2200 - Zeiser Kling Consultants - Geotechnical Investigations ServicesCITY OF ROSEMEAD
PROFESSIONAL SERVICES AGREEMENT
PARTIES AND DATE.
This Agreement is made and entered into this day of December, 2008 by
and between the City of Rosemead, a municipal organization organized under the laws of
the State of California with its principal place of business at 8838 East Valley Blvd,.
Rosemead, California 91770 ("the City') and Zeiser Kling Consultants, Inc., with its
principal place of business at 1221 E. Dyer Road, Suite 105, Santa Ana, California 92705
("Consultant"). City and Consultant are sometimes individually referred to herein as "Party"
and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain
professional services required by the City of Rosemead on the terms and conditions set
forth in this Agreement. Consultant represents that it is experienced in providing
professional geotechnical services to public clients and that it is licensed in the State of
California, and is familiar with the process and procedures of the City of Rosemead.
2.2 Project.
City desires to engage Consultant to render geotechnical investigation and other
related data review services for City's proposed and/or existing projects based on time and
material as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to
furnish to the City all labor, materials, tools, equipment, services, and incidental customary
work necessary to fully and adequately supply professional geotechnical investigative
review consulting services necessary for the City's proposed and/or existing projects. All
Services shall be subject to, and performed in accordance with, this Agreement and all
applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from December, 2008 and
ongoing until terminated by either party pursuant to the terms of the agreement.
Consultant shall complete all Geotechnical Investigations and other related data review for
the City within the term of this Agreement, and shall meet any other City established
schedules and deadlines as stated herein or not.
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3.2 Responsibilities of Consultant.
3.2.1 Control and Payment of Subordinates: Independent Contractor. The
Services shall be performed by Consultant or under its supervision. Consultant will
determine the means, methods and details of performing the services subject to the
requirements of this Agreement. The City retains Consultant on an independent contractor
basis and not as a full time employee of the City. Consultant retains the right to perform
similar or different services for others during the term of this Agreement. Any additional
personnel performing the services under this Agreement on behalf of Consultant shall also
not be full employees of the City and shall at all times be under Consultant's exclusive
direction and control. Consultant shall pay all wages, salaries, and other amounts due to
such personnel in connection with their performance of services underthis Agreement and
as required by law. Consultant shall be responsible for all reports and obligations in
respect to such additional personnel, including, but not limited to: social security taxes,
income tax withholding, unemployment insurance, disability insurance, and workers'
compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Services
expeditiously, within the term of this Agreement, and in accordance with the Schedule of
Services set forth in Exhibit "A", and as may be requested by the City. Prior to the
commencement of the Services, Consultant shall provide City with a budget for each
project. Consultant represents that it has the professional and technical personnel
required to perform the services in conformance with this agreement conditions, City
policies and regulations. In order to facilitate Consultant's conformance with this
agreement, the City shall respond to Consultant's submittals in a timely manner. Upon
request of the City, Consultant shall provide a more detailed schedule of work to meet the
applicable deadlines as determined by the City. Frederick Zeiser will serve as the principal
for Consultant under this Agreement, and will have the overall responsibility for the work
performed by Consultant.
3.2.3 Conformance to Applicable Requirements. All work prepared by
Consultant and/or sub consultants shall be subject to review and approval of the City.
3.2.4 Substitution of Key Personnel. Consultant has presented to the City
certain key personnel who will perform and coordinate the services under this Agreement.
Should one or more of such personnel become unavailable, Consultant may substitute
other personnel of at least equal competence upon written approval from the City. In the
event that the City and Consultant cannot agree as to the substitution of key personnel, the
City shall be entitled to terminate this Agreement for such cause.
3.2.5 City's Representative. The City of Rosemead hereby designates the
City Planner or his/her designee, to act as the City's coordinator to review and approve all
work performed by consultant and/or sub-consultants as set forth in this Agreement ("City's
Representative"). City's Representative shall have the power and authority to act on behalf
of the City for all purposes under this Contract. Consultant shall not accept direction or
orders from any person other than the City's Representative or his/her designee.
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3.2.6 Consultant's Representative. The Consultant's Representative shall
supervise and direct required professional services, using his/her best professional skills,
knowledge and judgment, and shall be responsible for all means, methods, techniques,
sequences and procedures for the satisfactory coordination of all portions of the project as
set forth in this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with the
City staff in the performance of professional services and shall be available to the City's
staff and/or City's consultants at all reasonable times.
3.2.8 Standard of Care; Performance of Employees. Consultant shall
perform all services under this Agreement in a skillful and competent manner, consistent
with the standards generally recognized as being employed by professionals in the same
discipline in the State of California. Consultant represents and maintains that it is skilled in
the profession necessary to provide such services as stated in this agreement. Consultant
warrants that all employees and subcontractors shall have sufficient skills and experience
to perform the services assigned to them. Consultant represents that, its employees and
subcontractors have all licenses, permits, qualifications and approvals of whatever nature
that is legally required and acceptable to perform the services, including a City Business
License, and that such licenses and approvals shall be maintained throughout the term of
this Agreement. As provided for in the indemnification provisions of this Agreement,
Consultant shall perform, at its own cost and expense and without reimbursement from the
City, any services necessary to correct errors or omissions which are caused by the
Consultant's failure to comply with the standard of care provided for herein. Any employee
of the Consultant or its sub-consultants who is determined by the City to be uncooperative,
incompetent, a threat to the adequate or timely completion of the Project, a threat to the
public safety or property, or any employee who fails or refuses to perform the Services in a
manner acceptable to the City, at the request of the City shall be immediately and promptly
removed from performing professional services as stated in this agreement by the
Consultant and shall not be re-employed to perform similar professional services for the
city.
3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of
and in compliance with all local, state and federal laws, rules and regulations in any
manner affecting the performance of such professional services, including all Cal/OSHA
requirements, and shall give all copies of notices or violations of such regulations to the
City within five (5) calendar days from the date of receipt unless otherwise required by
other federal, state or local regulations. Consultant shall be liable for any of its violations of
such laws and regulations. If the Consultant performs any work knowing it to be contrary to
such laws, rules and regulations and without giving written notice to the City, Consultant
shall be solely responsible for all costs arising therefrom. Consultant shall defend,
indemnify and hold City, its officials, directors, officers, employees and agents free and
harmless, pursuant to the indemnification provisions of this Agreement, from any claim or
liability arising out of any failure or alleged failure to comply with such laws, rules or
regulations.
3.2. 10 Insurance. Without in any way limiting Consultant's liability pursuant to
the "Indemnification" paragraph of this Agreement, Consultant will maintain insurance in
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the amounts and coverage set forth below.
3.2.10.1 Time for Compliance. Consultant shall not commence
work under this Agreement until it has provided evidence satisfactory to the City that it has
secured all insurance required under this section. In addition, Consultant shall not allow
any sub-consultant or subcontractor to commence work related to the project until it has
provided evidence satisfactory to the City that all insurance required under this section
have been secured.
3.2.10.2 Minimum Requirements. Consultant shall, at its expense,
procure and maintain for the duration of this Agreement insurance against claims for
injuries to persons or damages to property which may arise from or in connection with the
performance of the Agreement by the Consultant, its agents, representatives, employees
or subcontractors. Consultant shall also require all of its subcontractors to procure and
maintain the same insurance for the duration of the Agreement. Such insurance shall meet
at least the following minimum levels of coverage:
(A) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001 or claims made form
CG0002); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form
number CA 0001; and (3) Workers' Compensation and Employer's Liability: Workers'
Compensation insurance as required by the State of California and Employer's Liability
Insurance.
(B) Minimum Limits of Insurance. Consultant shall maintain limits
no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form with
general aggregate limit is used, either the general aggregate limit shall apply separately to
this Agreement/location or the general aggregate limit shall be twice the required
occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and
property damage; and (3) Workers' Compensation and Employer's Liability: Workers'
Compensation limits as required by the Labor Code of the State of California. Employer's
Liability limits of $1,000,000 per accident for bodily injury or disease.
3.2.10.3 Professional Liabilitv. Consultant shall procure and
maintain, and require its sub-consultants to procure and maintain, for a period of five (5)
years following completion of the Project, errors and omissions liability insurance
appropriate to their profession. Such insurance shall be in an amount not less than
$1,000,000 per claim, and shall be endorsed to include contractual liability.
3.2.10.4 Insurance Endorsements. The insurance policies shall
contain the following provisions, or Consultant shall provide endorsements on forms
supplied or approved by the City to add the following provisions to the insurance policies:
(A) General Liabilitv. The general liability policy shall be endorsed
to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers
shall be covered as additional insured with respect to the Work or operations performed by
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or on behalf of the Consultant, including materials, parts or equipment furnished in
connection with performance of such work; and (2) the insurance coverage shall be
primary insurance for the City, its directors, officials, officers, employees, agents and
volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the
Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained
by the City, its directors, officials, officers, employees, agents and volunteers shall be
excess of the Consultant's insurance and shall not be called upon to contribute with it in
any way.
(B) Automobile Liability. The automobile liability policy shall be
endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and
volunteers shall be covered as additional insured with respect to the operation,
maintenance, use, loading or unloading of any auto leased, hired or borrowed by the
Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall
be primary insurance for the City, its directors, officials, officers, employees, agents and
volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the
Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained
by the City, its directors, officials, officers, employees, agents and volunteers shall be
excess of the Consultant's insurance and shall not be called upon to contribute with it in
any way.
(C) Workers' Compensation and Employers Liability Coverage. The
insurer shall agree to waive all rights of subrogation against the City, its directors, officials,
officers, employees, agents and volunteers for losses paid under the terms of the
insurance policy which arise from work performed by the Consultant, sub-consultant or
sub-contractors.
(D) All Coverages. Each insurance policy required by this
Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided,
reduced or canceled except after thirty (30) calendar days prior written notice by Consultant
through certified mail, return receipt requested, has been given to the City; and (B) any
failure to comply with reporting or other provisions of the policies, including breaches of
warranties, shall not affect coverage provided to the City, its directors, officials, officers,
employees, agents and volunteers.
3.2.10.5 Separation of Insureds: No Special Limitations. All
insurance required by this Section shall contain standard separation of insureds provisions.
In addition, such insurance shall not contain any special limitations on the scope' of
protection afforded to the City, its directors, officials, officers, employees, agents and
volunteers.
3.2.10.6 Deductibles and Self-Insurance Retentions. Any
deductibles or self-insured retentions must be declared to and approved by the City.
Consultant shall guarantee that, at the option of the City, either: (1) the insurer shall reduce
or eliminate such deductibles or self-insured in respect to the City, its directors, officials,
officers, employees, agents and volunteers; or (2) the Consultant shall procure a bond
guaranteeing payment of losses and related investigation costs, claims and administrative
and defense expenses.
3.2.10.7 Acceptability of Insurers. Insurance is to be placed with
insurers with a current A.M. Best's rating no less than A: VIII, licensed to do business in the
state of California, and satisfactory to the City.
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3.2.10.8 Verification of Coverage. Consultant shall furnish the
City with original certificates of insurance and endorsements effecting coverage required by
this Agreement on forms satisfactory to the City. The certificates and endorsements for
each insurance policy shall be signed by a person authorized by that insurer to bind
coverage on its behalf, and shall be on forms provided by the City if requested. All
certificates and endorsements must be received and approved by the City before work
commences. The City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid
injury or damage to any person or property. In carrying out its Services, the Consultant
shall at all times be in compliance with all applicable local, state and federal laws, rules and
regulations, and shall exercise all necessary precautions for the safety of employees
appropriate to the nature of the work and the conditions under which the work is to be
performed. Safety precautions as applicable shall include, but shall not be limited to: (A)
adequate life protection and life saving equipment and procedures; (B) instructions in
accident prevention for all employees and sub-contractors, such as safe walkways,
scaffolds, fall protection ladders, bridges, gang planks, confined space procedures,
trenching and shoring, equipment and other safety devices, equipment and wearing
apparel as are necessary or lawfully required to prevent accidents or injuries; and (C)
adequate facilities for the proper inspection and maintenance of all safety measures.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including
authorized reimbursements, for all professional services rendered under this Agreement in
the amounts set forth on the attached fee schedule, attached hereto as Exhibit "B". The
total compensation shall be based on time and material basis and all charges shall be fully
paid by the project proponent unless it's a City initiated project, in which case, all costs
shall be borne by the City. In no event shall the City be liable for interest or late charges
for any late payments.
3.3.2 Payment of Compensation. Consultant shall submit to the City a
monthly itemized invoice which details work completed and hours of services rendered by
Consultant. The statement shall describe the amount of services and supplies provided
since the initial commencement date, or since the start of the subsequent billing periods,
as appropriate, through the date of the statement. The City shall, within 30-calendar days
of receiving such statements, review the statement and pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for
any expenses unless authorized in writing by the City.
3.3.4 Extra Work. At any time during the term of this Agreement, the City
may request that Consultant perform Extra Work. As used herein, "Extra Work" means any
work which is determined by the City to be necessary for the proper completion of any
applicable City project, but which the parties did not reasonably anticipate would be
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necessary at the execution of this Agreement. Consultant shall not perform, nor be
compensated for, Extra Work without written authorization from the City's Planning
Division.
3.3.5 Prevailing Wages. Consultant is aware of the requirements of
California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code
of Regulations, Title 8, Section 1600, et seq., ("Prevailing Wage Laws"), which require the
payment of prevailing wage rates and the performance of other requirements on "public
works" and "maintenance" projects. If the Services are being performed as part of an
applicable "public works" or "maintenance" project, as defined by the Prevailing Wage
Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply
with such Prevailing Wage Laws. The City shall provide Consultant with a copy of the
prevailing rates of per diem wages in effect at the commencement of this Agreement.
Consultant shall make copies of the prevailing rates of per diem wages for each craft,
classification or type of worker needed to execute the services available to interested
parties upon request, and shall post copies at the Consultant's principal place of business
and at the project site. Consultant shall defend, indemnify and hold the City, its elected
officials, officers, employees and agents free and harmless from any claim or liability
arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4 Audit and Inspection of Records.
3.4.1 Maintenance and Inspection. Consultant shall maintain complete and
accurate books and accounting records with respect its work under this Agreement. All
such records shall be clearly identifiable. Consultant shall allow a representative of the
City during normal business hours to examine, audit, and make transcripts or copies of
such records and any other documents created pursuant to this Agreement. Consultant
shall allow inspection of all work, data, documents, proceedings, and activities related to
the Agreement for a period of three (3) years from the date of final payment under this
Agreement.
3.5 General Provisions.
3.5.1 Termination of Agreement.
3.5.1.1 Grounds for Termination. Either party may, by written notice
to the other party, terminate the whole or any part of this Agreement at any time and
without cause by giving written notice to the other party of such termination, and specifying
the effective date thereof, at least thirty (30) calendar days before the effective date of
such termination. Upon termination, Consultant shall be compensated only for those
services which have been adequately rendered to City, and Consultant shall be entitled to
no further compensation.
3.5.1.2. Upon receipt of the City's notice of termination or if Consultant
provides written notice of termination, Consultant shall commence and perform, with
diligence, all actions necessary on the part of Consultant to effect the termination of this
Agreement on the date specified by the City and to minimize the liability of Consultant and
the City to third parties as a result of termination. All such actions shall be subject to the
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prior approval of the City. Such actions shall include, without limitation:
3.5.1.2.1 Halting the performance of all services and other work
under this Agreement on the date(s) and in the manner specified by the City.
3.5.1.2.2 Not placing any further orders or subcontracts for
materials, services, equipment or other items.
3.5.1.2. 3 Terminating all existing orders and subcontracts.
3.5.1.2.4 At the City's direction, assigning to the City any or all
of Consultant's right, title and interest under the orders and subcontracts terminated. Upon
such assignment, the City shall have the right, in its sole discretion, to settle or pay any or
all claims arising out of the termination of such orders and subcontracts.
3.5.1.2.5 Subject to the City's approval, settling all outstanding
liabilities and all claims arising out of the termination of orders and subcontracts.
3.5.1.2.6 Completing performance of any services or work that
the City designates to be completed prior to the date of termination.
3.5.1.2.7 Taking such action as may be necessary, or as the
City may direct, for the protection and preservation of any property related to this
Agreement which is in the possession of Consultant and in which the City has or may
acquire an interest.
3.5.1.3 Within 30-calender days after the specified termination
date, Consultant shall submit to the City an invoice, which shall set forth each of the
following as a separate line item:
3.5.1.3.1 The reasonable cost to Consultant, without profit, for
all services and other work the City directed Consultant to perform prior to the specified
termination date, for which services or work the City has not already tendered payment.
Reasonable costs may include a reasonable allowance for actual overhead, not to exceed
a total of 10% of Consultant's direct costs for services or other work. Any overhead
allowance shall be separately itemized. Consultant may also recover the reasonable cost
of preparing the invoice.
3.5.1.3.2 A reasonable allowance for profit on the cost of the
services and other work described in the immediately preceding subsection (1), provided
that the Consultant can establish, to the satisfaction of the City, that the Consultant would
have made a profit had all services and other work under this Agreement been completed,
and provided further, that the profit allowed shall in no event exceed 5% of such cost.
3.5.1.3.3 The reasonable cost to Consultant of handling
material or equipment returned to the vendor, delivered to the City or otherwise disposed of
as directed by the City.
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3.5.1.3.4 A deduction for the cost of materials to be retained by
Consultant, amounts realized form the sale of materials and not otherwise recovered by or
credited to the City, and any other appropriate credits to the City against the cost of the
services or other work.
3.5.1.4 In no event shall the City be liable for costs incurred by
Consultant or any of its subcontractors after the termination, except for those costs
specifically enumerated and described in the immediately preceding subsection. Such
non-recoverable costs include, but are not limited to, anticipated profits, post-termination
employee salaries, post-termination administrative expenses or overhead, or any other
expense not authorized under the immediately preceding subsection.
3.5.1.5. In arriving at the amount due to Consultant under this
Section, the City may deduct: (1) all payments previously made by the City for work
covered by Consultant's final invoice; (2) any claim which the City may have against
Consultant in connection with this Agreement; (3) any invoiced costs or expenses excluded
pursuant to the immediately preceding subsection; and (4) in instances in which, in the
opinion of the City, the cost of any services or other work performed under this Agreement
is excessively high due to costs incurred to remedy or replace defected or rejected services
or other work, the difference between the invoiced amount and the City's estimate of the
reasonable cost of performing the invoiced services or other work in compliance with the
requirements of this Agreement.
3.5.1.6 Effect of Termination. If this Agreement is terminated as
provided herein, the City may require Consultant to provide all finished or unfinished
Documents and Data and other information of any kind prepared by Consultant in
connection with the performance of Services under this Agreement. Consultant shall be
required to provide such documentation and other information within fifteen (15) calendar
days from the request date.
3.5.1.7 Additional Services. In the event this Agreement is
terminated in whole or in part as provided herein, the City may procure, upon such terms
and in such manner as it may determine appropriate, services similar to those terminated.
3.5.2 Delivery of Notices. All notices permitted or required under this
Agreement shall be given to the respective parties at the following address, or at such
address as the respective parties may provide in writing for this purpose: -
CONSULTANT: Zeiser Kling Consultants, Inc.
1221 E. Dyer Road, Suite 105
Santa Ana, CA 92705
Attn: Henry F. Kling
CITY: City of Rosemead
8838 E.Valley Blvd
Rosemead, CA 91770
Attn: Oliver Chi, City Manager
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Such notice shall be deemed made when personally delivered or when mailed, forty-eight
(48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the
party at its applicable address. Actual notice shall be deemed adequate notice on the date
actual notice occurred, regardless of the method of service.
3.5.3 Ownership of Materials and Confidentiality.
3.5.3.1 Documents & Data; Licensing of Intellectual Property.
This Agreement creates a non-exclusive and perpetual license for the City to copy, use,
modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property
embodied in plans, specifications, studies, drawings, estimates, and other documents or
work of authorship fixed in any tangible medium of expression, including but not limited to,
physical drawings or data magnetically or otherwise recorded on computer diskettes, which
are prepared or caused to be prepared by Consultant underthis Agreement ("Documents &
Data"). Consultant shall require all subcontractors to agree in writing that City is granted a
non-exclusive and perpetual license for any Documents & Data the subcontractor prepares
under this Agreement. Consultant represents and warrants that Consultant or sub-
contractor has the legal right to license any and all Documents & Data. Consultant makes
no such representation and warranty in regard to Documents & Data which were prepared
by design professionals other than Consultant or provided to Consultant by the City. The
City shall not be limited in any way in its use of the Documents and Data at any time,
provided that any such use is within the purposes intended by this Agreement and shall not
be at the City's sole risk.
3.5.3.2 Works for Hire. If, in connection with services performed
under this Agreement, Contractor or its subcontractors create artwork, copy, posters,
billboards, photographs, videotapes, audiotapes, systems designs, software, reports,
diagrams, surveys, blueprints, source codes or any other original works of authorship, such
works of authorship shall be works for hire as defined under Title 17 of the United States
Code, and all copyrights in such works are the property of the city. If it is ever determined
that any works created by Consultant or its subcontractors under this Agreement are not
works for hire under U.S. law, Consultant hereby assigns all copyrights to such works to
the City, and agrees to provide any material and execute any documents necessary to
effectuate such assignment. With the approval of the City, Consultant may retain and use
copies of such works for reference and as documentation of its experience and
capabilities.
3.5.3.3 Confidentiality. All ideas, memoranda, specifications,
plans, procedures, drawings, descriptions, computer program data, input record data,
written information, and other Documents and Data either created by or provided to
Consultant in connection with the performance of this Agreement shall be held confidential
by Consultant. Such materials shall not, without the prior written consent of the City, be
used by Consultant for any purposes other than the performance of the Services. Nor shall
such materials be disclosed to any person or entity not connected with the performance of
the Services or the Project. Nothing furnished to Consultant which is otherwise known to
Consultant or is generally known, or has become known, to the related industry shall be
deemed confidential. Consultant shall not use City's name or insignia, photographs of the
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Project, or any publicity pertaining to the Services or the Project in any magazine, trade
paper, newspaper, television or radio production or other similar medium without the prior
written consent of the City.
3.5.4 Cooperation; Further Acts. The Parties mentioned in this agreement
shall fully cooperate with one another, and shall take any additional acts or sign any
additional documents as may be necessary, appropriate or convenient to attain the
purposes of this Agreement.
3.5.5 Attornev's Fees. If either party commences an action against the other
party, either legal, administrative or otherwise, arising out of or in connection with this
Agreement, the prevailing party in such litigation shall be entitled to have and recover from
the losing party reasonable attorney's fees and all other costs of such action.
3.5.6 Indemnification. Consultant shall defend, indemnify and hold the City,
its officials, officers, employees, volunteers and agents free and harmless from any and all
claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law
or equity, to property or persons, including wrongful death, in any manner arising out of,
pertaining to, or relating to any alleged acts, omissions or willful misconduct of Consultant,
its officials, officers, employees, agents, consultants and contractors arising out of or in
connection with the performance of the Services, the Project or this Agreement, including
without limitation the payment of all consequential damages and attorneys fees and other
related costs and expenses, except where such liability, loss, damage or injury is the result
of the sole negligence or willful misconduct of the City. In addition to Consultant's obligation
to indemnify the City, subject to any limitations provided by Civil Code § 2782.8 Consultant
specifically acknowledges that it has an immediate and independent obligation to defend
the City from any claim which actually or potentially falls within this indemnification
provision, even if the allegations are or may be groundless, false or fraudulent, which
obligations arises at the time such claim is tendered to Consultant by the City and
continues at all times thereafter. Subject to any limitations provided by Civil Code §
2782.8, Consultant shall defend, at Consultant's own cost, expense and risk, any and all
such aforesaid suits, actions or other legal proceedings of any kind that may be brought or
instituted against the City, its directors, officials, officers, employees, agents or volunteers.
Subject to any limitations provided by Civil Code § 2782.8, Consultant shall pay and satisfy
any judgment, award or decree that may be rendered against the City or its directors,
officials, officers, employees, agents or volunteers, in any such suit, action or other legal
proceeding. Subject to any limitations provided by Civil Code § 2782.8, Consultant shall
reimburse the City and its directors, officials, officers, employees, agents and/or volunteers,
for any and all legal expenses and costs incurred by each of them in connection therewith
or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not
be restricted to insurance proceeds, if any, received by the City, its directors, officials,
officers, employees, agents or volunteers. City agrees to indemnify and hold Consultant
harmless against any and all claim, liability, loss, damage or injury where such claim,
liability, loss, damage or injury is the result of the sole negligence or willful misconduct of
the City or where Consultant is named a defendant in a lawsuit solely as a result of the
performance of Consultant's duties under this Agreement and there is no assertion of any
allegation, claim or theory that Consultant was negligent or that Consultant's acts or
omissions caused or contributed to the damage or injury.
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3.5.7 Limitation on Liability of City. CITY'S PAYMENT OBLIGATIONS
UNDER THIS AGREEMENT SHALL BE LIMITED TO THE PAYMENT OF THE
COMPENSATION PROVIDED FOR IN PARAGRAPH 3.3 OF THIS AGREEMENT.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT
SHALL THE CITY BE LIABLE, REGARDLESS OF WHETHER ANY CLAIM IS BASED ON
CONTRACT OR TORT, FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR
INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS,
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES
PERFORMED IN CONNECTION WITH THIS AGREEMENT.
3.5.8 Legal Process. Should Consultant be required as a result of a
subpoena or deposition notice to testify at deposition of trial in any legal action
concerning a project between the City and a third party and where there is no allegation
or claim that any act or omission by Consultant caused or contributed to damage or
liability, City shall compensate Consultant at the hourly rates then in effect for the
period of time while testifying and reasonable preparation time.
3.5.9 Entire Agreement. This Agreement contains the entire Agreement of
the parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings or agreements. This Agreement may only be modified in writing and
signed by both parties.
3.5.10 Governing Law. This Agreement shall be governed by the laws of the
State of California. Venue shall be in Los Angeles County.
3.5.11 Time of Essence. Time is of the essence for each and every provision
of this Agreement.
3.5.12 City's Right to Employ Other Consultants. The City reserves the right
to employ other consultants in connection with this Project.
3.5.13 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties.
3.5.14 Assignment or Transfer. Consultant shall not assign, hypothecate, or
transfer, either directly or by operation of law, this Agreement or any interest herein without
the prior written consent of the City. Any attempt to do so without the City's consent shall
be null and void, and any assignees, hypothecates or transferees shall acquire no right or
interest by reason of such attempted assignment, hypothecation or transfer.
3.5.15 Construction; References; Captions. Since the Parties or their agents
have participated fully in the preparation of this Agreement, the language of this Agreement
shall be construed simply, according to its fair meaning, and not strictly for or against any
Party. Any term referencing time, days or period for performance shall be deemed
calendar days and not work days. All references to Consultant include all personnel,
employees, agents, and subcontractors of Consultant, except as otherwise specified in this
Agreement. All references to the City include its elected officials, officers, employees,
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agents, and volunteers except as otherwise specified in this Agreement. The captions of
the various articles and paragraphs are for convenience and ease of reference only, and
do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.5.16 Amendment: Modification. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing and signed by
both Parties.
3.5.17 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver, benefit,
privilege, or service voluntarily given or performed by a Party shall give the other Party any
contractual rights by custom, estoppel, or otherwise.
3.5.18 No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
3.5.19 Invalidity: Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions shall continue in full force and effect.
3.5.20 Prohibited Interests. Consultant maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working
solely for Consultant, to solicitor secure this Agreement. Further, Consultant warrants that
it has not paid nor has it agreed to pay any company or person, other than a bona fide
employee working solely for Consultant, any fee, commission, percentage, brokerage fee,
gift or other consideration contingent upon or resulting from the award or making of this
Agreement. Consultant further agrees to file, or shall cause its employees or sub
consultants to file, a Statement of Economic Interest with the City's Filing Officer as
required understate law in the performance of the Services. For breach or violation of this
warranty, the City shall have the right to rescind this Agreement without liability. For the
term of this Agreement, no member, officer or employee of City, during the term of his or
her service with the City, shall have any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising therefrom.
3.5.21 Equal Opportunity Emplovment. Consultant represents that it is an
equal opportunity employer and it shall not discriminate against any subcontractor,
employee or applicant for employment because of race, religion, color, national origin,
handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited
to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or
recruitment advertising, layoff or termination. Consultant shall also comply with any
applicable City minority business enterprise program, affirmative action plan or other
related programs or guidelines currently in effect or hereinafter enacted.
3.5.22 Labor Certification. By its signature hereunder, Consultant certifies
that it is aware of the provisions of Section 3700 of the California Labor Code which require
every employer to be insured against liability for Worker's Compensation or to undertake
self-insurance in accordance with the provisions of that Code, and agrees to comply with
such provisions before commencing the performance of the Services.
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3.5.23 Authority to Enter Agreement. Consultant has all requisite power and
authority to conduct its business and to execute, deliver, and perform this Agreement.
Each Party warrants that the individuals who have signed this Agreement have the legal
power, right, and authority to make this Agreement and bind each respective Party.
3.5.24 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
3.5.25. Survival. The following provisions will survive any termination or
expiration of this Agreement: Paragraphs 3.2.10, 3.5.3 (including all subparagraphs),
3.5.4, 3.5.5, 3.5.6, 3.5.7, 3.5.8 and 3.5.9.
3.6 Subcontracting.
3.6.1 Prior Approval Required. Consultant shall not subcontract any portion
of the work required by this Agreement, except as expressly stated herein, without prior
written approval from the City. Subcontracts, if any, shall contain a provision making them
subject to all provisions stipulated in this Agreement. Consultant's obligation to defend and
indemnify also extends to regulatory enforcement or statutorily based claims or actions per
paragraphs 3.2.9 and 3.3.5 herein.
CITY OF ROSEMEAD
BY: N~Clt
Oliver Chi
City Manger
Z R KLING ONSULTANTS, INC.
BY: ZZO S
Henry F. Kling
Principal
Attest:
B. -PA Uri J2
Gloria Molleda
City Clerk
Approved as to Form:
;?,-'7
By: ,%s6Oont!s
Joseph . City Attorney
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Exhibit A
SCOPE OF WORK
0
Location: The City of Rosemead, Los Angeles County, California
Description of Services: Various on-call services including:
1. Peer review of geotechnical reports prepared by others for projects within the City;
I
2. Preparation of written reports (including a written summary) for each project
reviewed with appropriate recommendations/course of action;
3. Discussions and/or meetings with City personnel and the City Attorney.
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•
Exhibit B
CONSULTANTS FEE SCHEDULE
Consultants Services will be undertaken on a time-and-materials basis in accordance with
the terms outlined in Consultants attached 2007 Professional Fee Schedule and the
Agreement between Consultant and City. City will pay Consultant for the services provided
in accordance with Consultant's Professional Fee Schedule in effect at the time the
Services are rendered plus other direct costs at an actual cost plus an administration
charge of 20%.