TO: HONORABLE MAYOR AND COUNCILMEMBERS
FROM: CITY MANAGER
DATE: MAY 31, 2005
SUBJECT: ENVIRONMENTAL INVESTIGATION OF THE NIKE MISSILE SITE
Nike Site Investigation -(PDF Format)
On May 6, 2003 the City Council considered a request from the Palos Verdes Art Center to investigate the feasibility of converting the former Nike missile silos at the Upper Point Vicente site to museum use. The Art Center believes that the underground silos that formerly housed Nike missiles could be converted into gallery spaces with minimal investment.
After considering the Art Center proposal, the City Council was concerned that an outside agency would be conducting sensitive environmental testing on City property and directed staff to work with the Art Center on an arrangement where the City would administer any testing activities, but the Art Center would finance them. On October 6, 2003 the firm of Jones and Stokes was authorized to perform a preliminary investigation of the entire 78 acre Upper Point Vicente Site. The primary purpose of the investigation was to gather existing information from the City, environmental agencies and the military. The report was completed in May 2004 and a copy is attached. Essentially the report found no fatal flaws in the proposed use plan, but recommended additional studies.
At their meeting of March 29, 2005 the City Council heard a proposal from Art Center representatives describing a concept under which the Art Center would construct a $15 million facility on City land, deed it to the City and lease it back through a long term lease arrangement. The City Council approved the plan in concept and encouraged the Art Center to continue its study of the site.
As the next step in the process, the Art Center has recommended that the environmental review firm, PSI, perform additional studies necessary to further refine the potential use of Upper Point Vicente for the proposed Art Center. The oversight and financial arrangements for this study would be the same as were utilized for the Jones and Stokes report. That is, PSI would enter into contract with the City and the Art Center would provide the funds through a Trust deposit arrangement. The Art Center understands that no commitment for their use of the property is intended by authorizing the study.
The funds for the PSI Study will be provided by the Art Center and the City would incur no costs.
Attachment: PSI Professional Services Agreement
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this ___ day of June 2005, by and between the City of Rancho Palos Verdes hereinafter referred to as "CITY", and Professional Service Industries, Inc., hereafter referred to as "CONSULTANT" or "PSI".
IN CONSIDERATION of the covenants hereinafter set forth, the parties hereto mutually agree as follows:
SCOPE OF SERVICES
1.1 Project Description
Environmental consulting services related to the Rancho Palos Verdes Nike Missile Site at Point Vicente Park, Rancho Palos Verdes.
1.2 Description of Services
See attached proposal: Site Investigation Former NIKE Missile Site, Upper Point Vicente Area, City Hall of Rancho Palos Verdes, Rancho Palos Verdes, California. Proposal Number 559-5G0047, which is attached hereto as Exhibit "A" and incorporated herein by this reference.
1.3 Schedule of Work
Upon receipt of written Notice to Proceed from the CITY, CONSULTANT shall perform with due diligence the services requested by the CITY and agreed on by CONSULTANT. The Draft Memorandum of Findings and Recommendations will be submitted to the CITY within four (4) weeks from the Notice to Proceed. CONSULTANT shall not be responsible for delay, nor shall CONSULTANT be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish timely information or to approve or disapprove CONSULTANT'S work promptly, or delay or faulty performance by CITY, other contractors, or governmental agencies, or any other delays beyond CONSULTANT'S control or without CONSULTANT'S fault.
and materials basis for a fee not to exceed $102,595.00 for environmental consulting services as indicated and further described in CONSULTANT’S scope of work and fee schedule which is attached hereto as Exhibit "A".
(b) CITY may request additional specified work under this agreement. All such work must be authorized in writing by the City Manager prior to commencement.
2.2 Payment Address
All payments due CONSULTANT shall be paid to:
Professional Service Industries, Inc.
Atten: Accounts Payable
P.O. Box 71168
Chicago, IL 60694-1168
2.3 Terms of Compensation
CONSULTANT will submit invoices monthly for the percentage of work completed in the previous month. CITY agrees to pay all undisputed invoice amounts within thirty (30) days of receipt of the invoice. CITY agrees to use its best efforts to notify CONSULTANT of any disputed invoice amounts or claimed completion percentages within ten (10) days of the receipt of each invoice. However, CITY's failure to timely notify CONSULTANT of a disputed amount of claimed completion percentage shall not be deemed a waiver of CITY's right to challenge such amount or percentage.
Additionally, in the event CITY fails to pay any undisputed amounts due CONSULTANT within forty-five (45) days after invoices are received by CITY then CITY agrees that CONSULTANT shall have the right to consider said default a total breach of this Agreement and be terminated by CONSULTANT without liability to CONSULTANT upon ten (10) working days advance written notice.
2.4 Additional Services
CITY may request in writing that CONSULTANT perform additional services not covered by the specific Scope of Work set forth in this Agreement, and CONSULTANT shall perform such services and will be paid for such additional services in accordance with CONSULTANT'S Standard Schedule of Hourly Rates.
INDEMNIFICATION AND INSURANCE
CONSULTANT will defend, indemnify and hold harmless CITY, its Boards and its officers, employees and agents (collectively "CITY"), against any claim, loss or liability that arises because of the sole or primary negligence or willful misconduct of CONSULTANT, its agents, officers, directors or employees, in performing any of the services under this Agreement.
3.2 General Liability
CONSULTANT shall at all times during the term of the Agreement carry, maintain, and keep in full force and effect, a policy or policies of Commercial General Liability Insurance, with minimum limits of One Million ($1,000,000.00) Dollars for each occurrence and in the aggregate, combined single limit, against any personal injury, death, loss or damage resulting from the wrongful or negligent acts by CONSULTANT. Said policy or policies shall be issued by an insurer admitted to do business in the State of California and rated in Best's Insurance Guide with a rating of A VII or better.
3.3 Professional Liability
CONSULTANT shall at all times during the term of this Agreement, carry, maintain, and keep in full force and effect a policy or policies of professional liability insurance with a minimum limit of one million ($1,000,000.00) dollars. Said policy or policies shall be issued by an insurer admitted to do business in the State of California and rated in Best's Insurance Guide with a rating of A VII or better.
3.4 Worker's Compensation
CONSULTANT agrees to maintain in force at all times during the performance of work under this Agreement worker's compensation insurance as required by the law. CONSULTANT shall require any subcontractor similarly to provide such compensation insurance for their respective employees.
3.5 Notice of Cancellation
A. All insurance policies shall provide that the insurance coverage shall not be canceled by the insurance carrier without thirty-(30) day’s prior written notice to CITY. CONSULTANT agrees that it will not cancel or reduce said insurance coverage.
B. CONSULTANT agrees that if it does not keep the aforesaid insurance in full force and effect, CITY may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, CITY may take out the necessary insurance and pay, at CONSULTANT's expense, the premium thereon.
3.6 Certificate of Insurance
At all times during the term of this Agreement, CONSULTANT shall maintain on file with the CITY Clerk a certificate of insurance showing that the aforesaid policies are in effect in the required amounts. The commercial general liability policy or policies shall contain endorsements naming the CITY, its officers, agents and employees as additional insureds.
3.7 Primary Coverage
The insurance provided by CONSULTANT shall be primary to any coverage available to city. The insurance policies (other than workers' compensation and professional liability) shall include provisions for waiver of subrogation.
4.1 Termination of Agreement
(a) This Agreement may be terminated at any time, with or without cause, by either party upon sixty-(60) day’s prior written notice. Notice shall be deemed served upon deposit in the United States Mail of a certified or registered letter, postage prepaid, return receipt requested, addressed to the other party, or upon personal service of such notice to the other party, at the address set forth in Article 6.11.
(b) In the event of termination or cancellation of this Agreement by CONSULTANT or CITY, due to no fault or failure of performance by CONSULTANT, CONSULTANT shall be paid compensation for all services performed by CONSULTANT, in an amount to be determined as follows: for work done in accordance with all of the terms and provisions of this Agreement, CONSULTANT shall be paid an amount equal to the percentage of services performed prior to the effective date of termination or cancellation in accordance with the work items; provided, in no event shall the amount of money paid under the foregoing provisions of this paragraph exceed the amount which would have been paid to CONSULTANT for the full performance of the services described in Article 2.1.
OWNERSHIP OF DOCUMENTS
5.1 Ownership of Documents and Work Product
All plans, specifications, reports and other design documents prepared by CONSULTANT pursuant to this Agreement are instruments of service, which shall be deemed the property of the CITY. CITY acknowledges and agrees that all plans, specifications, reports and other design documents prepared by CONSULTANT pursuant to this Agreement shall be used exclusively on this Project and shall not be used for any other work without the written consent of CONSULTANT. In the event CITY and CONSULTANT permit the reuse or other use of the plans, specifications, reports or other design documents, CITY shall require the party using them to indemnify and hold harmless CITY and CONSULTANT regarding such reuse or other use, and CITY shall require the party using them to eliminate any and all references to CONSULTANT from the plans, specifications, reports and other design documents. If a document is prepared by CONSULTANT on a computer, CONSULTANT shall prepare such document in a Microsoft® Word 2000 SR-2 or lower format; in addition, CONSULTANT shall provide CITY with said document both in a printed format and on a three and one-half inch (3 1/2") floppy diskette.
A CITY representative shall be designated by the City Manager and a CONSULTANT representative shall be designated by CONSULTANT as the primary contact person for each party regarding performance of this Agreement.
6.2 Fair Employment Practices/Equal Opportunity Acts
In the performance of this Agreement, CONSULTANT shall comply with all applicable provisions of the California Fair Employment Practices Act (California Government Code Sections 12940-48) and the applicable equal employment provisions of the Civil Rights Act of 1964 (42 U.S.C. 200e-217), and the Americans with Disabilities Act of 1992 (42 U.S.C. § 11200, et seq.).
CONSULTANT represents that it has, or shall secure at its own expense, all personnel required to perform CONSULTANT's services under this Agreement. CONSULTANT shall make reasonable efforts to maintain the continuity of CONSULTANT's staff who are assigned to perform the services hereunder and shall obtain the approval of the City Manager of all proposed staff members who will perform such services. CONSULTANT may associate with or employ associates or sub-consultants in the performance of its services under this Agreement, but at all times shall be responsible for their services.
6.4 Conflicts of Interest
CONSULTANT agrees not to accept any employment or representation during the term of this Agreement or within twelve (12) months after completion of the work under this Agreement which is or may likely make CONSULTANT "financially interested" (as provided in California Government Code Section 1090 and 87100) in any decisions made by CITY on any matter in connection with which CONSULTANT has been retained pursuant to this Agreement.
6.5 Legal Action
(a) Should either party to this Agreement bring legal action against the other, the case shall be brought in a court of competent jurisdiction in Los Angeles County, California, and the party prevailing in such action shall be entitled to recover its costs of litigation, including reasonable attorneys' fee which shall be fixed by the judge hearing the case and such fee shall be included in the judgment.
(b) Should any legal action about the Project between CITY and a party other than CONSULTANT require the testimony of CONSULTANT when there is no allegation that CONSULTANT was negligent, CITY shall compensate CONSULTANT for its testimony and preparation to testify at the hourly rates in effect at the time of such testimony.
(c) This Agreement has been negotiated and executed in the State of California and shall be governed by, and construed under, the laws of the State of California.
This Agreement shall not be assignable by either party without the prior written consent of the other party.
Notwithstanding the above, CONSULTANT may use the services of persons and entities not in CONSULTANT'S direct employ, when it is appropriate and customary to do so. Such persons and entities include, but are not necessarily limited to, surveyors, specialized consultants, and testing laboratories. CONSULTANT'S use of subcontractors for additional services shall not be unreasonably restricted by the CITY provided CONSULTANT notifies the CITY in advance.
6.7 Independent Contractor
CONSULTANT is and shall at all times remain, as to the CITY, a wholly independent CONTRACTOR. Neither the CITY nor any of its agents shall have control over the conduct of CONSULTANT or any of the CONSULTANT's employees, except as herein set forth. CONSULTANT expressly warrants not to, at any time or in any manner, represent that it, or any of its agents, servants or employees, are in any manner agents, servants or employees of CITY, it being distinctly understood that CONSULTANT is, and shall at all times remain to CITY, a wholly independent contractor and CONSULTANT's obligations to CITY are solely such as are prescribed by this Agreement.
The titles used in this Agreement are for general reference only and are not part of the Agreement.
6.9 Extent of Agreement
This Agreement represents the entire and integrated Agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified or amended only by a subsequent written agreement signed by both parties.
6.10 Invalidity of Provision. If any provision of this Agreement as applied to any party hereto or circumstance shall be adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, the same shall in no way affect (to the maximum extent permissible by law) any other provision of this Agreement, the application of any such provision under circumstances different from those adjudicated by the court, or the validity or enforceability of this Agreement as a whole.
All notices pertaining to this Agreement shall be in writing and addressed as follows:
If to CONSULTANT:
Professional Service Industries, Inc.
3960 Gilman Street
Long Beach, CA 90815
If to CITY:
Les Evans, City Manager
City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
Dated: CITY OF RANCHO PALOS VERDES
A Municipal Corporation
City of Rancho Palos Verdes