CONTRACT 4106 CLOSED4106 .
Agreement No.
CONTRACT FOR PROFESSIONAL SERVICES
BETWEEN
THE CITY OF EL SEGUNDO AND
KIMLEY -HORN AND ASSOCIATES, INC.
This AGREEMENT is entered into this 1st day of December, 2010, by and between the
CITY OF EL SEGUNDO, a general law city and municipal corporation ( "CITY ") and Kimley-
Horn and Associates, Inc., a North Carolina 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 one hundred twenty five thousand dollars ($125,000) 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 "A," which is incorporated by
reference.
2. SCOPE OF SERVICES.
A. CONSULTANT will perform services listed in the attached Exhibit "A," which is
incorporated herein.
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. 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 "A ")
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.
Page 1 of l 1
41 06 m
4. POLITICAL REFORM ACT. CONSULTANT agrees that it will be considered a public
official subject to the Political Reform Act of 1974 for purposes of this Agreement.
CONSULTANT agrees and warrants that it has no financial interests which may be materially
affected by the project for which the Peer Review of a Trip Generation Assessment, as specified
in the SERVICES, is being prepared. Such financial interests may include, without limitation,
interests in business entities, real property, or sources of income exceeding $500 received within
the past year. CONSULTANT further warrants that, before executing this Agreement, it
reviewed the Political Reform Act of 1974 and the Fair Political Practices Commission
regulations, including, without limitation, Chapter 7 of Title 2 of the California Administrative
Code, §§ 18700, et seq., in order to determine whether any conflict of interest would require
CONSULTANT to refrain from performing the SERVICES or in any way attempting to use its
official position to influence the governmental decisions underlying the subject environmental
clearances.
5. FAMILIARITY WITH WORK.
A. By executing this Agreement, CONSULTANT represents that CONSULTANT
has
Thoroughly 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 represents 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.
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.
C. AIthough CITY has a duty to the public to independently review any
environmental document, including, without limitation a negative declaration or
draft EIR, prepared by CONSULTANT, that duty to the public, or the breach
thereof, will not relieve CONSULTANT of its duties under this Section or any
representation provided by CONSULTANT in this Agreement.
6. KEY PERSONNEL.
A. CONSULTANT's key personnel assigned to perform work under this Agreement
and their level of responsibility are as follows:
Page 2 of l l
Serine Ciandella, AICP, Vice President
Stephen S. Chang, AICP, Transportation Planner /Analyst
B. The resume of each of the individuals identified in this Section are attached to this
Agreement collectively, as Exhibit "B," and incorporated by reference.
C. In the event CITY objects to the continued involvement with this Agreement by
any of the persons listed in this Section, CONSULTANT agrees that it will
replace such persons with individuals that are agreed to by CITY.
7. TERM. The term of this Agreement will be from November 1, 2010 to September 30, 2011.
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 15
8. TIME FOR PERFORMANCE. CONSULTANT will not perform any work under this
Agreement until:
A. CONSULTANT furnishes proof of insurance as required by this Agreement; and
B. CITY gives CONSULTANT a written Notice to Proceed.
C. 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.
9. 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 CITY 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. CITY may, but is not required to, extend the completion time, when
appropriate, for the completion of the contracted services.
10. 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
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.
11. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a
Taxpayer Identification Number.
Page 3 of 11
12. PERNHTS 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.
13. PROJECT COORDINATION AND SUPERVISION.
A. Serine Ciandella will be assigned as Project Manager and will be responsible for
job performance, negotiations, contractual matters, and coordination with CITY's
Project Manager.
B. Paul Samaras will be assigned as CITY's Project Manager and will be personally
in charge of and personally supervise or perform the technical execution of the
Project on a day-to -day basis on behalf of CITY and will maintain direct
communication with CONSULTANT's Project Manager.
14. 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.
15. TERNUNATION.
A. Except as otherwise provided, CITY may terminate this Agreement at any time
with or without cause. Notice of termination will be in writing.
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. 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 I (C).
D. Should the Agreement be terminated pursuant to this Section, CITY may procure
on its own terms services similar to those terminated.
E. By executing this document, CONSULTANT waives any and all claims for
damages that might otherwise arise from CITY's termination under this Section.
Page 4 of 11
mE �n
16. 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.
17. 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
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.
18. INDEMNIFICATION.
A. CONSULTANT agrees to the following:
i. Indemnification for Professional Services. CONSULTANT will save
harmless and indemnify, including, without limitation, CITY's
defense costs (including reasonable attorney's fees), 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, except for such loss or damage
arising from CITY's sole negligence or willful misconduct.
ii. Indemnification for other Damages. CONSULTANT indemnifies and
holds CITY harmless from and against any claim, action, damages,
costs (including, without limitation, reasonable 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.
iii. Exclusion for CEQA Actions. Notwithstanding the foregoing,
CONSULTANT need not indemnify, defend, or hold CITY harmless in
CEQA actions initiated pursuant to Public Resources Code §§ 21167 and
21168 where CONSULTANT's work may form the basis of a lawsuit.
However, should CONSULTANT's work, as contemplated by this
Agreement, contain errors or omissions that results in an adverse ruling
Page 5 of 11
against CITY, CONSULTANT agrees to indemnify and hold CITY
harmless to the extent provided for in Section 18(A)(i).
B. For purposes of this section "CITY" includes CITY's officers, officials and
employees,
C. It is expressly understood and agreed that the foregoing provisions will survive
termination of this Agreement.
D. The requirements as to the types and limits of insurance coverage to be
maintained by CONSULTANT as required by Section 22, 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.
19. 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.
20. 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.
21. AUDIT OF RECORDS.
A. CONSULTANT agrees that CITY, or designee, has the right to review, obtain,
and copy all records pertaining to the performance of this Agreement.
CONSULTANT agrees to provide CITY, or designee, with any relevant
information requested and will permit CITY, or designee, access to its premises,
upon reasonable notice, during normal business hours for the purpose of
interviewing employees and inspecting and copying such books, records,
accounts, and other material that may be relevant to a matter under investigation
for the purpose of determining compliance with this Agreement. CONSULTANT
further agrees to maintain such records for a period of three (3) years following
final payment under this Agreement.
B. Upon inspection, CONSULTANT will promptly implement any corrective
measures required by CITY regarding the requirements of this Section.
CONSULTANT will be given a reasonable amount of time to implement said
Page 6 of 11
corrective measures. Failure of CONSULTANT to implement required corrective
measures will result in immediate termination of this Agreement.
C. CONSULTANT will keep all books, records, accounts and documents pertaining
to this Agreement separate from other activities unrelated to this Agreement.
22. INSURANCE.
A. Before commencing performance under this Agreement, and at all other times this
Agreement is effective, CONSULTANT must procure and maintain the following
types of insurance with coverage limits complying, at a minimum, with the limits
set forth below:
Type of Insurance
Commercial general liability:
Professional Liability
Business automobile liability
Workers compensation
Limits (combined single)
$1,000,000
$1,000,000
$1,000,000
Statutory requirement.
B. Commercial general liability insurance will meet or exceed the requirements of
the most current ISO -CGL Form. 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. Commercial General Liability policy
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. 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. Automobile coverage will be written on ISO Business Auto Coverage Form CA
00 0106 92, including symbol 1 (Any Auto).
D. 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 maintain the
insurance in effect for a period of three (3) years after this Agreement expires or
is terminated ( "extended insurance "). Such extended 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.
E. CONSULTANT will furnish to City duly authenticated Certificates of Insurance
Page 7 of 11
4 J 6
evidencing maintenance of the insurance required under this Agreement,
endorsements as required herein, 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: V II."
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.
23. USE OF CONSULTANT. 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.
24. 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.
25. 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:
CITY
Kimberly Christensen, Planning Manager
City of El Segundo Planning & Bldg Dept
350 Main Street
El Segundo, CA 90245 -3813
Fax: (310) 322 -4167
CONSULTANT
Serine Ciandella, AICP,
Vice President
Kimley Horn & Associates, Inc.
765 The City Drive, # 400
Orange, CA 92868
Fax: (714) 938 -9488
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.
26. 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.
Page 8 of 11
1 0 6 .
27. 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.
28. 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 or in the Federal District Court in the District of
California in which Los Angeles County is located.
29. 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 three (3) 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.
30. 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:
A. Exhibit A: Proposal for Services /Scope of Work and Budget;
B. Exhibit B: Resumes
31. 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.
32. 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.
33. 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 city manager, or designee, may execute any such amendment on behalf of CITY.
34. 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.
Page 9 of 11
35. COVENANTS AND CONDITIONS. The parties agree that all of the provisions hereof
will be construed as both covenants and conditions, the same as if the words importing such
covenants and conditions had been used in each separate paragraph.
36. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of
reference only and will not affect the interpretation of this Agreement.
37. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood,
explosion, war, embargo, government action, civil or military authority, the natural elements, or
other similar causes beyond the Parties' control, then the Agreement will immediately terminate
without obligation of either party to the other.
38. TIME IS OF ESSENCE. Time is of the essence to comply with dates and schedules to be
provided.
39. 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 agency.
[Signatures on next page]
Page 10 of 11
IN WITNESS WHEREOF the parties hereto have executed this contract the day and year
first hereinabove written.
CITY OF EL SEGUNDO
Jack '
City �ea�er
ATTEST:
Cindy Mortese, , p
City Clerk
APPROVED AS 71Z
MARK D. HE�
Un
Karl H!,Berger, Assofait. City Attorney
KIMLEY -HORN AND ASSOCIATES,
INC.
Serine Ciandella,
Vice President
Taxpayer ID No. 56- 0885615
P:1Planning & Building Safety\0 Planning - Old\Consultant Ping Services\EnvironmentaI Consultants\Kimley Horn
& Associates\ Plaza DA Amendment No 512010.12.1 Prof Svcs Agmnt - Environmental Review - KHA Plaza Phase
IC
Page 1 I of 11
Exhibit A
Scope of Services and Budget