CONTRACT 3932 Professional Services Agreement CLOSED3932.
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF EL SEGUNDO AND
KOCHER SCHIRRA GOHARIZI CONSULTING ENGINEERS, INC.
This AGREEMENT is entered into this 201h day of February, 2009 by and between the
CITY OF EL SEGUNDO, a municipal corporation and general law city ( "CITY ") and KOCHER
SCHIRRA GOHARIZI CONSULTING ENGINEERS, INC. (KSG), a California Corporation
( "CONSULTANT ").
1. CONSIDERATION.
A. As partial consideration, CONSULTANT agrees to perform the work listed in the
SCOPE OF SERVICES, below;
B. As additional consideration, CONSULTANT and CITY agree to abide by the
terms and conditions contained in this Agreement;
C. As additional consideration, CITY agrees to pay CONSULTANT a sum not to
exceed five thousand dollars ($5000) for CONSULTANT's services. CITY may
modify this amount as set forth below. Unless otherwise specified by written
amendment to this Agreement, CITY will pay this sum as specified in the
attached Exhibit "B," which is incorporated by reference.
2. SCOPE OF SERVICES.
A. CONSULTANT will perform services listed in the attached Exhibit "A," which is
incorporated by reference.
B. CONSULTANT will, in a professional manner, furnish all of the labor, technical,
administrative, professional and other personnel, all supplies and materials,
equipment, printing, vehicles, transportation, office space and facilities, and all
tests, testing and analyses, calculation, and all other means whatsoever, except as
herein otherwise expressly specified to be furnished by CITY, necessary or proper
to perform and complete the work and provide the professional services required
of CONSULTANT by this Agreement.
3. PERFORMANCE STANDARDS. While performing this Agreement, CONSULTANT
will use the appropriate generally accepted professional standards of practice existing at the time
of performance utilized by persons engaged in providing similar services. CITY will
continuously monitor CONSULTANT's services. CITY will notify CONSULTANT of any
deficiencies and CONSULTANT will have fifteen (15) days after such notification to cure any
shortcomings to CITY's satisfaction. Costs associated with curing the deficiencies will be borne
by CONSULTANT.
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4. PAYMENTS. For CITY to pay CONSULTANT as specified by this Agreement,
CONSULTANT must submit a detailed invoice to CITY which lists the hours worked and
hourly rates for each personnel category and reimbursable costs (all as set forth in Exhibit "B ")
the tasks performed, the percentage of the task completed during the billing period, the
cumulative percentage completed for each task, the total cost of that work during the preceding
billing month and a cumulative cash flow curve showing projected and actual expenditures
versus time to date.
5. NON - APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT for
current services are within the current budget and within an available, unexhausted and
unencumbered appropriation of the CITY. In the event the CITY has not appropriated sufficient
funds for payment of CONSULTANT services beyond the current fiscal year, this Agreement
will cover only those costs incurred up to the conclusion of the current fiscal year.
6. ADDITIONAL WORK.
A. CITY's city manager ( "Manager ") may determine, at the Manager's sole
discretion, that CONSULTANT must perform additional work ( "Additional
Work ") to complete the Scope of Work. If Additional Work is needed, the
Manager will give written authorization to CONSULTANT to perform such
Additional Work.
B. If CONSULTANT believes Additional Work is needed to complete the Scope of
Work, CONSULTANT will provide the Manager with written notification that
contains a specific description of the proposed Additional Work, reasons for such
Additional Work, and a detailed proposal regarding cost.
C. Payments over $ for Additional Work must be approved by CITY's city
council. All Additional Work will be subject to all other terms and provisions of
this Agreement.
7. FAMILIARITY WITH WORK.
A. By executing this Agreement, CONSULTANT agrees that it has:
i. Carefully investigated and considered the scope of services to be
performed;
ii. Carefully considered how the services should be performed; and
-iii. Understands the facilities, difficulties, and restrictions attending
performance of the services under this Agreement.
B. If services involve work upon any site, CONSULTANT agrees that
CONSULTANT has or will investigate the site and is or will be fully acquainted
with the conditions there existing, before commencing the services hereunder.
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Should CONSULTANT discover any latent or unknown conditions that may
materially affect the performance of the services, CONSULTANT will
immediately inform CITY of such fact and will not proceed except at
CONSULTANT's own risk until written instructions are received from CITY.
8. TERM. The term of this Agreement will be from February 20, 2009 to September 30, 2009.
Unless otherwise determined by written amendment between the parties, this Agreement will
terminate in the following instances:
A. Completion of the work specified in Exhibit "A ";
B. Termination as stated in Section 16.
9. TIME FOR PERFORMANCE.
A. CONSULTANT will not perform any work under this Agreement until:
i. CONSULTANT furnishes proof of insurance as required under Section 23
of this Agreement; and
ii. CITY gives CONSULTANT a written notice to proceed.
B. Should CONSULTANT begin work on any phase in advance of receiving written
authorization to proceed, any such professional services are at CONSULTANT's
own risk.
10. TIME EXTENSIONS. Should CONSULTANT be delayed by causes beyond
CONSULTANT's control, CITY may grant a time extension for the completion of the contracted
services. If delay occurs, CONSULTANT must notify the Manager within forty -eight hours (48
hours), in writing, of the cause and the extent of the delay and how such delay interferes with the
Agreement's schedule. The Manager will extend the completion time, when appropriate, for the
completion of the contracted services.
11. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the main
body of this Agreement takes precedence over the attached Exhibits; this Agreement supersedes
any conflicting provisions. Any inconsistency between the Exhibits will be resolved in the order
in which the Exhibits appear below (check all that apply):
A. ® Exhibit A: Scope of Work;
B. ® Exhibit B: Budget; and
C. ® Exhibit C: Proposal for Services.
12. CHANGES. CITY may order changes in the services within the general scope of this
Agreement, consisting of additions, deletions, or other revisions, and the contract sum and the
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contract time will be adjusted accordingly. All such changes must be authorized in writing,
executed by CONSULTANT and CITY. The cost or credit to CITY resulting from changes in
the services will be determined in accordance with written agreement between the parties.
13. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a
Taxpayer Identification Number.
14. PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and
maintain during the term of this Agreement, all necessary permits, licenses, and certificates that
may be required in connection with the performance of services under this Agreement.
15. WAIVER. CITY's review or acceptance of, or payment for, work product prepared by
CONSULTANT under this Agreement will not be construed to operate as a waiver of any rights
CITY may have under this Agreement or of any cause of action arising from CONSULTANT's
performance. A waiver by CITY of any breach of any term, covenant, or condition contained in
this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant, or condition contained in this Agreement, whether of the same or different
character.
16. TERMINATION.
A. Except as otherwise provided, CITY may terminate this Agreement at any time
with or without cause.
B. CONSULTANT may terminate this Agreement at any time with CITY's mutual
consent. Notice will be in writing at least thirty (30) days before the effective
termination date.
C. Upon receiving a termination notice, CONSULTANT will immediately cease
performance under this Agreement unless otherwise provided in the termination
notice. Except as otherwise provided in the termination notice, any additional
work performed by CONSULTANT after receiving a termination notice will be
performed at CONSULTANT" own cost; CITY will not be obligated to
compensate CONSULTANT for such work.
D. Should termination occur, all finished or unfinished documents, data, studies,
surveys, drawings, maps, reports and other materials prepared by CONSULTANT
will, at CITY's option, become CITY's property, and CONSULTANT will
receive just and equitable compensation for any work satisfactorily completed up
to the effective date of notice of termination, not to exceed the total costs under
Section 1(C).
E. Should the Agreement be terminated pursuant to this Section, CITY may procure
on its own terms services similar to those terminated.
F. By executing this document, CONSULTANT waives any and all claims for
damages that might otherwise arise from CITY's termination under this Section.
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17. OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models,
photographs and reports prepared by CONSULTANT under this Agreement are CITY's
property. CONSULTANT may retain copies of said documents and materials as desired, but
will deliver all original materials to CITY upon CITY's written notice. CITY agrees that use of
CONSULTANT's completed work product, for purposes other than identified in this Agreement,
or use of incomplete work product, is at CITY's own risk.
18. PUBLICATION OF DOCUMENTS. Except as necessary for performance of service
under this Agreement, no copies, sketches, or graphs of materials, including graphic art work,
prepared pursuant to this Agreement, will be released by CONSULTANT to any other person or
public CITY without CITY's prior written approval. All press releases, including graphic
display information to be published in newspapers or magazines, will be approved and
distributed solely by CITY, unless otherwise provided by written agreement between the parties.
19. INDEMNIFICATION.
A. CONSULTANT agrees to the following:
i. Indemnification for Professional Services. CONSULTANT will save
harmless and indemnify and at CITY's request reimburse defense
costs for CITY and all its officers, volunteers, employees and
representatives from and against any and all suits, actions, or claims,
of any character whatever, brought for, or on account of, any injuries
or damages sustained by any person or property resulting or arising
from any negligent or wrongful act, error or omission by
CONSULTANT or any of CONSULTANT's officers, agents,
employees, or representatives, in the performance of this Agreement.
ii. Indemnification for other Damages. CONSULTANT indemnifies and
holds CITY harmless from and against any claim, action, damages,
costs (including, without limitation, attorney's fees), injuries, or
liability, arising out of this Agreement, or its performance. Should
CITY be named in any suit, or should any claim be brought against it
by suit or otherwise, whether the same be groundless or not, arising
out of this Agreement, or its performance, CONSULTANT will
defend CITY (at CITY's request and with counsel satisfactory to
CITY) and will indemnify CITY for any judgment rendered against it
or any sums paid out in settlement or otherwise.
B. For purposes of this section "CITY" includes CITY's officers, officials,
employees, agents, representatives, and certified volunteers.
C. It is expressly understood and agreed that the foregoing provisions will survive
termination of this Agreement.
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D. The requirements as to the types and limits of insurance coverage to be
maintained by CONSULTANT as required by Section 23, and any approval of
said insurance by CITY, are not intended to and will not in any manner limit or
qualify the liabilities and obligations otherwise assumed by CONSULTANT
pursuant to this Agreement, including, without limitation, to the provisions
concerning indemnification.
20. ASSIGNABILITY. This Agreement is for CONSULTANT's professional services.
CONSULTANT's attempts to assign the benefits or burdens of this Agreement without CITY's
written approval are prohibited and will be null and void.
21. INDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that
CONSULTANT will act as an independent contractor and will have control of all work and the
manner in which is it performed. CONSULTANT will be free to contract for similar service to
be performed for other employers while under contract with CITY. CONSULTANT is not an
agent or employee of CITY and is not entitled to participate in any pension plan, insurance,
bonus or similar benefits CITY provides for its employees. Any provision in this Agreement that
may appear to give CITY the right to direct CONSULTANT as to the details of doing the work
or to exercise a measure of control over the work means that CONSULTANT will follow the
direction of the CITY as to end results of the work only.
22. AUDIT OF RECORDS. CONSULTANT will maintain full and accurate records with
respect to all services and matters covered under this Agreement. CITY will have free access at
all reasonable times to such records, and the right to examine and audit the same and to make
transcript therefrom, and to inspect all program data, documents, proceedings and activities.
CONSULTANT will retain such financial and program service records for at least three (3) years
after termination or final payment under this Agreement.
23. INSURANCE.
A. Before commencing performance under this Agreement, and at all other times this
Agreement is effective, CONSULTANT will procure and maintain the following
types of insurance with coverage limits complying, at a minimum, with the limits
set forth below (check all that apply):
Type of Insurance
® Commercial general liability:
® Professional Liability
® Business automobile liability
® Workers compensation
Limits
$1,000,000
$1,000,000
$1,000,000
Statutory requirement
B. Commercial general liability insurance will meet or exceed the requirements of
no
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ISO -CGL Form No. CG 00 01 1185 or 88. The amount of insurance set forth
above will be a combined single limit per occurrence for bodily injury, personal
injury, and property damage for the policy coverage. Liability policies will be
endorsed to name CITY, its officials, and employees as "additional insureds"
under said insurance coverage and to state that such insurance will be deemed
"primary" such that any other insurance that may be carried by CITY will be
excess thereto. Such endorsement must be reflected on ISO Form No. CG 20 10
11 85 or 88, or equivalent. Such insurance will be on an "occurrence," not a
"claims made," basis and will not be cancelable or subject to reduction except
upon thirty (30) days prior written notice to CITY.
C. Professional liability coverage will be on an "occurrence basis" if such coverage
is available, or on a "claims made" basis if not available. When coverage is
provided on a "claims made basis," CONSULTANT will continue to renew the
insurance for a period of three (3) years after this Agreement expires or is
terminated. Such insurance will have the same coverage and limits as the policy
that was in effect during the term of this Agreement, and will cover
CONSULTANT for all claims made by CITY arising out of any errors or
omissions of CONSULTANT, or its officers, employees or agents during the time
this Agreement was in effect.
D. Automobile coverage will be written on ISO Business Auto Coverage Form CA
00 01 06 92, including symbol 1 (Any Auto).
E. CONSULTANT will furnish to CITY duly authenticated Certificates of Insurance
evidencing maintenance of the insurance required under this Agreement and such
other evidence of insurance or copies of policies as may be reasonably required
by CITY from time to time. Insurance must be placed with insurers with a current
A.M. Best Company Rating equivalent to at least a Rating of "A:VII."
F. Should CONSULTANT, for any reason, fail to obtain and maintain the insurance
required by this Agreement, CITY may obtain such coverage at
CONSULTANT's expense and deduct the cost of such insurance from payments
due to CONSULTANT under this Agreement or terminate pursuant to Section 16.
24. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written
approval to use any consultants while performing any portion of this Agreement. Such approval
must approve of the proposed consultant and the terms of compensation.
25. INCIDENTAL TASKS. CONSULTANT will meet with CITY monthly to provide the
status on the project, which will include a schedule update and a short narrative description of
progress during the past month for each major task, a description of the work remaining and a
description of the work to be done before the next schedule update.
26. NOTICES. All communications to either party by the other party will be deemed made
when received by such party at its respective name and address as follows:
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If to CONSULTANT:
KSG Consulting Engineers, Inc.
111 N. Jackson Suite 121
Glendale, CA 91206 -4371
Attention: Larry Wyatt, Project Manager
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If to CITY:
Dana Greenwood, Public Works Director
City of El Segundo
350 Main Street
El Segundo, CA 90245
Attention: Dan Garcia, Assistant City Eng.
Any such written communications by mail will be conclusively deemed to have been received by
the addressee upon deposit thereof in the United States Mail, postage prepaid and properly
addressed as noted above. In all other instances, notices will be deemed given at the time of
actual delivery. Changes may be made in the names or addresses of persons to whom notices are
to be given by giving notice in the manner prescribed in this paragraph.
27. CONFLICT OF INTEREST. CONSULTANT will comply with all conflict of interest
laws and regulations including, without limitation, CITY's conflict of interest regulations.
28. SOLICITATION. CONSULTANT maintains and warrants that it has not employed nor
retained any company or person, other than CONSULTANT's bona fide employee, to solicit or
secure this Agreement. Further, CONSULTANT warrants that it has not paid nor has it agreed
to pay any company or person, other than CONSULTANT's bona fide employee, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting
from the award or making of this Agreement. Should CONSULTANT breach or violate this
warranty, CITY may rescind this Agreement without liability.
29. THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is
generally for the exclusive benefit of CONSULTANT and CITY and not for the benefit of any
other party. There will be no incidental or other beneficiaries of any of CONSULTANT's or
CITY's obligations under this Agreement.
30. INTERPRETATION. This Agreement was drafted in, and will be construed in accordance
with the laws of the State of California, and exclusive venue for any action involving this
agreement will be in Los Angeles County.
31. COMPLIANCE WITH LAW. CONSULTANT agrees to comply with all federal, state,
and local laws applicable to this Agreement.
32. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the entire
understanding of the parties. There are no other understandings, terms or other agreements
expressed or implied, oral or written. There are Two (2) Attachments to this Agreement. This
Agreement will bind and inure to the benefit of the parties to this Agreement and any subsequent
successors and assigns.
33. RULES OF CONSTRUCTION. Each Party had the opportunity to independently review this
Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a whole,
and in accordance with its fair meaning; it will not be interpreted strictly for or against either Party.
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34. SEVERABILITY. If any portion of this Agreement is declared by a court of competent
jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the
extent necessary in the opinion of the court to render such portion enforceable and, as so
modified, such portion and the balance of this Agreement will continue in full force and effect.
35. AUTHORITY/MODIFICATION. The Parties represent and warrant that all necessary
action has been taken by the Parties to authorize the undersigned to execute this Agreement and to
engage in the actions described herein. This Agreement may be modified by written amendment.
CITY's executive manager, or designee, may execute any such amendment on behalf of CITY.
36. ACCEPTANCE OF FACSIMILE SIGNATURES. The Parties agree that this Agreement,
agreements ancillary to this Agreement, and related documents to be entered into in connection
with this Agreement will be considered signed when the signature of a party is delivered by
facsimile transmission. Such facsimile signature will be treated in all respects as having the
same effect as an original signature.
37. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of
reference only and will not affect the interpretation of this Agreement.
38. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this
Agreement.
39. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood,
explosion, acts of terrorism, war, embargo, government action, civil or military authority, the
natural elements, or other similar causes beyond the Parties' reasonable control, then the
Agreement will immediately terminate without obligation of either party to the other.
40. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT
represents that it has demonstrated trustworthiness and possesses the quality, fitness and capacity
to perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that its
financial resources, surety and insurance experience, service experience, completion ability,
personnel, current workload, experience in dealing with private consultants, and experience in
dealing with public agencies all suggest that CONSULTANT is capable of performing the
proposed contract and has a demonstrated capacity to deal fairly and effectively with and to
satisfy a public CITY.
[Signatures on next page]
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IN WITNESS WHEREOF the parties hereto have executed this contract the day and year
first hereinabove written.
Lemm
ATTEST:
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APPRC
MARK
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Taxpayer ID No
'613 - 3,&5!nO`70
EXHIBIT A, B & C
City of El Segundo
350 Main Street
El Segundo, CA 90245 -3813
Phone: (310) 524 -2358
Fax: (310) 640 -0489
Attention: Daniel Garcia
Assistant City Engineer
Subject: Proposal for Electrical Service Upgrade
URHO SAARI Swim Stadium
KSG Neg. No.08399
Dear Mr Garcia:
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February 16, 2009
Thank you for your request for proposal for the subject project. The following is the proposed work
scope:
I. Project
Work will involve replacing the original electrical service to the pool facilities. Currently
there are two old style metered switchboards one is a 200 amp, 240 volt, three phase and
the other is a 200 amp 120/240 volt single phase. Work will involve removing the existing
switchboards, installing a new utility style switchboards, coordinating the new service with
Southern California Edison, and reconnecting to existing panels and equipment. The design
will also include single line diagrams, partial floor plans showing location of existing and
new switchboard.
11. Scope of Work
A. Contract Document Phase
1. Attend one (1) meeting with the Owner and Southern California Edison
representative to coordinate the design.
2. Provide existing and new single line diagrams and partial floor plans.
3. Incorporate design adjustments resulting from meetings.
4. Incorporate value engineering and budget savings items into the design as
approved by the Owner.
5. Verify the proposed new equipment will fit in the existing location.
6. Update electrical loads calculations.
8. Update single line diagram.
9. Provide specifications in drawing format.
Kocher Schirra Goharizi Consulting Engineers, Inc.
111 North Jackson Suite 121 Glendale CA 91206 -4371 Phone: 818.240.5630 Fax: 818.240.5144
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URHO SAARI Swim Stadium Page 2 '
Electrical Service Upgrade
B. Construction Administration Phase
1. Visit the site twice during construction.
2. Comment on the quality of the electrical work.
3. Review and comment on the electrical contractor submittals for compliance
with the design concept.
4. Advise Owner as to the acceptability of substitute materials and equipment
proposed by the electrical contractor.
5. Assist in the preparation of quotation and change order requests relating to
electrical system design.
6. Assist Owner in interpretation of contract drawings and respond to electrical
contractor requests for information.
7. Comment and report the Electrical Engineer's opinion of Contractor's
adherence to plans and specifications.
8. Participate in a final project walk through and prepare an electrical punch list.
9. Review and comment on Contractor produced record drawings.
III. Fee
The fixed fee to perform the work as outlined in this proposal is FIVE THOUSAND
DOLLARS ($5,000.00). Fee does not include reimbursable expenses which are estimated
at an additional $400.00.
This proposal is valid for acceptance within 30 days. Invoices will be issued monthly for
work completed to date. Hourly rates and list of reimbursable items are attached. Terms and
conditions will be those on the attached KSGTC -002 dated July 2002. Notice of objection
to any different or additional terms and conditions is hereby given.
IV. Clarifications
This fee proposal is based on the following clarifications and conditions:
A. The pool backgrounds provide by Rowley International will be used for the service
upgrade.
B. Drawings will be prepared utilizing AutoCAD Release 2008.
C. Design will be based on replacing the existing two metered service with two new
metered switchboard and reconnecting to existing service entrance conductors.
Southern California Edison may not approve this approach and will require a single
meter service per address, based on their current regulations. In which case additional
engineering fees will be required.
D. The new service will be based on current maximum demands, and new loads based
on the new pool design.
E. Significant design modifications beyond CD phase will be considered additional
services.
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URHO SAARI Swim Stadium Page 3 '
Electrical Service Upgrade
F. Plan check fees are not included in the quoted price or the reimbursable expenses.
G. Bid documents and applications will be prepared by others.
Two copies of this proposal have been enclosed for your convenience. If this proposal is acceptable,
please sign one copy and return to our office.
We thank you for this opportunity to be of service to you and look forward to working with you on
this project. Please call me at (818) 240 -5630 if you have any questions or if I may be of other
service.
Very Truly Yours,
KOCHER SCHIRRA GOHARIZI CONSULTING ENGINEERS
G�(/ , i
Larry Wyatt - Project Manager
Attachments: - Hourly rates
- KSGTC -002
Accepted:
Signature
Name
Title
Date
CAProjects \Proposa1\2009 \City of El Segundo pool.wpd
k�G
SUMMARY OF RATES AND FEES
Electrical Engineering Services
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Effective July 1, 2008 KSG's fees for electrical engineering services are based upon the
following rates:
Principal ........................ $ 146.00 per hour
Project Manager .................. $ 124.00 per hour
Staff Engineer .................... $ 107.00 per hour
Designer ......................... $ 98.00 per hour
CAD Operator /Draftsman ............ $ 70.00 per hour
Typist/Clerical ..................... $ 49.00 per hour
Authorized reimbursable items such as special equipment rental, travel and living
expenses, couriers, shipping, reproduction or other purchased items will be charged at cost
plus a 20% handling charge. Other reimbursable are as follows:
Formal issues of CAD Plots ........... $ 7.00 per sheet
Copies ............................ $ 0.10 per sheet
Mileage ........................... $ 0.70 per mile
FEES ARE VALID FOR 30 DAYS FROM DATE OF PROPOSAL. OTHERWISE, FEES ARE SUBJECT TO CHANGE WITHOUT NOTICE. January 2008
Kocher Schirra Goharizi Consulting Engineers, Inc.
111 North Jackson Suite 121 Glendale CA 91206 -4371 Phone: (818) 240 -5630 Fax: (818) 240 -5144
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TERMS AND CONDITIONS KSGTC -002
ELECTRICAL ENGINEERING DESIGN SERVICES July 2002
TERMS AND CONDITIONS
Kocher Schirra Goharizi Consulting Engineers, Inc., a California
corporation, hereinafter referred to as KSG, hereby gives notice to any
different or additional terms and conditions except for any such terms and
conditions as may be expressly accepted by KSG in writing. Unless
different or additional terms and conditions are stated or referenced in the
proposal, the terms and conditions stated herein shall apply, and such
terms and conditions supersede any prior or contemporaneous
agreements or correspondence between the parties.
QUOTATIONS AND PRICING POLICY
All proposals will expire 30 days from the date of the proposal unless
otherwise stated in the proposal or unless extended in writing by KSG.
Prices quoted for hourly rates or for reimbursable items are firm for 90
days after receipt of an order unless stated otherwise. After 90 days,
prices may be adjusted to those in effect providing 30 days advanced
notification is given to Client.
TAXES, PERMITS AND OTHER FEES
The prices quoted do not include any taxes, permits or other fees which
may be imposed by any federal, state or local property, license, privilege,
sales, use, excise, gross receipts, value added, or other like taxes, nor
does it include plan check or permit fees which may be required prior to
or during construction. Such taxes or fees are for the Client and Client
agrees to reimburse any such taxes or fees incurred by KSG on the
Client's behalf.
STANDARD OF CARE
In providing services under this Agreement, KSG will endeavor to perform
in a manner consistent with that degree of care and skill ordinarily
exercised by members of the same profession currently practicing in the
same locality under similar circumstances. Upon notice to KSG and by
mutual agreement between the parties, KSG will, without additional
compensation, correct those services not meeting such a standard. No
other representation, expressed or implied, and no warranty or guarantee
is included or intended in this agreement, or in any report, opinion,
document or otherwise.
COMPLIANCE WITH CODES AND STANDARDS
KSG shall put forth reasonable professional efforts to comply with
applicable laws, codes and regulations in effect as of the date of (the
execution of this Agreement, submission to building authorities, or other
appropriate date). Design changes made necessary by newly enacted
laws, codes and regulations after this date shall entitle KSG to a
reasonable adjustment in the schedule and additional compensation.
Both the Client and KSG agree to bargain promptly and in good faith, to
permit KSG to continue to meet the Client's needs. If a renegotiated
contract cannot be agreed to, the Client agrees KSG has an absolute
right to terminate this agreement.
In any event, the Client waives any claim against KSG and agrees to
defend, indemnify and hold KSG harmless from any claim or liability for
injury or loss allegedly arising from KSG's failure to abide by federal,
state and local laws, regulations, codes and standards that were not in
effect or publicly announced at the time when KSG otherwise would have
incorporated their intent into the work. The Client further agrees to
compensate KSG for any time spent or expenses incurred by KSG in
defense of any such claim, in accordance with KSG's prevailing fee
schedule and expense reimbursement policy.
CHANGED CONDITIONS
If, during the term of this Agreement, circumstances or conditions that
were not originally contemplated by or known to KSG are revealed, to the
extent that they affect the scope of services, compensation, schedule,
allocation of risks or other material terms of this Agreement, KSG may
call for renegotiation of appropriate portions of this Agreement. KSG shall
notify the Client of the changed conditions necessitating renegotiation,
and KSG and the Client shall promptly and in good faith enter into
renegotiation of this Agreement to address the changed conditions. If
terms cannot be agreed to, the parties agree that either party has the
absolute right to terminate this Agreement, in accordance with the
Termination provision hereof.
CERTIFICATIONS, GUARANTEES AND WARRANTIES
KSG shall not be required to sign any documents, no matter by whom
requested, that would result in KSG's having to certify, guarantee or
warrant the existence of conditions whose existence KSG cannot
ascertain. The Client also agrees not to make resolution of any dispute
with KSG or payment of any amount due to KSG in any way contingent
upon KSG's signing any such certification.
CORPORATE PROTECTION
It is intended by the parties to this Agreement that KSG's services in
connection with the Project shall notsubject KSG's individual employees,
officers or directors to any personal legal exposure for the risks
associated with this Project. Therefore, and notwithstanding anything to
the contrary contained herein, the Client agrees that as the Client's sole
and exclusive remedy, any claim, demand or suit shall be directed and /or
asserted only against KSG, a California corporation, and not against any
of KSG's individual employees, officers or directors.
BILLING AND PAYMENT
The Client recognizes that time is of the essence with respect to payment
of the KSG's invoices, and that timely payment is a material part of the
consideration of this agreement.
The Client shall pay KSG for services performed in U.S. funds drawn
upon U.S. banks and in accordance with the rates and charges set forth
herein. Invoices will be submitted by KSG from time to time, but no more
frequently than every two weeks, and shall be due and payable within
thirty (30) calendar days of invoice date. If the Client objects to all or any
portion of an invoice, the Client shall so notify KSG within fourteen (14)
calendar days of the invoice date, identify the cause of disagreement,
and pay when due that portion of the invoice, if any, not in dispute.
Payment of any invoice by the Client to KSG shall be taken to mean that
the Client is satisfied with KSG's services to the date of payment and is
not aware of any deficiencies in those services.
The Client shall pay an additional charge of one - and - one -half (1.5)
percent (or the maximum percentage allowed by law, whichever is lower)
of the invoiced amount per month for any payment received by KSG
more than thirty (30) calendar days from the date of the invoice,
excepting any portion of the invoiced amount in dispute and resolved in
favor of Client. Payment thereafter shall first be applied to accrued
interest and then to the principal unpaid amount. Payment of invoices is
in no case subject to unilateral discounting or set -offs by the Client.
Application of the percentage rate indicated above as a consequence of
the Client's late payments does not constitute any willingness of KSG's
part to finance the Client's operation, and no such willingness should be
inferred. If the Client fails to pay undisputed invoiced amounts within
thirty (30) calendar days of the date of the invoice, KSG may at any time,
without waiving any other claim against the Client and without thereby
incurring any liability to the Client, suspend this agreement (as provided
for in section SUSPENSION) or terminate this agreement (as provided
for in section TERMINATION).
INFORMATION PROVIDED BY OTHERS
The Client shall furnish, at the Client's expense, all information,
requirements, reports, data, surveys and instructions required by this
Agreement. KSG may use such information, requirements, reports, data,
surveys and instructions in performing its services and is entitled to rely
upon the accuracy and completeness thereof. KSG shall indicate to the
Client the information needed for rendering of services hereunder, The
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Client recognizes that it is impossible for KSG to assure the sufficiency
of such information, either because it is impossible to do so or because
of errors or omissions which may have occurred in assembling the
information. Accordingly, the Client waives any claim against KSG, and
agrees to defend, indemnify and hold KSG harmless from any claim or
liability for injury or loss allegedly arising from errors, omissions, or
inaccuracies in documents or other information provided to KSG by the
Client. Further, the Client agrees to compensate KSG for any time spent
or expenses incurred by KSG in defense of any such claim, with such
compensation to be based upon KSG's prevailing fee schedule and
expense reimbursement policy.
JOBSITE SAFETY
Neither the professional activities of KSG, nor the presence of KSG or its
employees and subconsultants at a construction /project site, shall relieve
the General Contractor of its obligations, duties and responsibilities
including, but not limited to, construction means, methods, sequence,
techniques or procedures necessary for performing, superintending and
coordinating the Work in accordance with the contract documents and
any health or safety precautions required by any regulatory agencies.
KSG and its personnel have no authority to exercise any control over any
construction contractor or its employees in connection with their work or
any health or safety programs or procedures. The Client agrees that the
General Contractor shall be solely responsible for jobsite safety, and
warrants that this intent shall be carried out in the Client's contract with
the General Contractor. The Client also agrees that the Client, KSG and
KSG's subconsultants shall be indemnified by the General Contractor
and shall be made additional insureds under the General Contractor's
policies of general liability insurance.
HAZARDOUS MATERIALS
Both parties acknowledge that KSG's scope of services does not include
any services related to the presence of any hazardous or toxic materials.
In the event KSG or any other party encounters any hazardous or toxic
materials, or should it become known to KSG that such materials may be
present on or about the jobsite or any adjacent areas that may affect the
performance of KSG's services, KSG may, at its option and without
liability for consequential or any other damages, suspend performance
of its services under this Agreement until the Client retains appropriate
consultants or contractors to identify and abate or remove the hazardous
or toxic materials and warrants that the jobsite is in full compliance with
all applicable laws and regulations.
DEFINITION OF "HAZARDOUS MATERIALS"
As used in this Agreement, the term hazardous materials shall mean any
substances, including but not limited to asbestos, toxic or hazardous
waste, PCBs, combustible gases and materials, petroleum or radioactive
materials (as each of these is defined in applicable federal statutes) or
any other substances under any conditions and in such quantities as
would pose a substantial danger to persons or property exposed to such
substances at or near the Project site.
OPINION OF PROBABLE CONSTRUCTION COSTS
In providing any opinions of probable construction cost, the Client
understands that KSG has no control over the cost or availability of labor,
equipment or materials, or over market conditions or the Contractor's
method of pricing, and that KSG's opinions of probable construction costs
are made on the basis of KSG's professional judgment and experience.
KSG is not a construction cost estimator or construction contractor, nor
should KSG's rendering an opinion of probable construction costs be
considered equivalent to the nature and extent of service a construction
cost estimator or construction contractor would provide. KSG makes no
warranty, express or implied, that the bids or the negotiated cost of the
Work will not vary from KSG's opinion of probable construction cost.
Given the assumptions which must be made, KSG cannot guarantee the
accuracy of its opinions of cost, and -- in recognition of that fact -- the
Client waives any claim against KSG relative to the accuracy of KSG's
opinion of probable construction cost.
OWNERSHIP OF INSTRUMENTS OF SERVICE
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All reports, drawings, specifications, computer files, field data, notes and
other documents and instruments prepared by KSG as instruments of
service shall remain the property of KSG. KSG shall retain all common
law, statutory and other reserved rights, including the copyright thereto.
SHOP DRAWING REVIEW
The Client and KSG agree that effective review of shop drawings is an
important concern, and the Client encourages KSG to develop a
procedure that is properly funded to promote effective implementation.
The Client agrees that KSG shall review shop drawing submissions solely
for their conformance with KSG's design intent and conformance with
information given in the construction documents. KSG shall not be
responsible for any aspects of a shop drawing submission that affect or
are affected by the means, methods, techniques, sequences and
operations of construction, safety precautions and programs incidental
thereto, all of which are the contractor's responsibility. The Client
warrants that the contractor shall be made aware of his or her
responsibilities to review shop drawings in these respects before
submitting them to the KSG and that the contractor will further be advised
of the need to adhere to the shop drawing submission schedule furnished
to him or her by KSG, the need to call any variations to KSG's attention,
and such other requirements and responsibilities identified in the
construction documents.
CONSTRUCTION REVIEW
The Client recognizes that construction review is a vital element of KSG's
complete service, provided to minimize problems during construction by
permitting detection of and /or rapid response to unanticipated or changed
conditions, or errors or omissions committed by design professionals,
contractors, materials providers or others. The Client also recognizes
that no party is as intimately familiar with KSG's intents as KSG and
those KSG prepares for and assigns to reviewing tasks. Accordingly, the
Client agrees to retain KSG to review construction, and KSG agrees to
assign to the reviewing function persons qualified to observe and report
on construction of KSG's recommendations, plans and specifications,
and the quality of work performed by contractors, et al. The Client
recognizes that construction review is a technique employed to minimize
the risk of problems arising during construction; that construction review
by KSG is not insurance, and does not constitute a warranty or guarantee
of any type. In all cases, contractors et al. (that is, the general
contractor, subcontractor, sub - subcontractors, material - persons and
others) shall retain responsibility for the quality of their work and for
adhering to plans and specifications.
Should the Client for any reason not retain KSG to review construction,
or should the Client unduly restrict KSG's assignment of personnel to
review construction, or should KSG at the direction of the Client for any
reason not perform construction review during the full period of
construction, KSG shall not have the ability to perform a complete
service. In such a case, the Client waives any claim against KSG, and
agrees to indemnify, defend and hold KSG harmless from any claim or
liability for injury or loss arising from problems during construction that
allegedly result from findings, conclusions, recommendations, plans or
specifications developed by KSG. The Client also agrees to compensate
KSG for any time spent and expenses incurred by KSG in defense of any
such claim, with such compensation to be based upon KSG's prevailing
fee schedule and expense reimbursement policy.
SUSPENSION
Upon fourteen (14) calendar days written notice to KSG, the Client may
suspend KSG's work. If payment of KSG's invoices is not maintained on
a thirty (30) calendar day current basis by the Client, KSG may by
fourteen (14) calendar days written notice to the Client suspend further
work until payment is restored to a current basis. Suspension for any
reason exceeding forty -five (45) calendar days shall, at KSG's option,
make this agreement subject to renegotiation or termination, as provided
for elsewhere in this agreement. Any suspension shall extend the time
schedule for performance in a manner that is satisfactory to both the
Client and KSG, and KSG shall be compensated for services performed
and charges incurred prior to the suspension date, plus suspension
charges. Suspension charges may include, but shall not be limited to,
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services and costs associated with putting analyses and documents in
order, rescheduling and reassigning personnel and /or equipment and
issuing necessary or customary notices to appropriate government
agencies. Compensation to KSG shall be based upon KSG's prevailing
fee schedule and expense reimbursement policy.
TERMINATION
The Client or KSG may terminate this agreement for reasons identified
elsewhere in this agreement, or for other reasons which may arise. In
the event such termination becomes necessary, the party effecting
termination shall so notify the other party, and termination will become
effective fourteen (14) calendar days after receipt of the termination
notice or at such time as mutually agreed. Irrespective of which party
shall effect termination or the cause therefor, the Client shall within thirty
(30) calendar days of termination remunerate KSG's prevailing fee
schedule and expense reimbursement policy. Services shall include
those rendered up to the time of termination, as well as those associated
with termination itself, such as demobilizing, modifying schedules,
reassigning personnel, and so on. Costs shall include those incurred up
to the time of termination, as well as those associated with termination
and post- termination activities.
INSURANCE
KSG declares that it maintains workers' compensation and employer's
liability insurance of a form and in an amount as required by state law;
comprehensive general liability and automotive liability insurance with
limits of one million dollars ($1,000,000), and professional liability
insurance with a limit of one million dollars ($1,000,000). KSG will notify
the Client of any change in coverage no later than ten (10) calendar days
after it becomes aware of such change.
INDEMNIFICATION
KSG agrees, to the fullest extent permitted by law, to indemnify and hold
harmless the Client, its officers, directors and employees (collectively,
Client) against all damages, liabilities or cost, including reasonable
attorneys' fees and defense costs, to the extent caused by KSG's sole
negligent performance of professional services under this Agreement. It
is specifically understood and agreed that in no case shall KSG be
required to pay an amount disproportional to his or her culpability, or any
share of any amount levied to recognize more than actual economic
damages.
The Client agrees, to the fullest extent permitted by law, to indemnify and
hold harmless KSG, its officers, directors, employees and subconsultants
(collectively, Consultant) against all damages, liabilities or costs,
including reasonable attorneys' fees and defense costs, to the extent
caused by the Client's negligent acts in connection with the Project and
the acts of its contractors, subcontractors or consultants or anyone for
whom the Client is legally liable.
Neither the Client nor KSG shall be obligated to indemnify the other party
in any manner whatsoever for the other party's own negligence.
HOLDING KSG HARMLESS
The Client understands that "holding KSG harmless" would, among other
things, require the Client to compensate KSG for any time spent or
expenses incurred by KSG in defense of any claim for which the Client
has agreed to indemnify KSG, and that such compensation will be based
upon KSG's prevailing fee schedule and expense reimbursement policy,
in addition to attorneys' fees and related costs as set forth herein.
CONSEQUENTIAL DAMAGES
The Client shall not be liable to KSG and KSG shall not be liable to the
Client for any consequential damages incurred by either due to the fault
of the other, regardless of the nature of this fault, or whether it was
committed by the Client or KSG, their employees, agents or
subcontractors. Consequential damages include, but are not limited to,
loss of use and loss of profit.
LIMITATION OF LIABILITY
In recognition of the relative risks and benefits to both the .
Client and KSG, the risks have been allocated such that the Client
agrees, to the fullest extent permitted by law, to limit the liability of KSG
to the Client for any and all claims, losses, costs, damages of any nature
whatsoever or claims expenses from any cause or causes, including
attorneys' fees and costs and expert- witness fees and costs, so that the
total aggregate liability of KSG to the Client shall not exceed $50,000.00,
or KSG's total fee for services rendered on this Project, whichever is
greater. It is intended that this limitation apply to any and all liability or
cause of action however alleged or arising, unless otherwise prohibited
by law.
JOINT AND SEVERAL LIABILITY
As applied to this project, application of the joint and several liability
concept could force KSG to pay damages wholly out of proportion to the
degree of his or her culpability and the benefit that would otherwise be
derived from rendering services to the Client, due to events which are
substantially beyond KSG's control, and caused principally by others
retained directly or indirectly by the Client, or due to events which
otherwise result from the Clients decisions, actions or inactions.
Accordingly as a necessary part of the consideration needed by KSG to
provide services to the Client, the Client agrees to reimburse to KSG that
portion of any sum levied against KSG which exceeds KSG's degree of
culpability for the situation giving rise to the claim, when the claim in
question arises from the work described herein, or otherwise arises from
KSG's connection with the project for which the Client has engaged KSG.
INTERPRETATION
Limitations on liability, waivers and indemnities in this Agreement are
business understandings between the parties and shall apply to all legal
theories of recovery, including breach of contract or warranty, breach of
fiduciary duty, tort (including negligence), strict or statutory liability, or any
other cause of action, provided that these limitations on liability, waivers
and indemnities will not apply to any losses or damages that may be
found by a trier of fact to have been caused by KSG's sole or gross
negligence or KSG's willful misconduct. The parties also agree that the
Client will not seek damages in excess of the contractually agreed -upon
limitations directly or indirectly through suit against other parties who
may join KSG as a third -party defendant. "Parties" means the Client and
KSG, and their officers, directors, partners, employees, subcontractors
and subconsultants.
ALTERNATIVE DISPUTE RESOLUTION
This Agreement is based upon a mutual obligation of good faith and fair
dealing between the parties in it performance and enforcement.
Accordingly, the Client and KSG, with a positive commitment to honesty
and integrity, agree to the following:
That each will function within the laws and statutes that apply to its duties
and responsibilities; that each will assist in the other's performance; that
each will avoid hindering the other's performance; that each will work
diligently to fulfill its obligations; and that each will cooperate in the
common endeavor of the contract.
MEDIATION
In an effort to resolve any conflicts that arise during the design and
construction of the Project or following the completion of the Project, the
Client and KSG agree that all disputes between them arising out of or
relating to this Agreement or the Project shall be submitted to nonbinding
mediation unless the parties mutually agree otherwise.
ARBITRATION
In the event the parties to this Agreement are unable to reach a
settlement of any dispute arising out of this Agreement or related to the
services under this Agreement, in accordance with the section entitled
"Mediation," above, then such disputes may, with the consent of both
parties, be settled by binding arbitration in accordance with the rules of
the Construction Industry Arbitration Rules of the American Arbitration
Association current as of the date of this Agreement then pertaining.
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ATTORNEYS'FEES
In the event of any litigation arising from or related to this Agreement or
the services provided under this Agreement, the prevailing party shall be
entitled to recover from the non- prevailing party all reasonable costs
incurred, including staff time, court costs, attorneys' fees, expert fees,
and all other related expenses in such litigation.
NOTICES
Any notice required under this Agreement shall be in writing, addressed
as specified in this Agreement and sent by facsimile; registered, certified,
express or regular U.S. mail; by name of courier service to the address
listed in this Agreement. All notices shall be deemed delivered five (5)
calendar days after transmittal by any of the methods specified above to
the address and /or fax number of the recipient listed in this Agreement.
Either party may change its address or FAX number by giving the other
party notice of the change in any manner permitted by this Agreement.
ASSIGNMENT
Neither party to this Agreement shall transfer, sublet or assign any rights
under or interest in this Agreement (including but not limited to monies
that are due or monies that may be due) without the prior written consent
of the other party. Subcontracting to subconsultants normally
contemplated by KSG shall not be considered an assignment for
purposes of this Agreement.
SEVERABILITY
The Client and KSG have entered into this agreement of their own free
will, to communicate to one another mutual understandings and
responsibilities. Any element of this agreement later held to violate a law
or regulation shall be deemed void, and all remaining provisions shall
continue in force. However, the Client and KSG will in good faith attempt
to replace an invalid or unenforceable provision with one that is valid and
enforceable, and which comes as close as possible to expressing or
achieving the intent of the original provision.
WAIVER
The failure of either Party at any time or times to require performance of
any provision hereof shall in no manner affect the right at a later time to
enforce the same. No waiver by either party of a breach of any term of
covenant contained in this Agreement, whether by conduct or otherwise,
in any one or more instances, shall be deemed to be, or construed as, a
further or continuing waiver of any such breach, or a waiver of the breach
of any other term or covenant contained in this Agreement.
SURVIVAL
All obligations arising prior to the termination of the agreement and all
provisions of this agreement allocating responsibility or liability between
the Client the KSG shall survive the completion of the services hereunder
and /or the termination of this agreement.
APPLICABLE LAW
This Agreement shall be construed in accordance with and governed by
the laws of the State of California.
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