CC SR 20150818 H - Contracts for Design On-Call Professional ServicesC[TYOFILAIRANCHO PALOS VERDES
MEMORANDUM
TO: HONORABLE MAYOR & CITY COUNCIL MEMBERS
FROM: MICHAEL THRONE, DIRECTOR OF PUBLIC WORKS ZC)/
DATE: AUGUST 18, 2015
SUBJECT: AWARD CONTRACTS FOR DESIGN ON-CALL
PROFESSIONAL SERVICES
REVIEWED: DOUG WILLMORE, CITY MANAGER OA -,-J
Project Manager. Ron Dragoo, Principal Engineer }
RECOMMENDATIONS
Award contracts for on-call professional services for Engineering Design
services to: Atkins North America, Inc., Bureau Veritas North America, Inc.,
Charles Abbott Associates, Inc., Interwest Consulting Group, MSN Engineers,
Inc., Onward Engineering, PSOMAS, and Terramar Consulting Engineers.
2. Authorize the Mayor to execute the contracts listed in recommendation 1
above.
BACKGROUND/ DISCUSSION
The Public Works Department relies on contract professional services to provide
services. Services typically include engineering design, construction observations and
inspection, geotechnical engineering, landscape architecture services, contract
management, surveying, plan checking and environmental services. For ease of
evaluation, similar services have been grouped together in this report which include
Civil Engineering design services.
When services are required for a capital project such as the overlay program, or other
significant projects, the department circulates a request for proposals (RFP), reviews
the proposals, recommends a firm, and prepares a report to the Council to select the
firm, award a contract, and authorize expenditures. This process works well for large-
scale projects, and the department will continue to use this process for such projects.
The department, however, also requires services for projects in which this RFP process is
not as timely nor as cost efficient. These are generally small-scale projects or projects
where services are urgently needed. For such projects the RFP process creates delays, or
adds significant administrative cost. Since 1997 the department has obtained services for
small or urgent projects through the "on-call" process.
Under the on-call process staff selects a firm from an approved list of firms. Under this
process the City Council pre -selects the consultants, and awards contracts, however staff
has the ability to authorize expenditures, as established by the City Council through the
budget process.
The firms being recommended for inclusion on the City's Professional Services on-call list
have been fully vetted by City Staff. References have been reviewed and they have the
proficiency and experience to provide the requisite services. As an example, Charles
Abbott Associates has the capacity to provide assistance with small project engineering
and design, construction management and construction observations. Consultants being
recommended for inclusion as one of the City's on-call service providers in this report have
been grouped with other consultants that provide similar services to simplify analysis. The
table below was created to show the Consultants being considered at a glance that would
likely be used to provide engineering design and related services:
Engineering -
Civil Design
Atkins North America, Inc.
Bureau Veritas North America,
I nc.
Charles Abbott Associates, Inc.,
Interwest Consulting Group
MSN Engineers
Onward Engineering
PSOMAS
Terramar Consulting Engineers
The required funds needed for any of the on-call services provided through these contracts
are budgeted in various programs in the proposed FY2015-16 budget. Staff manages the
work awarded through the on-call service contracts ensuring funds awarded remain within
budgeted amounts.
When a firm executes an On -Call Professional Services Agreement with the City of
Rancho Palos Verdes the firm is eligible to be called to perform work for the City on a
project where the value of the work performed does not exceed $25,000. Prior to executing
the on-call Agreement, the consultant will need to provide the required proof of insurance
and take out a business license with the City. These required components of the
Agreement are completed at the consultant's expense. Once the Agreement is executed
there is no guarantee that the consultant will be asked to perform any services for the City
and the possibility of recuperating costs associated with providing proof of insurance and
obtaining the business license will be lost by the consultant. The consultants are used only
K
as they are needed and only if the appropriate funds have been allocated. Accordingly,
due to the requirements for the consultant to provide insurance and secure a business
license without any guarantee of work, some consultants have chosen in the past, not
execute their approved on-call Agreement with the City.
Currently there are thirty-two firms available to perform on-call services with the City. With
the addition of these firms, following execution of the attached on-call Agreements
(Attachments A), staff will have the ability to use the listed firms on an on-call basis for Civil
engineering design and other related Public Works professional services. If staff's
recommendations are approved through this staff report, a total of eight additional firms
could be available to provide engineering, design, and other civil engineering related
services. These on-call service agreements will have a term of five years. Staff believes
the five year term achieves a balance between keeping the firms accountable and not
requiring staff to unnecessarily solicit new proposals, which increases administrative costs.
If staff recommendations are approved, a professional services agreement could be
executed with each of the recommended firms. The amount awarded to the firm over the
course of the year will be a function of the approved budget, the needs of the department
and the firm's performance.
As a control measure and in the interest of equality, the cumulative contract amount with
each on-call firm will be limited to $60,000 during a fiscal year, and as stated above, each
single project awarded to a firm will not exceed $25,000. The one exception to this is on-
call services that are reimbursed by a trust deposit will not count towards the maximum
amounts.
Following City Council approval, a staff member will obtain on-call services by requesting a
proposal from an approved on-call consulting firm. The proposal will likely be an estimate
for the time and any costs that are incurred in performing the services requested by the
City; however, if the project is well defined a fixed cost proposal will be requested. A
purchase order will be opened and a portion of the department's budget encumbered. This
will all be done without further action by the City Council.
Copies of the On -Call Professional Services Agreements are attached to this report, copies
of the consultants Statements of Qualifications are available on line at the following
address: http://www.rpvca.gov/888/Statement-of-Qualification-for-On-Call-S
CONCLUSIONS
Adopting the recommendations will allow staff to perform work by encumbering budgeted
funds through the City's on-call services program. Contract amounts are limited to $60,000
for any single vendor during a fiscal year and are not to exceed $25,000 for a single
project.
FISCAL IMPACT
Authorizing execution of the attached on-call Professional Services Agreements will not
result in any additional expenditures beyond the approved budget. Funds available are set
and have been included in the final adopted budget for FY 2015/16.
Attachment: A) On -Call Professional Services Contracts (page 5)
3
• Atkins North America,lnc.
• Charles Abbott Associates,
Inc.
• MSN Engineers, Inc.
• PSOMAS
• Bureau Veritas North America,
Inc.
• Interwest Consulting Group
• Onward Engineering
• Terramar Consulting Engineers
0
ATTACHMENT A
On -Call Professional Service Contracts
6"
On -Call Professional Services Contract
Atkins North America, Inc.
L
CITY OF RANCHO PALOS VERDES
ON-CALL PROFESSIONAU/TECHNICAL SERVICES AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 18th day of
August, 2015, by and between the City of Rancho Palos Verdes (hereinafter referred to
as the "CITY') and Atkins North America, Inc., a Florida corporation (hereafter referred to
as "CONSULTANT").
IN CONSIDERATION of the covenants hereinafter set forth, the parties hereto
agree as follows:
ARTICLE 1
SCOPE OF SERVICES
1.1 Project Description
The Project is described as on-call services as follows: Civil Engineering
and Public Works Support services.
1.2 Description of Services
CONSULTANT shall provide such on-call civil engineering and public works
support services as may be requested by CITY. CONSULTANT acknowledges that this
Agreement is for on-call services, and there is no certainty that CONSULTANT will be
asked to perform any services pursuant to this Agreement. CONSULTANT's Statement
of Qualifications is attached hereto as Exhibit A and incorporated herein by this reference.
In the event of any conflict between the terms of this Agreement and incorporated
documents, the terms of this Agreement shall control.
1.3 Schedule of Work
Upon receipt of written Notice to Proceed from CITY, CONSULTANT shall
perform with due diligence the services requested by CITY. Time is of the essence in this
Agreement. CONSULTANT shall not be responsible for delay, nor shall CONSULTANT
be responsible for damages or be in default or deemed to be in default by reason of
strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish timely
information or to approve or disapprove CONSULTANT's work promptly, or delay or faulty
performance by CITY, other consultants/contractors, or governmental agencies, or any
other delays beyond CONSULTANT's control or without CONSULTANT's fault.
1.4 Term of Agreement
This Agreement shall commence on August 18, 2015 and shall terminate
on June 30, 2021 unless sooner terminated pursuant to Article 4 of this Agreement.
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I.
ARTICLE 2
COMPENSATION
2.1 Rates; Expense Reimbursement
2.1.1 CITY agrees to compensate CONSULTANT in accordance with
CONSULTANT's Schedule of Hourly Rates, which is within Exhibit A and shall meet or
exceed prevailing wage rates, and in any case an amount not to exceed Sixty Thousand
Dollars ($50,000) per fiscal year for services as described in Article 1. On-call services
that are reimbursed by a trust deposit shall not count towards the maximum amount
CONSULTANT shall be paid for such services. The rates in Exhibit A shall be in effect
through the end of the term of this Agreement.
2.1.2 CITY will not reimburse CONSULTANT for costs and expenses
unless such costs and expenses are previously approved by CITY.
2.2 Payment of Compensation
CONSULTANT shall submit monthly invoices for the work completed in the
previous month. CITY agrees to authorize payment for all undisputed invoice amounts
within thirty (30) days of receipt of each invoice. CITY agrees to use its best efforts to
notify CONSULTANT of any disputed invoice amounts within ten (10) days of the receipt
of each invoice. However, CITY's failure to timely notify CONSULTANT of a disputed
amount shall not be deemed a waiver of CITY's right to challenge such amount.
Additionally, in the event CITY fails to pay any undisputed amounts due
CONSULTANT within forty-five (45) days after invoices are received by CITY then CITY
agrees that CONSULTANT shall have the right to consider the default a total breach of
this Agreement and be terminated by CONSULTANT without liability to CONSULTANT
upon ten (10) working days advance written notice.
ARTICLE 3
INDEMNIFICATION AND INSURANCE
3.1 Indemnity
3.1.1 Indemnity for Design Professional Services. To the fullest extent
permitted by law, CONSULTANT shall, at its sole cost and expense, protect, indemnify,
and hold harmless CITY and its elected officials, officers, attorneys, agents, employees,
designated volunteers, successors, assigns and those CITY agents serving as
independent contractors in the role of CITY officials (collectively "Indemnitees"), from and
against any and all damages, costs, expenses, liabilities, claims, demands, causes of
action, proceedings, judgments, penalties, liens, and losses of any nature whatsoever,
including fees of accountant,>, attorneys, or other professionals and all costs associated
therewith, and reimbursement of attorney's fees and costs of defense (collectively
"Liabilities"), whether actual, alleged or threatened, which arise out of, are claimed to arise
out of, pertain to, or relate to, in whole or in part, the negligence, recklessness or willful
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misconduct of CONSULTANT, its officers, agents, servants, employees, subcontractors,
material men, contractors or their officers, agents, servants or employees (or any entity
or individual that CONSULTANT shall bear the legal liability thereof) in the performance
of design professional services under this Agreement by a "design professional," as the
term is defined under California Civil Code Section 2782.8(c)(2).
3.1.2 Other Indemnities.
(a) Other than in the performance of design professional services, and
to the fullest extent permitted by law, CONSULTANT shall, at its sole cost and expense,
defend, hold harmless and indemnify the Indemnitees from and against any and all
damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings,
judgments, penalties, liens, and losses of any nature whatsoever, including fees of
accountants, attorneys, or other professionalls and all costs associated therewith and the
payment of all consequential damages (collectively "Claims"), in law or equity, whether
actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or
relate to the acts or omissions of CONSULTANT, its officers, agents, servants,
employees, subcontractors, materialmen, contractors or their officers, agents, servants
or employees (or any entity or individual that CONSULTANT shall bear the legal liability
thereof) in the performance of this Agreement, including the Indemnitees' active or
passive negligence, except for Claims arising from the sole negligence or willful
misconduct of the Indemnitees, as determined by final arbitration or court decision or by
the agreement of the Parties. CONSULTANT shall defend the Indemnitees in any action
or actions filed in connection with any Claim with counsel of the Indemnitees' choice, and
shall pay all costs and expenses, including all attorneys' fees and experts' costs actually
incurred in connection with such defense. CONSULTANT shall reimburse the
Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in
connection therewith.
(b) CONSULTANT shall pay all required taxes on amounts paid to
CONSULTANT under this Agreement, and indemnify and hold CITY harmless from any
and all taxes, assessments, penalties, and interest asserted against CITY by reason of
the independent contractor relationship created by this Agreement. CONSULTANT shall
fully comply with the workers' compensation law regarding CONSULTANT and
CONSULTANT's employees. CONSULTANT shall indemnify and hold CITY harmless
from any failure of CONSULTANT to comply with applicable workers' compensation laws.
CITY may offset against the amount of any fees due to CONSULTANT under this
Agreement any amount due to CITY from CONSULTANT as a result of CONSULTANT's
failure to promptly pay to CITY any reimbursement or indemnification arising under this
subparagraph (b).
(c) CONSULTANT shall obtain executed indemnity agreements with
provisions identical to those in this Section 3.1 from each and every subcontractor or any
other person or entity involved by, for, with or on behalf of CONSULTANT in the
performance of this Agreement. If CONSULTANT fails to obtain such indemnities,
CONSULTANT shall be fully responsible and indemnify, hold harmless and defend the
Indemnitees from and against any and all Claims in law or equity, whether actual, alleged
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or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the
acts or omissions of CONSULTANT's subcontractor, its officers, agents, servants,
employees, subcontractors, materialmen, contractors or their officers, agents, servants
or employees (or any entity or individual that CONSULTANT's subcontractor shall bear
the legal liability thereof) in the performance of this Agreement, including the Indemnitees'
active or passive negligence, except for Claims arising from the sole negligence or willful
misconduct of the Indemnitees, as determined by final arbitration or court decision or by
the agreement of the Parties.
3.1.3 Workers' Compensation Acts not Limiting. CONSULTANT's
obligations under this Article 3, or any other provision of this Agreement, shall not be
limited by the provisions of any workers' compensation act or similar act. CONSULTANT
expressly waives its statutory immunity under such statutes or laws as to CITY, its
officers, agents, employees and volunteers.
3.1.4 Insurance Requirements not Limiting. CITY does not, and shall not,
waive any rights that it may possess against CONSULTANT because of the acceptance
by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant
to this Agreement. This hold harmless and indemnification provisions in this Article 3
shall apply regardless of whether or not any insurance policies are determined to be
applicable to the Liabilities, Claims, tax, assessment, penalty or interest asserted against
CITY.
Survival of Terms. The indemnification in this Article 3 shall survive the
expiration or termination of this Agreement.
3.2 Insurance
3.2.1 General Liability Insurance
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. The policy
or policies shall be issued by an insurer admitted or authorized to do business in the State
of California and rated in A.M. Best's Insurance Guide with a rating of A:VII or better.
3.2.2 Professional Liability Insurance
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. The policy or policies shall be issued by an insurer admitted or authorized to
do business in the State of California and rated in Best's Insurance Guide with a rating of
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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 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 CITY. Renewal or replacement policies shall not allow for
any advancement of such retroactive date.
3.2.3 Automobile Liability Insurance
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. The policy or policies shall be issued by an insurer admitted or authorized
to do business in the State of California and rated in A.M. Best's Insurance Guide with a
rating of A:VII or better.
3.2.4 Worker's Compensation Insurance
CONSULTANT agrees to maintain in force at all times during the
performance of work under this Agreement worker's compensation insurance as required
by the law. CONSULTANT shall require any subcontractor similarly to provide such
compensation insurance for their respective employees.
3.2.5 Notice of Cancellation
(a) All insurance policies shall provide that the insurance coverage shall
not be cancelled or modified by the insurance carrier without thirty (30) days prior written
notice, or ten (10) days notice if cancellation is due to nonpayment of premium.
CONSULTANT shall provide immediate notice to CITY, if CONSULTANT receives a
cancellation or policy revision notice from the insurer.
(b) CONSULTANT agrees that it will not cancel or reduce any required
insurance coverage. CONSULTANT agrees that if it does not keep the insurance in full
force and effect, CITY may either immediately terminate this Agreement or, if insurance
is available at a reasonable cost, CITY may take out the necessary insurance and pay,
at CONSULTANT's expense, the premium thereon.
3.2.6 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 policies are in effect in the required amounts. The commercial general
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liability policy shall contain endorsements naming CITY, its officers, agents and
employees as additional insureds.
3.2.7 Primary Coverage
The insurance provided by CONSULTANT shall be primary to any coverage
available to CITY. The insurance policies (other than workers compensation and
professional liability) shall include provisions for waiver of subrogation.
ARTICLE 4
TERMINATION
4.1 Termination of Agreement
(a) This Agreement may be terminated at any time, with or without
cause, by CITY upon ten (10) days prior written notice or by CONSULTANT upon ninety
(90) days prior written notice. Notice shall be deemed served if completed in compliance
with Section 6.15.
(b) CONSULTANT shall cease all work under this Agreement on or
before the effective date of termination specified in the notice of termination. In the event
of termination or cancellation of this Agreement by CONSULTANT or CITY, due to no
fault or failure of performance by CONSULTANT, CONSULTANT shall be paid
compensation for all services performed by CONSULTANT, in an amount to be
determined as follows: for work satisfactorily done in accordance with all of the terms
and provisions of this Agreement as determined by CITY, CONSULTANT shall be paid
an amount equal to the percentage of services performed prior to the effective date of
termination or cancellation in accordance with the work items; provided, in no event shall
the amount of money paid under the foregoing provisions of this paragraph exceed the
amount which would have been paid to CONSULTANT for the full performance of the
services described in this Agreement.
ARTICLE 5
OWNERSHIP OF DOCUMENTS
5.1 Ownership of Documents and Work Product
All final documents, plans, specifications, reports, information, data,
exhibits, photographs, images, video files and media created or developed by
CONSULTANT pursuant to this Agreement ("Written Products") shall be and remain the
property of CITY without restriction or limitation upon its use, duplication or dissemination
by CITY. All Written Products shall be considered "works made for hire," and all Written
Products and any and all intellectual property rights arising from their creation, including,
but not limited to, all copyrights and other proprietary rights, shall be and remain the
property of CITY without restriction or limitation upon their use, duplication or
dissemination by CITY. CONSULTANT shall not obtain or attempt to obtain copyright
protection as to any Written Products.
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CONSULTANT hereby assigns to CITY all ownership and any and all
intellectual property rights to the Written Products that are not otherwise vested in CITY
pursuant to the paragraph directly above this one.
CONSULTANT warrants and represents that it has secured all necessary
licenses, consents or approvals to use any instrumentality, thing or component as to
which any intellectual property right exists, including computer software, used in the
rendering of the services and the production of all Written Products produced under this
Agreement, and that CITY has full legal title to and the right to reproduce the Written
Products. CONSULTANT shall defend, indemnify and hold CITY, and its elected officials,
officers, employees, servants, attorneys, designated volunteers, and agents serving as
independent contractors in the role of CITY officials, harmless from any loss, claim or
liability in any way related to a claim that CITY's use of any of the Written Products is
violating federal, state or local laws, or any contractual provisions, or any laws relating to
trade names, licenses, franchises, copyrights, patents or other means of protecting
intellectual property rights and/or interests in products or inventions. CONSULTANT shall
bear all costs arising from the use of patented, copyrighted, trade secret or trademarked
documents, materials, equipment, devices or processes in connection with its provision
of the services and Written Products produced under this Agreement. In the event the
use of any of the Written Products or other deliverables hereunder by CITY is held to
constitute an infringement and the use of any of the same is enjoined, CONSULTANT, at
its expense, shall: (a) secure for CITY the right to continue using the Written Products
and other deliverables by suspension of any injunction, or by procuring a license or
licenses for CITY; or (b) modify the Written Products and other deliverables so that they
become non -infringing while remaining in compliance with the requirements of this
Agreement. This covenant shall survive the termination of this Agreement.
Upon termination, abandonment or suspension of the Project, the
CONSULTANT shall deliver to CITY all Written Products and other deliverables related
to the Project without additional cost or expense to CITY. If CONSULTANT prepares a
document on a computer, CONSULTANT shall provide CITY with the document both in
a printed format and in an electronic format that is acceptable to CITY.
ARTICLE 6
GENERAL PROVISIONS
6.1 Representation
The CITY representative shall be the Director of Public Works or his or her
designee, and CONSULTANT shall notify CITY of CONSULTANT's designated
representative. These individuals shall be the primary contact persons for the parties
regarding performance of this Agreement.
6.2 Fair Employment Practices/Equal Opportunity Acts
In the performance of this Agreement, CONSULTANT shall comply with all
applicable provisions of the California Fair Employment Practices Act (California
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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 1990 (42 U.S.C. § 11200, et se -g.).
6.3 Audit
The CITY or its representative shall have the option of inspecting, auditing
or inspecting and auditing all records and other written materials used by CONSULTANT
in preparing its billings to CITY as a condition precedent to any payment to
CONSULTANT. CONSULTANT will promptly furnish documents requested by CITY.
Additionally, CONSULTANT shall be subject to State Auditor examination and audit at
the request of CITY or as part of any audit of CITY, for a period of three (3) years after
final payment under this Agreement.
6.4 Personnel
CONSULTANT represents that it has, or shall secure at its own expense,
all personnel required to perform CONSULTANT's services under this Agreement. Any
person who performs engineering services pursuant to this Agreement shall be licensed
as a Civil Engineer by the State of California and in good standing. CONSULTANT shall
make reasonable efforts to maintain the continuity of CONSULTANT's staff who are
assigned to perform the services hereunder and shall obtain the approval of the Director
of Public Works of all proposed staff members who will perform such services.
CONSULTANT may associate with or employ associates or subcontractors in the
performance of its services under this Agreement, but at all times shall CONSULTANT
be responsible for its associates and subcontractors' services.
6.5 CONSULTANT's Representations
CONSULTANT represents, covenants and agrees that: a) CONSULTANT
is licensed, qualified, and capable of furnishing the labor, materials, and expertise
necessary to perform the services in accordance with the terms and conditions set forth
in this Agreement; b) there are no obligations, commitments, or impediments of any kind
that will limit or prevent CONSULTANT's full performance under this Agreement; c) to the
extent required by the standard of practice, CONSULTANT has investigated and
considered the scope of services performed, has carefully considered how the services
should be performed, and understands the facilities, difficulties and restrictions attending
performance of the services under this Agreement.
6.6 Conflicts of Interest
CONSULTANT agrees not to accept any employment or representation
during the term of this Agreement or within twelve (12) months after completion of the
work under this Agreement which is or may likely make CONSULTANT "financially
interested" (as provided in California Government Code Sections 1090 and 87100) in any
decisions made by CITY on any matter in connection with which CONSULTANT has been
retained pursuant to this Agreement.
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6.7 Legal Action
(a) Should either party to this Agreement bring legal action against the
other, the validity, interpretation, and performance of this Agreement shall be controlled
by and construed under the laws of the State of California, excluding California's choice
of law rules. Venue for any such action relating to this Agreement shall be in the Los
Angeles County Superior Court.
(b) If any legal action or other proceeding, including action for
declaratory relief, is brought for the enforcement of this Agreement or because of an
alleged dispute, breach, default or misrepresentation in connection with this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees, experts' fees,
and other costs, in addition to any other relief to which the party may be entitled.
(c) Should any legal action about a project between CITY and a party
other than CONSULTANT require the testimony of CONSULTANT when there is no
allegation that CONSULTANT was negligent, CITY shall compensate CONSULTANT for
its testimony and preparation to testify at the hourly rates in effect at the time of such
testimony.
6.8 Assignment
Neither this Agreement nor any part thereof shall be assigned by
CONSULTANT without the prior written consent of CITY. Any such purported assignment
without written consent shall be null and void, and CONSULTANT shall hold harmless,
defend and indemnify CITY and its officers, officials, employees, agents and
representatives with respect to any claim, demand or action arising from any unauthorized
assignment.
Notwithstanding the above, CONSULTANT may use the services of
persons and entities not in CONSULTANT's direct employ, when it is appropriate and
customary to do so. Such persons and entities include, but are not necessarily limited to,
surveyors, specialized consultants, and testing laboratories. CONSULTANT's use of
subcontractors for additional services shall not be unreasonably restricted by CITY
provided CONSULTANT notifies CITY in advance.
6.9 Independent Contractor
CONSULTANT is and shall at all times remain, as to CITY, a wholly
independent contractor. Neither CITY nor any of its agents shall have control over the
conduct of CONSULTANT or any of the CONSULTANT's employees, except as herein
set forth, and CONSULTANT is free to dispose of all portions of its time and activities
which it is not obligated to devote to CITY in such a manner and to such persons, firms,
or corporations as the CONSULTANT wishes except as expressly provided in this
Agreement. CONSULTANT shall have no power to incur any debt, obligation, or liability
on behalf of CITY or otherwise act on behalf of CITY as an agent. CONSULTANT shall
not, at any time or in any manner, represent that it or any of its agents, servants or
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employees, are in any manner agents, servants or employees of CITY. CONSULTANT
agrees to pay all required taxes on amounts paid to CONSULTANT under this
Agreement, and to indemnify and hold CITY harmless from any and all taxes,
assessments, penalties, and interest asserted against 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 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 CITY from CONSULTANT as a result of its failure to
promptly pay to CITY any reimbursement or indemnification arising under this Article.
6.10 Titles
The titles used in this Agreement are for general reference only and are not
part of the Agreement.
6.11 Entire Agreement
This Agreement, including any other documents incorporated herein by
specific reference, represents the entire and integrated agreement between CITY and
CONSULTANT and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be modified or amended, or provisions or
breach may be waived, only by subsequent written agreement signed by both parties.
6.12 Construction
In the event of any asserted ambiguity in, or dispute regarding the
interpretation of any matter herein, the interpretation of this Agreement shall not be
resolved by any rules of interpretation providing for interpretation against the party who
causes the uncertainty to exist or against the party who drafted the Agreement or who
drafted that portion of the Agreement.
6.13 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.
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6.14 Severability
If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
6.15 Notice
Except as otherwise required by law, any notice, payment 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 CITY's regular business hours or (b) on the third business day following
deposit in the United States mail, postage prepaid, to the addresses listed below, or at
such other address as one party may notify the other:
To CITY:
Responsible Person: Michael Throne, Director of Public Works
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, CA 90275
To CONSULTANT;
Responsible Person: Earl Schwartz, PE, QSD
Atkins North America, Inc.
625 City Drive South, Suite 200
Orange, CA 92868-4946
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
Dated: Atkins North America, Inc., a Florida
corporation
("CONSULTANT")
Dated:
ATTEST:
By:
Printed Name:
Title:
By:
Printed Name:
Title:
CITY OF RANCHO PALOS VERDES
("CITY")
By:
Mayor
APPROVED AS TO FORM:
By:
City Clerk City Attorney
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On -Call Professional Services Contract
Bureau Veritas North America, Inc.
19
CITY OF RANCHO PALOS VERDES
ON-CALL PROFESSIONAL/ TECHNICAL SERVICES AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 18th day of
August, 2015, by and between the City of Rancho Palos Verdes (hereinafter referred to
as the "CITY") and Bureau Veritas, a Delaware corporation (hereafter referred to as
"CONSULTANT").
IN CONSIDERATION of the covenants hereinafter set forth, the parties hereto
agree as follows:
ARTICLE 1
SCOPE OF SERVICES
1.1 Proiect Description
The Project is described as on-call services as follows: Public Works
Engineering services.
1.2 Description of Services
CONSULTANT shall provide such on-call civil engineering and support
services as may be requested by CITY. CONSULTANT acknowledges that this
Agreement is for on-call services, and there is no certainty that CONSULTANT will be
asked to perform any services pursuant to this Agreement. CONSULTANT's Statement
of Qualifications is attached hereto as Exhibit A and incorporated herein by this reference.
In the event of any conflict between the terms of this Agreement and incorporated
documents, the terms of this Agreement shall control.
1.3 Schedule of Work
Upon receipt of written Notice to Proceed from CITY, CONSULTANT shall
perform with due diligence the services requested by CITY. Time is of the essence in this
Agreement. CONSULTANT shall not be responsible for delay, nor shall CONSULTANT
be responsible for damages or be in default or deemed to be in default by reason of
strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish timely
information or to approve or disapprove CONSULTANT's work promptly, or delay or faulty
performance by CITY, other consultants/contractors, or governmental agencies, or any
other delays beyond CONSULTANT's control or without CONSULTANT's fault.
1.4 Term of Agreement
This Agreement shall commence on August 18, 2015 and shall terminate
on June 30, 2021 unless sooner terminated pursuant to Article 4 of this Agreement.
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ARTICLE 2
COMPENSATION
2.1 Rates; Expense Reimbursement
2.1.1 CITY agrees to compensate CONSULTANT in accordance with
CONSULTANT's Schedule of Hourly Rates, which is within Exhibit A and shall meet or
exceed prevailing wage rates, and in any case an amount not to exceed Sixty Thousand
Dollars ($60,000) per fiscal year for services as described in Article 1. On-call services
that are reimbursed by a trust deposit shall not count towards the maximum amount
CONSULTANT shall be paid for such services. The rates in Exhibit A shall be in effect
through the end of the term of this Agreement.
2.1.2 CITY will not reimburse CONSULTANT for costs and expenses
unless such costs and expenses are previously approved by CITY.
2.2 Payment of Compensation
CONSULTANT shall submit monthly invoices for the work completed in the
previous month. CITY agrees to authorize payment for all undisputed invoice amounts
within thirty (30) days of receipt of each invoice. CITY agrees to use its best efforts to
notify CONSULTANT of any disputed invoice amounts within ten (10) days of the receipt
of each invoice. However, CITY's failure to timely notify CONSULTANT of a disputed
amount shall not be deemed a waiver of CITY's right to challenge such amount.
Additionally, in the event CITY fails to pay any undisputed amounts due
CONSULTANT within forty-five (45) days after invoices are received by CITY then CITY
agrees that CONSULTANT shall have the right to consider the default a total breach of
this Agreement and be terminated by CONSULTANT without liability to CONSULTANT
upon ten (10) working days advance written notice.
ARTICLE 3
INDEMNIFICATION AND INSURANCE
3.1 Indemnity
3.1.1 Indemnity for Design Professional Services. To the fullest extent
permitted by law, CONSULTANT shall, at its sole cost and expense, protect, indemnify,
and hold harmless CITY and its elected officials, officers, attorneys, agents, employees,
designated volunteers, successors, assigns and those CITY agents serving as
independent contractors in the role of CITY officials (collectively "Indemnitees"), from and
against any and all damages, costs, expenses, liabilities, claims, demands, causes of
action, proceedings, judgments, penalties, liens, and losses of any nature whatsoever,
including fees of accountants, attorneys, or other professionals and all costs associated
therewith, and reimbursement of attorney's fees and costs of defense (collectively
"Liabilities"), whether actual, alleged or threatened, which arise out of, are claimed to arise
out of, pertain to, or relate to, in whole or in part, the negligence, recklessness or willful
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21
misconduct of CONSULTANT, its officers, agents, servants, employees, subcontractors,
material men, contractors or their officers, agents, servants or employees (or any entity
or individual that CONSULTANT shall bear the legal liability thereof) in the performance
of design professional services under this Agreement by a "design professional," as the
term is defined under California Civil Code Section 2782.8(c)(2).
3.1.2 Other Indemnities.
(a) Other than in the performance of design professional services, and
to the fullest extent permitted by law, CONSULTANT shall, at its sole cost and expense,
defend, hold harmless and indemnify the Indemnitees from and against any and all
damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings,
judgments, penalties, liens, and losses of any nature whatsoever, including fees of
accountants, attorneys, or other professionals and all costs associated therewith and the
payment of all consequential damages (collectively "Claims"), in law or equity, whether
actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or
relate to the acts or omissions of CONSULTANT, its officers, agents, servants,
employees, subcontractors, materialmen, contractors or their officers, agents, servants
or employees (or any entity or individual that CONSULTANT shall bear the legal liability
thereof) in the performance of this Agreement, including the Indemnitees' active or
passive negligence, except for Claims arising from the sole negligence or willful
misconduct of the Indemnitees, as determined by final arbitration or court decision or by
the agreement of the Parties. CONSULTANT shall defend the Indemnitees in any action
or actions filed in connection with any Claim with counsel of the Indemnitees' choice, and
shall pay all costs and expenses, including all attorneys' fees and experts' costs actually
incurred in connection with such defense. CONSULTANT shall reimburse the
Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in
connection therewith.
(b) CONSULTANT shall pay all required taxes on amounts paid to
CONSULTANT under this Agreement, and indemnify and hold CITY harmless from any
and all taxes, assessments, penalties, and interest asserted against CITY by reason of
the independent contractor relationship created by this Agreement. CONSULTANT shall
fully comply with the workers' compensation law regarding CONSULTANT and
CONSULTANT's employees. CONSULTANT shall indemnify and hold CITY harmless
from any failure of CONSULTANT to comply with applicable workers' compensation laws.
CITY may offset against the amount of any fees due to CONSULTANT under this
Agreement any amount due to CITY from CONSULTANT as a result of CONSULTANT's
failure to promptly pay to CITY any reimbursement or indemnification arising under this
subparagraph (b).
(c) CONSULTANT shall obtain executed indemnity agreements with
provisions identical to those in this Section 3.1 from each and every subcontractor or any
other person or entity involved by, for, with or on behalf of CONSULTANT in the
performance of this Agreement. If CONSULTANT fails to obtain such indemnities,
CONSULTANT shall be fully responsible and indemnify, hold harmless and defend the
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Indemnitees from and against any and all Claims in law or equity, whether actual, alleged
or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the
acts or omissions of CONSULTANT's subcontractor, its officers, agents, servants,
employees, subcontractors, materialmen, contractors or their officers, agents, servants
or employees (or any entity or individual that CONSULTANT's subcontractor shall bear
the legal liability thereof) in the performance of this Agreement, including the Indemnitees'
active or passive negligence, except for Claims arising from the sole negligence or willful
misconduct of the Indemnitees, as determined by final arbitration or court decision or by
the agreement of the Parties.
3.1.3 Workers' Compensation Acts not Limiting. CONSULTANT's
obligations under this Article 3, or any other provision of this Agreement, shall not be
limited by the provisions of any workers' compensation act or similar act. CONSULTANT
expressly waives its statutory immunity under such statutes or laws as to CITY, its
officers, agents, employees and volunteers.
3.1.4 Insurance Requirements not Limiting. CITY does not, and shall not,
waive any rights that it may possess against CONSULTANT because of the acceptance
by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant
to this Agreement. This hold harmless and indemnification provisions in this Article 3
shall apply regardless of whether or not any insurance policies are determined to be
applicable to the Liabilities, Claims, tax, assessment, penalty or interest asserted against
CITY.
3.1.5 Survival of Terms. The indemnification in this Article 3 shall survive
the expiration or termination of this Agreement.
3.2 Insurance
3.21 General Liability Insurance
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. The policy
or policies shall be issued by an insurer admitted or authorized to do business in the State
of California and rated in A.M. Best's Insurance Guide with a rating of A:VII or better.
3.2.2 Professional Liability Insurance
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
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Agreement. The policy or policies shall be issued by an insurer admitted or 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 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 CITY. Renewal or replacement policies shall not allow for
any advancement of such retroactive date.
3.2.3 Automobile Liability Insurance
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. The policy or policies shall be issued by an insurer admitted or authorized
to do business in the State of California and rated in A.M. Best's Insurance Guide with a
rating of A:VII or better.
3.2.4 Worker's Compensation Insurance
CONSULTANT agrees to maintain in force at all times during the
performance of work under this Agreement worker's compensation insurance as required
by the law. CONSULTANT shall require any subcontractor similarly to provide such
compensation insurance for their respective employees.
3.2.5 Notice of Cancellation
(a) All insurance policies shall provide that the insurance coverage shall
not be cancelled or modified by the insurance carrier without thirty (30) days prior written
notice, or ten (10) days notice if cancellation is due to nonpayment of premium.
CONSULTANT shall provide immediate notice to CITY, if CONSULTANT receives a
cancellation or policy revision notice from the insurer.
(b) CONSULTANT agrees that it will not cancel or reduce any required
insurance coverage. CONSULTANT agrees that if it does not keep the 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.
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3.2.6 Entire Policv 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 policies are in effect in the required amounts. The commercial general
liability policy shall contain endorsements naming CITY, its officers, agents and
employees as additional insureds.
3.2.7 Primary Coverage
The insurance provided by CONSULTANT shall be primary to any coverage
available to CITY. The insurance policies (other than workers compensation and
professional liability) shall include provisions for waiver of subrogation.
ARTICLE 4
TERMINATION
4.1 Termination of Agreement
(a) This Agreement may be terminated at any time, with or without
cause, by CITY upon ten (10) days prior written notice or by CONSULTANT upon ninety
(90) days prior written notice. Notice shall be deemed served if completed in compliance
with Section 6.15.
(b) CONSULTANT shall cease all work under this Agreement on or
before the effective date of termination specified in the notice of termination. In the event
of termination or cancellation of this Agreement by CONSULTANT or CITY, due to no
fault or failure of performance by CONSULTANT, CONSULTANT shall be paid
compensation for all services performed by CONSULTANT, in an amount to be
determined as follows: for work satisfactorily done in accordance with all of the terms and
provisions of this Agreement as determined by CITY, CONSULTANT shall be paid an
amount equal to the percentage of services performed prior to the effective date of
termination or cancellation in accordance with the work items; provided, in no event shall
the amount of money paid under the foregoing provisions of this paragraph exceed the
amount which would have been paid to CONSULTANT for the full performance of the
services described in this Agreement.
ARTICLE 5
OWNERSHIP OF DOCUMENTS
5.1 Ownership of Documents and Work Product
All final documents, plans, specifications, reports, information, data,
exhibits, photographs, images, video files and media created or developed by
CONSULTANT pursuant to this Agreement ("Written Products") shall be and remain the
property of CITY without restriction or limitation upon its use, duplication or dissemination
by CITY. All Written Products shall be considered "works made for hire," and all Written
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Products and any and all intellectual property rights arising from their creation, including,
but not limited to, all copyrights and other proprietary rights, shall be and remain the
property of CITY without restriction or limitation upon their use, duplication or
dissemination by CITY. CONSULTANT shall not obtain or attempt to obtain copyright
protection as to any Written Products.
CONSULTANT hereby assigns to CITY all ownership and any and all
intellectual property rights to the Written Products that are not otherwise vested in CITY
pursuant to the paragraph directly above this one.
CONSULTANT warrants and represents that it has secured all necessary
licenses, consents or approvals to use any instrumentality, thing or component as to
which any intellectual property right exists, including computer software, used in the
rendering of the services and the production of all Written Products produced under this
Agreement, and that CITY has full legal title to and the right to reproduce the Written
Products. CONSULTANT shall defend, indemnify and hold CITY, and its elected officials,
officers, employees, servants, attorneys, designated volunteers, and agents serving as
independent contractors in the role of CITY officials, harmless from any loss, claim or
liability in any way related to a claim that CITY's use of any of the Written Products is
violating federal, state or local laws, or any contractual provisions, or any laws relating to
trade names, licenses, franchises, copyrights, patents or other means of protecting
intellectual property rights and/or interests in products or inventions. CONSULTANT shall
bear all costs arising from the use of patented, copyrighted, trade secret or trademarked
documents, materials, equipment, devices or processes in connection with its provision
of the services and Written Products produced under this Agreement. In the event the
use of any of the Written Products or other deliverables hereunder by CITY is held to
constitute an infringement and the use of any of the same is enjoined, CONSULTANT, at
its expense, shall: (a) secure for CITY the right to continue using the Written Products
and other deliverables by suspension of any injunction, or by procuring a license or
licenses for CITY; or (b) modify the Written Products and other deliverables so that they
become non -infringing while remaining in compliance with the requirements of this
Agreement. This covenant shall survive the termination of this Agreement.
Upon termination, abandonment or suspension of the Project, the
CONSULTANT shall deliver to CITY all Written Products and other deliverables related
to the Project without additional cost or expense to CITY. If CONSULTANT prepares a
document on a computer, CONSULTANT shall provide CITY with the document both in
a printed format and in an electronic format that is acceptable to CITY.
ARTICLE 6
GENERAL PROVISIONS
6.1 Representation
The CITY representative shall be the Director of Public Works or his or her
designee, and CONSULTANT shall notify CITY of CONSULTANT's designated
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representative. These individuals shall be the primary contact persons for the parties
regarding performance of this Agreement.
6.2 Fair Employment Practices/Equal Opportunity Acts
In the performance of this Agreement, CONSULTANT shall comply with all
applicable provisions of the California Fair Employment Practices Act (California
Government Code Sections 12940-48), the applicable equal employment provisions of
the Civil Rights Act of 1964 (42 U.S.C. 200e-217), and the Americans with Disabilities Act
of 1990 (42 U.S.C. § 11200, et sea.).
6.3 Audit
The CITY or its representative shall have the option of inspecting, auditing
or inspecting and auditing all records and other written materials used by CONSULTANT
in preparing its billings to CITY as a condition precedent to any payment to
CONSULTANT. CONSULTANT will promptly furnish documents requested by CITY.
Additionally, CONSULTANT shall be subject to State Auditor examination and audit at
the request of CITY or as part of any audit of CITY, for a period of three (3) years after
final payment under this Agreement.
6.4 Personnel
CONSULTANT represents that it has, or shall secure at its own expense,
all personnel required to perform CONSULTANT's services under this Agreement. Any
person who performs engineering services pursuant to this Agreement shall be licensed
as a Civil Engineer by the State of California and in good standing. CONSULTANT shall
make reasonable efforts to maintain the continuity of CONSULTANT's staff who are
assigned to perform the services hereunder and shall obtain the approval of the Director
of Public Works of all proposed staff members who will perform such services.
CONSULTANT may associate with or employ associates or subcontractors in the
performance of its services under this Agreement, but at all times shall CONSULTANT
be responsible for its associates and subcontractors' services.
6.5 CONSULTANT's Representations
CONSULTANT represents, covenants and agrees that: a) CONSULTANT
is licensed, qualified, and capable of furnishing the labor, materials, and expertise
necessary to perform the services in accordance with the terms and conditions set forth
in this Agreement; b) there are no obligations, commitments, or impediments of any kind
that will limit or prevent CONSULTANT's full performance under this Agreement; c) to the
extent required by the standard of practice, CONSULTANT has investigated and
considered the scope of services performed, has carefully considered how the services
should be performed, and understands the facilities, difficulties and restrictions attending
performance of the services under this Agreement.
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6.6 Conflicts of Interest
CONSULTANT agrees not to accept any employment or representation
during the term of this Agreement or within twelve (12) months after completion of the
work under this Agreement which is or may likely make CONSULTANT "financially
interested" (as provided in California Government Code Sections 1090 and 87100) in any
decisions made by CITY on any matter in connection with which CONSULTANT has been
retained pursuant to this Agreement.
6.7 Legal Action
(a) Should either party to this Agreement bring legal action against the
other, the validity, interpretation, and performance of this Agreement shall be controlled
by and construed under the laws of the State of California, excluding California's choice
of law rules. Venue for any such action relating to this Agreement shall be in the Los
Angeles County Superior Court.
(b) If any legal action or other proceeding, including action for
declaratory relief, is brought for the enforcement of this Agreement or because of an
alleged dispute, breach, default or misrepresentation in connection with this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees, experts' fees,
and other costs, in addition to any other relief to which the party may be entitled.
(c) Should any legal action about a project between CITY and a party
other than CONSULTANT require the testimony of CONSULTANT when there is no
allegation that CONSULTANT was negligent, CITY shall compensate CONSULTANT for
its testimony and preparation to testify at the hourly rates in effect at the time of such
testimony.
6.8 Assignment
Neither this Agreement nor any part thereof shall be assigned by
CONSULTANT without the prior written consent of CITY. Any such purported assignment
without written consent shall be null and void, and CONSULTANT shall hold harmless,
defend and indemnify CITY and its officers, officials, employees, agents and
representatives with respect to any claim, demand or action arising from any unauthorized
assignment.
Notwithstanding the above, CONSULTANT may use the services of
persons and entities not in CONSULTANT's direct employ, when it is appropriate and
customary to do so. Such persons and entities include, but are not necessarily limited to,
surveyors, specialized consultants, and testing laboratories. CON SULTANT's use of
subcontractors for additional services shall not be unreasonably restricted by CITY
provided CONSULTANT notifies CITY in advance.
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6.9 Independent Contractor
CONSULTANT is and shall at all times remain, as to CITY, a wholly
independent contractor. Neither CITY nor any of its agents shall have control over the
conduct of CONSULTANT or any of the CONSULTANT's employees, except as herein
set forth, and CONSULTANT is free to dispose of all portions of its time and activities
which it is not obligated to devote to CITY in such a manner and to such persons, firms,
or corporations as the CONSULTANT wishes except as expressly provided in this
Agreement. CONSULTANT shall have no power to incur any debt, obligation, or liability
on behalf of CITY or otherwise act on behalf of CITY as an agent. CONSULTANT shall
not, at any time or in any manner, represent that it or any of its agents, servants or
employees, are in any manner agents, servants or employees of CITY. CONSULTANT
agrees to pay all required taxes on amounts paid to CONSULTANT under this
Agreement, and to indemnify and hold CITY harmless from any and all taxes,
assessments, penalties, and interest asserted against 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 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 CITY from CONSULTANT as a result of its failure to
promptly pay to CITY any reimbursement or indemnification arising under this Article.
6.10 Titles
The titles used in this Agreement are for general reference only and are not
part of the Agreement.
6.11 Entire Agreement
This Agreement, including any other documents incorporated herein by
specific reference, represents the entire and integrated agreement between CITY and
CONSULTANT and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be modified or amended, or provisions or
breach may be waived, only by subsequent written agreement signed by both parties.
6.12 Construction
In the event of any asserted ambiguity in, or dispute regarding the
interpretation of any matter herein, the interpretation of this Agreement shall not be
resolved by any rules of interpretation providing for interpretation against the party who
causes the uncertainty to exist or against the party who drafted the Agreement or who
drafted that portion of the Agreement.
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6.13 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.
6.14 Severability
If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
6.15 Notice
Except as otherwise required by law, any notice, payment 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 CITY's regular business hours or (b) on the third business day following
deposit in the United States mail, postage prepaid, to the addresses listed below, or at
such other address as one party may notify the other:
To CITY:
Responsible Person: Michael Throne, Director of Public Works
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, CA 90275
To CONSULTANT:
Responsible Person: Isam Hasenin, P.E., C.B.O.
Bureau Veritas
1665 Scenic Avenue, Suite 200
Costa Mesa, CA 92626
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
Dated: Bureau Veritas, a Delaware corporation
("CONSULTANT")
By:
Printed Name:
Title:
By:
Printed Name:
Title:
Dated: CITY OF RANCHO PALOS VERDES
("CITY")
By:
Mayor
ATTEST: APPROVED AS TO FORM:
By: By:
City Clerk City Attorney
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On -Call Professional Services Contract
Charles Abbott Associates, Inc.
32
CITY OF RANCHO PALOS VERDES
ON-CALL PROFESSIONAUTECHNICAL SERVICES AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 18th day of
August, 2015, by and between the City of Rancho Palos Verdes (hereinafter referred to
as the "CITY") and Charles Abbott Associates, Inc., a California corporation (hereafter
referred to as "CONSULTANT").
IN CONSIDERATION of the covenants hereinafter set forth, the parties hereto
agree as follows:
ARTICLE 1
SCOPE OF SERVICES
1.1 Project Description
The Project is described as on-call services as follows: provide public works
engineering and civil engineering design services.
1.2 Description of Services
CONSULTANT shall provide such on-call civil engineering and support
services as may be requested by CITY. CONSULTANT acknowledges that this
Agreement is for on-call services, and there is no certainty that CONSULTANT will be
asked to perform any services pursuant to this Agreement. CONSULTANT's Statement
of Qualifications is attached hereto as Exhibit A and incorporated herein by this reference.
In the event of any conflict between the terms of this Agreement and incorporated
documents, the terms of this Agreement shall control.
1.3 Schedule of Work
Upon receipt of written Notice to Proceed from CITY, CONSULTANT shall
perform with due diligence the services requested by CITY. Time is of the essence in this
Agreement. CONSULTANT shall not be responsible for delay, nor shall CONSULTANT
be responsible for damages or be in default or deemed to be in default by reason of
strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish timely
information or to approve or disapprove CONSULTANT's work promptly, or delay or faulty
performance by CITY, other consultants/contractors, or governmental agencies, or any
other delays beyond CONSULTANT's control or without CONSULTANT's fault.
1.4 Term of Agreement
This Agreement shall commence on August 18, 2015 and shall terminate
on June 30, 2021 unless sooner terminated pursuant to Article 4 of this Agreement.
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ARTICLE 2
COMPENSATION
2.1 Rates; Expense Reimbursement
2.1.1 CITY agrees to compensate CONSULTANT in accordance with
CONSULTANT's Schedule of Hourly Rates, which is within Exhibit A and shall meet or
exceed prevailing wage rates, and in any case an amount not to exceed Sixty Thousand
Dollars ($60,000) per fiscal year for services as described in Article 1. On-call services
that are reimbursed by a trust deposit shall not count towards the maximum amount
CONSULTANT shall be paid for such services. The rates in Exhibit A shall be in effect
through the end of the term of this Agreement.
2.1.2 CITY will not reimburse CONSULTANT for costs and expenses
unless such costs and expenses are previously approved by CITY.
2.2 Payment of Compensation
CONSULTANT shall submit monthly invoices for the work completed in the
previous month. CITY agrees to authorize payment for all undisputed invoice amounts
within thirty (30) days of receipt of each invoice. CITY agrees to use its best efforts to
notify CONSULTANT of any disputed invoice amounts within ten (10) days of the receipt
of each invoice. However, CITY's failure to timely notify CONSULTANT of a disputed
amount shall not be deemed a waiver of CITY's right to challenge such amount.
Additionally, in the event CITY fails to pay any undisputed amounts due
CONSULTANT within forty-five (45) days after invoices are received by CITY then CITY
agrees that CONSULTANT shall have the right to consider the default a total breach of
this Agreement and be terminated by CONSULTANT without liability to CONSULTANT
upon ten (10) working days advance written notice.
ARTICLE 3
INDEMNIFICATION AND INSURANCE
3.1 Indemnity
3.1.1 Indemnity for Design Professional Services. To the fullest extent
permitted by law, CONSULTANT shall, at its sole cost and expense, protect, indemnify,
and hold harmless CITY and its elected officials, officers, attorneys, agents, employees,
designated volunteers, successors, assigns and those CITY agents serving as
Independent contractors in the role of CITY officials (collectively "Indemnitees"), from and
against any and all damages, costs, expenses, liabilities, claims, demands, causes of
action, proceedings, judgments, penalties, liens, and losses of any nature whatsoever,
including fees of accountants, attorneys, or other professionals and all costs associated
therewith, and reimbursement of attorney's fees and costs of defense (collectively
"Liabilities"), whether actual, alleged or threatened, which arise out of, are claimed to arise
out of, pertain to, or relate to, in whole or in part, the negligence, recklessness or willful
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misconduct of CONSULTANT, its officers, agents, servants, employees, subcontractors,
material men, contractors or their officers, agents, servants or employees (or any entity
or individual that CONSULTANT shall bear the legal liability thereof) in the performance
of design professional services under this Agreement by a "design professional," as the
term is defined under California Civil Code Section 2782.8(c)(2).
3.1.2 Other Indemnities.
(a) Other than in the performance of design professional services, and
to the fullest extent permitted by law, CONSULTANT shall, at its sole cost and expense,
defend, hold harmless and indemnify the Indemnitees from and against any and all
damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings,
judgments, penalties, liens, and losses of any nature whatsoever, including fees of
accountants, attorneys, or other professionals and all costs associated therewith and the
payment of all consequential damages (collectively "Claims"), in law or equity, whether
actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or
relate to the acts or omissions of CONSULTANT, its officers, agents, servants,
employees, subcontractors, materialmen, contractors or their officers, agents, servants
or employees (or any entity or individual that CONSULTANT shall bear the legal liability
thereof) in the performance of this Agreement, including the Indemnitees' active or
passive negligence, except for Claims arising from the sole negligence or willful
misconduct of the Indemnitees, as determined by final arbitration or court decision or by
the agreement of the Parties. CONSULTANT shall defend the Indemnitees in any action
or actions filed in connection with any Claim with counsel of the Indemnitees' choice, and
shall pay all costs and expenses, including all attorneys' fees and experts' costs actually
incurred in connection with such defense. CONSULTANT shall reimburse the
Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in
connection therewith.
(b) CONSULTANT shall pay all required taxes on amounts paid to
CONSULTANT under this Agreement, and indemnify and hold CITY harmless from any
and all taxes, assessments, penalties, and interest asserted against CITY by reason of
the independent contractor relationship created by this Agreement. CONSULTANT shall
fully comply with the workers' compensation law regarding CONSULTANT and
CONSULTANT's employees. CONSULTANT shall indemnify and hold CITY harmless
from any failure of CONSULTANT to comply with applicable workers' compensation laws.
CITY may offset against the amount of any fees due to CONSULTANT under this
Agreement any amount due to CITY from CONSULTANT as a result of CONSULTANT's
failure to promptly pay to CITY any reimbursement or indemnification arising under this
subparagraph (b).
(c) CONSULTANT shall obtain executed indemnity agreements with
provisions identical to those in this Section 3.1 from each and every subcontractor or any
other person or entity involved by, for, with or on behalf of CONSULTANT in the
performance of this Agreement. If CONSULTANT fails to obtain such indemnities,
CONSULTANT shall be fully responsible and indemnify, hold harmless and defend the
Indemnitees from and against any and all Claims in law or equity, whether actual, alleged
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or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the
acts or omissions of CONSULTANT's subcontractor, its officers, agents, servants,
employees, subcontractors, materialmen, contractors or their officers, agents, servants
or employees (or any entity or individual that CONSULTANT's subcontractor shall bear
the legal liability thereof) in the performance of this Agreement, including the Indemnitees'
active or passive negligence, except for Claims arising from the sole negligence or willful
misconduct of the Indemnitees, as determined by final arbitration or court decision or by
the agreement of the Parties.
3.1.3 Workers' Compensation Acts not Limitinq. CONSULTANT's
obligations under this Article 3, or any other provision of this Agreement, shall not be
limited by the provisions of any workers' compensation actor similar act. CONSULTANT
expressly waives its statutory immunity under such statutes or laws as to CITY, its
officers, agents, employees and volunteers.
3.1.4 Insurance Requirements not Limiting. CITY does not, and shall not,
waive any rights that it may possess against CONSULTANT because of the acceptance
by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant
to this Agreement. This hold harmless and indemnification provisions in this Article 3
shall apply regardless of whether or not any insurance policies are determined to be
applicable to the Liabilities, Claims, tax, assessment, penalty or interest asserted against
CITY.
3.1.5 Survival of Terms. The indemnification in this Article 3 shall survive
the expiration or termination of this Agreement.
3.2 Insurance
3.2.1 General Liability Insurance
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. The policy
or policies shall be issued by an insurer admitted or authorized to do business in the State
of California and rated in A.M. Best's Insurance Guide with a rating of A:VII or better.
3.2.2 Professional Liability Insurance
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. The policy or policies shall be issued by an insurer admitted or authorized to
do business in the State of California and rated in Best's Insurance Guide with a rating of
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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 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 CITY. Renewal or replacement policies shall not allow for
any advancement of such retroactive date.
3.2.3 Automobile Liability Insurance
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. The policy or policies shall be issued by an insurer admitted or authorized
to do business in the State of California and rated in A.M. Best's Insurance Guide with a
rating of A:VII or better.
3.2.4 Worker's Compensation Insurance
CONSULTANT agrees to maintain in force at all times during the
performance of work under this Agreement worker's compensation insurance as required
by the law. CONSULTANT shall require any subcontractor similarly to provide such
compensation insurance for their respective employees.
3.2.5 Notice of Cancellation
(a) All insurance policies shall provide that the insurance coverage shall
not be cancelled or modified by the insurance carrier without thirty (30) days prior written
notice, or ten (10) days notice if cancellation is due to nonpayment of premium.
CONSULTANT shall provide immediate notice to CITY, if CONSULTANT receives a
cancellation or policy revision notice from the insurer.
(b) CONSULTANT agrees that it will not cancel or reduce any required
insurance coverage. CONSULTANT agrees that if it does not keep the insurance in full
force and effect, CITY may either immediately terminate this Agreement or, if insurance
is available at a reasonable cost, CITY may take out the necessary insurance and pay,
at CONSULTANT's expense, the premium thereon.
3.2.6 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 policies are in effect in the required amounts. The commercial general
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liability policy shall contain endorsements naming CITY, its officers, agents and
employees as additional insureds.
3.2.7 Primary Coverage
The insurance provided by CONSULTANT shall be primary to any coverage
available to CITY. The insurance policies (other than workers compensation and
professional liability) shall include provisions for waiver of subrogation.
ARTICLE 4
TERMINATION
4.1 Termination of Agreement
(a) This Agreement may be terminated at any time, with or without
cause, by CITY upon ten (10) days prior written notice or by CONSULTANT upon ninety
(90) days prior written notice. Notice shall be deemed served if completed in compliance
with Section 6.15.
(b) CONSULTANT shall cease all work under this Agreement on or
before the effective date of termination specified in the notice of termination. In the event
of termination or cancellation of this Agreement by CONSULTANT or CITY, due to no
fault or failure of performance by CONSULTANT, CONSULTANT shall be paid
compensation for all services performed by CONSULTANT, in an amount to be
determined as follows: for work satisfactorily done in accordance with all of the terms and
provisions of this Agreement as determined by CITY, CONSULTANT shall be paid an
amount equal to the percentage of services performed prior to the effective date of
termination or cancellation in accordance with the work items, provided, in no event shall
the amount of money paid under the foregoing provisions of this paragraph exceed the
amount which would have been paid to CONSULTANT for the full performance of the
services described in this Agreement.
ARTICLE 5
OWNERSHIP OF DOCUMENTS
5.1 Ownership of Documents and Work Product
All final documents, plans, specifications, reports, information, data,
exhibits, photographs, images, video files and media created or developed by
CONSULTANT pursuant to this Agreement ("Written Products") shall be and remain the
property of CITY without restriction or limitation upon its use, duplication or dissemination
by CITY. All Written Products shall be considered "works made for hire," and all Written
Products and any and all intellectual property rights arising from their creation, including,
but not limited to, all copyrights and other proprietary rights, shall be and remain the
property of CITY without restriction or limitation upon their use, duplication or
dissemination by CITY. CONSULTANT shall not obtain or attempt to obtain copyright
protection as to any Written Products.
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CONSULTANT hereby assigns to CITY all ownership and any and all
intellectual property rights to the Written Products that are not otherwise vested in CITY
pursuant to the paragraph directly above this one.
CONSULTANT warrants and represents that it has secured all necessary
licenses, consents or approvals to use any instrumentality, thing or component as to
which any intellectual property right exists, including computer software, used in the
rendering of the services and the production of all Written Products produced under this
Agreement, and that CITY has full legal title to and the right to reproduce the Written
Products. CONSULTANT shall defend, indemnify and hold CITY, and its elected officials,
officers, employees, servants, attorneys, designated volunteers, and agents serving as
independent contractors in the role of CITY officials, harmless from any loss, claim or
liability in any way related to a claim that CITY's use of any of the Written Products is
violating federal, state or local laws, or any contractual provisions, or any laws relating to
trade names, licenses, franchises, copyrights, patents or other means of protecting
intellectual property rights and/or interests in products or inventions. CONSULTANT shall
bear all costs arising from the use of patented, copyrighted, trade secret or trademarked
documents, materials, equipment, devices or processes in connection with its provision
of the services and Written Products produced under this Agreement. In the event the
use of any of the Written Products or other deliverables hereunder by CITY is held to
constitute an infringement and the use of any of the same is enjoined, CONSULTANT, at
its expense, shall: (a) secure for CITY the right to continue using the Written Products
and other deliverables by suspension of any injunction, or by procuring a license or
licenses for CITY; or (b) modify the Written Products and other deliverables so that they
become non -infringing while remaining in compliance with the requirements of this
Agreement. This covenant shall survive the termination of this Agreement.
Upon termination, abandonment or suspension of the Project, the
CONSULTANT shall deliver to CITY all Written Products and other deliverables related
to the Project without additional cost or expense to CITY. If CONSULTANT prepares a
document on a computer, CONSULTANT shall provide CITY with the document both in
a printed format and in an electronic format that is acceptable to CITY.
ARTICLE 6
GENERAL PROVISIONS
6.1 Representation
The CITY representative shall be the Director of Public Works or his or her
designee, and CONSULTANT shall notify CITY of CONSULTANT's designated
representative. These individuals shall be the primary contact persons for the parties
regarding performance of this Agreement.
6.2 Fair Employment Practices/Equal Opportunity Acts
In the performance of this Agreement, CONSULTANT shall comply with all
applicable provisions of the California Fair Employment Practices Act (California
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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 1990 (42 U.S.C. § 11200, et seg.).
6.3 Audit
The CITY or its representative shall have the option of inspecting, auditing
or inspecting and auditing all records and other written materials used by CONSULTANT
in preparing its billings to CITY as a condition precedent to any payment to
CONSULTANT. CONSULTANT will promptly furnish documents requested by CITY.
Additionally, CONSULTANT shall be subject to State Auditor examination and audit at
the request of CITY or as part of any audit of CITY, for a period of three (3) years after
final payment under this Agreement.
6.4 Personnel
CONSULTANT represents that it has, or shall secure at its own expense,
all personnel required to perform CONSULTANT's services under this Agreement. Any
person who performs engineering services pursuant to this Agreement shall be licensed
as a Civil Engineer by the State of California and in good standing. CONSULTANT shall
make reasonable efforts to maintain the continuity of CONSULTANT's staff who are
assigned to perform the services hereunder and shall obtain the approval of the Director
of Public Works of all proposed staff members who will perform such services.
CONSULTANT may associate with or employ associates or subcontractors in the
performance of its services under this Agreement, but at all times shall CONSULTANT
be responsible for its associates and subcontractors' services.
6.5 CONSULTANT's Representations
CONSULTANT represents, covenants and agrees that: a) CONSULTANT
is licensed, qualified, and capable of furnishing the labor, materials, and expertise
necessary to perform the services in accordance with the terms and conditions set forth
in this Agreement; b) there are no obligations, commitments, or impediments of any kind
that will limit or prevent CONSULTANT's full performance under this Agreement; c) to the
extent required by the standard of practice, CONSULTANT has investigated and
considered the scope of services performed, has carefully considered how the services
should be performed, and understands the facilities, difficulties and restrictions attending
performance of the services under this Agreement.
6.6 Conflicts of Interest
CONSULTANT agrees not to accept any employment or representation
during the term of this Agreement or within twelve (12) months after completion of the
work under this Agreement which is or may likely make CONSULTANT "financially
interested" (as provided in California Government Code Sections 1090 and 87100) in any
decisions made by CITY on any matter in connection with which CONSULTANT has been
retained pursuant to this Agreement.
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6.7 Legal Action
(a) Should either party to this Agreement bring legal action against the
other, the validity, interpretation, and performance of this Agreement shall be controlled
by and construed under the laws of the State of California, excluding California's choice
of law rules. Venue for any such action relating to this Agreement shall be in the Los
Angeles County Superior Court.
(b) If any legal action or other proceeding, including action for
declaratory relief, is brought for the enforcement of this Agreement or because of an
alleged dispute, breach, default or misrepresentation in connection with this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees, experts' fees,
and other costs, in addition to any other relief to which the party may be entitled.
(c) Should any legal action about a project between CITY and a party
other than CONSULTANT require the testimony of CONSULTANT when there is no
allegation that CONSULTANT was negligent, CITY shall compensate CONSULTANT for
its testimony and preparation to testify at the hourly rates in effect at the time of such
testimony.
6.8 Assignment
Neither this Agreement nor any part thereof shall be assigned by
CONSULTANT without the prior written consent of CITY. Any such purported assignment
without written consent shall be null and void, and CONSULTANT shall hold harmless,
defend and indemnify CITY and its officers, officials, employees, agents and
representatives with respect to any claim, demand or action arising from any unauthorized
assignment.
Notwithstanding the above, CONSULTANT may use the services of
persons and entities not in CONSULTANT's direct employ, when it is appropriate and
customary to do so. Such persons and entities include, but are not necessarily limited to,
surveyors, specialized consultants, and testing laboratories. CONSULTANT's use of
subcontractors for additional services shall not be unreasonably restricted by CITY
provided CONSULTANT notifies CITY in advance.
6.9 Independent Contractor
CONSULTANT is and shall at all times remain, as to CITY, a wholly
independent contractor. Neither CITY nor any of its agents shall have control over the
conduct of CONSULTANT or any of the CONSULTANT's employees, except as herein
set forth, and CONSULTANT is free to dispose of all portions of its time and activities
which it is not obligated to devote to CITY in such a manner and to such persons, firms,
or corporations as the CONSULTANT wishes except as expressly provided in this
Agreement. CONSULTANT shall have no power to incur any debt, obligation, or liability
on behalf of CITY or otherwise act on behalf of CITY as an agent. CONSULTANT shall
not, at any time or in any manner, represent that it or any of its agents, servants or
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employees, are in any manner agents, servants or employees of CITY. CONSULTANT
agrees to pay all required taxes on amounts paid to CONSULTANT under this
Agreement, and to indemnify and hold CITY harmless from any and all taxes,
assessments, penalties, and interest asserted against 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 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 CITY from CONSULTANT as a result of its failure to
promptly pay to CITY any reimbursement or indemnification arising under this Article.
6.10 Titles
The titles used in this Agreement are for general reference only and are not
part of the Agreement.
6.11 Entire Agreement
This Agreement, including any other documents incorporated herein by
specific reference, represents the entire and integrated agreement between CITY and
CONSULTANT and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be modified or amended, or provisions or
breach may be waived, only by subsequent written agreement signed by both parties.
6.12 Construction
In the event of any asserted ambiguity in, or dispute regarding the
interpretation of any matter herein, the interpretation of this Agreement shall not be
resolved by any rules of interpretation providing for interpretation against the party who
causes the uncertainty to exist or against the party who drafted the Agreement or who
drafted that portion of the Agreement.
6.13 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.
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6.14 Severability
If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
6.15 Notice
Except as otherwise required by law, any notice, payment 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 CITY's regular business hours or (b) on the third business day following
deposit in the United States mail, postage prepaid, to the addresses listed below, or at
such other address as one party may notify the other:
To CITY:
Responsible Person: Michael Throne, Director of Public Works
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, CA 90275
To CONSULTANT:
Responsible Person: Rusty R. Reed, PE President
Charles Abbott Associates, Inc.
27401 Los Altos #220
Mission Viejo, CA 92691
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
Dated:
Dated:
ATTEST:
City Clerk
R6876-0001 \1 857614v2.doc
Charles Abbott Associates, Inc.,
a California Corporation
("CONSULTANT")
By:
Printed Name:
Title:
By:
Printed Name:
Title:
CITY OF RANCHO PALOS VERDES
("CITY")
By:
Mayor
APPROVED AS TO FORM:
By:
City Attorney
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On -Call Professional Services Contract
Interwest Consulting Group
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CITY OF RANCHO PALOS VERDES
ON-CALL PROFESSIONALITECHNICAL SERVICES AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 181h day of August 2015,
by and between the City of Rancho Palos Verdes (hereinafter referred to as the "CITY")
and Interwest Consulting Group Inc., a Colorado corporation (hereafter referred to as
"CONSULTANT").
IN CONSIDERATION of the covenants hereinafter set forth, the parties hereto
agree as follows:
ARTICLE 1
SCOPE OF SERVICES
1.1 Project Description
The Project is described as on-call services as follows: Public Works Civil
Engineering services.
1.2 Description of Services
CONSULTANT shall provide such on-call traffic engineering consulting
services as may be requested by CITY. CONSULTANT acknowledges that this
Agreement is for on-call services, and there is no certainty that CONSULTANT will be
asked to perform any services pursuant to this Agreement. CONSULTANT's Statement
of Qualifications is attached hereto as Exhibit A and incorporated herein by this reference.
In the event of any conflict between the terms of this Agreement and incorporated
documents, the terms of this Agreement shall control.
1.3 Schedule of Work
Upon receipt of written Notice to Proceed from CITY, CONSULTANT shall
perform with due diligence the services requested by CITY. Time is of the essence in this
Agreement. CONSULTANT shall not be responsible for delay, nor shall CONSULTANT
be responsible for damages or be in default or deemed to be in default by reason of
strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish timely
information or to approve or disapprove CONSULTANT's work promptly, or delay or faulty
performance by CITY, other consultants/contractors, or governmental agencies, or any
other delays beyond CONSULTANT's control or without CONSULTANT's fault.
1.4 Term of Agreement
This Agreement shall commence on August 18, 2015 and shall terminate
on June 30, 2021 unless sooner terminated pursuant to Article 4 of this Agreement.
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ARTICLE 2
COMPENSATION
2.1 Rates; Expense Reimbursement
2.1.1 CITY agrees to compensate CONSULTANT in accordance with
CONSULTANT's Schedule of Hourly Rates, which is within Exhibit A and shall meet or
exceed prevailing wage rates, and in any case an amount not to exceed Sixty Thousand
Dollars ($60,000) per fiscal year for services as described in Article 1. On-call services
that are reimbursed by a trust deposit shall not count towards the maximum amount
CONSULTANT shall be paid for such services. The rates in Exhibit A shall be in effect
through the end of the term of this Agreement.
2.1.2 CITY will not reimburse CONSULTANT for costs and expenses
unless such costs and expenses are previously approved by CITY.
2.2 Payment of Compensation
CONSULTANT shall submit monthly invoices for the work completed in the
previous month. CITY agrees to authorize payment for all undisputed invoice amounts
within thirty (30) days of receipt of each invoice. CITY agrees to use its best efforts to
notify CONSULTANT of any disputed invoice amounts within ten (10) days of the receipt
of each invoice. However, CITY's failure to timely notify CONSULTANT of a disputed
amount shall not be deemed a waiver of CITY's right to challenge such amount.
Additionally, in the event CITY fails to pay any undisputed amounts due
CONSULTANT within forty-five (45) days after invoices are received by CITY then CITY
agrees that CONSULTANT shall have the right to consider the default a total breach of
this Agreement and be terminated by CONSULTANT without liability to CONSULTANT
upon ten (10) working days advance written notice.
ARTICLE 3
INDEMNIFICATION AND INSURANCE
3.1 Indemnity
3.1.1 Indemnity for Design Professional Services, To the fullest extent
permitted by law, CONSULTANT shall, at its sole cost and expense, protect, indemnify,
and hold harmless CITY and its elected officials, officers, attorneys, agents, employees,
designated volunteers, successors, assigns and those CITY agents serving as
independent contractors in the role of CITY officials (collectively "Indemnitees"), from and
against any and all damages, costs, expenses, liabilities, claims, demands, causes of
action, proceedings, judgments, penalties, liens, and losses of any nature whatsoever,
including fees of accountants, attorneys, or other professionals and all costs associated
therewith, and reimbursement of attorney's fees and costs of defense (collectively
"Liabilities"), whether actual, alleged or threatened, which arise out of, are claimed to arise
out of, pertain to, or relate to, in whole or in part, the negligence, recklessness or willful
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misconduct of CONSULTANT, its officers, agents, servants, employees, subcontractors,
material men, contractors or their officers, agents, servants or employees (or any entity
or individual that CONSULTANT shall bear the legal liability thereof) in the performance
of design professional services under this Agreement by a "design professional," as the
term is defined under California Civil Code Section 2782.8(c)(2).
3.1.2 Other Indemnities.
(a) Other than in the performance of design professional services, and
to the fullest extent permitted by law, CONSULTANT shall, at its sole cost and expense,
defend, hold harmless and indemnify the Indemnitees from and against any and all
damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings,
judgments, penalties, liens, and losses of any nature whatsoever, including fees of
accountants, attorneys, or other professionals and all costs associated therewith and the
payment of all consequential damages (collectively "Claims"), in law or equity, whether
actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or
relate to the acts or omissions of CONSULTANT, its officers, agents, servants,
employees, subcontractors, materialmen, contractors or their officers, agents, servants
or employees (or any entity or individual that CONSULTANT shall bear the legal liability
thereof) in the performance of this Agreement, including the Indemnitees' active or
passive negligence, except for Claims arising from the sole negligence or willful
misconduct of the Indemnitees, as determined by final arbitration or court decision or by
the agreement of the Parties. CONSULTANT shall defend the Indemnitees in any action
or actions filed in connection with any Claim with counsel of the Indemnitees' choice, and
shall pay all costs and expenses, including all attorneys' fees and experts' costs actually
incurred in connection with such defense. CONSULTANT shall reimburse the
Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in
connection therewith.
(b) CONSULTANT shall pay all required taxes on amounts paid to
CONSULTANT under this Agreement, and indemnify and hold CITY harmless from any
and all taxes, assessments, penalties, and interest asserted against CITY by reason of
the independent contractor relationship created by this Agreement. CONSULTANT shall
fully comply with the workers' compensation law regarding CONSULTANT and
CONSULTANT's employees. CONSULTANT shall indemnify and hold CITY harmless
from any failure of CONSULTANT to comply with applicable workers' compensation laws.
CITY may offset against the amount of any fees due to CONSULTANT under this
Agreement any amount due to CITY from CONSULTANT as a result of CONSULTANT's
failure to promptly pay to CITY any reimbursement or indemnification arising under this
subparagraph (b).
(c) CONSULTANT shall obtain executed indemnity agreements with
provisions identical to those in this Section 3.1 from each and every subcontractor or any
other person or entity involved by, for, with or on behalf of CONSULTANT in the
performance of this Agreement. If CONSULTANT fails to obtain such indemnities,
CONSULTANT shall be fully responsible and indemnify, hold harmless and defend the
Indemnitees from and against any and all Claims in law or equity, whether actual, alleged
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or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the
acts or omissions of CONSULTANT's subcontractor, its officers, agents, servants,
employees, subcontractors, materialmen, contractors or their officers, agents, servants
or employees (or any entity or individual that CONSULTANT's subcontractor shall bear
the legal liability thereof) in the performance of this Agreement, including the Indemnitees'
active or passive negligence, except for Claims arising from the sole negligence or willful
misconduct of the Indemnitees, as determined by final arbitration or court decision or by
the agreement of the Parties.
3.1.3 Workers' Compensation Acts not Limiting. CONSULTANT's
obligations under this Article 3, or any other provision of this Agreement, shall not be
limited by the provisions of any workers' compensation act or similar act. CONSULTANT
expressly waives its statutory immunity under such statutes or laws as to CITY, its
officers, agents, employees and volunteers.
3.1.4 Insurance Requirements not Limiting. CITY does not, and shall not,
waive any rights that it may possess against CONSULTANT because of the acceptance
by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant
to this Agreement. This hold harmless and indemnification provisions in this Article 3
shall apply regardless of whether or not any insurance policies are determined to be
applicable to the Liabilities, Claims, tax, assessment, penalty or interest asserted against
CITY.
3.1.5 Survival of Terms. The indemnification in this Article 3 shall survive
the expiration or termination of this Agreement.
3.2 Insurance
3.2.1 General Liability Insurance
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. The policy
or policies shall be issued by an insurer admitted or authorized to do business in the State
of California and rated in A.M. Best's Insurance Guide with a rating of A:VII or better.
3.2.2 Professional Liability Insurance
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. The policy or policies shall be issued by an insurer admitted or authorized to
do business in the State of California and rated in Best's Insurance Guide with a rating of
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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 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 CITY. Renewal or replacement policies shall not allow for
any advancement of such retroactive date.
3.2.3 Automobile Liability Insurance
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. The policy or policies shall be issued by an insurer admitted or authorized
to do business in the State of California and rated in A.M. Best's Insurance Guide with a
rating of A:VII or better.
3.2.4 Worker's Compensation Insurance
CONSULTANT agrees to maintain in force at all times during the
performance of work under this Agreement worker's compensation insurance as required
by the law. CONSULTANT shall require any subcontractor similarly to provide such
compensation insurance for their respective employees.
3.2.5 Notice of Cancellation
(a) All insurance policies shall provide that the insurance coverage shall
not be cancelled or modified by the insurance carrier without thirty (30) days prior written
notice, or ten (10) days notice if cancellation is due to nonpayment of premium.
CONSULTANT shall provide immediate notice to CITY, if CONSULTANT receives a
cancellation or policy revision notice from the insurer.
(b) CONSULTANT agrees that it will not cancel or reduce any required
insurance coverage. CONSULTANT agrees that if it does not keep the insurance in full
force and effect, CITY may either immediately terminate this Agreement or, if insurance
is available at a reasonable cost, CITY may take out the necessary insurance and pay,
at CONSULTANT's expense, the premium thereon.
3.2.6 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 policies are in effect in the required amounts. The commercial general
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liability policy shall contain endorsements naming CITY, its officers, agents and
employees as additional insureds.
3.2.7 Primary Coverage
The insurance provided by CONSULTANT shall be primary to any coverage
available to CITY. The insurance policies (other than workers compensation and
professional liability) shall include provisions for waiver of subrogation.
ARTICLE 4
TERMINATION
4.1 Termination of Agreement
(a) This Agreement may be terminated at any time, with or without
cause, by CITY upon ten (10) days prior written notice or by CONSULTANT upon ninety
(90) days prior written notice. Notice shall be deemed served if completed in compliance
with Section 6.15.
(b) CONSULTANT shall cease all work under this Agreement on or
before the effective date of termination specified in the notice of termination. In the event
of termination or cancellation of this Agreement by CONSULTANT or CITY, due to no
fault or failure of performance by CONSULTANT, CONSULTANT shall be paid
compensation for all services performed by CONSULTANT, in an amount to be
determined as follows: for work satisfactorily done in accordance with all of the terms and
provisions of this Agreement as determined by CITY, CONSULTANT shall be paid an
amount equal to the percentage of services performed prior to the effective date of
termination or cancellation in accordance with the work items; provided, in no event shall
the amount of money paid under the foregoing provisions of this paragraph exceed the
amount which would have been paid to CONSULTANT for the full performance of the
services described in this Agreement.
ARTICLE 5
OWNERSHIP OF DOCUMENTS
5.1 Ownership of Documents and Work Product
All final documents, plans, specifications, reports, information, data,
exhibits, photographs, images, video files and media created or developed by
CONSULTANT pursuant to this Agreement ("Written Products") shall be and remain the
property of CITY without restriction or limitation upon its use, duplication or dissemination
by CITY. All Written Products shall be considered "works made for hire," and all Written
Products and any and all intellectual property rights arising from their creation, including,
but not limited to, all copyrights and other proprietary rights, shall be and remain the
property of CITY without restriction or limitation upon their use, duplication or
dissemination by CITY. CONSULTANT shall not obtain or attempt to obtain copyright
protection as to any Written Products,
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CONSULTANT hereby assigns to CITY all ownership and any and all
intellectual property rights to the Written Products that are not otherwise vested in CITY
pursuant to the paragraph directly above this one.
CONSULTANT warrants and represents that it has secured all necessary
licenses, consents or approvals to use any instrumentality, thing or component as to
which any intellectual property right exists, including computer software, used in the
rendering of the services and the production of all Written Products produced under this
Agreement, and that CITY has full legal title to and the right to reproduce the Written
Products. CONSULTANT shall defend, indemnify and hold CITY, and its elected officials,
officers, employees, servants, attorneys, designated volunteers, and agents serving as
independent contractors in the role of CITY officials, harmless from any loss, claim or
liability in any way related to a claim that CITY's use of any of the Written Products is
violating federal, state or local laws, or any contractual provisions, or any laws relating to
trade names, licenses, franchises, copyrights, patents or other means of protecting
intellectual property rights and/or interests in products or inventions. CONSULTANT shall
bear all costs arising from the use of patented, copyrighted, trade secret or trademarked
documents, materials, equipment, devices or processes in connection with its provision
of the services and Written Products produced under this Agreement. In the event the
use of any of the Written Products or other deliverables hereunder by CITY is held to
constitute an infringement and the use of any of the same is enjoined, CONSULTANT, at
its expense, shall: (a) secure for CITY the right to continue using the Written Products
and other deliverables by suspension of any injunction, or by procuring a license or
licenses for CITY; or (b) modify the Written Products and other deliverables so that they
become non -infringing while remaining in compliance with the requirements of this
Agreement. This covenant shall survive the termination of this Agreement.
Upon termination, abandonment or suspension of the Project, the
CONSULTANT shall deliver to CITY all Written Products and other deliverables related
to the Project without additional cost or expense to CITY. If CONSULTANT prepares a
document on a computer, CONSULTANT shall provide CITY with the document both in
a printed format and in an electronic format that is acceptable to CITY.
ARTICLE 6
GENERAL PROVISIONS
6.1 Representation
The CITY representative shall be the Director of Public Works or his or her
designee, and CONSULTANT shall notify CITY of CONSULTANT's designated
representative. These individuals shall be the primary contact persons for the parties
regarding performance of this Agreement.
6.2 Fair Employment Practices/Equal Opportunity Acts
In the performance of this Agreement, CONSULTANT shall comply with all
applicable provisions of the California Fair Employment Practices Act (California
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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 1990 (42 U.S.C. § 11200, et seg.).
6.3 Audit
The CITY or its representative shall have the option of inspecting, auditing
or inspecting and auditing all records and other written materials used by CONSULTANT
in preparing its billings to CITY as a condition precedent to any payment to
CONSULTANT. CONSULTANT will promptly furnish documents requested by CITY.
Additionally, CONSULTANT shall be subject to State Auditor examination and audit at
the request of CITY or as part of any audit of CITY, for a period of three (3) years after
final payment under this Agreement.
6.4 Personnel
CONSULTANT represents that it has, or shall secure at its own expense,
all personnel required to perform CONSULTANT's services under this Agreement. Any
person who performs engineering services pursuant to this Agreement shall be licensed
as a Civil Engineer by the State of California and in good standing. CONSULTANT shall
make reasonable efforts to maintain the continuity of CONSULTANT's staff who are
assigned to perform the services hereunder and shall obtain the approval of the Director
of Public Works of all proposed staff members who will perform such services.
CONSULTANT may associate with or employ associates or subcontractors in the
performance of its services under this Agreement, but at all times shall CONSULTANT
be responsible for its associates and subcontractors' services.
6.5 CONSULTANT's Representations
CONSULTANT represents, covenants and agrees that: a) CONSULTANT
is licensed, qualified, and capable of furnishing the labor, materials, and expertise
necessary to perform the services in accordance with the terms and conditions set forth
in this Agreement; b) there are no obligations, commitments, or impediments of any kind
that will limit or prevent CONSULTANT's full performance under this Agreement; c) to the
extent required by the standard of practice, CONSULTANT has investigated and
considered the scope of services performed, has carefully considered how the services
should be performed, and understands the facilities, difficulties and restrictions attending
performance of the services under this Agreement.
6.6 Conflicts of Interest
CONSULTANT agrees not to accept any employment or representation
during the term of this Agreement or within twelve (12) months after completion of the
work under this Agreement which is or may likely make CONSULTANT "financially
interested" (as provided in California Government Code Sections 1090 and 87100) in any
decisions made by CITY on any matter in connection with which CONSULTANT has been
retained pursuant to this Agreement.
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6.7 Legal Action
(a) Should either party to this Agreement bring legal action against the
other, the validity, interpretation, and performance of this Agreement shall be controlled
by and construed under the laws of the State of California, excluding California's choice
of law rules. Venue for any such action relating to this Agreement shall be in the Los
Angeles County Superior Court.
(b) If any legal action or other proceeding, including action for
declaratory relief, is brought for the enforcement of this Agreement or because of an
alleged dispute, breach, default or misrepresentation in connection with this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees, experts' fees,
and other costs, in addition to any other relief to which the party may be entitled.
(c) Should any legal action about a project between CITY and a party
other than CONSULTANT require the testimony of CONSULTANT when there is no
allegation that CONSULTANT was negligent, CITY shall compensate CONSULTANT for
its testimony and preparation to testify at the hourly rates in effect at the time of such
testimony.
6.8 Assignment
Neither this Agreement nor any part thereof shall be assigned by
CONSULTANT without the prior written consent of CITY. Any such purported assignment
without written consent shall be null and void, and CONSULTANT shall hold harmless,
defend and indemnify CITY and its officers, officials, employees, agents and
representatives with respect to any claim, demand or action arising from any unauthorized
assignment.
Notwithstanding the above, CONSULTANT may use the services of
persons and entities not in CONSULTANT's direct employ, when it is appropriate and
customary to do so. Such persons and entities include, but are not necessarily limited to,
surveyors, specialized consultants, and testing laboratories. CONSULTANT's use of
subcontractors for additional services shall not be unreasonably restricted by CITY
provided CONSULTANT notifies CITY in advance.
6.9 Independent Contractor
CONSULTANT is and shall at all times remain, as to CITY, a wholly
independent contractor. Neither CITY nor any of its agents shall have control over the
conduct of CONSULTANT or any of the CONSULTANT's employees, except as herein
set forth, and CONSULTANT is free to dispose of all portions of its time and activities
which it is not obligated to devote to CITY in such a manner and to such persons, firms,
or corporations as the CONSULTANT wishes except as expressly provided in this
Agreement. CONSULTANT shall have no power to incur any debt, obligation, or liability
on behalf of CITY or otherwise act on behalf of CITY as an agent. CONSULTANT shall
not, at any time or in any manner, represent that it or any of its agents, servants or
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employees, are in any manner agents, servants or employees of CITY. CONSULTANT
agrees to pay all required taxes on amounts paid to CONSULTANT under this
Agreement, and to indemnify and hold CITY harmless from any and all taxes,
assessments, penalties, and interest asserted against 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 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 CITY from CONSULTANT as a result of its failure to
promptly pay to CITY any reimbursement or indemnification arising under this Article.
6.10 Titles
The titles used in this Agreement are for general reference only and are not
part of the Agreement.
6.11 Entire Agreement
This Agreement, including any other documents incorporated herein by
specific reference, represents the entire and integrated agreement between CITY and
CONSULTANT and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be modified or amended, or provisions or
breach may be waived, only by subsequent written agreement signed by both parties.
6.12 Construction
In the event of any asserted ambiguity in, or dispute regarding the
interpretation of any matter herein, the interpretation of this Agreement shall not be
resolved by any rules of interpretation providing for interpretation against the party who
causes the uncertainty to exist or against the party who drafted the Agreement or who
drafted that portion of the Agreement.
6.13 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.
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6.14 Severability
If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
6.15 Notice
Except as otherwise required by law, any notice, payment 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 CITY's regular business hours or (b) on the third business day following
deposit in the United States mail, postage prepaid, to the addresses listed below, or at
such other address as one party may notify the other:
To CITY:
Responsible Person: Michael Throne, Director of Public Works
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, CA 90275
To CONSULTANT:
Responsible Person: Terry Rodriguez, PE, TE
Interwest Consulting Group
15061 Springdale Street, Suite 205
Huntington Beach, CA 92649
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
Dated: Interwest Consulting Group, Inc. a
Colorado corporation
("CONSULTANT")
Dated:
ATTEST:
M
By:
Printed Name:
Title:
By:
Printed Name:
Title:
CITY OF RANCHO PALOS VERDES
("CITY")
By:
Mayor
APPROVED AS TO FORM:
By:
City Clerk City Attorney
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On -Call Professional Services Contract
MSN Engineers
MR
CITY OF RANCHO PALOS VERDES
ON-CALL PROF ESSIONALITECHNICAL SERVICES AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 4th day of August
2015, by and between the City of Rancho Palos Verdes (hereinafter referred to as the
"CITY") and MINIS Engineers, Inc., a California corporation (hereafter referred to as
"CONSULTANT").
IN CONSIDERATION of the covenants hereinafter set forth, the parties hereto
agree as follows:
ARTICLE 1
SCOPE OF SERVICES
1.1 Protect Description
The Project is described as on-call services as follows: Public Works
Engineering services.
1.2 Description of Services
CONSULTANT shall provide such on-call Public Works Engineering
services as may be requested by CITY. CONSULTANT acknowledges that this
Agreement is for on-call services, and there is no certainty that CONSULTANT will be
asked to perform any services pursuant to this Agreement. CONSULTANT's Statement
of Qualifications is attached hereto as Exhibit A and incorporated herein by this reference.
In the event of any conflict between the terms of this Agreement and incorporated
documents, the terms of this Agreement shall control.
1.3 Schedule of Work
Upon receipt of written Notice to Proceed from CITY, CONSULTANT shall
perform with due diligence the services requested by CITY. Time is of the essence in this
Agreement. CONSULTANT shall not be responsible for delay, nor shall CONSULTANT
be responsible for damages or be in default or deemed to be in default by reason of
strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish timely
information or to approve or disapprove CONSULTANT's work promptly, or delay or faulty
performance by CITY, other consultants/contractors, or governmental agencies, or any
other delays beyond CONSULTANT's control or without CONSULTANT's fault.
1.4 Term of Agreement
This Agreement shall commence on August 4, 2015 and shall terminate on
June 30, 2021 unless sooner terminated pursuant to Article 4 of this Agreement.
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ARTICLE 2
COMPENSATION
2.1 Rates; Expense Reimbursement
2.1.1 CITY agrees to compensate CONSULTANT in accordance with
CONSULTANT's Schedule of Hourly Rates, which is within Exhibit A and shall meet or
exceed prevailing wage rates, and in any case an amount not to exceed Sixty Thousand
Dollars ($60,000) per fiscal year for services as described in Article 1. On-call services
that are reimbursed by a trust deposit shall not count towards the maximum amount
CONSULTANT shall be paid for such services. The rates in Exhibit A shall be in effect
through the end of the term of this Agreement.
2.1.2 CITY will not reimburse CONSULTANT for costs and expenses
unless such costs and expenses are previously approved by CITY.
2.2 Payment of Compensation
CONSULTANT shall submit monthly invoices for the work completed in the
previous month. CITY agrees to authorize payment for all undisputed invoice amounts
within thirty (30) days of receipt of each invoice. CITY agrees to use its best efforts to
notify CONSULTANT of any disputed invoice amounts within ten (10) days of the receipt
of each invoice. However, CITY's failure to timely notify CONSULTANT of a disputed
amount shall not be deemed a waiver of CITY's right to challenge such amount.
Additionally, in the event CITY fails to pay any undisputed amounts due
CONSULTANT within forty-five (45) days after invoices are received by CiTY then CITY
agrees that CONSULTANT shall have the right to consider the default a total breach of
this Agreement and be terminated by CONSULTANT without liability to CONSULTANT
upon ten (10) working days advance written notice.
ARTICLE 3
INDEMNIFICATION AND INSURANCE
3.1 Indemnitv
3.1.1 Indemnity for Design Professional Services. To the fullest extent
permitted by law, CONSULTANT shall, at its sole cost and expense, protect, indemnify,
and hold harmless CITY and its elected officials, officers, attorneys, agents, employees,
designated volunteers, successors, assigns and those CITY agents serving as
independent contractors in the role of CITY officials (collectively "indemnitees"), from and
against any and all damages, costs, expenses, liabilities, claims, demands, causes of
action, proceedings, judgments, penalties, liens, and losses of any nature whatsoever,
including fees of accountants, attorneys, or other professionals and all costs associated
therewith, and reimbursement of attorney's fees and costs of defense (collectively
"Liabilities"), whether actual, alleged or threatened, which arise out of, are claimed to arise
out of, pertain to, or relate to, in whole or in part, the negligence, recklessness or willful
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misconduct of CONSULTANT, its officers, agents, servants, employees, subcontractors,
material men, contractors or their officers, agents, servants or employees (or any entity
or individual that CONSULTANT shall bear the legal liability thereof) in the performance
of design professional services under this Agreement by a "design professional," as the
term is defined under California Civil Code Section 2782.8(c)(2).
3.1.2 Other Indemnities.
(a) Other than in the performance of design professional services, and
to the fullest extent permitted by law, CONSULTANT shall, at its sole cost and expense,
defend, hold harmless and indemnify the Indemnitees from and against any and all
damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings,
judgments, penalties, liens, and losses of any nature whatsoever, including fees of
accountants, attorneys, or other professionals and all costs associated therewith and the
payment of all consequential damages (collectively "Claims"), in law or equity, whether
actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or
relate to the acts or omissions of CONSULTANT, its officers, agents, servants,
employees, subcontractors, materialmen, contractors or their officers, agents, servants
or employees (or any entity or individual that CONSULTANT shall bear the legal liability
thereof) in the performance of this Agreement, including the Indemnitees' active or
passive negligence, except for Claims arising from the sole negligence or willful
misconduct of the Indemnitees, as determined by final arbitration or court decision or by
the agreement of the Parties. CONSULTANT shall defend the Indemnitees in any action
or actions filed in connection with any Claim with counsel of the Indemnitees' choice, and
shall pay all costs and expenses, including all attorneys' fees and experts' costs actually
incurred in connection with such defense. CONSULTANT shall reimburse the
Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in
connection therewith.
(b) CONSULTANT shall pay all required taxes on amounts paid to
CONSULTANT under this Agreement, and indemnify and hold CITY harmless from any
and all taxes, assessments, penalties, and interest asserted against CITY by reason of
the independent contractor relationship created by this Agreement. CONSULTANT shall
fully comply with the workers' compensation law regarding CONSULTANT and
CONSULTANT's employees. CONSULTANT shall indemnify and hold CITY harmless
from any failure of CONSULTANT to comply with applicable workers' compensation laws.
CITY may offset against the amount of any fees due to CONSULTANT under this
Agreement any amount due to CITY from CONSULTANT as a result of CONSULTANT's
failure to promptly pay to CITY any reimbursement or indemnification arising under this
Subparagraph (b).
(c) CONSULTANT shall obtain executed indemnity agreements with
provisions identical to those in this Section 3.1 from each and every subcontractor or any
other person or entity involved by, for, with or on behalf of CONSULTANT in the
performance of this Agreement. If CONSULTANT fails to obtain such indemnities,
CONSULTANT shall be fully responsible and indemnify, hold harmless and defend the
Indemnitees from and against any and all Claims in law or equity, whether actual, alleged
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or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the
acts or omissions of CONSULTANT's subcontractor, its officers, agents, servants,
employees, subcontractors, materialmen, contractors or their officers, agents, servants
or employees (or any entity or individual that CONSULTANT's subcontractor shall bear
the legal liability thereof) in the performance of this Agreement, including the indemnitees'
active or passive negligence, except for Claims arising from the sole negligence or willful
misconduct of the Indemnitees, as determined by final arbitration or court decision or by
the agreement of the Parties.
3.1.3 Workers' Compensation Acts not Limiting. CONSULTANT's
obligations under this Article 3, or any other provision of this Agreement, shall not be
limited by the provisions of any workers' compensation act or similar act. CONSULTANT
expressly waives its statutory immunity under such statutes or laws as to CITY, its
officers, agents, employees and volunteers.
3.1.4 Insurance Requirements not Limiting. CITY does not, and shall not,
waive any rights that It may possess against CONSULTANT because of the acceptance
by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant
to this Agreement. This hold harmless and indemnification provisions in this Article 3
shall apply regardless of whether or not any insurance policies are determined to be
applicable to the Liabilities, Claims, tax, assessment, penalty or interest asserted against
CITY.
3.1.5 Survival of Terms. The indemnification in this Article 3 shall survive
the expiration or termination of this Agreement.
3.2 Insurance
3.2.1 General Liability Insurance
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. The policy
or policies shall be issued by an insurer admitted or authorized to do business in the State
of California and rated in A.M. Best's Insurance Guide with a rating of A:VII or better.
3.2.2 Professional Liabilitv Insurance
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. The policy or policies shall be issued by an insurer admitted or authorized to
do business in the State of California and rated in Best's Insurance Guide with a rating of
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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 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 CITY. Renewal or replacement policies shall not allow for
any advancement of such retroactive date.
3.2.3 Automobile Liability Insurance
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. The policy or policies shall be issued by an insurer admitted or authorized
to do business in the State of California and rated in A.M. Best's Insurance Guide with a
rating of A:VII or better.
3.2.4 Worker's Compensation Insurance
CONSULTANT agrees to maintain in force at all times during the
performance of work under this Agreement worker's compensation insurance as required
by the law. CONSULTANT shall require any subcontractor similarly to provide such
compensation insurance for their respective employees.
3.2.5 Notice of Cancellation
(a) All insurance policies shall provide that the insurance coverage shall
not be cancelled or modified by the insurance carrier without thirty (30) days prior written
notice, or ten (10) days notice if cancellation is due to nonpayment of premium.
CONSULTANT shall provide immediate notice to CITY, if CONSULTANT receives a
cancellation or policy revision notice from the insurer.
(b) CONSULTANT agrees that it will not cancel or reduce any required
insurance coverage. CONSULTANT agrees that if it does not keep the insurance in full
force and effect, CITY may either immediately terminate this Agreement or, if insurance
is available at a reasonable cost, CITY may take out the necessary insurance and pay,
at CONSULTANT's expense, the premium thereon.
3.2.6 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 policies are in effect in the required amounts. The commercial general
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liability policy shall contain endorsements naming CITY, its officers, agents and
employees as additional insureds.
3.2.7 Primary Coverage
The insurance provided by CONSULTANT shall be primary to any coverage
available to CITY. The insurance policies (other than workers compensation and
professional liability) shall include provisions for waiver of subrogation.
ARTICLE 4
TERMINATION
4.1 Termination of Agreement
(a) This Agreement may be terminated at any time, with or without
cause, by CITY upon ten (10) days prior written notice or by CONSULTANT upon
ninety (90) days prior written notice. Notice shall be deemed served if completed in
compliance with Section 6.15.
(b) CONSULTANT shall cease all work under this Agreement on or
before the effective date of termination specified in the notice of termination. In the event
of termination or cancellation of this Agreement by CONSULTANT or CITY, due to no
fault or failure of performance by CONSULTANT, CONSULTANT shall be paid
compensation for all services performed by CONSULTANT, in an amount to be
determined as follows: for work satisfactorily done in accordance with all of the terms and
provisions of this Agreement as determined by CITY, CONSULTANT shall be paid an
amount equal to the percentage of services performed prior to the effective date of
termination or cancellation in accordance with the work items; provided, in no event shall
the amount of money paid under the foregoing provisions of this paragraph exceed the
amount which would have been paid to CONSULTANT for the full performance of the
services described in this Agreement.
ARTICLE 5
OWNERSHIP OF DOCUMENTS
5.1 Ownership of Documents and Work Product
All final documents, plans, specifications, reports, information, data,
exhibits, photographs, images, video files and media created or developed by
CONSULTANT pursuant to this Agreement ("Written Products") shall be and remain the
property of CITY without restriction or limitation upon its use, duplication or dissemination
by CITY. All Written Products shall be considered "works made for hire," and all Written
Products and any and all intellectual property rights arising from their creation, including,
but not limited to, all copyrights and other proprietary rights, shall be and remain the
property of CITY without restriction or limitation upon their use, duplication or
dissemination by CITY. CONSULTANT shall not obtain or attempt to obtain copyright
protection as to any Written Products.
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CONSULTANT hereby assigns to CITY all ownership and any and all
intellectual property rights to the Written Products that are not otherwise vested in CITY
pursuant to the paragraph directly above this one.
CONSULTANT warrants and represents that it has secured all necessary
licenses, consents or approvals to use any instrumentality, thing or component as to
which any intellectual property right exists, including computer software, used in the
rendering of the services and the production of all Written Products produced under this
Agreement, and that CITY has full legal title to and the right to reproduce the Written
Products. CONSULTANT shall defend, indemnify and hold CITY, and its elected officials,
officers, employees, servants, attorneys, designated volunteers, and agents serving as
independent contractors in the role of CITY officials, harmless from any loss, claim or
liability in any way related to a claim that CITY's use of any of the Written Products is
violating federal, state or local laws, or any contractual provisions, or any laws relating to
trade names, licenses, franchises, copyrights, patents or other means of protecting
intellectual property rights and/or interests in products or inventions. CONSULTANT shall
bear all costs arising from the use of patented, copyrighted, trade secret or trademarked
documents, materials, equipment, devices or processes in connection with its provision
of the services and Written Products produced under this Agreement. In the event the
use of any of the Written Products or other deliverables hereunder by CITY is held to
constitute an infringement and the use of any of the same is enjoined, CONSULTANT, at
its expense, shall: (a) secure for CITY the right to continue using the Written Products
and other deliverables by suspension of any injunction, or by procuring a license or
licenses for CITY; or (b) modify the Written Products and other deliverables so that they
become non -infringing while remaining in compliance with the requirements of this
Agreement. This covenant shall survive the termination of this Agreement.
Upon termination, abandonment or suspension of the Project, the
CONSULTANT shall deliver to CITY all Written Products and other deliverables related
to the Project without additional cost or expense to CITY. If CONSULTANT prepares a
document on a computer, CONSULTANT shall provide CITY with the document both in
a printed format and in an electronic format that is acceptable to CITY.
ARTICLE 6
GENERAL PROVISIONS
6.1 Representation
The CITY representative shall be the Director of Public Works or his or her
designee, and CONSULTANT shall notify CITY of CONSULTANT's designated
representative. These individuals shall be the primary contact persons for the parties
regarding performance of this Agreement.
6.2 Fair Employment Practices/Equal Opportunity Acts
In the performance of this Agreement, CONSULTANT shall comply with all
applicable provisions of the California Fair Employment Practices Act (California
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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 1990 (42 U.S.C. § 11200, et seg.).
6.3 Audit
The CITY or its representative shall have the option of inspecting, auditing
or inspecting and auditing all records and other written materials used by CONSULTANT
in preparing its billings to CITY as a condition precedent to any payment to
CONSULTANT. CONSULTANT will promptly furnish documents requested by CITY.
Additionally, CONSULTANT shall be subject to State Auditor examination and audit at
the request of CITY or as part of any audit of CITY, for a period of three (3) years after
final payment under this Agreement.
6.4 Personnel
CONSULTANT represents that it has, or shall secure at its own expense,
all personnel required to perform CONSULTANT's services under this Agreement. Any
person who performs engineering services pursuant to this Agreement shall be licensed
as a Civil Engineer by the State of California and in good standing. CONSULTANT shall
make reasonable efforts to maintain the continuity of CONSULTANT's staff who are
assigned to perform the services hereunder and shall obtain the approval of the Director
of Public Works of all proposed staff members who will perform such services.
CONSULTANT may associate with or employ associates or subcontractors in the
performance of its services under this Agreement, but at all times shall CONSULTANT
be responsible for its associates and subcontractors' services.
6.5 CONSULTANT's Representations
CONSULTANT represents, covenants and agrees that: a) CONSULTANT
is licensed, qualified, and capable of furnishing the labor, materials, and expertise
necessary to perform the services in accordance with the terms and conditions set forth
in this Agreement; b) there are no obligations, commitments, or impediments of any kind
that will limit or prevent CONSULTANT's full performance under this Agreement; c) to the
extent required by the standard of practice, CONSULTANT has investigated and
considered the scope of services performed, has carefully considered how the services
should be performed, and understands the facilities, difficulties and restrictions attending
performance of the services under this Agreement.
6.6 Conflicts of Interest
CONSULTANT agrees not to accept any employment or representation
during the term of this Agreement or within twelve (12) months after completion of the
work under this Agreement which is or may likely make CONSULTANT "financially
interested" (as provided in California Government Code Sections 1090 and 87100) in any
decisions made by CITY on any matter in connection with which CONSULTANT has been
retained pursuant to this Agreement.
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6.7 Legal Action
(a) Should either party to this Agreement bring legal action against the
other, the validity, interpretation, and performance of this Agreement shall be controlled
by and construed under the laws of the State of California, excluding California's choice
of law rules. Venue for any such action relating to this Agreement shall be in the Los
Angeles County Superior Court.
(b) If any legal action or other proceeding, including action for
declaratory relief, is brought for the enforcement of this Agreement or because of an
alleged dispute, breach, default or misrepresentation in connection with this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees, experts' fees,
and other costs, in addition to any other relief to which the party may be entitled.
(c) Should any legal action about a project between CITY and a party
other than CONSULTANT require the testimony of CONSULTANT when there is no
allegation that CONSULTANT was negligent, CITY shall compensate CONSULTANT for
its testimony and preparation to testify at the hourly rates in effect at the time of such
testimony.
6.8 Assignment
Neither this Agreement nor any part thereof shall be assigned by
CONSULTANT without the prior written consent of CITY. Any such purported assignment
without written consent shall be null and void, and CONSULTANT shall hold harmless,
defend and indemnify CITY and its officers, officials, employees, agents and
representatives with respect to any claim, demand or action arising from any unauthorized
assignment.
Notwithstanding the above, CONSULTANT may use the services of
persons and entities not in CONSULTANT's direct employ, when it is appropriate and
customary to do so. Such persons and entities include, but are not necessarily limited to,
surveyors, specialized consultants, and testing laboratories. CONSULTANT's use of
subcontractors for additional services shall not be unreasonably restricted by CITY
provided CONSULTANT notifies CITY in advance.
6.9 Independent Contractor
CONSULTANT is and shall at all times remain, as to CITY, a wholly
independent contractor. Neither CITY nor any of its agents shall have control over the
conduct of CONSULTANT or any of the CONSULTANT's employees, except as herein
set forth, and CONSULTANT is free to dispose of all portions of its time and activities
which it is not obligated to devote to CITY in such a manner and to such persons, firms,
or corporations as the CONSULTANT wishes except as expressly provided in this
Agreement. CONSULTANT shall have no power to incur any debt, obligation, or liability
on behalf of CITY or otherwise act on behalf of CITY as an agent. CONSULTANT shall
not, at any time or in any manner, represent that it or any of its agents, servants or
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employees, are in any manner agents, servants or employees of CITY. CONSULTANT
agrees to pay all required taxes on amounts paid to CONSULTANT under this
Agreement, and to indemnify and hold CITY harmless from any and all taxes,
assessments, penalties, and interest asserted against 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 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 CITY from CONSULTANT as a result of its failure to
promptly pay to CITY any reimbursement or indemnification arising under this Article.
6.10 Titles
The titles used in this Agreement are for general reference only and are not
part of the Agreement.
6.11 Entire Agreement
This Agreement, including any other documents incorporated herein by
specific reference, represents the entire and integrated agreement between CITY and
CONSULTANT and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be modified or amended, or provisions or
breach may be waived, only by subsequent written agreement signed by both parties.
6.12 Construction
In the event of any asserted ambiguity in, or dispute regarding the
interpretation of any matter herein, the interpretation of this Agreement shall not be
resolved by any rules of interpretation providing for interpretation against the party who
causes the uncertainty to exist or against the party who drafted the Agreement or who
drafted that portion of the Agreement.
6.13 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.
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6.14 Severability
If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
6.15 Notice
Except as otherwise required by law, any notice, payment 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 CITY's regular business hours or (b) on the third business day following
deposit in the United States mail, postage prepaid, to the addresses listed below, or at
such other address as one party may notify the other:
To CITY:
Responsible Person: Michael Throne, Director of Public Works
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, CA 90275
To CONSULTANT:
Responsible Person: Greg Jaquez, P.E.
MNS
1055 East Colorado Boulevard, Suite 500
Pasadena, CA 91106
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
Dated: MNS Engineers, Inc., a California
corporation
("CONSULTANT')
By:
Printed Name:
Title:
By:
Printed Name:
Dated:
ATTEST:
0
City Clerk
Title:
CITY OF RANCHO PALOS VERDES
("CITY')
By:
Mayor
APPROVED AS TO FORM:
By:
City Attorney
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On -Call Professional Services Contract
Onward Engineering
a
71
CITY OF RANCHO PALOS VERDES
ON-CALL PROFESSIONAUTECHNICAL SERVICES AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 18th day of August 2015,
by and between the City of Rancho Palos Verdes (hereinafter referred to as the "CITY")
and Onward Engineering, a California corporation (hereafter referred to as
"CONSULTANT").
IN CONSIDERATION of the covenants hereinafter set forth, the parties hereto
agree as follows:
ARTICLE 1
SCOPE OF SERVICES
1.1 Project Descrition
The Project is described as on-call services as follows: Public Works
Engineering services.
1.2 Description of Services
CONSULTANT shall provide such on-call traffic engineering consulting
services as may be requested by CITY. CONSULTANT acknowledges that this
Agreement is for on-call services, and there is no certainty that CONSULTANT will be
asked to perform any services pursuant to this Agreement. CONSULTANT's Statement
of Qualifications is attached hereto as Exhibit A and incorporated herein by this reference.
In the event of any conflict between the terms of this Agreement and incorporated
documents, the terms of this Agreement shall control.
1.3 Schedule of Work
Upon receipt of written Notice to Proceed from CITY, CONSULTANT shall
perform with due diligence the services requested by CITY. Time is of the essence in this
Agreement. CONSULTANT shall not be responsible for delay, nor shall CONSULTANT
be responsible for damages or be in default or deemed to be in default by reason of
strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish timely
information or to approve or disapprove CONSULTANT's work promptly, or delay or faulty
performance by CITY, other consultants/contractors, or governmental agencies, or any
other delays beyond CONSULTANT's control or without CONSULTANT's fault.
1.4 Term of Aqreement
This Agreement shall commence on August 18, 2015 and shall terminate
on June 30, 2021 unless sooner terminated pursuant to Article 4 of this Agreement.
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ARTICLE 2
COMPENSATION
2.1 Rates; Expense Reimbursement
2.1.1 CITY agrees to compensate CONSULTANT in accordance with
CONSULTANT's Schedule of Hourly Rates, which is within Exhibit A and shall meet or
exceed prevailing wage rates, and in any case an amount not to exceed Sixty Thousand
Dollars ($60,000) per fiscal year for services as described in Article 1. On-call services
that are reimbursed by a trust deposit shall not count towards the maximum amount
CONSULTANT shall be paid for such services. The rates in Exhibit A shall be in effect
through the end of the term of this Agreement.
2.1.2 CITY will not reimburse CONSULTANT for costs and expenses
unless such costs and expenses are previously approved by CITY.
2.2 Payment of Compensation
CONSULTANT shall submit monthly invoices for the work completed in the
previous month. CITY agrees to authorize payment for all undisputed invoice amounts
within thirty (30) days of receipt of each invoice. CITY agrees to use its best efforts to
notify CONSULTANT of any disputed invoice amounts within ten (10) days of the receipt
of each invoice. However, CITY's failure to timely notify CONSULTANT of a disputed
amount shall not be deemed a waiver of CITY's right to challenge such amount.
Additionally, in the event CITY fails to pay any undisputed amounts due
CONSULTANT within forty-five (45) days after invoices are received by CITY then CITY
agrees that CONSULTANT shall have the right to consider the default a total breach of
this Agreement and be terminated by CONSULTANT without liability to CONSULTANT
upon ten (10) working days advance written notice.
ARTICLE 3
INDEMNIFICATION AND INSURANCE
3.1 Indemnity
3.1.1 Indemnity for Design Professional Services. To the fullest extent
permitted by law, CONSULTANT shall, at its sole cost and expense, protect, indemnify,
and hold harmless CITY and its elected officials, officers, attorneys, agents, employees,
designated volunteers, successors, assigns and those CITY agents serving as
independent contractors in the role of CITY officials (collectively "Indemnitees"), from and
against any and all damages, costs, expenses, liabilities, claims, demands, causes of
action, proceedings, judgments, penalties, liens, and losses of any nature whatsoever,
including fees of accountants, attorneys, or other professionals and all costs associated
therewith, and reimbursement of attorney's fees and costs of defense (collectively
"Liabilities"), whether actual, alleged or threatened, which arise out of, are claimed to arise
out of, pertain to, or relate to, in whole or in part, the negligence, recklessness or willful
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misconduct of CONSULTANT, its officers, agents, servants, employees, subcontractors,
material men, contractors or their officers, agents, servants or employees (or any entity
or individual that CONSULTANT shall bear the legal liability thereof) in the performance
of design professional services under this Agreement by a "design professional," as the
term is defined under California Civil Code Section 2782.8(c)(2).
3.1.2 Other Indemnities.
(a) Other than in the performance of design professional services, and
to the fullest extent permitted by law, CONSULTANT shall, at its sole cost and expense,
defend, hold harmless and indemnify the Indemnitees from and against any and all
damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings,
judgments, penalties, liens, and losses of any nature whatsoever, including fees of
accountants, attorneys, or other professionals and all costs associated therewith and the
payment of all consequential damages (collectively "Claims"), in law or equity, whether
actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or
relate to the acts or omissions of CONSULTANT, its officers, agents, servants,
employees, subcontractors, materialmen, contractors or their officers, agents, servants
or employees (or any entity or individual that CONSULTANT shall bear the legal liability
thereof) in the performance of this Agreement, including the Indemnitees' active or
passive negligence, except for Claims arising from the sole negligence or willful
misconduct of the Indemnitees, as determined by final arbitration or court decision or by
the agreement of the Parties. CONSULTANT shall defend the Indemnitees in any action
or actions filed in connection with any Claim with counsel of the Indemnitees' choice, and
shall pay all costs and expenses, including all attorneys' fees and experts' costs actually
incurred in connection with such defense. CONSULTANT shall reimburse the
Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in
connection therewith.
(b) CONSULTANT shall pay all required taxes on amounts paid to
CONSULTANT under this Agreement, and indemnify and hold CITY harmless from any
and all taxes, assessments, penalties, and interest asserted against CITY by reason of
the independent contractor relationship created by this Agreement. CONSULTANT shall
fully comply with the workers' compensation law regarding CONSULTANT and
CONSULTANT's employees. CONSULTANT shall indemnify and hold CITY harmless
from any failure of CONSULTANT to comply with applicable workers' compensation laws.
CITY may offset against the amount of any fees due to CONSULTANT under this
Agreement any amount due to CITY from CONSULTANT as a result of CONSULTANT's
failure to promptly pay to CITY any reimbursement or indemnification arising under this
subparagraph (b).
(c) CONSULTANT shall obtain executed indemnity agreements with
provisions identical to those in this Section 3.1 from each and every subcontractor or any
other person or entity involved by, for, with or on behalf of CONSULTANT in the
performance of this Agreement. if CONSULTANT fails to obtain such indemnities,
CONSULTANT shall be fully responsible and indemnify, hold harmless and defend the
Indemnitees from and against any and all Claims in law or equity, whether actual, alleged
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or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the
acts or omissions of CONSULTANT's subcontractor, its officers, agents, servants,
employees, subcontractors, materialmen, contractors or their officers, agents, servants
or employees (or any entity or individual that CONSULTANT's subcontractor shall bear
the legal liability thereof) in the performance of this Agreement, including the Indemnitees'
active or passive negligence, except for Claims arising from the sole negligence or willful
misconduct of the Indemnitees, as determined by final arbitration or court decision or by
the agreement of the Parties.
3.1.3 Workers' Compensation Acts not Limiting. CONSULTANT's
obligations under this Article 3, or any other provision of this Agreement, shall not be
limited by the provisions of any workers' compensation act or similar act. CONSULTANT
expressly waives its statutory immunity under such statutes or laws as to CITY, its
officers, agents, employees and volunteers.
3.1.4 Insurance Requirements not Limiting. CITY does not, and shall not,
waive any rights that it may possess against CONSULTANT because of the acceptance
by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant
to this Agreement. This hold harmless and indemnification provisions in this Article 3
shall apply regardless of whether or not any insurance policies are determined to be
applicable to the Liabilities, Claims, tax, assessment, penalty or interest asserted against
CITY.
3.1.5 Survival of Terms. The indemnification in this Article 3 shall survive
the expiration or termination of this Agreement.
3.2 Insurance
3.2.1 General Liability Insurance
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. The policy
or policies shall be issued by an insurer admitted or authorized to do business in the State
of California and rated in A.M. Best's Insurance Guide with a rating of A:VII or better.
3.2.2 Professional Liability Insurance
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. The policy or policies shall be issued by an insurer admitted or authorized to
do business in the State of California and rated in Best's Insurance Guide with a rating of
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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 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 CITY. Renewal or replacement policies shall not allow for
any advancement of such retroactive date.
3.2.3 Automobile Liability Insurance
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. The policy or policies shall be issued by an insurer admitted or authorized
to do business in the State of California and rated in A.M. Best's Insurance Guide with a
rating of A:VII or better.
3.2.4 Worker's Compensation Insurance
CONSULTANT agrees to maintain in force at all times during the
performance of work under this Agreement worker's compensation insurance as required
by the law. CONSULTANT shall require any subcontractor similarly to provide such
compensation insurance for their respective employees.
3.2.5 Notice of Cancellation
(a) All insurance policies shall provide that the insurance coverage shall
not be cancelled or modified by the insurance carrier without thirty (30) days prior written
notice, or ten (10) days notice if cancellation is due to nonpayment of premium.
CONSULTANT shall provide immediate notice to CITY, if CONSULTANT receives a
cancellation or policy revision notice from the insurer.
(b) CONSULTANT agrees that it will not cancel or reduce any required
insurance coverage. CONSULTANT agrees that if it does not keep the insurance in full
force and effect, CITY may either immediately terminate this Agreement or, if insurance
is available at a reasonable cost, CITY may take out the necessary insurance and pay,
at CONSULTANT's expense, the premium thereon.
3.2.6 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 policies are in effect in the required amounts. The commercial general
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liability policy shall contain endorsements naming CITY, its officers, agents and
employees as additional insureds.
3.2.7 Primary Coverage
The insurance provided by CONSULTANT shall be primary to any coverage
available to CITY. The insurance policies (other than workers compensation and
professional liability) shall include provisions for waiver of subrogation.
ARTICLE 4
TERMINATION
4.1 Termination of Agreement
(a) This Agreement may be terminated at any time, with or without
cause, by CITY upon ten (10) days prior written notice or by CONSULTANT upon ninety
(90) days prior written notice. Notice shall be deemed served if completed in compliance
with Section 6.15.
(b) CONSULTANT shall cease all work under this Agreement on or
before the effective date of termination specified in the notice of termination. In the event
of termination or cancellation of this Agreement by CONSULTANT or CITY, due to no
fault or failure of performance by CONSULTANT, CONSULTANT shall be paid
compensation for all services performed by CONSULTANT, in an amount to be
determined as follows: for work satisfactorily done in accordance with all of the terms
and provisions of this Agreement as determined by CITY, CONSULTANT shall be paid
an amount equal to the percentage of services performed prior to the effective date of
termination or cancellation in accordance with the work items; provided, in no event shall
the amount of money paid under the foregoing provisions of this paragraph exceed the
amount which would have been paid to CONSULTANT for the full performance of the
services described in this Agreement.
ARTICLE 5
OWNERSHIP OF DOCUMENTS
5.1 Ownership of Documents and Work Product
All final documents, plans, specifications, reports, information, data,
exhibits, photographs, images, video files and media created or developed by
CONSULTANT pursuant to this Agreement ("Written Products") shall be and remain the
property of CITY without restriction or limitation upon its use, duplication or dissemination
by CITY. All Written Products shall be considered "works made for hire," and all Written
Products and any and all intellectual property rights arising from their creation, including,
but not limited to, all copyrights and other proprietary rights, shall be and remain the
property of CITY without restriction or limitation upon their use, duplication or
dissemination by CITY. CONSULTANT shall not obtain or attempt to obtain copyright
protection as to any Written Products.
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CONSULTANT hereby assigns to CITY all ownership and any and all
intellectual property rights to the Written Products that are not otherwise vested in CITY
pursuant to the paragraph directly above this one.
CONSULTANT warrants and represents that it has secured all necessary
licenses, consents or approvals to use any instrumentality, thing or component as to
which any intellectual property right exists, including computer software, used in the
rendering of the services and the production of all Written Products produced under this
Agreement, and that CITY has full legal title to and the right to reproduce the Written
Products. CONSULTANT shell defend, indemnify and hold CITY, and its elected officials,
officers, employees, servants, attorneys, designated volunteers, and agents serving as
independent contractors in the role of CITY officials, harmless from any loss, claim or
liability in any way related to a claim that CITY's use of any of the Written Products is
violating federal, state or local laws, or any contractual provisions, or any laws relating to
trade names, licenses, franchises, copyrights, patents or other means of protecting
intellectual property rights and/or interests in products or inventions. CONSULTANT shall
bear all costs arising from the use of patented, copyrighted, trade secret or trademarked
documents, materials, equipment, devices or processes in connection with its provision
of the services and Written Products produced under this Agreement. In the event the
use of any of the Written Products or other deliverables hereunder by CITY is held to
constitute an infringement and the use of any of the same is enjoined, CONSULTANT, at
its expense, shall: (a) secure for CITY the right to continue using the Written Products
and other deliverables by suspension of any injunction, or by procuring a license or
licenses for CITY; or (b) modify the Written Products and other deliverables so that they
become non -infringing while remaining in compliance with the requirements of this
Agreement. This covenant shall survive the termination of this Agreement.
Upon termination, abandonment or suspension of the Project, the
CONSULTANT shall deliver to CITY all Written Products and other deliverables related
to the Project without additional cost or expense to CITY. If CONSULTANT prepares a
document on a computer, CONSULTANT shall provide CITY with the document both in
a printed format and in an electronic format that is acceptable to CITY.
ARTICLE 6
GENERAL PROVISIONS
6.1 Representation
The CITY representative shall be the Director of Public Works or his or her
designee, and CONSULTANT shall notify CITY of CONSULTANT's designated
representative. These individuals shall be the primary contact persons for the parties
regarding performance of this Agreement.
6.2 Fair Emolovment 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
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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 1990 (42 U.S.C. § 11200, et sea.).
6.3 Audit
The CITY or its representative shall have the option of inspecting, auditing
or inspecting and auditing all records and other written materials used by CONSULTANT
in preparing its billings to CITY as a condition precedent to any payment to
CONSULTANT. CONSULTANT will promptly furnish documents requested by CITY.
Additionally, CONSULTANT shall be subject to State Auditor examination and audit at
the request of CITY or as part of any audit of CITY, for a period of three (3) years after
final payment under this Agreement.
6.4 Personnel
CONSULTANT represents that it has, or shall secure at its own expense,
all personnel required to perform CONSULTANT's services under this Agreement. Any
person who performs engineering services pursuant to this Agreement shall be licensed
as a Civil Engineer by the State of California and in good standing. CONSULTANT shall
make reasonable efforts to maintain the continuity of CONSULTANT's staff who are
assigned to perform the services hereunder and shall obtain the approval of the Director
of Public Works of all proposed staff members who will perform such services.
CONSULTANT may associate with or employ associates or subcontractors in the
performance of its services under this Agreement, but at all times shall CONSULTANT
be responsible for its associates and subcontractors' services.
6.5 CONSULTANT's Representations
CONSULTANT represents, covenants and agrees that: a) CONSULTANT
is licensed, qualified, and capable of furnishing the labor, materials, and expertise
necessary to perform the services in accordance with the terms and conditions set forth
in this Agreement; b) there are no obligations, commitments, or impediments of any kind
that will limit or prevent CONSULTANT's full performance under this Agreement; c) to the
extent required by the standard of practice, CONSULTANT has investigated and
considered the scope of services performed, has carefully considered how the services
should be performed, and understands the facilities, difficulties and restrictions attending
performance of the services under this Agreement.
6.6 Conflicts of Interest
CONSULTANT agrees not to accept any employment or representation
during the term of this Agreement or within twelve (12) months after completion of the
work under this Agreement which is or may likely make CONSULTANT "financially
interested" (as provided in California Government Code Sections 1090 and 87100) in any
decisions made by CITY on any matter in connection with which CONSULTANT has been
retained pursuant to this Agreement.
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6.7 Legal Action
(a) Should either party to this Agreement bring legal action against the
other, the validity, interpretation, and performance of this Agreement shall be controlled
by and construed under the laws of the State of California, excluding California's choice
of law rules. Venue for any such action relating to this Agreement shall be in the Los
Angeles County Superior Court.
(b) If any legal action or other proceeding, including action for
declaratory relief, is brought for the enforcement of this Agreement or because of an
alleged dispute, breach, default or misrepresentation in connection with this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees, experts' fees,
and other costs, in addition to any other relief to which the party may be entitled.
(c) Should any legal action about a project between CITY and a party
other than CONSULTANT require the testimony of CONSULTANT when there is no
allegation that CONSULTANT was negligent, CITY shall compensate CONSULTANT for
its testimony and preparation to testify at the hourly rates in effect at the time of such
testimony.
6.8 Assignment
Neither this Agreement nor any part thereof shall be assigned by
CONSULTANT without the prior written consent of CITY. Any such purported assignment
without written consent shall be null and void, and CONSULTANT shall hold harmless,
defend and indemnify CITY and its officers, officials, employees, agents and
representatives with respect to any claim, demand or action arising from any unauthorized
assignment.
Notwithstanding the above, CONSULTANT may use the services of
persons and entities not in CONSULTANT's direct employ, when it is appropriate and
customary to do so. Such persons and entities include, but are not necessarily limited to,
surveyors, specialized consultants, and testing laboratories. CONSULTANT's use of
subcontractors for additional services shall not be unreasonably restricted by CITY
provided CONSULTANT notifies CITY in advance.
6.9 Independent Contractor
CONSULTANT is and shall at all times remain, as to CITY, a wholly
independent contractor. Neither CITY nor any of its agents shall have control over the
conduct of CONSULTANT or any of the CONSULTANT's, employees, except as herein
set forth, and CONSULTANT is free to dispose of all portions of its time and activities
which it is not obligated to devote to CITY in such a manner and to such persons, firms,
or corporations as the CONSULTANT wishes except as expressly provided in this
Agreement. CONSULTANT shall have no power to incur any debt, obligation, or liability
on behalf of CITY or otherwise act on behalf of CITY as an agent. CONSULTANT shall
not, at any time or in any manner, represent that it or any of its agents, servants or
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employees, are in any manner agents, servants or employees of CITY. CONSULTANT
agrees to pay all required taxes on amounts paid to CONSULTANT under this
Agreement, and to indemnify and hold CITY harmless from any and all taxes,
assessments, penalties, and interest asserted against 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 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 CITY from CONSULTANT as a result of its failure to
promptly pay to CITY any reimbursement or indemnification arising under this Article.
6.10 Titles
The titles used in this Agreement are for general reference only and are not
part of the Agreement.
6.11 Entire Agreement
This Agreement, including any other documents incorporated herein by
specific reference, represents the entire and integrated agreement between CITY and
CONSULTANT and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be modified or amended, or provisions or
breach may be waived, only by subsequent written agreement signed by both parties.
6.12 Construction
In the event of any asserted ambiguity in, or dispute regarding the
interpretation of any matter herein, the interpretation of this Agreement shall not be
resolved by any rules of interpretation providing for interpretation against the party who
causes the uncertainty to exist or against the party who drafted the Agreement or who
drafted that portion of the Agreement.
6.13 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.
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6.14 Severability
If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
6.15 Notice
Except as otherwise required by law, any notice, payment 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 CITY's regular business hours or (b) on the third business day following
deposit in the United States mail, postage prepaid, to the addresses listed below, or at
such other address as one party may notify the other:
To CITY:
Responsible Person: Michael Throne, Director of Public Works
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, CA 90275
To CONSULTANT:
Responsible Person: Majdi Ataya, PE
Onward Engineering
300 South Harbor Boulevard, Suite 814
Anaheim, CA 92805
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
Dated: Onward Engineering, a California
corporation
("CONSULTANT")
Dated:
ATTEST:
M
City Clerk
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By:
Printed Name:
Title:
By:
Printed Name:
Title:
CITY OF RANCHO PALOS VERDES
("CITY")
By:
Mayor
APPROVED AS TO FORM:
By:
City Attorney
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Agreement for On -Call Professional(Technical Services
On -Call Professional Services Contract
Terramar Consulting Engineers
CITY OF RANCHO PALOS VERDES
ON-CALL PROFESSIONAL/TECHNICAL SERVICES AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 18th day of August 2015,
by and between the City of Rancho Palos Verdes (hereinafter referred to as the "CITY")
and Terramar Consulting Engineers, Inc., a California corporation (hereafter referred to
as "CONSULTANT").
IN CONSIDERATION of the covenants hereinafter set forth, the parties hereto
agree as follows:
ARTICLE 1
SCOPE OF SERVICES
1.1 Proiect Description
The Project is described as on-call services as follows: Civil Engineering
and Design services.
1.2 Description of Services
CONSULTANT shall provide such on-call civil engineering and design
services as may be requested by CITY. CONSULTANT acknowledges that this
Agreement is for on-call services, and there is no certainty that CONSULTANT will be
asked to perform any services pursuant to this Agreement. CONSULTANT's Statement
of Qualifications is attached hereto as Exhibit A and incorporated by this reference. In
the event of any conflict between the terms of this Agreement and incorporated
documents, the terms of this Agreement shall control.
1.3 Schedule of Work
Upon receipt of written Notice to Proceed from CITY, CONSULTANT shall
perform with due diligence the services requested by CITY. Time is of the essence in this
Agreement. CONSULTANT shall not be responsible for delay, nor shall CONSULTANT
be responsible for damages or be in default or deemed to be in default by reason of
strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish timely
information or to approve or disapprove CONSULTANT's work promptly, or delay or faulty
performance by CITY, other consultants/contractors, or governmental agencies, or any
other delays beyond CONSULTANT's control or without CONSULTANT's fault.
1.4 Term of Agreement
This Agreement shall commence on August 18, 2015 and shall terminate on
June 30, 2021 unless sooner terminated pursuant to Article 4 of this Agreement.
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ARTICLE 2
COMPENSATION
2.1 Rates; Expense Reimbursement
2.1.1 CITY agrees to compensate CONSULTANT in accordance with
CONSULTANT's Schedule of Hourly Rates, which is within Exhibit A and shall meet or
exceed prevailing wage rates, and in any case an amount not to exceed Sixty Thousand
Dollars ($60,000) per fiscal year for services as described in Article 1. On-call services
that are reimbursed by a trust deposit shall not count towards the maximum amount
CONSULTANT shall be paid for such services. The rates in Exhibit A shall be in effect
through the end of the term of this Agreement.
2.1.2 CITY will not reimburse CONSULTANT for costs and expense unless
such costs and expenses are previously approved by CITY.
2.2 Payment of Compensation
CONSULTANT shall submit monthly invoices for the work completed in the
previous month. CITY agrees to authorize payment for all undisputed invoice amounts
within thirty (30) days of receipt of each invoice. CITY agrees to use its best efforts to
notify CONSULTANT of any disputed invoice amounts within ten (10) days of the receipt
of each invoice. However, CITY's failure to timely notify CONSULTANT of a disputed
amount shall not be deemed a waiver of CITY's right to challenge such amount.
Additionally, in the event CITY fails to pay any undisputed amounts due
CONSULTANT within forty-five (45) days after invoices are received by CITY then CITY
agrees that CONSULTANT shall have the right to consider the default a total breach of
this Agreement and be terminated by CONSULTANT without liability to CONSULTANT
upon ten (10) working days advance written notice.
ARTICLE 3
INDEMNIFICATION AND INSURANCE
3.1 indemnity
3.1.1 Indemnitv for Design Professional Services. To the fullest extent
permitted by law, CONSULTANT shall, at its sole cost and expense, protect, indemnify,
and hold harmless CITY and its elected officials, officers, attorneys, agents, employees,
designated volunteers, successors, assigns and those CITY agents serving as
independent contractors in the role of CITY officials (collectively "Indemnitees"), from and
against any and all damages, costs, expenses, liabilities, claims, demands, causes of
action, proceedings, judgments, penalties, liens, and losses of any nature whatsoever,
including fees of accountants, attorneys, or other professionals and all costs associated
therewith, and reimbursement of attorney's fees and costs of defense (collectively
"Liabilities"), whether actual, alleged or threatened, which arise out of, are claimed to arise
out of, pertain to, or relate to, in whole or in part, the negligence, recklessness or willful
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misconduct of CONSULTANT, its officers, agents, servants, employees, subcontractors,
material men, contractors or their officers, agents, servants or employees (or any entity
or individual that CONSULTANT shall bear the legal liability thereof) in the performance
of design professional services under this Agreement by a "design professional," as the
term is defined under California Civil Code Section 2782.8(c)(2).
3.1.2 Other Indemnities.
(a) Other than in the performance of design professional services, and
to the fullest extent permitted by law, CONSULTANT shall, at its sole cost and expense,
defend, hold harmless and indemnify the Indemnitees from and against any and all
damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings,
judgments, penalties, liens, and losses of any nature whatsoever, including fees of
accountants, attorneys, or other professionals and all costs associated therewith and the
payment of all consequential damages (collectively "Claims"), in law or equity, whether
actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or
relate to the acts or omissions of CONSULTANT, its officers, agents, servants,
employees, subcontractors, materialmen, contractors or their officers, agents, servants
or employees (or any entity or individual that CONSULTANT shall bear the legal liability
thereof) in the performance of this Agreement, including the Indemnitees' active or
passive negligence, except for Claims arising from the sole negligence or willful
misconduct of the Indemnitees, as determined by final arbitration or court decision or by
the agreement of the Parties. CONSULTANT shall defend the Indemnitees in any action
or actions filed in connection with any Claim with counsel of the Indemnitees' choice, and
shall pay all costs and expenses, including all attorneys' fees and experts' costs actually
incurred in connection with such defense. CONSULTANT shall reimburse the
Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in
connection therewith.
(b) CONSULTANT shall pay all required taxes on amounts paid to
CONSULTANT under this Agreement, and indemnify and hold CITY harmless from any
and all taxes, assessments, penalties, and interest asserted against CITY by reason of
the independent contractor relationship created by this Agreement. CONSULTANT shall
fully comply with the workers' compensation law regarding CONSULTANT and
CONSULTANT's employees. CONSULTANT shall indemnify and hold CITY harmless
from any failure of CONSULTANT to comply with applicable workers' compensation laws.
CITY may offset against the amount of any fees due to CONSULTANT under this
Agreement any amount due to CITY from CONSULTANT as a result of CONSULTANT's
failure to promptly pay to CITY any reimbursement or indemnification arising under this
Subparagraph (b).
(c) CONSULTANT shall obtain executed indemnity agreements with
provisions identical to those in this Section 3.1 from each and every subcontractor or any
other person or entity involved by, for, with or on behalf of CONSULTANT in the
performance of this Agreement. If CONSULTANT fails to obtain such indemnities,
CONSULTANT shall be fully responsible and indemnify, hold harmless and defend the
Indemnitees from and against any and all Claims in law or equity, whether actual, alleged
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or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the
acts or omissions of CONSULTANT's subcontractor, its officers, agents, servants,
employees, subcontractors, materialmen, contractors or their officers, agents, servants
or employees (or any entity or individual that CONSULTANT's subcontractor shall bear
the legal liability thereof) in the performance of this Agreement, including the Indemnitees'
active or passive negligence, except for Claims arising from the sole negligence or willful
misconduct of the Indemnitees, as determined by final arbitration or court decision or by
the agreement of the Parties.
3.1.3 Workers' Compensation Acts not Limiting. CONSULTANT's
obligations under this Article 3, or any other provision of this Agreement, shall not be
limited by the provisions of any workers' compensation act or similar act. CONSULTANT
expressly waives its statutory immunity under such statutes or laws as to CITY, its
officers, agents, employees and volunteers.
3.1.4 Insurance Requirements not Limiting. CITY does not, and shall not,
waive any rights that it may possess against CONSULTANT because of the acceptance
by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant
to this Agreement. This hold harmless and indemnification provisions in this Article 3
shall apply regardless of whether or not any insurance policies are determined to be
applicable to the Liabilities, Claims, tax, assessment, penalty or interest asserted against
CITY.
3.1.5 Survival of Terms. The indemnification in this Article 3 shall survive
the expiration or termination of this Agreement.
3.2 Insurance
3.2.1 General Liability Insurance
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. The policy
or policies shall be issued by an insurer admitted or authorized to do business in the State
of California and rated in A.M. Best's Insurance Guide with a rating of A:VII or better.
3.2.2 Professional Liability Insurance
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. The policy or policies shall be issued by an insurer admitted or authorized to
do business in the State of California and rated in Best's Insurance Guide with a rating of
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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 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 CITY. Renewal or replacement policies shall not allow for
any advancement of such retroactive date.
3.2.3 Automobile Liability Insurance
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. The policy or policies shall be issued by an insurer admitted or authorized
to do business in the State of California and rated in A.M. Best's Insurance Guide with a
rating of A:VII or better.
3.2.4 Worker's Compensation Insurance
CONSULTANT agrees to maintain in force at all times during the
performance of work under this Agreement worker's compensation insurance as required
by the law. CONSULTANT shall require any subcontractor similarly to provide such
compensation insurance for their respective employees.
3.2.5 Notice of Cancellation
(a) All insurance policies shall provide that the insurance coverage shall
not be cancelled or modified by the insurance carrier without thirty (30) days prior written
notice, or ten (10) days notice if cancellation is due to nonpayment of premium.
CONSULTANT shall provide immediate notice to CITY, if CONSULTANT receives a
cancellation or policy revision notice from the insurer.
(b) CONSULTANT agrees that it will not cancel or reduce any required
insurance coverage. CONSULTANT agrees that if it does not keep the insurance in full
force and effect, CITY may either immediately terminate this Agreement or, if insurance
is available at a reasonable cost, CITY may take out the necessary insurance and pay,
at CONSULTANT's expense, the premium thereon.
3.2.6 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 policies are in effect in the required amounts. The commercial general
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liability policy shall contain endorsements naming CITY, its officers, agents and
employees as additional insureds.
3.2.7 Primary Coverage
The insurance provided by CONSULTANT shall be primary to any coverage
available to CITY. The insurance policies (other than workers compensation and
professional liability) shall include provisions for waiver of subrogation.
ARTICLE 4
TERMINATION
4.1 Termination of Agreement
(a) This Agreement may be terminated at any time, with or without
cause, by CITY upon ten (10) days prior written notice or by CONSULTANT upon ninety
(90) days prior written notice. Notice shall be deemed served if completed in compliance
with Section 6.15.
(b) CONSULTANT shall cease all work under this Agreement on or
before the effective date of termination specified in the notice of termination. In the event
of termination or cancellation of this Agreement by CONSULTANT or CITY, due to no
fault or failure of performance by CONSULTANT, CONSULTANT shall be paid
compensation for all services performed by CONSULTANT, in an amount to be
determined as follows: for work satisfactorily done in accordance with all of the terms and
provisions of this Agreement as determined by CITY, CONSULTANT shall be paid an
amount equal to the percentage of services performed prior to the effective date of
termination or cancellation in accordance with the work items; provided, in no event shall
the amount of money paid under the foregoing provisions of this paragraph exceed the
amount which would have been paid to CONSULTANT for the full performance of the
services described in this Agreement.
ARTICLE 5
OWNERSHIP OF DOCUMENTS
5.1 Ownership of Documents and Work Product
All final documents, plans, specifications, reports, information, data,
exhibits, photographs, images, video files and media created or developed by
CONSULTANT pursuant to this Agreement ("Written Products") shall be and remain the
property of CITY without restriction or limitation upon its use, duplication or dissemination
by CITY. All Written Products shall be considered "works made for hire," and all Written
Products and any and all intellectual property rights arising from their creation, including,
but not limited to, all copyrights and other proprietary rights, shall be and remain the
property of CITY without restriction or limitation upon their use, duplication or
dissemination by CITY. CONSULTANT shall not obtain or attempt to obtain copyright
protection as to any Written Products.
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CONSULTANT hereby assigns to CITY all ownership and any and all
intellectual property rights to the Written Products that are not otherwise vested in CITY
pursuant to the paragraph directly above this one.
CONSULTANT warrants and represents that it has secured all necessary
licenses, consents or approvals to use any instrumentality, thing or component as to
which any intellectual property right exists, including computer software, used in the
rendering of the services and the production of all Written Products produced under this
Agreement, and that CITY has full legal title to and the right to reproduce the Written
Products. CONSULTANT shall defend, indemnify and hold CITY, and its elected officials,
officers, employees, servants, attorneys, designated volunteers, and agents serving as
independent contractors in the role of CITY officials, harmless from any loss, claim or
liability in any way related to a claim that CITY's use of any of the Written Products is
violating federal, state or local laws, or any contractual provisions, or any laws relating to
trade names, licenses, franchises, copyrights, patents or other means of protecting
intellectual property rights and/or interests in products or inventions. CONSULTANT shall
bear all costs arising from the use of patented, copyrighted, trade secret or trademarked
documents, materials, equipment, devices or processes in connection with its provision
of the services and Written Products produced under this Agreement. In the event the
use of any of the Written Products or other deliverables hereunder by CITY is held to
constitute an infringement and the use of any of the same is enjoined, CONSULTANT, at
its expense, shall: (a) secure for CITY the right to continue using the Written Products
and other deliverables by suspension of any injunction, or by procuring a license or
licenses for CITY; or (b) modify the Written Products and other deliverables so that they
become non -infringing while remaining in compliance with the requirements of this
Agreement. This covenant shall survive the termination of this Agreement.
Upon termination, abandonment or suspension of the Project, the
CONSULTANT shall deliver to CITY all Written Products and other deliverables related
to the Project without additional cost or expense to CITY. If CONSULTANT prepares a
document on a computer, CONSULTANT shall provide CITY with the document both in
a printed format and in an electronic format that is acceptable to CITY.
ARTICLE 6
GENERAL PROVISIONS
6.1 Representation
The CITY representative shall be the Director of Public Works or his or her
designee, and CONSULTANT shall notify CITY of CONSULTANT's designated
representative. These individuals shall be the primary contact persons for the parties
regarding performance of this Agreement.
6.2 Fair Employment Practices/Equal Opportunity Acts
In the performance of this Agreement, CONSULTANT shall comply with all
applicable provisions of the California Fair Employment Practices Act (California
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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 1990 (42 U.S.C. § 11200, et seg.).
6.3 Audit
The CITY or its representative shall have the option of inspecting, auditing
or inspecting and auditing all records and other written materials used by CONSULTANT
in preparing its billings to CITY as a condition precedent to any payment to
CONSULTANT. CONSULTANT will promptly furnish documents requested by CITY.
Additionally, CONSULTANT shall be subject to State Auditor examination and audit at
the request of CITY or as part of any audit of CITY, for a period of three (3) years after
final payment under this Agreement.
6.4 Personnel
CONSULTANT represents that it has, or shall secure at its own expense,
all personnel required to perform CONSULTANT's services under this Agreement. Any
person who performs engineering services pursuant to this Agreement shall be licensed
as a Civil Engineer by the State of California and in good standing. CONSULTANT shall
make reasonable efforts to maintain the continuity of CONSULTANT's staff who are
assigned to perform the services hereunder and shall obtain the approval of the Director
of Public Works of all proposed staff members who will perform such services.
CONSULTANT may associate with or employ associates or subcontractors in the
performance of its services under this Agreement, but at all times shall CONSULTANT
be responsible for its associates and subcontractors' services.
6.5 CONSULTANT's Representations
CONSULTANT represents, covenants and agrees that: a) CONSULTANT
is licensed, qualified, and capable of furnishing the labor, materials, and expertise
necessary to perform the services in accordance with the terms and conditions set forth
in this Agreement; b) there are no obligations, commitments, or impediments of any kind
that will limit or prevent CONSULTANT's full performance under this Agreement; c) to the
extent required by the standard of practice, CONSULTANT has investigated and
considered the scope of services performed, has carefully considered how the services
should be performed, and understands the facilities, difficulties and restrictions attending
performance of the services under this Agreement.
6.6 Conflicts of Interest
CONSULTANT agrees not to accept any employment or representation
during the term of this Agreement or within twelve (12) months after completion of the
work under this Agreement which is or may likely make CONSULTANT "financially
interested" (as provided in California Government Code Sections 1090 and 87100) in any
decisions made by CITY on any matter in connection with which CONSULTANT has been
retained pursuant to this Agreement.
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6.7 Legal Action
(a) Should either party to this Agreement bring legal action against the
other, the validity, interpretation, and performance of this Agreement shall be controlled
by and construed under the laws of the State of California, excluding California's choice
of law rules. Venue for any such action relating to this Agreement shall be in the Los
Angeles County Superior Court.
(b) If any legal action or other proceeding, including action for
declaratory relief, is brought for the enforcement of this Agreement or because of an
alleged dispute, breach, default or misrepresentation in connection with this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees, experts' fees,
and other costs, in addition to any other relief to which the party may be entitled.
(c) Should any legal action about a project between CITY and a party
other than CONSULTANT require the testimony of CONSULTANT when there is no
allegation that CONSULTANT was negligent, CITY shall compensate CONSULTANT for
its testimony and preparation to testify at the hourly rates in effect at the time of such
testimony.
6.8 Assignment
Neither this Agreement nor any part thereof shall be assigned by
CONSULTANT without the prior written consent of CITY. Any such purported assignment
without written consent shall be null and void, and CONSULTANT shall hold harmless,
defend and indemnify CITY and its officers, officials, employees, agents and
representatives with respect to any claim, demand or action arising from any unauthorized
assignment.
Notwithstanding the above, CONSULTANT may use the services of
persons and entities not in CONSULTANT's direct employ, when it is appropriate and
customary to do so. Such persons and entities include, but are not necessarily limited to,
surveyors, specialized consultants, and testing laboratories. CONSULTANT's use of
subcontractors for additional services shall not be unreasonably restricted by CITY
provided CONSULTANT notifies CITY in advance.
6.9 Independent Contractor
CONSULTANT is and shall at all times remain, as to CITY, a wholly
independent contractor. Neither CITY nor any of its agents shall have control over the
conduct of CONSULTANT or any of the CONSULTANT's employees, except as herein
set forth, and CONSULTANT is free to dispose of all portions of its time and activities
which it is not obligated to devote to CITY in such a manner and to such persons, firms,
or corporations as the CONSULTANT wishes except as expressly provided in this
Agreement. CONSULTANT shall have no power to incur any debt, obligation, or liability
on behalf of CITY or otherwise act on behalf of CITY as an agent. CONSULTANT shall
not, at any time or in any manner, represent that it or any of its agents, servants or
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employees, are in any manner agents, servants or employees of CITY. CONSULTANT
agrees to pay all required taxes on amounts paid to CONSULTANT under this
Agreement, and to indemnify and hold CITY harmless from any and all taxes,
assessments, penalties, and interest asserted against 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 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 CITY from CONSULTANT as a result of its failure to
promptly pay to CITY any reimbursement or indemnification arising under this Article.
6.10 Titles
The titles used in this Agreement are for general reference only and are not
part of the Agreement.
6.11 Entire Agreement
This Agreement, including any other documents incorporated herein by
specific reference, represents the entire and integrated agreement between CITY and
CONSULTANT and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be modified or amended, or provisions or
breach may be waived, only by subsequent written agreement signed by both parties.
6.12 Construction
In the event of any asserted ambiguity in, or dispute regarding the
interpretation of any matter herein, the interpretation of this Agreement shall not be
resolved by any rules of interpretation providing for interpretation against the party who
causes the uncertainty to exist or against the party who drafted the Agreement or who
drafted that portion of the Agreement.
6.13 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.
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6.14 Severability
If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
6.15 Notice
Except as otherwise required by law, any notice, payment 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 CITY's regular business hours or (b) on the third business day following
deposit in the United States mail, postage prepaid, to the addresses listed below, or at
such other address as one party may notify the other:
To CITY:
Responsible Person: Michael Throne, Director of Public Works
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, CA 90275
To CONSULTANT:
Responsible Person: Raab Rydeen, PE
Terramar Consulting Engineers
2888 Loker Avenue East, Suite 303
Carlsbad, CA 92010
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
Dated:
Terramar Consulting Engineers, Inc., a
California corporation
("CONSULTANT")
Printed Name:
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Title:
By:
Printed Name:
Title:
Dated: CITY OF RANCHO PALOS VERDES
("CITY")
By:
Mayor
ATTEST: APPROVED AS TO FORM:
By: By:
City Clerk City Attorney
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