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RPVCCA_SR_2011_02_28_02_Assignment_of_ContractMEMORANDUM TO: FROM: DATE: SUBJECT: REVIEWED: Staff Coordinator: RECOMMENDATION HONORABLE MAYOR &CITY COUNCIL MEMBERS JOEL ROJAS,COMMUNITY DEVELOPMENT DIRECTOR~~~ FEBRUARY 28,2011 ASSIGNMENT OF THE CITY'S TWO EXISTING CONTRACTS FOR GEOLOGIC CONSULTING SERVICES FROM ZEISER KLING CONSULTANTS INC.TO KLING CONSULTING GROUP CAROLYN LEHR,CITY MANAGE~ So Kim,Assistant Planner ~ Authorize the assignment of the City's two existing contracts for geologic and geotechnical engineering services from Zeiser Kling Consultants,Inc.to Kling Consulting Group. BACKGROUND Due to the complex soils and geology of the Palos Verdes Peninsula,the Community Development and Public Works Departments contract for the professional services of licensed geologists and soils engineers.Since 1997,the firm of Zeiser Kling Consultants,Inc (Zeiser Kling)has served as the City's primary geological consultant for reviewing private development proposals and certain City projects. On February 15,2011,Zeiser Kling submitted a letter (attached)to the City,informing the City that beginning on February 25,2011,Zeiser Kling Consultants Inc.will cease doing business and that the majority of its staff will be doing business as the Kling Consulting Group.As such,Zeiser Kling Consultants is formally requesting that the City's two existing contracts with Zeiser Kling be assigned to the Kling Consulting Group. DISCUSSION Currently,the City has two contracts with Zeiser Kling Consultants Inc.One contract is with the Community Development Department,which is for geologic and geotechnical review services of private development projects.This contract is set to expire on June 30,2011.The other contract is with the Public Works Department for on-call geotechnical engineering and geological services on as needed basis related to City projects.This contract is set to expire on June 16,2012.In both contracts,Geologist Jim Lancaster serves as the main contact and provides the bulk of the consulting services. No changes to the scope of services or costs covered by both contracts are proposed.The primary change is to the firm name and office location.The firm name will be changed from Zeiser Kling 2-1 Consultants Inc.to Kling Consulting Group,and the office will move from Tustin to Irvine.As a result of the change,the new corporation (Kling Consulting Group)will issue new insurance certificates that meet the requirements of the current contracts,and any anticipated work will be transferred as of February 25,2011. Due to this change,the City Attorney is recommending that the City Council approve the assignment of the existing contracts to the Kling Consulting Group,based on the following assignment clauses contained in both contracts: Article I,6.6 -Assignment (Community Development Department contract) "Neither this Agreement nor any part thereof shall be assigned by consultant without the prior written consent of the City." Article XI,E -Assignment (Public Works Department contract) "Agreement shall not be assignable by either party without the prior written consent of the other party." Zeiser Kling has been providing quality geologic and geotechnical engineering services to the City for the past twelve years.Personnel from Zeiser Kling Consultants Inc.now will be doing business as the Kling Consulting Group.Since there are no changes to the services that will be provided or to the key personnel,Staff is recommending that the City Council consent to the assignment of the City's existing two separate geology and geotechnical engineering consulting services contracts with Zeiser Kling Consultants,Inc.to Kling Consulting Group. ADDITIONAL INFORMATION The on-call contract with the Public Works Department will expire in June 2012.However,the contract of the Community Development Department for geological/geotechnical review services is set to expire in a few months on June 30,2011.At this time,Staff anticipates presenting to the City Council the renewal of this contract,along with other existing service contracts,in May 2011. ATTACHMENTS: •Letter from Zeiser Kling Consultants,Inc. •2009-11 Contract with Zeiser Kling Consultants,Inc.(Community Development Department) •2009-11 Contract with Zeiser Kling Consultants,Inc.(Public Works Department) 1331473-1 2-2 ZEISER KLINe; Consultants,Inc. February 15.2011 Carla Morreale Rancho Palos Verdes City Clerk 30940 Hawthorne Blvd. Rancho Palos Verdes,CA 90275 PN 97082-XX 00146-XX Subje.ct:Change in Consl.lltant Contract Dear Ms.Morreale; At your request and.our conversations,we havecolllpleted this letter to formally request that the contracts for Zeiser Kling Consultants,Inc.be transferred by why ofassignment to Kling Consulting Gmup.No changes to the Zeiser Kling Consultant on-can Public W01'ksor Planning,Building and Code Enforcement contracts are proposed except changes in firm name.As part oflne change,the new corporation win issue new insurance certifications that meet the requirements of the current contracts.It is anticipated that work win be transferred to Kling Consulting Group on 01'about February 25,20 il. The Kling Consulting Group will do business at I 8008 Sky Park Circle,Suite 250,Irvine,92614.We may be reached at 949-797-6241 and our new fax number is 949-797-6260.After the transition,we will issue a final invoice for Zeiser Kling Consultants and follow with a new invoice for work completed by Kling Consulting Group.Please pay each invoice separately,and to the entity who issued it.The Kling CO!1Sultitlg Group's new Federal Ta.x ID is 27-3709912. We appreciate this opportunity to beofcontil1uedservice to the City ofRancho Palos.Verdes.Please call if you ooveany questions regarding lhecontent ofthis letter. Sincerely. ,.,lSER KLING C NSULTANTS,INC.r- Henry F.KliI,PE,OE ident Zeiser Kli g Consultants HenryF Kli .g.FE.OE President Kling Consulting Group Cc;Ray Holland,Director.RPV Public Works Joel Rojas,Director,Building,Planning and Code Enforcement HFK:drn '\8008 Sky Park Cirde.Suite 250,Irvine,Califomia92614 (949)7B7-6241 Fax (H49)7976260 Trusted Name in Geotechnical Consulting For Over Twenty Years 2-3 PROFESSIONAL SERVICES AGREEMENT FOR GEOTECHNICAL CONSULTING SERVICES This Agreement is made and entered into this 2nd day of June.2009.by and between the City of Rancho Palos Verdes (hereinafter referred to as "City")and Zeiser .Kling Consultants,Inc.(hereinafter referred to as "Consultant"). RECITALS The City wishes to use the professional services of Consultant to provide geology,soils engineering and geotechnical engineering consulting services to City on an as-needed basis;and, Consultant has represented that it has a unique and specialized knowledge and understanding of,and experience with,geotechnical engineering,soils engineering and engineering geology and is qualified to perform said services for City;and, IN CONSIDERATION of the foregoing recitals and the covenants hereinafter set forth,the parties hereto mutually agree as follows: ARTICLE I SCOPE OF CONSULTANT'S SERVICES Consultant shall,in a professional and timely manner, perform the following services,when requested by the City,by or under the direct supervision of Consultant's licensed engineering geologist and/or soils engineer: A.Field Reviews.Perform site field inspections of proposed construction as requested by the Building Official,City Engineer or other City official.Make a visual evaluation and submit a written memorandum stating findings and recommendations.Such site field inspections are typically performed dUring plan check to determine if soils and/or geologic reports are reqUired.Field review of a given site shall be performed only where City has established a valid plan check, trust deposit,or other payment schedule for billing time charges.Field review reports shall be submitted to the City no later than the following working day. B.Review Geotechnical Reports.Review the following types of soils and geology reports presented to Consultant by City: i.Soils and/or geology investigation reports performed for proposed construction in the City; ii.As-built geotechnical reports for construction,such as,for caissons, retaining walls,etc.; iii As-graded reports for grading of single lots and/or larger subdivisions in the City;and 2-4 iv.Other reports of inspection and testing of compacted fills that are placed in the City. Review of reports of hazardous wastes or materials is outside the provisions of this Agreement. Consultant shall review and evaluate reports,checking the consistency of the findings,conclusions and recommendations,and ascertain whether the provisions of the Rancho Palos Verdes Municipal Code are satisfied.Consultant may also perform site field inspections,logging of borings and trenches,sampling and laboratory tests, engineering analysis,and other tasks,as Consultant deems appropriate to assist in Consultant's reviews. No later than two (2)weeks after Consultant receives a report to review, Consultant shall submit a written review letter to City stating the results of Consultant's review and Consultant's recommendations of either: •Non-approval:Consultant shall state why approval was not recommended and shall list questions to be addressed by subsequent reports;or •Approval:Consultant shall recommend to City the conditions of approval of projects,issuing of permits and certifications of occupancy,as appropriate. C.Special Studies.As occasions arise,Consultant may be called upon to perform special geologic or geotechnical studies or other work requested by City. Charges shall be billed as defined under Article IV (Compensation)either to a trust deposit account or budget account,or a specific contract proposal shall be prepared and agreed to in writing by City and shall define the scope of work and payment schedule. D.Records.All costs are to be allocated to the appropriate trust deposit,plan check number or other special fund to which they pertain.The tract,lot or parcel numbers,address or other designation to Identify the project site to which the costs pertain shall be indicated on all records and documents. ARTICLE II PERFORMANCE OF SERVICES Consultant shall perform all services and duties pursuant to this Agreement in a professional and timely manner,at the direction of the Director of Planning,Building and Code Enforcement or Director of Public Works or the Directors'designee.All directives, instructions,or other communications from City to Consultant shall be through only the Director of Planning,Building and Code Enforcement or Director of Public Works or the Directors'designee. 2 2-5 ARTICLE III TERM This Agreement shall commence on July 1,2009,and shall terminate on June 30,2011,unless otherwise extended by the parties hereto. ARTICLE IV COMPENSATION FOR SERVICES City shall pay Consultant for its professional services rendered and costs incurred pursuant to this Agreement in accordance with the rates and amounts set forth in the fee and cost schedule attached hereto as Exhibit "A"and incorporated herein by reference.The schedule of hourly rates shall be good through the term of this contract, pursuant to Article III. City may request in writing that Consultant perform additional services not covered by the specific Scope of Work set forth in this Agreement,and Consultant shall perform such services and will be paid for such additional services In accordance with Consultant's schedule of hourly rates attached hereto as Exhibit "A"and incorporated herein by reference. Consultant shall submit to City,by not later than the tenth (10th )day of each month,Its bill for services rendered and costs Incurred during the previous month.If Consultant's bill is properly prepared and received by City by not later than the tenth (10th )day of the month,City shall pay Consultant all uncontested amounts set forth in Consultant's bill by not later than thirty (30)days from the date that the bill was received. All other properly billed and uncontested invoices received after the tenth (10th)of the month shall be paid by City not later than forty-five (45)days after receipt of Consultant's bill by City.It is further agreed that the periodic billings are correct,conclusive and binding unless Consultant is notified in writing by City ten (10)days from the date of receipt of the billing of any alleged inaccuracies,discrepancies or errors in billing. All payments due Consultant shall be paid to: Zeiser Kling Consultants,Inc. -t22+E:-9yer Reset,Sl:lite 105 Santa Ana,Callfemla 92705 ,51 Hi!,f~"",~..SIA.J·t't"!-Ito C,e,.sr"H"I!$.~c~9ZIcZ,f,o In the event City fails to pay any undisputed amounts due Consultant within forty- five (45)days after invoices are received by City,then City agrees that Consultant shall have the right to consider said default a breach of this Agreement and may be terminated by Consultant without liability to Consultant upon ten (10)working days advance notice to City. 3 2-6 ARTICLE V PERSONNEL Consultant shall provide all personnel necessary to properly perform the services and duties required under this Agreement,and shall at all times direct such personnel in the performance of such services and duties.Frederick L.Zeiser,Henry F.Kling,James M.Lancaster,Gail Vogt and Dante Domingo shall be principally responsible for Consultant's obligations and performance under this Agreement and shall serve as the principal liaisons between City and Consultant.Consultant shall not designate representatives or liaisons other than Frederick L.Zeiser,Henry F.Kling,James M. Lancaster,Gail Vogt and Dante Domingo without the prior written consent of either the Director of Planning,Building and Code Enforcement or the Director of Public Works of City,except for temporary re-assignments in the case of vacation,illness or emergency, where Consultant shall provide verbal notification to either the Director of Planning, BUilding and Code Enforcement or the Director of Public Works of City. Consultant shall notify City in writing of its recommendation of the retention of any supplemental subconsultants and the need therefor.However,City shall have the exclusive authority to determine whether such subconsultants shall be retained pursuant to Consultant's recommendation. ARTICLE VI DUTIES OF CITY City shall provide or make available to Consultant,without charge or expense,all information,data,records,maps,reports,plans,eqUipment,or other material in its possession necessary for carrying out the services and duties contemplated under this Agreement. ARTICLE VII OWNERSHIP OF DOCUMENTS City and Consultant agree that all records,data,reports or other documentation prepared by,in response to,or as a result of the performance of this Agreement shall be the sole property of City,and are to remain confidential,and shall not be released or otherwise made available to any person,entity or organization without the express prior written approval of City.Copies of any data,records,reports or other documents held by Consultant shall be delivered to City upon demand.During the term of this Agreement,Consultant may retain one copy of each document for its records. No reports,maps or other documents produced in whole or in part under this Agreement shall be the subject of an application for copyright by or on the behalf of Consultant.It is agreed that all records,data,reports or other documents generated by Consultant for City can only be used for the specific location and/or specific improvement without the written consent of Consultant. 4 2-7 ARTICLE VIII CONFLICT OF INTEREST Consultant agrees not to accept any employment or representation during the term of this Agreement which is or may likely make Contractor "financially interested"(as provided in California Government Code Sections 1090 and 87100)in any decision made by City on any matter in connection with which Consultant has been retained pursuant to this Agreement. Consultant also warrants that it is not,at the time this Agreement is entered into, engaged in any employment or representation which will or may likely make Consultant "financially interested"in any decision made by City on any matter in connection with which Consultant has been retained pursuant to this Agreement. ARTICLE IX INDEMNIFICATION AND INSURANCE A.Indemnification.Consultant will defend,indemnify and hold harmless City,its City Council,Boards,Commissions and its officers,employees and agents (collectively "City"),against any claim,loss or liability that arises because of the sole or primary negligence or willful misconduct of Consultant,its agents,officers or employees,in performing any of the services under this Agreement.City will indemnify and hold harmless Consultant,its agents,officers or employees against any claim,loss or liability that arises because of the sole or primary negligence or willful misconduct of City personnel or its other agents or if Consultant is named as a party in a lawsuit simply because Consultant is performing work on City's behalf and there is no allegation of any wrongdoing on the part of the Consuttant. B.General Liabilitv.Consultant shall at all times during the term of the Agreement carry,maintain,and keep in full force and effect,a policy or policies of Comprehensive General Liability Insurance,with minimum limits of one million dollars ($1,000,000.00)for each occurrence and in the aggregate,combined single limit,against any personal injUry,death,loss or damage resulting from the wrongfUl or negligent acts by Consultant.Said polley or policies shall be issued by an insurer admitted in the State of California and rated in Best's Insurance Guide with a rating A VII or better. C.Professional Liabilitv.Consultant shall at all times dUring the term of this Agreement,carry,maintain,and keep in full force and effect a policy or policies of professional liability insurance with a minimum limit of one million dollars ($1,000,000.00).Said policy or policies shall be issued by an insurer admitted in the State of California and rated in Best's Insurance Guide with a rating of A VII or better. D.Automobile Liabilitv.Consultant shall at all times dUring the term of this Agreement,carry,maintain,and keep in full force and effect a policy or policies of automobile liability insurance with a minimum limit of one million dollars ($1.000,000.00)per accident for bodily injury and property damage.Said policy 5 2-8 or policies shall be issued by an insurer admitted in the State of California and rated in Best's Insurance Guide with a rating of A VII or better. E.Worker's Compensation.Consultant agrees to maintain in force at all times during the performance of work under this Agreement worker's compensation insurance as required by the law.Consultant shall require any subcontractor similarly to provide such compensation insurance for their respective employees. F.Notice of Cancellation. i.All insurance policies shall provide that the insurance coverage shall not be canceled by the insurance carrier without thirty (30)days prior written notice to City.Consultant agrees that it will not cancel or reduce said insurance coverage. ii.Consultant agrees that if it does not keep the aforesaid insurance in full force and effect,City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost,City may take out the necessary insurance and pay,at Consultant's expense,the premium thereon. G.Certificate of Insurance.At all times during the term of this Agreement, Consultant shall maintain on file with the City Clerk certificates of insurance showing that the aforesaid policies are in effect in the required amounts.The comprehensive general liability policy or policies and any professional liability insurance policy shall contain an endorsement naming the City as an additional insured,which Consultant shall maintain on file with the City Clerk. H.Primarv Coverage.The insurance provided by Consultant shall by primary to any coverage available to City in relation to the services provided under this Agreement.The insurance policies (other that worker's compensation and professional liability)shall include provisions for waiver of subrogation. ARTICLE X TERMINATION This Agreement may be terminated at any time,with or without cause,by either party upon sixty (60)days prior written notice.Notice shall be deemed served if completed in compliance with Article XI(J). In the event of termination or cancellation of the Agreement by Consultant or City,due to no fault or failure of performance by Consultant,Consultant shall be paid compensation for all services performed by Consultant,in an amount to be determined as follows:for work done in accordance with all of the terms and provisions of this Agreement,Consultant shall be paid an amount equal to the amount of services performed prior to the effective date of termination or cancellation in accordance with the schedule attached hereto as Exhibit "A";prOVided,in no event shall the amount of money paid under the foregoing provisions of this paragraph exceed the amount which would have been paid to consultant for the full performance of the services described in Article IV and the particular purchase order. 6 2-9 In the event of such termination,all finished or unfinished documents,reports, charts,data,studies.surveys,in the possession of Consultant under this Agreement shall be returned to City,at City's option. ARTICLE XI GENERAL PROVISIONS A.Fair Emolovment Practices/Equal Oooortunitv Acts.In the performance of this Agreement,Consultant shall comply with all applicable provisions of the California Fair Employment Practices Act (California Government Code Sections 12940-48)and the applicable equal employment provisions of the Civil Rights Act of 1964 (42 U.S.C.200e-217),whichever is more restrictive. B.Non-cliscrimination.Consultant shall not discriminate as to race,creed,religion, gender,color or national origin in the performance of its services and duties pursuant to this Agreement,and will comply with all rules and regulations of the City relating thereto. C.Legal Action. i.Should either party to this Agreement bring legal action against the other, the validity,interpretation,and performance of this Agreement shall be controlled by and construed under the laws of the State of California. Venue for any such action relating to this Agreement shall be in the Los Angeles County Superior Court. ii.If any legal action or other proceeding,including action for declaratory relief,is brought for the enforcement of this Agreement or because of an alleged dispute,breach,default or misrepresentation in connection with this Agreement.the Prevailing Party shall be entitled to recover reasonable attorneys'fees.experts'fees,and other costs,in addition to any other relief to which the party may be entitled. iii.Should any legal action about a project between City and a party other than Consultant require the testimony of Consultant when there is no allegation that Consultant was negligent,City shall compensate Consultant for its testimony and preparation to testify at the hourly rates in effect at the time of such testimony. D.Compliance with Aoolicable Law.Consultant and City shall comply with all applicable laws,ordinances and codes of the Federal.State and local Governments. E.Assignment.This Agreement shall not be assignable by either party without the prior written consent of the other party.Notwithstanding the foregoing. Consultant may use the services of persons and entities not in its employ,when it is appropriate and customary to do so upon prior approval by City.Such persons and entities include,but are not limited to,surveyors.specialized consultants and testing laboratories.Consultant's use of others for additional 7 2-10 services shall not be unreasonably restricted by City,provided Consultant notifies City In advance. F.Independent Consultant.Consultant is and shall at all times remain,as to City,a wholly independent Consultant.Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant's employees,except as herein set forth.Consultant expressly warrants not to,at any time or in any manner,represent that it,or any of its agents,servants or employees,are in any manner the agents,servants or employees of City,it being distinctly understood that Consultant is,and shall at all times remain to City,a wholly independent contractor and Consultant's obligations to City are solely such as are prescribed by this Agreement. G.Titles.The titles used in this Agreement are for general reference only and are not part of this Agreement. H.Entire Agreement.This Agreement and Exhibit "A"represents the entire and integrated Agreement between City and Consultant and supersedes all prior negotiations,representations or agreements,written or oral.This Agreement may be modified or any provision or breach thereof waived only by a subsequent written agreement signed by both parties.In the event of any conflict between the express provisions of this Agreement and Exhibit "A,"the provisions of this Agreement shall prevail. I.Legal Construction i.This Agreement shall be construed without regard to the identity of the persons who drafted its various provisions.Each and every provision of this Agreement shall be construed as though each of the parties participated equally in the drafting of same,and any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement. ii.The article and section,captions and headings herein have been inserted for convenience only,and shall not be considered or referred to in resolving questions of interpretation or construction. iii.Whenever in this Agreement the context may so reqUire,each gender shall be deemed to refer to and include any other gender and the singular shall refer to and include the plural. J.Notices.Any notice or documents required shall not be effective unless it is given in writing and delivered in person or by certified mail,postage prepaid,and addressed to the parties at the addresses stated below,or at such other address as either party may hereafter notify the other in writing as aforementioned: CONSULTANT: Mr.Henry Kling,President Zeiser Kling Consultants,Inc. 1221 E.Dyer Reeel,Sl:Iite 105 SeAts Ana.Califoillia 82705 8 /51 1t{1l1J14H,S1'SIA.,f-4 i-Ilo cpsf.rl-er......lJ1 'f2./PZlp 2-11 The CITY: Director of Planning,Building and Code Enforcement City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes,CA 90275 Any party may change its address by giving written notice to the other party. Thereafter.any notice or other communication shall be addressed or transmitted to the new address.If sent by mail,any notice or documents shall be deemed effective three (3)business days after it has been deposited in the United States mail.For purposes of communicating time frames,weekends and federal,state,religious.County of Los Angeles or City holidays shall be excluded. IN WITNESS WHEREOF.the CITY and CONSULTANT have executed this Agreement by and through the signatures of their duly authorized representatives.as of the date set forth above. By: The CITY of Rancho Palos Verdes By:~(lli MaYOr :~EST:f1rA~dL City Clerk 9 2-12 EXHIBIT "A" FEE SCHEDULE ZEISER KLING CONSULTANTS Rate Personnel Classification (per hour) Principal Geologist or Engineer $165.00 Associate Geologist or Engineer $150.00 Project Engineer or Geologist $125.00 Senior Engineer or Geologist $115.00 Senior Staff Engineer or Geologist $100.00 Staff Engineer or Geologist $88.00 Supervisory Technician $105.00 Senior Technician $95.00 Field Technician $82.00 Technician Assistant $65.00 Draftsman $85.00 Administrative Support $50.00 Word Processing $58.00 2-13 ON-CALL PROFESSIONALITECHNICAL SERVICES AGREEMENT This Agreement is made and entered into this 16th day of June.2009 by and between the City of Rancho Palos Verdes (hereinafter referred to as the "CITY")and Zeiser Kling Consultants,Inc.(hereafter referred to as "CONSULTANT"). WHEREAS,the CITY needs to have contracts with entities who routinely provide certain professional services to the CITY so that these entities can be contacted on short notice to address urgent issues;and WHEREAS,the CITY routinely uses CONSULTANT's professional services and the CITY is generally satisfied with these services;and WHEREAS,the CITY and CONSULTANT would now like to have an on-call professional services contract with each other such that the CITY may contact CONSULTANT on short notice to address urgent issues within the scope of this Agreement. 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 on-call services as follows: Geotechnical Engineering and Geological Services 1.2 Description of Services CONSULTANT shall perform on-call professional services,as described in CONSULTANT's Proposal and Schedule of Hourly Rates,attached hereto as Exhibit "A"and incorporated herein by this reference.Each service shall be authorized in writing by the CITY and shall include an estimate of the applicable cost of the work. 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 and agreed on by CONSULTANT.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 1 2-14 governmental agencies,or any other delays beyond CONSULTANT's control or without CONSULTANT's fault. ARTICLE 2 COMPENSATION 2.1 Fee (a)CITY agrees to compensate CONSULTANT an amount not to exceed sixty thousand dollars ($60,000)per fiscal year for services as described in Article 1,and not to exceed twenty-five thousand dollars ($25,000)for a single service.On-call services which are reimbursed by a trust deposit shall not count towards the maximum amounts. CONSULTANT shall be paid for such services in accordance with CONSULTANT's Proposal and Schedule of Hourly Rates attached hereto as Exhibit "A"The hourly rates in Exhibit "A"shall be in effect through the end of this Agreement. (b)CITY may request additional specified work under this Agreement.All such work must be authorized in writing by the Director of Public Works prior to commencement.CONSULTANT shall be paid for such additional services in accordance with CONSULTANT's Proposal and Schedule of Hourly Rates,attached hereto as Exhibit ItA.U 2.2 Payment Address All payments due CONSULTANT shall be paid to: Vendor Address City &State,Zip Zeiser Kling Consultants,Inc. 151 Kalmus,Suite H6 Costa Mesa,CA 92626 2.3 Terms of Compensation CONSULTANT will submit invoices monthly 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 the invoice.CITY agrees to use its best efforts to notify CONSULTANT of any disputed invoice 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 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 2-15 2.4 Term of Agreement This Agreement shall commence on the date and year first written above and shall terminate exactly three (3)years after that date,unless renewed in writing. ARTICLE 3 INDEMNIFICATION AND INSURANCE 3.1 Indemnification CONSULTANT will defend,indemnify and hold harmless CITY and its officials,officers,employees,agents and volunteers free and harmless from all tort liability,including liability for claims,suits,actions,expenses or costs of any kind, whether actual,alleged or threatened,actual attorneys'fees,experts'fees,or court costs incurred by the CITY,arising out of or in any way connected with,in whole or in part,the acts or omissions or willful misconduct of CONSULTANT or any of CONSULTANT's officers,agents,employees or contractors in the performance of this Agreement.This includes but is not limited to claims, suits and liabilities for bodily injury,death or property damage to any individual or entity,including officers,agents, employees or contractors of the CONSULTANT.The provisions of this paragraph shall not apply to claims to the extent arising out of the sole negligence or willful misconduct of the CITY and its officials,officers,employees,agents and volunteers. In addition to the foregoing,CONSULTANT shall indemnify,defend and hold free and harmless the CITY and the CITY's officials,officers,employees,agents and volunteers from and against any and all losses,liabilities,damages,costs and expenses,including reasonable attorneys'fees,experts'fees,and costs to the extent the same are caused by negligence or willful misconduct of the CONSULTANT,or any of the CONSULTANT's officials,officers,agents,employees or volunteers,in the performance of professional services pursuant to 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 and rated in A.M.Best's Insurance Guide with a rating of A:VII or better. 3 2-16 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 $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.CONSULTANT agrees that it will not cancel or reduce said insurance coverage. B.CONSUL TANT agrees that if it does not keep the aforesaid insurance in full force and effect,CITY may either immediately terminate this Agreement or,if insurance is available at a reasonable cost,CITY may take out the necessary insurance and pay,at CONSULTANT's expense,the premium thereon. 4 2-17 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 shall contain endorsements naming the CITY,its officers,agents and employees as additional insured. 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 Article 6.13. (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 Article 2.1. ARTICLE 5 OWNERSHIP OF DOCUMENTS 5.1 Ownership of Documents and Work Product All documents,plans,specifications,reports,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 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 5 2-18 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.If CONSULTANT prepares a document on a computer,CONSULTANT shall provide CITY with said document both in a printed format and in an acceptable electronic format. ARTICLE 6 GENERAL PROVISIONS 6.1 Representation A CITY representative shall be the Director of Public Works or his or her designee,and a CONSULTANT representative shall be designated by CONSULTANT as the primary contact person for each party regarding performance of this Agreement. 6 2-19 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)and 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 be responsible for their services. 6.4 Conflicts of Interest CONSULTANT agrees not to accept any employment or representation during the term of this Agreement or within twelve (12)months after completion of the work under this Agreement which is or may likely make CONSULTANT "financially interested" (as provided in California Government Code Sections 1090 and 87100)in any decisions made by CITY on any matter in connection with which CONSULTANT has been retained pursuant to this Agreement. 6.5 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 7 .._-_._.._-_.._-----_._-------2-20 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. 6.6 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. 6.7 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 at 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 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. 8 2-21 6.8 Titles The titles used in this Agreement are for general reference only and are not part of the Agreement. 6.9 Entire Agreement This Agreement,including any other documents incorporated herein by specific reference,represents the entire and integrated agreement between CITY and CONSUL TANT 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. 6.10 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. 6.11 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. 6.12 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. 6.13 Notice Except as otherwise required by law,any notice,request,direction,demand, consent,waiver,approval or other communication reqUired or permitted to be given hereunder shall not be effective unless it is given in writing and shall be delivered (a)in person or (b)by certified mail,postage prepaid,and addressed to the parties at the addresses stated below,or at such other address as either party may hereafter notify the other in writing as aforementioned: 9 2-22 To CITY: Responsible Person:Ray Holland,Interim Director of Public Works City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes,CA 90275 To CONSULTANT: Responsible Person:James M.Lancaster,Jr. Vendor Zeiser Kling Consultants,Inc. Address 151 Kalmus,Suite H6 City &State,Zip Costa Mesa,CA 92626 A party may change its address by giving written notice to the other party. Thereafter,any notice or other communication shall be addressed and transmitted to the new address.If sent by mail,any notice,tender,demand,delivery or other communication shall be deemed effective three (3)business days after it has been deposited in the United States mail.For purposes of communicating these time frames,weekends and federal, state,religious,County of Los Angeles or CITY holidays shall be excluded.No communication via facsimile or electronic mail shall be effective to give any such notice or other communication hereunder. IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the date and year first above written. Dated:June 16,2009 Dated:June 16,2009 ATTEST: ~~ CITY CLERK 10 BY:------------- CITY OF RANCHO PALOS VERDES A Municipal Corporation B~ 2-23 Exhibit "A": Consultant's Proposal and Schedule of Hourly Rates Geotechnical Engineering and Geological Services including the following: 2nd and 3rd party review of geotechnical reports and plans, Geotechnical soils testing and observation, Geologic review of landslide or distress conditions, •Pavement design, Geologic site reviews, •On call geologic hazard assessments and reviews, •Geologic consultation SCHEDULE OF HOURLY RATES On-Call Services 2009 -2012 Professional Service Fees: Executive Principal Engineer or Geologist Principal Engineer or Geologist Associate Engineer or Geologist Senior Project Engineer or Geologist Project Engineer or Geologist Senior Engineer or Geologist Senior Staff Engineer or Geologist Staff Engineer or Geologist *Supervisory Engineering Technician $175.00/hr $165.00/hr $150.00/hr $135.00/hr $125.00/hr $115.00/hr $100.00/hr $88.00/hr. $105.00/hr *Senior Engineering Technician $95.00/hr. *Engineering Technician $82.00/hr. *Technician Assistant $65.00/hr. *Special Inspection $55.00/hr. CADD Technician $85.00/hr. Word Processing $58.00/hr. Administrative Support $50.00/hr. *Does not include projects subject to prevailing wage. Prevailing wage rates will be determined on a project by project basis. 1 2-24 •'3 Litigation Fees: Expert witness testimony is charged at $325.00/Hr. Other Expenses: (a)Normal field equipment such as nuclear gauge,sand cone,compaction check point and sampling equipment are included in the hourly rates above. (b)Digital Imaging handling,processing and storage fee charged at $20.00 for first 50 images and $20.00 for each 50 images thereafter.Digital image reproduction charged at $2.00 per page for plain paper and cost plus 20 percent for photo quality color images. (c)In-house reproduction expenses are charged at $0.25 per sheet. (d)Gas/Oxygen Meter is charged at $80.00/day. (e)Inclinometer and asphalt/concrete coring equipment is charged at $80.00/day. Asphalt/Concrete cores will also be subject to a $2.00 per core charge for cores up to 12 inches in length. (f)Laboratory samples will be held for 30 days from date of report.A storage fee will be assessed if longer storage is requested by the client in writing. (g)Special Inspection,including Deputy Inspection of concrete,welding,structural steel,roofing,fire proofing,etc.are charged at a 4 hour minimum.All observations based on a minimum of 4 hours and over 4 hours - 8 hour minimum. Outside Expenses: Outside services performed by others and direct costs incurred on the Client's behalf are invoiced at cost plus 15 percent.These expenses include rental of heavy equipment (Le.,drill rigs,bulldozers,backhoes,cranes,etc.),travel and subsistence,permits,photographs,reproduction costs,expendable items,etc. Other Charges: The minimum charge for field inspection will be two hours.Overtime for technical and clerical staff will be charged at 1.3 times the hourly rate for work in excess of 8 hours on weekdays,work before 7 a.m.or after 5 p.m.,and all Saturdays.Work performed on Sundays and holidays will be charged at 1.5 times the hourly rate. Travel Time: Travel time required to provide professional or technical services will be charged at the appropriate rates. 2 2-25