
contractor and Consultant's obligations to City are solely such as are prescribed
by this Agreement.
G. Titles. The titles used in this Agreement are for general reference only and are
not part of this Agreement.
H. Entire 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 any provision or breach thereof waived only by a subsequent
written agreement signed by both parties. In the event of any conflict between the
express provisions of this Agreement and Exhibit "A," the provisions of this
Agreement shall prevail.
Legal Construction
i. 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.
ii. 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.
J. Notices. Any notice or documents required shall not be effective unless it is
given in writing and delivered in person or by certified mail, postage prepaid, and
addressed to the parties at the addresses stated below, or at such other address as
either party may hereafter notify the other in writing as aforementioned:
CONSULTANT:
Mr. Henry Kling, President
Zeiser Kling Consultants, Inc.
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The CITY:
Director of Planning, Building and Code Enforcement
City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
Any party may change its address by giving written notice to the other party.
Thereafter, any notice or other communication shall be addressed or transmitted to the
new address. If sent by mail, any notice or documents shall be deemed effective three
(3) business days after it has been deposited in the United States mail. For purposes of
communicating time frames, weekends and federal, state, religious, County of Los
Angeles or City holidays shall be excluded.
IN WITNESS WHEREOF, the CITY and CONSULTANT have executed this
Agreement by and through the signatures of their duly authorized representatives, as of
the date set forth above.
ZEIS r(dp G CON.S ATS, INC.
By:
Name ti&wi •
Title
By: I1/4;-ellq CEO
Name e..4 Lain,w dee-
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The CITY of Rancho Palos Verdes
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By:
Mayor
ATTEST:
By: LI /, '
City Clerk
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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
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