Helenschmidt Geotechnical Inc AGREEMENT
FOR PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered into as of this ay of March 2005,
by and between the City of Rancho Palos Verdes, a municipal corporation, hereinafter
designated as "City", and Helenschmidt Geotechnical, Inc., hereinafter designated
"Consultant."
RECITALS
A. City desires to utilize the services of Consultant's employee, Stanley
Helenschmidt, to be a member of the Geotechnical Board of Appeals (the "Board") that
will provide City with independent third-party review of certain conflicting geological
and/or geotechnical data that has been prepared in connection with proposed projects
within the City. The stated purpose of the Board is to hear appeals from the
determinations of the City's geotechnical consultant as to whether or not, by reason of
geologic or soils conditions, a building site or proposed grading work is unsafe, or one
or more geologic or soils reports are required before the safety of such site or work can
be determined, and to review the adequacy of geological and soils reports.
B. Consultant represents that Mr. Helenschmidt is qualified to perform such
services by virtue of his experience, training, education and expertise.
NOW, THEREFORE, in consideration of performance by the parties of the
mutual promises, covenants, and conditions herein contained, the parties hereto agree
as follows:
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1. Services.
1.1 Scope and Level of Services. Subject to the terms and conditions set forth
in this Agreement and the provisions of Chapter 2.40 "Geotechnical Board of Appeals"
of the Rancho Palos Verdes Municipal Code, which is attached hereto as Exhibit 'A' and
made a part hereof by this reference, Consultant has been requested to provide
independent third-party review of certain conflicting geological and/or geotechnical data
that has been prepared in connection with proposed projects within the City and to
resolve disagreements between geological and geotechnical experts. Mr. Helenschmidt
is the individual who is assigned by Consultant to be its representative in connection
with this Agreement and the work that Consultant will perform.
1.2 City Representative. For the purposes of this Agreement, the City
Representative shall be the Director of Planning Building and Code Enforcement (the
"Director"), or such other person designated in writing by the Director (the "City
Representative"). The Director shall designate the experts who will serve on the panel
for a particular project, as set forth in Section 2.40.020 of the Rancho Palos Verdes
Municipal Code.
1.3 Time for Performance. Consultant shall commence the services under this
Agreement immediately upon receipt of a written request for such services from the City
Representative and shall perform all services with reasonable diligence.
1.4 Impartial Review. Consultant hereby acknowledges and agrees that
although City has retained Consultant, Consultant is charged with providing an impartial
analysis of the geological and geotechnical data related to particular projects and to
resolve disagreements between geological and geotechnical experts. Consultant
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further acknowledges and agrees that Consultant shall not, either individually or with
other members of the Board, meet privately with either the City, its geologists or its
geotechnical engineers; the applicant, its geologists or its geotechnical engineers; or
with any other person or entity who has an interest in the particular project. Nothing in
this provision shall be construed to prohibit members of the Board from meeting with
one another privately to discuss the geological and geotechnical data.
2. Term. This Agreement shall commence on March a3, 2005 (the "Effective
Date"), and shall continue in full force and effect until terminated by either of the parties
hereto in accordance with the provisions of Section 11 of this Agreement.
3. Compensation. City shall pay Consultant at the hourly rates that are specified
in Exhibit `B' to this Agreement, which is attached hereto and incorporated herein by this
reference, for all services provided under this Agreement. Consultant hereby
acknowledges and agrees that City shall pay Consultant's compensation under this
Agreement solely from funds that have been deposited with City and are held in trust for
this purpose. City shall not withhold applicable federal or state payroll or other required
taxes, or other authorized deductions from each payment made to Consultant.
4. Method of Payment.
4.1 Invoices. Consultant shall submit to City invoices for all services performed
pursuant to this Agreement during the preceding month. The invoices shall describe the
services rendered during the period and shall show the number of hours worked, and
the services that were performed.
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4.2 City shall review such invoices and shall notify Consultant in writing of any
disputed amounts. City shall pay all undisputed portions of the invoice within thirty (30)
calendar days after receipt of the invoice.
5. Standard of Performance. Consultant shall perform all services under this
Agreement in accordance with the standard of care generally exercised by like
professionals under similar circumstances.
6. Status as Independent Contractor. Consultant is, and shall at all times remain
as to a City, wholly independent inde endent contractor. Consultant shall have no power to incur
any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an
agent. Neither City nor any of its agents shall have control over the conduct of
Consultant or any of Consultant's employees, except as set forth in this Agreement.
Consultant shall not, at any time, or in any manner, represent that Consultant or any of
its agents or employees are in any manner the agents or employees of City. Consultant
agrees to pay all required taxes on payments City makes to Consultant for services
provided pursuant to this Agreement. Consultant shall fully comply with-the workers'
compensation laws regarding Consultant and Consultant's employees. Consultant
agrees to indemnify and hold City harmless from any failure of Consultant to comply
with applicable workers' compensation laws.
7. Ownership of Work Product. All reports, documents or other material
developed by Consultant in the performance of this Agreement shall be and remain the
property of City without restriction or limitation upon their use. Such material shall not
be the subject of a copyright application by Consultant.
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8. Hold Harmless. City acknowledges that Consultant is being retained to serve
on a Board to resolve differences between geological/ geotechnical experts, that the
Board is providing impartial analysis and recommendations based on their combined
professional judgment and are not preparing geotechnical designs for any future
structures on properties or insuring that the stability is sufficient to safely support such
structures. Accordingly, City hereby covenants and agrees to hold Consultant harmless
from liability for any advice, opinions, conclusions or recommendations made by
Consultant pursuant to this Agreement.
9. Conflict of Interest. Consultant and its employees will comply with all conflict of
interest statutes of the State of California applicable to Consultant's services under this
agreement, including, but not limited to, the Political Reform Act (Government Code
Sections 81000, et seq.) and Government Code Section 1090. During the term of this
Agreement, Consultant and its employees shall not perform work for another person or
entity for whom Consultant is not currently performing work (including, without limitation,
any person or entity that is affiliated with or related to the applicant or the appellant) that
would require Consultant or one of its employees to abstain from a decision under this
Agreement pursuant to a conflict of interest statute.
10. Cooperation. In the event any claim or action is brought against City relating to
Consultant's performance or services rendered under this Agreement, Consultant shall
render any reasonable assistance and cooperation that City might require. The time
required from Consultant to assist City shall be remunerated by City in accordance with
Section 3.
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11. Termination. City shall have the right to terminate this Agreement for any
reason on fifteen (15) calendar day's written notice to Consultant. Consultant shall have
the right to terminate this Agreement for any reason on thirty (30) calendar day's written
notice to City. Consultant shall be paid for services satisfactorily rendered to the last
working day the Agreement is in effect, and Consultant shall have no other claim
against City by reason of such termination.
12. Notices. Any notices, bills, invoices, or reports 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 and City's regular
business hours or by facsimile before Consultant's regular business hours; or (b) on the
third business day following deposit in the United States mail, postage prepaid, to the
addresses heretofore set forth in the Agreement, or to such other addresses as the
parties may, from time to time, designate in writing pursuant to the provisions of this
section.
If to City: Director of Planning, Building and Code Enforcement
ch Kit Fox, Senior Planner
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, California 90275
If to Consultant: Helenschmidt Geotechnical, Inc.
do Stanley Helenschmidt
5245 Avenida Encinas, Suite B
Carlsbad, CA 92008
13. Non-Discrimination and Equal Employment Opportunity. In the performance
of this Agreement, Consultant shall not discriminate against any employee,
subcontractor, or applicant for employment because of race, color, creed, religion, sex,
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marital status, national origin, ancestry, age, physical or mental handicap, medical
condition, or sexual orientation.
14. Non-Assignability; Subcontracting. Consultant shall not assign or subcontract
all or any portion of this Agreement without the written permission of City. Any
attempted or purported assignment or sub-contracting by Consultant shall be null, void
and of no effect. However, this Section shall not prevent Consultant from having other
employees at Helenschmidt Geotechnical, Inc. perform certain work pursuant to this
Agreement under Mr. Helenschmidt's supervision and direction.
15. Compliance with Laws. Consultant shall comply with all applicable federal,
state and local laws, ordinances, codes and regulations.
16. 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 City of any payment to Consultant constitute or be construed as a waiver
by 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 City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
17. Attorney's Fees. In the event that either party to this Agreement shall
commence any legal action or proceeding to enforce or interpret the provisions of this
Agreement, the prevailing party in such actionor proceeding shall be entitled to recover
its costs of suit, including reasonable attorney's fees.
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18. Insurance. During the term of this Agreement, Consultant shall maintain in
effect automobile insurance in accordance with the requirements of California State law.
19. Entire Agreement. This Agreement, and any other documents incorporated
herein by specific reference, represents the entire and integrated agreement between
Consultant and City. This Agreement supersedes all prior oral or written negotiations,
representations or agreements. This Agreement may not be amended, nor any
provision or breach hereof waived, except in a writing signed by the parties to this
Agreement.
20. Section Headings. The section and subsection headings used herein are for
reference and convenience only and shall not be used in any manner in the
interpretation hereof.
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IN WITNESS WHEREOF, the parties, through their respective authorized
representatives, have executed this Agreement as of the date first written above.
CITY OF RANCHO PALOS.VERDES
By:
City Manager
ATTEST:
By: )
City Ierk
Helenschmidt Geotechnical, Inc.
"CONSULTANT"
By: 4nL-01 — tk .��
(name/title)
By:
(name/title)
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Exhibit 'A'
RPVMC Chapter 2.40
GEOTECHNICAL BOARD OF APPEALS
Sections:
2.40.010 Created.
2.40.020 Members.
2.40.030 Meetings.
2.40.040 Record of Board Actions.
2.40.050 Compensation.
2.40.060 Quorum.
2.40.070 Procedure.
2.40.010 Created.
A geotechnical board of appeals is created and established to hear appeals from
the determinations of the city engineer or the city geologist as to whether or not, by
reason of geologic or soils conditions, a building site or proposed grading work is safe
or unsafe; a geologic or soils report is required before the safety of such site or work
can be determined, or to resolve a dispute between two or more geotechnical engineers
or geologists about the geologic conditions that are present on a particular site or the
actions that a project applicant must take to address the site conditions as part of the
development of the proposed project. Such geotechnical board of appeals is
hereinafter in this chapter referred to as the board. The board shall serve as a board of
review of the adequacy of geological and soils reports and shall provide for
interpretations of data, opinions, conclusions or any one or more thereof contained in
such reports. As an alternative to the process established by this chapter, the City
Council may appoint a panel of geotechnical experts to address significant and ongoing
geologic issues that affect just a particular property.
2.40.020 Members.
The board shall consist of three members and two alternates who shall be
appointed by a majority of the entire city council and who shall serve at the pleasure of
the city council. Two of the members and one alternate shall be qualified by education,
state registration, training, experience and prominence in the field of engineering
geology, and one regular member and one alternate shall be qualified by education and
state registration as civil engineers, and by training, experience and prominence in the
field of soils engineering. The term of office for each board member and alternate is
four years, and shall continue thereafter until a qualified successor has been appointed
by the city council. Should any vacancy exist on the board, an appointment shall be
made in like manner for the unexpired portion of the term. The director of planning,
building and code enforcement, in consultation with the city attorney, shall designate the
three members of the panel that will address a particular appeal as follows: at least one
of the panel members shall be qualified by education, state registration, training,
experience and prominence in the field of engineering geology, and at least one panel
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member shall be qualified by education and state registration as a civil engineer, and by
training, experience and prominence in the field of soils engineering. After consulting
with the two members of the panel from each of the aforementioned disciplines and the
city attorney, the director shall designate the third member of the panel from the
discipline that is most relevant to the issues that were raised by the appeal. No two
members of any panel shall be affiliated with each other, and no panel member shall be
affiliated with any of the parties to the appeal or any of their experts. The director's
decision regarding the members of each panel shall be final.
2.40.030 Meetings.
The board shall hold at least one regular meeting during each calendar year at
such time and place as is designated in the rules and regulations of the board. Special
meetings may be called by the chairperson or by a majority of the board. If any regular
member is absent from any meeting or, by reason of disqualification or otherwise, does
not participate in a particular case, the alternate member shall serve in his or her place
at such meeting and in such case shall be deemed a regular member.
2.40.040 Record of Board Actions.
The director of planning, building, and code enforcement, or his or her designee,
shall act as the secretary of the board. The board may adopt rules and regulations for
the transaction of its business and shall keep a record of all its resolutions, actions,
findings and determinations. Minutes, resolutions, and official records shall be filed with
the city clerk.
2.40.050 Compensation.
Each member of the board shall receive compensation to review reports that
have been prepared regarding particular projects and to attend meetings of the board at
the hourly rate that said member typically charges to perform similar work for its clients,
which shall be set forth as an exhibit to the board member's agreement with the city.
The rates to perform work as a board member shall be within a reasonable range of
rates that are typically charged by other experts in the particular discipline. Board
members shall be reimbursed for transportation and meals pursuant to the same policy
guidelines that are applicable to city employees. Invoices for work performed and
allowable expenditures shall be submitted monthly for the preceding month and shall be
supported by adequate documentation, as determined by the director of finance or his
or her designee. Undisputed invoices shall be paid within thirty calendar days of
receipt.
2.40.060 Quorum.
A quorum shall consist of three members of the board. A majority vote of the
members of the board shall be required for board action.
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2.40.070 Procedure.
A. Appeal. An appeal may be filed by any person dissatisfied with a decision
or decisions of the city engineer or city geologist as to whether or not, by reason of
geologic or soils conditions, a building site or grading work is safe or unsafe; a geologic
or soils report is required before the safety of such site or work can be determined, or to
resolve a dispute between two or more geotechnical engineers or geologists about the
geologic eolo is conditions that are present on a particular site or the actions that a project applicant must take to address the site conditions as part of the development of the
proposed project. Such appeal shall be filed in writing with the secretary of the board
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within thirty days after the date of the city engineer's or city geologist's decision and
must be supported by a written opinion or letter from a geotechnical engineer or an
engineering geologist, which must be submitted to the secretary concurrently with the
appeal. At the time of filing the appeal, the appellant shall pay the filing fee established
by resolution of the city council and shall deposit funds to be held in trust by the city, as
estimated by city staff, to pay for the full cost of having the board review the disputed
decision. Appellant shall deposit such additional amounts to be held in trust, following
written notice from city staff that additional funds are necessary to pay for the full cost of
having the board review the disputed decision.
B. The form and notice of the appeal shall include the name and address of
appellant, the street address or legal description and location of the premises covered
by the appeal, and a statement of the grounds of the appeal or how there is an error in
the decision being appealed.
C. Hearing. Upon accepting a notice of a complete appeal, the secretary of
the board shall set the matter for consideration before the board not more than ninety
days after the acceptance of the notice of appeal. The secretary shall give notice in
writing to the appellant and any affected party not less than ten days prior to the
hearing. At the meeting on appeal, the board shall hear the appellant and any affected
party and shall consider the testimony and any other written evidence, which in its
opinion is material. The city engineer or city geologist or his or her authorized
representative shall attend said meeting to explain the basis for the decision being
appealed.
D. Decision. Based upon the evidence presented at the hearing, the board
shall affirm, reverse or modify the disputed decision. Said decision shall be rendered
within thirty days following the last meeting at which the board considered the appeal.
Within ten days after the decision of the board is rendered, the secretary shall notify the
appellant and any other affected party of the decision.
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s ,
Exhibit 'B'
Consultant's Hourly Rates for Services Performed Pursuant to this Agreement
HELENSCHMIDT GEOTECHNICAL,INC.
SCHEDULE OF CHARGES
2004
PERSONNEL EQUIPMENT AND SERVICES
Principal Engineer $ 150/hr Inclinometer System $ 150/day
Senior Engineer $ 110/hr Floor Level Surveying Equipment $ 100/day
Project Engineer $ 100/hr Groundwater Level Probe $ 75/day
Senior Staff Professional $ 95/hr Digital Camera $ 75/day
Staff Professional $ 90/hr Nuclear Moisture/Density Gauge $ 60/day
Field/Laboratory Technician $ 75/hr Laser Distance Meter $ 50/day
Technical Illustrating $ 65/hr Vehicle $ .50/mi
Word Processing $ 50/hr Photocopying $.15/copy
Clerical/Accounting $ 50/hr Computer Assisted Plotting $10/sq.ft.
Special Consultants By Arrangement
The minimum charge for field observation time is two hours. Travel time will be charged at the applicable hourly rates above. Overtime for
Field Technician Personnel is billed at 1.5 times the hourly rate.
Expert witness testimony for court appearances will be charged on a daily basis(minimum one day increments)at a rate of$2,400 per day.
Deposition testimony will be charged at a rate of$300 per hour(minimum two hour charge). Preparation time and consultation for depositions or
court appearances will be charged on a time-and-expense basis in accordance with the Personnel,Equipment,and Expense charges listed herein.
LABORATORY TESTING
Laboratory testing will be charged on a time-and-expenses basis in accordance with the Personnel,Equipment,and Expense charges listed herein.
Outside laboratory services will be charged at cost plus 15 percent. Sample transport will be billed at the applicable personnel and mileage rates
as shown. Special handling,supplies,permitting or containers will be billed at cost plus 15%. Laboratory samples will be discarded 60 days
after the date of final report submittal unless storage is requested by the client. Sample storage charges will be quoted upon request.
EXPENSES AND OUTSIDE SERVICES
Expenses will be billed at cost plus 15 percent including but not limited to:Travel expenses including air fare,lodging,vehicle rental, etc. (a
flat subsistence charge of$40 per diem for overnight stay will be charged in addition to the lodging cost);Excavation and drilling
subcontractors and expendable field supplies;Reproduction;Photographic film,processing and printing;Special fees,permits,insurance,etc.;
Long distance communications;Equipment rental;Special mail service(overnight,freight,courier,etc.);and Special consultant fees.
LIMITATIONS AND TERMS
Professional Liability - We will use that degree of care and skill ordinarily exercised under similar circumstances by members of our profession
in performing our services. No warranty,express or implied,is made or intended by our proposal for consulting services,by our furnishing oral
or written reports,or by our inspection or work. You agree,to the maximum extent permitted by law,to limit our liability and the liability of our
employees,directors,officers, subcontractors,and subconsultants on the project to the maximum aggregate amount of$25,000 or the amount of
the fee paid us for professional services as computed under the SCHEDULE OF CHARGES,whichever amount is greater for any and all claims,
losses,costs,or damages of any nature whatsoever. This limitation shall apply regardless of the cause of action or legal theory pled or asserted.
Moreover,you agree to indemnify us against damages in excess of$25,000 or the amount of our fee,whichever amount is greater,arising from
suits brought against us by third parties,in connection with our work performed on your project. In the event the client makes a claim or brings
an action against us for any act arising out of our professional services,and the client fails to prove such a claim or action,the client shall pay all
legal and other costs incurred by us in defense of such a claim or action.
Field Exploration - The client grants us right-of-entry to the project site. The client will provide us with locations and depths of buried utilities
and structures. We assume no responsibility for damage or injury resulting from unmarked underground utilities or improvements.Our fee does
not include cost of restoration of damage resulting from our exploration operations.Incidental damage will be repaired upon request on a time
and expenses basis upon request.
Payment - Invoices for our services will be submitted, at our option, on a monthly basis or
when the work is completed. Invoices are due immediately upon receipt, but will not be
delinquent if paid on or before the thirtieth day following the date of the invoice. Unpaid
balances beyond 30 days from the invoice date will be subject to an interest charge of 1.5
percent of the past due balance per month. Client will pay any attorney's fees or other costs
associated with collection of delinquent charges.
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