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CC SR 20150818 I - Contracts for Traffic, Inspection and Environmental Design On-callCITYOF MEMORANDUM 1 RANCHO PALOS VERDES TO: HONORABLE MAYOR & CITY COUNCIL MEMBERS FROM: MICHAEL THRONE, DIRECTOR OF PUBLIC WORKS DATE: AUGUST 18, 2015 SUBJECT: AWARD CONTRACTS FOR TRAFFIC, INSPECTION AND ENVIRONMENTAL DESIGN ON-CALL PROFESSIONAL SERVICES REVIEWED: DOUG WILLMORE, CITY MANAGER Project Manager: Ron Dragoo, Principal Engineer E_ 1�_ RECOMMENDATIONS 1. Award contracts for on-call professional services for Traffic Engineering, Inspection Services, and Environmental services to: Albert Grover and Associates, Iteris, Kimley Horn, KCD IN SGV, Inc. (The Traffic Solution), JDC Landscape Architect, Inspection Services, Inc., SA Associates, Withers & Sandgren, Ltd., Helix Environmental Planning, Inc., Pacific Advanced Civil Engineering, Palos Verdes Peninsula Land Conservancy, RBF Consulting. 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 Traffic engineering services, Inspection services, and Environmental 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, RBF Consulting has the capacity to provide assistance with developing environmental documents for small projects, civil 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 traffic engineering, inspection services and environmental related services: Traffic Engineering Albert Grover and Associates Iteris Kimley Horn KCD IN SGV, Inc. (The Traffic Solution) Inspection Services JDC Landscape Architect Inspection Services, Inc. SA Associates Withers & Sandgren, Ltd. Environmental Services Helix Environmental Planning, Inc. Pacific Advanced Civil Eng. Palos Verdes Peninsula Land Conservancy RBF Consulting The required funds needed for any of the on-call services provided through these contracts 2 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. Priorto 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 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 traffic engineering, inspection and environmental services and other related Public Works professional services. If staff's recommendations are approved through this staff report, a total of twelve additional firms could be available to provide traffic engineering, inspection and environmental 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/88.8/Statement-of-Qualification-for-On-Call-S 3 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) • Albert Grover and Associates • Iteris • Kimley Horn • KDC IN SGV, Inc. (The Traffic Solution) • Helix Environmental Planning, Inc. • PACE • Jon David Cicchetti Landscape Architect • Inspection Services, Inc. • SA Associates • Withers & Sandgren, Ltd. • Palos Verdes Peninsula Land Conservancy • RBF Consulting On -Call Professional Service Contracts 5 On -Call Professional Services Contract Albert Grover and Associates 11 CITY OF RANCHO PALOS VERDES ON-CALL PROFESSIONALITECHNICAL SERVICES AGREEMENT THIS AGREEMENT ("Agreement") is made and entered into this 18'" day of August 2015, by and between the City of Rancho Palos Verdes (hereinafter referred to as the "CITY") and Albert Grover & 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: Traffic Engineering services. 1.2 Description of Services CONSULTANT shall provide such on-call traffic 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 18, 2015 and shall terminate on June 30, 2021 unless sooner terminated pursuant to Article 4 of this Agreement. R6876-00011185758M.doc 7 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 Page 2 of 12 Agreement for On -Call ProfessionaVTechnical Services R6876-000111857588v2.doc 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 R6876-0001 \1857588v2.doc Page 3 of 12 Agreement for On -Call Professionalfrechnical Services 9 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 R6876-0001\1857588v2,doc Page 4 of 12 Agreement for On -Call Professional Technical Services :n 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 R6876-0001 \1857588v2.doc Page 5 of 12 Agreement for On -Call ProfessionaUTechnical Services 11 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. R6876-0001 \1 857588v2.doc Page 6of12 Agreement for On -Call Professional/Technical Services ,11 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 R6876-000111857588v2.doc Page 7 of 12 Agreement for On -Call ProfessionaUTechnical Services M 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. R6876-000111857588v2.doc Page 8 of 12 Agreement for On -Call Professional/Technical Services 14 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 R6876-0001 11 85758M.doc Page 9 of 12 Agreement for On -Call Professionalffechnical Services 15 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, Ricihts 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. 116876-0001\1857588v2.doc Page 10 of 12 Agreement for On -Call Professionairrechnical Services M 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: Chad A. Veinot, TSOS Albert Grover & Associates 211 East Imperial Highway, Suite 208 Fullerton, CA 92835 R6876-000111857588v2.doc Page 11 of 12 Agreement for On -Call Professional/Technical Services 17 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: Dated: ATTEST: A City Clerk R6876-0001 %1857588v2.doc Albert Grover & 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 Page 12 of 12 Agreement for On -Call Professional(rechnical Services • On -Call Professional Services Contract Kimley Horn 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 Kimley-Horn and Associates, Inc., a North Carolina 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: Traffic Engineering consulting 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. R6876-0001\1 857594v2.doc NX 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 R6876-0001\1857594v2.doc Page 2 of 12 Agreement for On -Call Professionairrechnical Services 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 Indemnitees from and against any and all Claims in law or equity, whether actual, alleged R6876.0001\1857594v2.doc Page 3 of 12 Agreement for On -Call Profess! onaI Technical Services 22 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 R6876 -000111857594v2. do c Page 4 of 12 Agreement for On -Call Professional/Technical Services 23 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 R6876-0001\1 B57594v2.doc Page 5 of 12 Agreement for On -Call Professional Technical Services W 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. R687&0001\1 857594v2.doe Page 6 of 12 Agreement for On -Call Professional(fechnical Services 25 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 R6876-0001 \1857594v2.doc Page 7 of 12 Agreement for On -Call Professionairrechnical Services 0 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 seq.). 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. R6876 -0001\1857594x2, doc Page 8 of 12 Agreement for On -Call Professionaffechnical Services 27 6.7 Leqal 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 Page 9 of W Agreement for On -Call Professional/Technical Services R6876-0001 \1857594v2. doe 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 a:, 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. R6876-0001 \1857594v2.doc Page 10 of 12 Agreement for On -Call Professionalrrechnical Services 29 6.14 Severabilitv 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, Kimley-Horn Kimley-Horn and Associates, Inc. 600 South Figueroa Street, Suite 1040 Los Angeles, CA 90017 R6876-0001 \1 857594v2.doc Page 11 of 112 Agreement for On -Call Professionairrechnical Services 30 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: Dated: ATTEST: By: Kimley-Horn and Associates, Inc. a North Carolina corporation ("CONSULTANT") 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 R6876-000111857594v2.doc Page 12 of 12 Agreement for On -Call ProfessionaNTechnical Services 31 On -Call Professional Services Contract KCD IN SGV, Inc. (The Traffic Solution) 32 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 KCD IN SGV, 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: perform manual and automatic traffic counts, data collection and analysis. 1.2 Description of Services CONSULTANT shall provide such on-call perform manual and automatic traffic counts, data collection and analysis 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. R6876 -000111857597v2. doe 33 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 R6876-0001\1 857597v2.doc Page 2 of 12 Agreement for On -Call Professional/Technical Services 34 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 R6876-0001 \1857597v2.doc Page 3 of 12 Agreement for On -Call Professional(rechnical Services 35 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 R6876-0001\1 857597v2.doc Page 4 of 12 Agreement for On -Call Professionalfrechnical Services 36 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 R6876-0001 \1857597v2.doc Page 5 of 12 Agreement for On -Call ProfessionalrFechnical Services 37 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, R6876-0001 \ 1857597v2. do c Page 6 of 12 Agreement for On -Call Professional/Technical Services W 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 R6876-0001\1 857597v2.doe Page 7 of 12 Agreement for On -Call ProfessionaU7echnical Services 0 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 seq.). 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. R6676-0001\1 857597v1doc Page 8of12 Agreement for On -Call ProfessionaUTechnical Services M 6.7 Leqal 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 R6876-0001 \1 857597v2.doc Page 9 of 12 Agreement for On -Call ProfessionaUTechnical Services 41 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. R6876-0001\1 857597v2.doc Page 10 of 12 Agreement for On -Call Professional(rechnical services M 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: Ken Darragh — President KCD IN SGV, Inc. (The Traffic Solution) 329 Diamond Street Arcadia, CA 91006 R6876-0001\1857597v2.doc Page 11 of 12 Agreement for On -Call Professionalffechnical Services 43 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: KCD IN SGV, Inc., a California Dated: ATTEST: 0 City Clerk R6876-0001 \1857597v2.doc 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 Page 12 of 12 Agreement for On -Call Professionalrrechnical Services On -Call Professional Services Contract JDC Landscape Architect 45 CITY OF RANCHO PALOS VERDES ON-CALL PROFESSIONALITECHNICAL SERVICES AGREEMENT THIS AGREEMENT ("Agreement") is made and entered into this 4t' day of August, 2015, by and between the City of Rancho Palos Verdes (hereinafter referred to as the "CITY") and John David Cicchetti, a sole proprietor (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 Prosect Description The Project is described as on-call services as follows: providing Landscape Architectural services. 1.2 Description of Services 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. CONSULTANT shall provide such on-call landscape architectural services as may be requested by CITY. 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. R6876-0001 \1857606v2. doe mo 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 R6876-0001 \ 1857606v2. doc Page 2 of 12 Agreement for On -Call ProfessionalfTechnical Services 47 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 Page 3 of 12 Agreement for On -Call Professional[Technical Services R6876-0001\1857606v2.doc 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 R6876-0001 \1857606v2.doe Page 4 of 12 Agreement for On -Call ProfessionaUTechnical Services EF 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 86876-000111857606v2.doc Page 5 of 12 Agreement for On -Call ProfessionaVTechnical Services 50 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 Agreemeni ("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. 86876-0001\1857606v2.doc Page 6 of 12 Agreement for On -Call Professional/Technical Services 51 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 R6876-0001 \1 857606v2. doc Pago7of12 Agreement for On -Call Professional/Technical Services 52 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. R6876-0001 11 857606v2.doc Page 8of12 Agreement for On -Call Professional/Technical Services 53 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 R6876-0001\1 857606v2.doc Page 9 of 12 Agreement for On -Call Professional/Technical Services 54 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. R6876-0001 \1857606v2.doc Page 10 of 12 Agreement for On -Call Professional/Technical Services 55 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: Jon Cicchetti, Owner JDC Landscape Architect 2760 Spring Street, Suite 110 Long Beach, CA 90806 R6876 -000111857606v2, do c Page 11 of 12 Agreement for On -Call Professional/Technical Services 56 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: John David Cicchetti, a sole proprietor ("CONSULTANT") By: Dated: ATTEST: M City Clerk Printed Name: Title: By: Printed Name: Title: CITY OF RANCHO PALOS VERDES ("CITY") By: Mayor APPROVED AS TO FORM: X, City Attorney Page 12 of 12 Agreement for On -Call Professionairrechnical Services R6876.000111857606v2.doc 57 On -Call Professional Services Contract Inspection Services, Inc. w CITY OF RANCHO PALOS VERDES ON-CALL PROF ESSIONAL/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 ISI Inspection Services, 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: Quality Assurance, Quality Control, Special Inspections and Materials Testing. 1.2 Description of Services CONSULTANT shall provide such on-call quality assurance, quality control, special inspections and materials testing 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. R6876-000111857607v2.doc 59 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 Page 2 of 12 Agreement for On -Call Professional/Technical Services R6876-0001 \ 1857607v2.doc 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' casts 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 Page 3of12 Agreement for On -Call Profession aIfTechnical ' -ices R6876-0001\1 85760M.doc ' 61 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, materiaimen, 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 Page 4 of 12 Agreement for On -Call Professionalfrechnicai-Sendpes R6876-0001 \16576074.doc 62 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 Page 5 of 12 R6876-0001 \ 1857607v2.doc Agreement for On -Call Professional Technical,i"*s 63 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. Page 6 of 12 Agreement for On -Call Professional(rechnical Services R6876 --0001N1 857607v2.doc 64 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 Page 7 of 12 Agreement for On -Call Professional/Technical,c-'%Iices R6876-0001 \1857607%Q.doc 65 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. Page 8 of 12 Agreement for On -Call Professional/Technical "Igps R6876-0001\1857607v2.doc 66 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 Page 9 of 12 Agreement for On -Call Professional Technical % R6876-0001 \1857607v2.doc 67 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. 6.1 Q 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, RightsL 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. Page 10 of 12 Agreement for On -Call Professional/TechnicalP-4--s 116876-0001\1857607v2.doo 68 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: Jeff Roe Inspection Services, Inc. 1326 Border Avenue Torrance, CA 90501 Page 11 of 12 Agreement for On -Gail Professionallrechnical S dIrp-s R6876-0001 \1857607v2.doc 69 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: Dated: ATTEST: 0 City Clerk ISI Inspection Services, 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 Page 12 of 12 Agreement for On -Call Professional/Technical 9--ims R6876-0001\1857607v2.doc 70 On -Call Professional Services Contract SA Associates 71 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 SA Associates, 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: Civil Engineering and design services for Public Works projects. 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. R6876-0504118596342.doc 72 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 Page 2of12 Agreement for On -Call Professionalrrechnical Services R6876-0504\ 1859634v2. doc 73 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 Page 3 of 12 Agreement for On -Call Professional/Technical Services R6876-0504\1 859634v2.doe 74 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 Page 4 of 12 Agreement for On -Call Professional/Technical services R6876-0504NI 859634v2.doc _ 75 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 cast, 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 R6876-0504\1858634v2.doc Page 5of12 Agreement for On -Call Profess!onal(rechnical gprvices 76 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. Page 6 of 12 Agreement for On -Call Professional/Technical P—ices R6876-0504\1859634v2.doc 77 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 Page 7 of 12 Agreement for On -Call Professional/Technical Services R6876-0504\1859634v2.doc 78 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.G. § 11200, gLsLeg.). 6.3 Audit The CITY or its representative shall have the option of inspecting, auditing or inspecting and auditing ail 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. Page 8 of 12 Agreement for On -Call Professionalffechnical Services 116876-05M1 859634v2.doc 0 MCI 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 Page 9of12 Agreement for On -Call Professionaffechnical RArvices R6876-050411859634v2.doc 80 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. Page 10 of V Agreement for On -Call Professionallrechnical Services 86876-0504\1859634v2. d oc 81 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: Shahnawaz Ahmad, P.E. President SA Associates 1130 West Huntington Drive, Unit 12 Arcadia, CA 91007 Page 11 of 12 Agreement for On -Call ProfessionalfTechnical Services R6876-0504\1859634v2.doc 82 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: SA Associates. a California 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 Page 12 of 12 Agreement for On -Call Professionairrechnical Services R6876-0504%1859634v2.doc 83 On -Call Professional Services Contract Withers & Sandgren, Lt. CITY OF RANCHO PALOS VERDES ON-CALL PROFESSIONAL/TECHNICAL SERVICES AGREEMENT THIS AGREEMENT ("Agreement") is made and entered into this lVh day of August, 2015 by and between the City of Rancho Palos Verdes (hereinafter referred to as the "CITY") and Withers & Sandgren Ltd., 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: Design Services - Landscape Architecture and Planning. 1.2 Description of Services CONSULTANT shall provide such on-call Design Services - Landscape Architecture and Planning 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 attachE:d 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. R6876-0001\M759M.doc 85 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 Page 2 of 12 Agreement for On -Call ProfessionaUTechnical *Vc4cgs R6876-0001 \1857595v2.doc 86 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 Page 3 of 12 Agreement for On -Call Professional/Technical,$gyiAps R6876-0001\1857595v2.doc 87 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 Page 4 of 12 Agreement for On -Call ProfessionaUTechnical 4r%li es R6876-0001\185759M.doc 88 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 Page 5 of 12 Agreement for On -Call ProfessionaNTechnical ^^ ^oc R6876-0001 \1857595v2.doc 89 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. Page 6 of 12 Agreement for On -Call Professional/Technical &erdc@s R6876-000111857595v2.doc 90 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 Page 7of12 Agreement for On -Call Professional Technical �Rrvices R6876-0001\1857595v2.doc 91- 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. Page 8 of 12 Agreement for On -Call Professional/Technical Services R6876-0001\1857595v2.doc - . 92 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 Assi_ ng ment 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 Page 9 of 12 Agreement for On -Call Professional/Technical Sarvicps R6876-0001 \1857595v2.doc 93 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. Page 10 of 12 Agreement for On -Call Professional/Technical aeViges R6876-0001 \1857595v2.doc 94 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: Lacey Withers, ASLA Principal Withers & Sandgren, Ltd. 20948 Tulsa Street Chatsworth, CA 91311 Page 11 of 12 Agreement for On -Call ProfesslonaitTechnicalSeryiees R6876-0001\1 857595v2.doo 95 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: Dated: ATTEST: Withers & Sandgren, Ltd., 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 Clerk City Attorney Page 12 of 12 Agreement for On -Call ProfessionaUTechnical $eo icgs R6876-0001 \1 857595v2.doc 96 On -Call Professional Services Contract Helix Environmental Planning, Inc. 97 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 Helix Environmental Planning, 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: Environmental Consulting services. 1.2 Description of Services CONSULTANT shall provide such on-call environmental 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. R6876-0001\1 857608v2.do c -98 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 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 Page 2 of 12 Agreement for On -Call ProfessionaUTechnical Services R6876-0001 \1 857608V 2. doc misconduct of CONSULTANT, its officers, agetnts, 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 shell 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 R687&0001\1 857608v2.doc Page 3 of 12 Agreement for On -Call Professional/Technical Sines 100 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 R6876-0001\1 867608v2. doe Page 4 of 12 Agreement for On -Cali Professional/Technical Services 101 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 Page 5 of 12 Agreement for On -Call Professional/Technical Services R6876-0001 \1 857608v2.doc 102 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. R6876-0001 \1857608Q.doc Page 6 of 12 Agreement for On -Call ProfessionaUTechnical Services 103 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 Page 7 of 12 Agreement for On -Call Professional/Technical Services R6876-0001 \1857608v2.doc 104 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 seq.). 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. R6876-0001\1 857608v2.doc Page 8 of 12 Agreement for On -Call ProfessionaUTechnical Services 105 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 R6876-00011185760W.doc Page 9 of 12 Agreement for On -Call Professional/Technical Services w • 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. R6876-0001\1 85760M.doc Page 10 of 12 Agreement for On -Call ProfessionaUTechnical Services 107 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 Boulevarde Rancho Palos Verdes, CA 90275 To CONSULTANT: Responsible Person: Tamara S. Ching Vice President, Planning Division Manager Helix Environmental 7578 EI Cajon Boulevard La Mesa, CA 91942 Pagel 1 of 12 Agreement for On -Call Professionalfrechnicai Services R6876-0001 \1857608v2.doc 108 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: Helix Environmental Planning, Inc., a California corporation ("CONSULTANT') By: Dated: ATTEST: City Clerk Printed Name: Title: By: Printed Name: Title: CITY OF RANCHO PALOS VERDES ("CITY") By: Mayor APPROVED AS TO FORM: L_ City Attorney Page 12 of 12 Agreement for On -Call Professional/Technical Services 86876-000111857608v2.doc 109 On -Calf Professional Services Contract Pacific Advanced Civil Engineering 110 CITY OF RANCHO PALOS VERDES ON-CALL PROFESSIONALITECHNICAL SERVICES AGREEMENT THIS AGREEMENT ("Agreement") is made and entered into this 18th day of August, 2014 by and between the City of Rancho Palos Verdes (hereinafter referred to as the "CITY") and Pacific Advanced Civil Engineering, 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 Water Resources services. 1.2 Descriotion 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. R6876-0504\1859821 v1.doc 111 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 86876-0504\1859821 vl .doc Page 2 of 12 Agreement for On -Call ProfessionaUTechnical Services 112 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 R6876-0504\1859821 v1. doc Page 3 of 12 Agreement for On -Call Professional Technical Services 113 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 R6876-0504\1859821 v1.doc Page 4 of 12 Agreement for On -Call Professional/Technical Services 114 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:VlI 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 R6876-0504\1859821 v 1. doc Page 5 of 12 Agreement for On -Call Professional/Technical Services 115 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 Aareement (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 ail 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. R6876-0504\1859821 vl .doc Page 6 of 12 Agreement for On -Call ProfessionaUTechnical Services 116 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 R6876-050411859821 v 1. doe Page 7 of 12 Agreement for On -Call Professional/Technical Services 117 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, pLseq.). 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 Reoresentations 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. R6876-0504\1 859821 vi.doc Page 8 of 12 Agreement for On -Call ProfessionaitTechnical Services 118 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 cof 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 R6876-0504\1859821 v1.doc Page 9 of 12 Agreement for On -Call Professional(fechnical Services 119 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 orall. 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, Riahts 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. R6876-0504\1659821 v1.doc Page 10 of 12 Agreement for On -Call Professional/Technical Services 120 6.14 Severabilitv 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: Bruce M. Phillips, MS, PE PACE Advanced Water Engineering 17520 Newhope Street, Suite 200 Fountain Valley, CA 92708 86876-050411859821 v1.doc Page 11 of 12 Agreement for On -Call Professionalfrechnical Services 121 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: Pacific Advanced Civil Engineering, Inc., a California 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: City Clerk City Attorney R6876-0504\1 859821 v 1.doc Page 12 of 12 Agreement for On -Cats Professional Technical Services 122 On -Call Professional Services Contract Palos Verdes Peninsula Land Conservancy 123 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 Palos Verdes Peninsula Land Conservancy, 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: Preserving Land and Restoring Habitat. 1.2 Description of Services CONSULTANT shall provide such on-call Preserving Land and Restoring Habitat 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. R6876-000111857598v2.doc 124 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 cage 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 Page 2 of 12 Agreement for On -Call Professional(Technical Services R6876-00010 857598v2. doc 125 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 R6876-0001\1857598v2.doc Page 3 of 12 Agreement for On -Cali Professional/Technical Services 126 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 R6876-0001\1 857598v2.doc Page 4 of 12 Agreement for On -Call Professional/Technical Services HWA 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 R6876-0001\1 857598v2.doc Page 5 of 12 Agreement for On -Call Professionai(Technical Services 128 liability policy shall contain endorsements naming CITY, its officers, agents and employees as additional insureds. 3.2.7 Primes 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 (99) 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. R6876-000111857598v2.doc Page 6 of 12 Agreement for On -Call Professionalffechnical Services 129 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 R6876-0001 \1857598v2.doc Page 7 of 12 Agreement for On -Call Professional/Technical Services 130 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. Page 8 of 12 Agreement for On -Call Professional/Technical Services R6876-000iM5759M.doc - 131 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 Page 9 of 12 Agreement for On -Call Professional/Technical Services R6876-0001 \1857598v2.doo 132 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. R6876-0001 \1657598v2.doc Page 10 of 12 Agreement for On -Call Professional/Technical Services 133 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: Bill Swank Palos Verdes Peninsula Land Conservancy 916 Silver Spur Road #207 Rolling Hills Estates, CA 90274 86876-0001 \1857598v2. doc Page 11 of 12 Agreement for On -Call ProfessionaUTechnical Services 134 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: Dated: ATTEST: 0 Palos Verdes Peninsula Land Conservancy, 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 Clerk City Attorney R6876-0001\16575984.doc Page 12 of 12 Agreement for On -Call ProfessionaUrechnical Services 135 On -Call Professional Services Contract RBF Consulting 136 CITY OF RANCHO PALOS VERDES ON-CALL PROFESSIONALITECHNICAL 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 Michael Baker International, Inc., a Pennsylvania 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: Professional 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. R6876 -0504\1859638v2. doc 137 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 R6876-0504\1859638v2.doc Page 2 of 12 Agreement for On -Call Professional/Technical Services 138 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 R6876-0504\1859638v2.doc Page 3 of 12 Agreement for On -Call Professional/Technical Services 139 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 ail 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 R6876-0504\1859638v2.doc Page 4 of 12 Agreement for On -Call Professional Technical Services 140 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 R6876-050411859638v2.doc Page 5 of 12 Agreement for On -Call ProfessionallTechnical Services 141 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. R6876 -050411859636x2. d oc Page 6 of 12 Agreement for On -Call Professional/Technical Services um 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 R6876-0504\1859638v2.doc Page 7 of 12 Agreement for On -Call Professional(rechnical Services 143 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, qLse A.). 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. R6876 -050V 859638v2.doc Page 8 of 12 Agreement for On -Call Professionalf'rechnical Services 144 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 shah 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 R6876-0504\1659638v2.doc Page 9 of 12 Agreement for On -Call Professional/Technical Services 145 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. R6876-0504\1859638v2.doc Page 10 of 12 Agreement for On -Call Professional/Technical Services 146 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: Michael J. Bruz, PE RBF Consulting 14725 Alton Parkway Irvine, CA 92618-2027 R6876-0504\1859638v2.doc Page 11 of 12 Agreement for On -Call Professional/Technical services NA IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: Dated: ATTEST: By: City Clerk R6876-0504\185963M.doc Michael Baker International, Inc., a Pennsylvania corporation ("CONSULTANT") By: Printed Name: Title: By: Printed Name: Title: CITY OF RANCHO PALOS VERDES ("CITY") By: Mayor APPROVED AS TO FORM: 2 City Attorney Page 12 of 12 Agreement for On -Call Professional/Technical Services •