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RPVCCA_CC_SR_2012_05_01_G_Construction_Inspection_&_GPS_Mapping_ContractsCrrvOF MEMORANDUM TO: FROM: DATE:. SUBJECT: REVIEWED: Project Manager: HONORABLE MAYOR &CITY COUNCIL MEMBERS TOM ODOM,DIRECTOR OF PUBLIC WOR~ MAY 1,2012 AWARD CONTRACTS FOR CONSTRUCTION INSPECTION AND GPS MAPPING OF 2012 STORM DRAIN LINING PROJECT (SUPPORTS 2012 CITY COUNCIL GOAL #4 PUBLIC INFRASTRUCTURE) CAROLYN LEHR,CITY MANAGER ~ Andy Winje,Associate Civil Engineer ~ RECOMMENDATIONS 1.Authorize the Mayor and City Clerk to execute a professional services agreement to CBM Consulting,Inc.in an amount not to exceed $56,560 for inspection services. Authorize a contingency of $10,040 for a total inspection authorization of $66,600. 2.Authorize the Mayor and City Clerk to execute a professional services agreement to John M.Cruikshank Consultants,Inc.in an amount not to exceed $24,778 for GPS mapping and documentation services.Authorize a contingency of $5,022 for a total mapping and documentation authorization of $29,800. EXECUTIVE SUMMARY On April 17,2012 City Council awarded a construction contract for the 2012 Storm Drain Rehabilitation and Lining Project to address the deficiencies in corrugated metal pipes (CMPs)on the City's east side.In conjunction with that work,the City requires inspection and mapping services to,respectively,ensure quality of the construction and document the inventory of rehabilitated pipes.This project has a budget of $1,146,698 (of which $1,005,565 was committed in the previous Council action)and is funded through the Storm Drain User Fee. DISCUSSION The majority of the construction investment will be in the cured-in-place pipe (CIPP) G-1 lining work,which relies on quality of process to deliver a quality result.Therefore the City is best served by engaging a specifically qualified,full time inspector while these activities are being performed.In addition,staff intends to take full advantage of physically locating each of these pipes and recording their location with GPS coordinates in accordance with storm drain asset management best practices. Staff developed a single RFP for both services and contacted four firms.The City received three proposals that were evaluated based on inspector qualifications, familiarity with GPS mapping technology and cost structure.CBM Consultants,Inc (CBM),who served the City in a similar role in 2008,were selected as the top firm for inspection.John M.Cruikshank Consultants (JMCC)were determined to be the top selection for mapping services.Staff believes the City's interests are best served by separating the work into two professional services contracts. Staff is recommending that the City Council authorize the Mayor and the City Clerk to execute a Professional Services Agreement with CBM for construction inspection services in an amount not to exceed $56,560.This number is based on CBM's fee estimate for services to support the construction contract as awarded.Staff also recommends that City Council authorize a $10,040 contingency for unforeseen work for a total authorization of $66,600.The contingency is necessary in the event that additional work under the construction contract requires inspection services.If needed, the inspections will be commensurate with that additional construction work. In addition,staff is recommending that the City Council authorize the Mayor and the City Clerk to execute a Professional Services Agreement with JMCC for mapping and documentation services,in an amount not to exceed $24,778.This number is based on JMCC's fee estimate for equipment and services to support the construction contract as awarded.Staff also recommends that City Council authorize a $5,022 contingency for unforeseen work for a total authorization of $29,800.The contingency is necessary in the event that additional work under the construction contract requires mapping services.If needed,the mapping services will be commensurate with that additional construction work. CONCLUSIONS The City has awarded a substantial construction contract to address deficiencies in CMPs.To protect the City's interests during construction and to capture data essential to the City's storm drain asset management best practices,staff recommends engaging two qualified professional service firms.Adopting Staff's recommendations will award professional service agreements to CBM Consulting and John M Cruikshank Consultants, respectively,to optimize results of the 2012 Storm Drain Rehabilitation and Lining Project.Authorizing staff to adapt to unforeseen conditions through fully funded contingencies will help minimize delays while adding rehabilitated CMP's to the City's inventory of repaired facilities. FISCAL IMPACT Funding for this project has been budgeted in the approved FY11/12 budget. Attachment A:Professional Service Agreement -CBM Consulting,Inc. Attachment B:Professional Service Agreement -John M.Cruikshank Consultants R6876-0001 \1275682v2.doc G-2 PROFESSIONALITECHNICAL SERVICES AGREEMENT THIS AGREEMENT ("Agreement")is made and entered into this 1st day of May, 2012 by and between the City of Rancho Palos Verdes (hereinafter referred to as the "CITY")and CBM Consulting,Inc.(hereafter referred to as "CONSULTANT"). WHEREAS,the City has awarded a construction contract to Sancon Engineering Inc.for the purpose of rehabilitating existing storm drains;and WHEREAS,the City requires services of a consultant to provide GPS mapping and documentation services of the construction work. IN CONSIDERATION of the covenants hereinafter set forth,the parties hereto mutually agree as follows: ARTICLE 1 SCOPE OF SERVICES 1.1 Project Description The Project is described as follows: 2012 Storm Drain Rehabilitation and Lining Project. 1.2 Description of Services CONSULTANT shall provide construction inspection services,as described in CITY'S Request For Proposals,which is attached hereto as Exhibit "A"and incorporated herein by this reference,excluding mapping tasks,and CONSULTANT's Proposal,which is attached hereto as Exhibit "B"and incorporated herein by this reference. 1.3 Schedule of Work Upon receipt of written Notice to Proceed from the CITY,CONSULTANT shall perform with due diligence the services requested by the 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. Page 1 of 11 R6876-0001\1454058v2.doc G-3 ARTICLE 2 COMPENSATION 2.1 Fee CITY agrees to compensate CONSULTANT an amount not to exceed fifty-six thousand five hundred and sixty dollars ($56,560)for services performed as described in Article 1. 2.2 Payment Address All payments due CONSULTANT shall be paid to: CBM Consulting,Inc. 1411 W.190th Street,Suite 525 Gardena,CA 90248 2.3 Terms of Compensation CONSULTANT shall submit monthly invoices for the percentage of 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 or claimed completion percentages within ten (10)days of the receipt of each invoice.However, CITY's failure to timely notify CONSULTANT of a disputed amount or claimed completion percentage shall not be deemed a waiver of CITY's right to challenge such amount or percentage. 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 said default a total breach of this Agreement and be terminated by CONSULTANT without liability to CONSULTANT upon ten (10)working days advance written notice. 2.4 Additional Services CITY may request additional specified work under this Agreement.All such work must be authorized in writing by the CITY's Director of Public Works prior to commencement.CONSULTANT shall perform such services,and CITY shall pay for such additional services in accordance with CONSULTANT's Schedule of Hourly Rates,which is within Exhibit "B."The rates in Exhibit "B"shall be in effect through the end of this Agreement or December 31,2012,whichever occurs first. 2.5 Term of Agreement This Agreement shall commence on May 1,2012 and shall terminate on Page 2 of 11 R6876-0001\1454058v2.doc G-4 December 31,2012,unless sooner terminated pursuant to Article 4 of this Agreement. ARTICLE 3 INDEMNIFICATION AND INSURANCE 3.1 Indemnification,Hold Harmless,and Duty to Defend (a)Indemnity for Design Professional Services.In connection with its design professional services,CONSULTANT shall hold harmless and indemnify CITY, and its officials,officers,employees,agents and independent contractors serving in the role of CITY officials,and designated volunteers (collectively,"Indemnitees"),with respect to any and all claims,demands,causes of action,damages,injuries,liabilities, losses,costs or expenses,including reimbursement of attorneys'fees and costs of defense (collectively,"Claims"hereinafter),including but not limited to Claims relating to death or injury to any person and injury to any property,which arise out of,pertain to,or relate to in whole or in part to the negligence,recklessness,or willful misconduct of CONSULTANT or any of its officers,employees,subcontractors,or agents in the performance of its design professional services under this Agreement. (b)Other Indemnities.In connection with any and all claims, demands,causes of action,damages,injuries,liabilities,losses,costs or expenses, including attorneys'fees and costs of defense (collectively,"Damages"hereinafter)not covered by Section 3.1(a),CONSULTANT shall defend,hold harmless and indemnify the Indemnitees with respect to any and all Damages,including but not limited to, Damages relating to death or injury to any person and injury to any property,which arise out of,pertain to,or relate to the acts or omissions of CONSULTANT or any of its officers,employees,subcontractors,or agents in the performance of this Agreement, except for such loss or damage arising from the sole negligence or willful misconduct of the CITY,as determined by final arbitration or court decision or by the agreement of the parties.CONSULTANT shall defend Indemnitees in any action or actions filed in connection with any such Damages with counsel of CITY's choice,and shall pay all costs and expenses,including all attorneys'fees and experts'costs actually incurred in connection with such defense.Consultant's duty to defend pursuant to this Section 3.1 (b)shall apply independent of any prior,concurrent or subsequent misconduct, negligent acts,errors or omissions of Indemnitees. (c)All duties of CONSULTANT under Section 3.1 shall survive termination of this Agreement. 3.2 General Liability CONSULTANT shall at all times during the term of the Agreement carry, maintain,and keep in full force and effect,a policy or policies of 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 Page 3 of 11 R6876-0001\1454058v2.doc G-5 activities undertaken by CONSULTANT in the performance of this Agreement.Said policy or policies shall be issued by an insurer admitted 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. 3.3 Professional Liability CONSULTANT shall at all times during the term of this Agreement,carry, maintain,and keep in full force and effect a policy or policies of professional liability insurance with a minimum limit of one million dollars ($1 ,000,000)per claim and aggregate for errors and/or omissions of CONSULTANT in the performance of this Agreement.Said policy or policies shall be issued by an insurer admitted to do business in the State of California and rated in Best's Insurance Guide with a rating of A:VII or better.If a "claims made"policy is provided,such policy shall be maintained in effect from the date of performance of work or services on the 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 the CITY.Renewal or replacement policies shall not allow for any advancement of such retroactive date. 3.4 Automobile Liability 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. 3.5 Worker's Compensation CONSULTANT agrees to maintain in force at all times during the performance of work under this Agreement worker's compensation insurance as required by the law.CONSULTANT shall require any subcontractor similarly to provide such compensation insurance for their respective employees. 3.6 Notice of Cancellation (a)All insurance policies shall provide that the insurance coverage shall not be cancelled by the insurance carrier without thirty (30)days prior written notice to CITY,or ten (10)days notice if cancellation is due to nonpayment of premium. CONSULTANT agrees that it will not cancel or reduce said insurance coverage. (b)CONSULTANT agrees that if it does not keep the aforesaid insurance Page 4 of 11 R6876-0001\1454058v2.doc G-6 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. 3.7 Certificate of Insurance At all times during the term of this Agreement,CONSULTANT shall maintain on file with the CITY Clerk a certificate of insurance showing that the aforesaid policies are in effect in the required amounts.The commercial general liability policy shall contain endorsements naming the CITY,its officers,agents and employees as additional insureds. 3.8 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 the CITY upon thirty (30)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 6.14. (b)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,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 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 the Page 5 ofll R6876-0001\1454058v2.doc G-7 CITY without restriction or limitation upon its use,duplication or dissemination by the 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 the CITY without restriction or limitation upon their use,duplication or dissemination by the CITY.CONSULTANT shall not obtain or attempt to obtain copyright protection as to any Written Products. CONSULTANT hereby assigns to the CITY all ownership and any and all intellectual property rights to the Written Products that are not otherwise vested in the CITY pursuant to 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 the CITY has full legal title to and the right to reproduce the Written Products. CONSULTANT shall defend,indemnify and hold the 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 the 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 the CITY all Written Products and other deliverables related to the Project without additional cost or expense to the CITY.If CONSULTANT prepares a document on a computer,CONSULTANT shall provide CITY with said document both in a printed format and in an electronic format that is acceptable to the CITY. ARTICLE 6 GENERAL PROVISIONS 6.1 Representation The CITY representative shall be the Director of Public Works or his or her Page 6 of 11 R6876-0001\1454058v2.doc G-8 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 Government Code Sections 12940-48),the applicable equal employment provisions of the Civil Rights Act of 1964 (42 U.S.C.200e-217),and the Americans with Disabilities Act of 1992 (42 U.S.C.§11200,et seq.). 6.3 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. 6.4 CONSULTANT's Representations CONSULTANT represents,covenants and agrees that:a)CONSULTANT is licensed,qualified,and capable offurnishing 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. 6.5 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 7 of 11 R6876-0001\1454058v2.doc G-9 6.6 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. 6.7 Assignment Neither this Agreement nor any part thereof shall be assigned by CONSULTANT without the prior written consent of the CITY.Any such purported assignment without written consent shall be null and void,and CONSULTANT shall hold harmless,defend and indemnify the 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 the CITY provided CONSULTANT notifies the CITY in advance. 6.8 Independent Contractor CONSULTANT is and shall at all times remain,as to the CITY,a wholly independent contractor.Neither the CITY nor any of its agents shall have control over the conduct of CONSULTANT or any of the CONSULTANT's employees,except as 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 the 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 the CITY or otherwise act on behalf of the CITY as an agent.CONSULTANT shall not,at any Page 8 of11 R6876-0001\1454058v2.doc G-10 time or in any manner,represent that it or any of its agents,servants or employees,are in any manner agents,servants or employees of CITY.CONSULTANT agrees to pay all required taxes on amounts paid to CONSULTANT under this Agreement,and to indemnify and hold the CITY harmless from any and all taxes,assessments,penalties,and interest asserted against the CITY by reason of the independent contractor relationship created by this Agreement.CONSULTANT shall fully comply with the workers'compensation law regarding CONSULTANT and its employees.CONSULTANT further agrees to indemnify and hold the CITY harmless from any failure of CONSULTANT to comply with applicable workers'compensation laws.The CITY shall have the right to offset against the amount of any fees due to CONSULTANT under this Agreement any amount due to the CITY from CONSULTANT as a result of its failure to promptly pay to the CITY any reimbursement or indemnification arising under this Article. 6.9 Titles The titles used in this Agreement are for general reference only and are not part of the Agreement. 6.10 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. 6.11 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. 6.12 Non-Waiver of Terms,Rights and Remedies Waiver by either party of anyone or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement.In no event shall the making by the CITY of any payment to CONSULTANT constitute or be construed as a waiver by the CITY of any breach of covenant,or any default which may then exist on the part of CONSULTANT,and the making of any such payment by the CITY shall in no way impair or prejudice any right or remedy available to the CITY with regard to such breach or default. Page 9 of 11 R6876-0001\1454058v2.doc G-11 6.13 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. 6.14 Notice Except as otherwise required by law,any notice or other communication authorized or required by this Agreement shall be in writing and shall be deemed received on (a)the day of delivery if delivered by hand or overnight courier service during CONSULTANT's or CITY's regular business hours or (b)on the third business day following deposit in the United States mail,postage prepaid,to the addresses listed below,or'at such other address as one party may notify the other: To CITY: Tom Odom,Director of Public Works City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes,CA 90275 To CONSULTANT: Chuck Stephan,Vice President 1411 W.190th Street,Suite 525 Gardena,CA 90248 Page 10 of 11 R6876-0001\1454058v2.doc G-12 IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the date and year first above written. Dated:_ Dated:,_ ATTEST: CITY CLERK CBM CONSULTING,INC. (Consultant) By:_ Printed Name:_ Title:_ By:_ Printed Name:_ Title:_ CITY OF RANCHO PALOS VERDES ("City") MAYOR Page 11 of 11 R6876-000 1\1454058v2.doc G-13 R6876-0001\1454058v2.doc Exhibit "A": CITY'S Request For Proposals Exhibit "A" G-14 Exhibit "B": Consultant's Proposal and Schedule of Hourly Rates Exhibit "B" R6876-0001\1454058v2.doc G-15 PROFESSIONALITECHNICAL SERVICES AGREEMENT This Agreement is made and entered into this 1st day of May,2012 by and between the City of Rancho Palos Verdes (hereinafter referred to as the "CITY")and John M. Cruikshank Consultants,Inc.,(hereafter referred to as "CONSULTANT"). WHEREAS,the City has awarded a construction contract to Sancon Engineering Inc.for the purpose of rehabilitating existing storm drains;and WHEREAS,the City requires services of a consultant to provide GPS mapping and documentation services of the construction work. IN CONSIDERATION of the covenants hereinafter set forth,the parties hereto mutually agree as follows: ARTICLE 1 SCOPE OF SERVICES 1.1 Project Description The Project is described as follows: 2012 Storm Drain Rehabilitation and Lining Project. 1.2 Description of Services CONSULTANT shall provide construction inspection services as described in CITY's Request For Proposals,which is attached hereto as Exhibit "A"and incorporated herein by this reference,excluding inspection tasks,and in CONSULTANT's Proposal,which is attached hereto as Exhibit "8"and incorporated herein by this reference,excluding Exhibit 1. 1.3 Schedule of Work Upon receipt of written Notice to Proceed from the CITY,CONSULTANT shall perform with due diligence the services requested by the 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. Page 1 of 11 R6876-000 1\1454055v2.doc G-16 ARTICLE 2 COMPENSATION 2.1 Fee CITY agrees to compensate CONSULTANT an amount not to exceed twenty- four thousand seven hundred and seventy-eight dollars ($24,778)for services provided as described in Article 1. 2.2 Payment Address All payments due CONSULTANT shall be paid to: John M.Cruikshank Consultants,Inc. 411 N.Harbor Boulevard,Suite 201 San Pedro,CA 90731 2.3 Terms of Compensation CONSULTANT shall submit monthly invoices for the percentage of 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 or claimed completion percentages within ten (10)days of the receipt of each invoice.However, CITY's failure to timely notify CONSULTANT of a disputed amount or claimed completion percentage shall not be deemed a waiver of CITY's right to challenge such amount or percentage. 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 said default a total breach of this Agreement and be terminated by CONSULTANT without liability to CONSULTANT upon ten (10)working days advance written notice. 2.4 Additional Services CITY may request additional specified work under this Agreement.All such work must be authorized in writing by the CITY's Director of Public Works prior to commencement.CONSULTANT shall perform such services,and CITY shall pay for such additional services in accordance with CONSULTANT's Schedule of Hourly Rates,which is within Exhibit "B."The rates in Exhibit "B"shall be in effect through the end of this Agreement or December 31,2012,whichever occurs first. 2.5 Term of Agreement This Agreement shall commence on May 1,2012 and shall terminate on December 31,2012,unless sooner terminated pursuant to Article 4 of this Agreement. Page 2 of 11 R6876-0001\1454055v2.doc G-17 ARTICLE 3 INDEMNIFICATION AND INSURANCE 3.1 Indemnification,Hold Harmless,and Duty to Defend (a)Indemnity for Design Professional Services.In connection with its design professional services,CONSULTANT shall hold harmless and indemnify CITY, and its officials,officers,employees,agents and independent contractors serving in the role of CITY officials,and designated volunteers (collectively,"Indemnitees"),with respect to any and all claims,demands,causes of action,damages,injuries,liabilities, losses,costs or expenses,including reimbursement of attorneys'fees and costs of defense (collectively,"Claims"hereinafter),including but not limited to Claims relating to death or injury to any person and injury to any property,which arise out of,pertain to,or relate to if!whole or in part to the negligence,recklessness,or willful misconduct of CONSULTANT or any of its officers,employees,subcontractors,or agents in the performance of its design professional services under this Agreement. (b)Other Indemnities.In connection with any and all claims, demands,causes of action,damages,injuries,liabilities,losses,costs or expenses, including attorneys'fees and costs of defense (collectively,"Damages"hereinafter)not covered by Section 3.1 (a),CONSULTANT shall defend,hold harmless and indemnify the Indemnitees with respect to any and all Damages,including but not limited to, Damages relating to death or injury to any person and injury to any property,which arise out of,pertain to,or relate to the acts or omissions of CONSULTANT or any of its officers,employees,subcontractors,or agents in the performance of this Agreement, except for such loss or damage arising from the sole negligence or willful misconduct of the CITY,as determined by final arbitration or court decision or by the agreement of the parties.CONSULTANT shall defend Indemnitees in any action or actions filed in connection with any such Damages with counsel of CITY's choice,and shall pay all costs and expenses,including all attorneys'fees and experts'costs actually incurred in connection with such defense.Consultant's duty to defend pursuant to this Section 3.1 (b)shall apply independent of any prior,concurrent or subsequent misconduct, negligent acts,errors or omissions of Indemnitees. (c)All duties of CONSULTANT under Section 3.1 shall survive termination of this Agreement. 3.2 General Liability CONSULTANT shall at all times during the term of the Agreement carry, maintain,and keep in full force and effect,a policy or policies of 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.Said policy or policies shall be issued by an insurer admitted to do business in the State of California Page 3 of 11 R6876-0001\1454055v2.doc G-18 and rated in A.M.Best's Insurance Guide with a rating of A:VII or better. 3.3 Professional Liability CONSULTANT shall at all times during the term of this Agreement,carry, maintain,and keep in full force and effect a policy or policies of professional liability insurance with a minimum limit of one million dollars ($1 ,000,000)per claim and aggregate for errors and/or omissions of CONSULTANT in the performance of this Agreement.Said policy or policies shall be issued by an insurer admitted to do business in the State of California and rated in Best's Insurance Guide with a rating of A:VII or better.If a "claims made"policy is provided,such policy shall be maintained in effect from the date of performance of work or services on the 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 the CITY.Renewal or replacement policies shall not allow for any advancement of such retroactive date. 3.4 Automobile Liability 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. 3.5 Worker's Compensation CONSULTANT agrees to maintain in force at all times during the performance of work under this Agreement worker's compensation insurance as required by the law.CONSULTANT shall require any subcontractor similarly to provide such compensation insurance for their respective employees. 3.6 Notice of Cancellation (a)All insurance policies shall provide that the insurance coverage shall not be cancelled by the insurance carrier without thirty (30)days prior written notice to CITY,or ten (10)days notice if cancellation is due to nonpayment of premium. CONSULTANT agrees that it will not cancel or reduce said insurance coverage. (b )CONSULTANT agrees that if it does not keep the aforesaid insurance in full force and effect,CITY may either immediately terminate this Agreement or,if insurance is available at a reasonable cost,CITY may take out the necessary insurance Page 4 of 11 R6876-000 1\1454055v2.doc G-19 and pay,at CONSULTANT's expense,the premium thereon. 3.7 Certificate of Insurance At all times during the term of this Agreement,CONSULTANT shall maintain on file with the CITY Clerk a certificate of insurance showing that the aforesaid policies are in effect in the required amounts.The commercial general liability policy shall contain endorsements naming the CITY,its officers,agents and employees as additional insureds. 3.8 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 the CITY upon thirty (30)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 6.14. (b)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,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 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 the CITY without restriction or limitation upon its use,duplication or dissemination by the CITY. All Written Products shall be considered "works made for hire,"and all Written Products Page 5 of 11 R6876-000 1\1454055v2.doc G-20 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 the CITY without restriction or limitation upon their use,duplication or dissemination by the CITY.CONSULTANT shall not obtain or attempt to obtain copyright protection as to any Written Products. CONSULTANT hereby assigns to the CITY all ownership and any and all intellectual property rights to the Written Products that are not otherwise vested in the CITY pursuant to 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 the CITY has full legal title to and the right to reproduce the Written Products. CONSULTANT shall defend,indemnify and hold the 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 the 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 the CITY all Written Products and other deliverables related to the Project without additional cost or expense to the CITY.If CONSULTANT prepares a document on a computer,CONSULTANT shall provide CITY with said document both in a printed format and in an electronic format that is acceptable to the 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 Page 6 of 11 R6876-0001 \1454055v2.doc G-21 regarding performance of this Agreement. 6.2 Fair Employment Practices/Equal Opportunity Acts In the performance of this Agreement,CONSULTANT shall comply with all applicable provisions of the California Fair Employment Practices Act (California Government Code Sections 12940-48),the applicable equal employment provisions ofthe Civil Rights Act of 1964 (42 U.S.C.200e-217),and the Americans with Disabilities Act of 1992 (42 U.S.C.§11200,et seq.). 6.3 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. 6.4 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. 6.5 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 7 of 11 R6876-0001 \1454055v2.doc G-22 6.6 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. 6.7 Assignment Neither this Agreement nor any part thereof shall be assigned by CONSULTANT without the prior written consent of the CITY.Any such purported assignment without written consent shall be null and void,and CONSULTANT shall hold harmless,defend and indemnify the 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 the CITY provided CONSULTANT notifies the CITY in advance. 6.8 Independent Contractor CONSULTANT is and shall at all times remain,as to the CITY,a wholly independent contractor.Neither the CITY nor any of its agents shall have control over the conduct of CONSULTANT or any of the CONSULTANT's employees,except as 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 the CITY in such a manner and to such persons,firms,or corporations as the CONSULTANT wishes except as expressly provided in this Agreement. CONSUL TANT shall have no power to incur any debt,obligation,or liability on behalf of the CITY or otherwise act on behalf of the CITY as an agent.CONSULTANT shall not,at any Page 8 of 11 R6876-0001\1454055v2.doc G-23 time or in any manner,represent that it or any of its agents,servants or employees,are in any manner agents,servants or employees of CITY.CONSULTANT agrees to pay all required taxes on amounts paid to CONSULTANT under this Agreement,and to indemnify and hold the CITY harmless from any and all taxes,assessments,penalties,and interest asserted against the CITY by reason of the independent contractor relationship created by this Agreement.CONSULTANT shall fully comply with the workers'compensation law regarding CONSULTANT and its employees.CONSULTANT further agrees to indemnify and hold the CITY harmless from any failure of CONSULTANT to comply with applicable workers'compensation laws.The CITY shall have the right to offset against the amount of any fees due to CONSULTANT under this Agreement any amount due to the CITY from CONSULTANT as a result of its failure to promptly pay to the CITY any reimbursement or indemnification arising under this Article. 6.9 Titles The titles used in this Agreement are for general reference only and are not part of the Agreement. 6.10 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. 6.11 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. 6.12 Non-Waiver of Terms,Rights and Remedies Waiver by either party of anyone or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement.In no event shall the making by the CITY of any payment to CONSULTANT constitute or be construed as a waiver by the CITY of any breach of covenant,or any default which may then exist on the part of CONSULTANT,and the making of any such payment by the CITY shall in no way impair or prejudice any right or remedy available to the CITY with regard to such breach or default. Page 9 of 11 R6876-0001\1454055v2.doc G-24 6.13 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. 6.14 Notice Except as otherwise required by law,any notice or other communication authorized or required by this Agreement shall be in writing and shall be deemed received on (a)the day of delivery if delivered by hand or overnight courier service during CONSULTANT's or CITY's regular business hours or (b)on the third business day following deposit in the United States mail,postage prepaid,to the addresses listed below,or at such other address as one party may notify the other: To CITY: Tom Odom,Director of Public Works City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes,CA 90275 To CONSULTANT: John M.Cruikshank,Principle Civil Engineer Address:411 N.Harbor Boulevard,Suite 201 San Pedro,CA 90731 [Signatures on next page.] Page 10 of 11 R6876-0001\1454055v2.doc G-25 IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the date and year first above written. Dated:_ Dated:_ ATTEST: CITY CLERK R6876-0001\1454055v2.doc JOHN M.CRUIKSHANK CONSULTANTS,INC. By:_ Printed Name:_ Title:_ By:_ Printed Name:_ Title:_ CITY OF RANCHO PALOS VERDES A Municipal Corporation BY:------------MAYOR Page 11 of 11 G-26 R6876-0001\1454055v2.doc Exhibit "A": City's Request For Proposals Exhibit "A" G-27 Exhibit "8": Consultant's Proposal and Schedule of Hourly Rates Exhibit "B" R6876-0001 \1454055v2.doc G-28