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HomeMy WebLinkAboutKimley-Horn and Associates Inc; 2025-03-20; PSA25-3683FACPSA25-3683FAC City Attorney Approved Version 5/22/2024 Page 1 AGREEMENT FOR STATE STREET EV CHARGER CONSULTING SERVICES KIMLEY-HORN AND ASSOCIATES, INC. THIS AGREEMENT is made and entered into as of the ______________ day of _________________________, 2025, by and between the City of Carlsbad, California, a municipal corporation (“City”) and Kimley-Horn and Associates, Inc., a California corporation (“Contractor”). RECITALS A.City requires the professional services of a consultant that is experienced in engineering services. B.Contractor has the necessary experience in providing professional services and advice related to engineering services. C.Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1.SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the “Services”) that are defined in attached Exhibit “A,” which is incorporated by this reference in accordance with this Agreement’s terms and conditions. 2.STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California area and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3.TERM The term of this Agreement will be effective from the date first above written to February 20, 2026. The City Manager may amend the Agreement to extend it for one (1) additional one (1) year period or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4.TIME IS OF THE ESSENCE Intentionally Omitted. 5.COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term shall not exceed fourteen thousand two hundred fifty dollars ($14,250). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit “A.” Incremental payments, if applicable, should be made as outlined in attached Exhibit “A.” Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 March 20th PSA25-3683FAC City Attorney Approved Version 5/22/2024 Page 2 6.CONSTRUCTION MANAGEMENT SOFTWARE Procore Project Management and Collaboration System. This project may utilize the Owner’s Procore (www.procore.com) online project management and document control platform. The intent of utilizing Procore is to reduce cost and schedule risk, improve quality and safety, and maintain a healthy team dynamic by improving information flow, reducing non-productive activities, reducing rework and decreasing turnaround times. The Contractor is required to create a free web-based Procore user account(s) and utilize web-based training / tutorials (as needed) to become familiar with the system. Unless the Engineer approves otherwise, the Contractor shall process all project documents through Procore because this platform will be used to submit, track, distribute and collaborate on project. If unfamiliar or not otherwise trained with Procore, Contractor and applicable team members shall complete a free training certification course located at http://learn.procore.com/procore-certification- subcontractor. The Contractor is responsible for attaining their own Procore support, as needed, either through the online training or reaching out to the Procore support team. It will be the responsibility of the Contractor to regularly check Procore and review updated documents as they are added. There will be no cost to the Contractor for use of Procore. It is recommended that the Contractor provide mobile access for Windows, iOS located at https://apps.apple.com/us/app/procore-construction-management/id374930542 or Android devices located at https://play.google.com/store/apps/details?id=com.procore.activities with the Procore App installed to at least one on-site individual to provide real-time access to current posted drawings, specifications, RFIs, submittals, schedules, change orders, project documents, as well as any deficient observations or punch list items. Providing mobile access will improve communication, efficiency, and productivity for all parties. The use of Procore for project management does not relieve the contractor of any other requirements as may be specified in the contract documents. 7.STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City’s election, City may deduct the indemnification amount from any balance owing to Contractor. 8.SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 PSA25-3683FAC City Attorney Approved Version 5/22/2024 Page 3 every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 9.OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 10.INDEMNIFICATION Contractor agrees to defend (with counsel approved by the City), indemnify, and hold harmless the City and its officers, elected and appointed officials, employees and volunteers from and against all claims, damages, losses and expenses including attorney’s fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code Section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor, and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction. Contractor’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault. The parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City’s self-administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 11.INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor’s agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than “A-:VII”; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 11.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 PSA25-3683FAC City Attorney Approved Version 5/22/2024 Page 4 11.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an “occurrence” basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 11.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 combined single-limit per accident for bodily injury and property damage. 11.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 11.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor’s profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 11.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 11.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 11.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 11.2.3 If Contractor maintains higher limits than the minimums shown above, the City requires and will be entitled to coverage for the higher limits maintained by Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage will be available to the City. 11.2.4 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 11.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 11.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 11.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 12.BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 PSA25-3683FAC City Attorney Approved Version 5/22/2024 Page 5 13.ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of four (4) years from the date of final payment under this Agreement. 14.OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 15.COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 16.NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For City For Contractor Name Si Phan Name Anthony Podegracz Title Associate Engineer Title Vice President Department Fleet & Facilities Address 401 B Street, Suite 600 City of Carlsbad San Diego, CA 92101 Address 1635 Faraday Ave. Phone No. 619-234-9411 Carlsbad, CA 92008 Email anthony.podegracz@kimley- horn.com Phone No. 442-339-5219 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. /// /// /// /// Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 PSA25-3683FAC City Attorney Approved Version 5/22/2024 Page 6 17.CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests as required in the City of Carlsbad Conflict of Interest Code. Yes ☐ No ☒ If yes, list the contact information below for all individuals required to file: Name Email Phone Number 18.GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 19.CALIFORNIA AIR RESOURCES BOARD (CARB) ADVANCED CLEAN FLEETS REGULATIONS Contractor’s vehicles with a gross vehicle weight rating greater than 8,500 lbs. and light-duty package delivery vehicles operated in California may be subject to the California Air Resources Board (CARB) Advanced Clean Fleets regulations. Such vehicles may therefore be subject to requirements to reduce emissions of air pollutants. For more information, please visit the CARB Advanced Clean Fleets webpage at https://ww2.arb.ca.gov/our-work/programs/advanced-clean-fleets. 20.DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 21.DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 PSA25-3683FAC City Attorney Approved Version 5/22/2024 Page 7 Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 22.TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. City may terminate this Agreement by tendering thirty (30) days written notice to Contractor. Contractor may terminate this Agreement by tendering Thirty (30) days written notice to City. In the event of termination of this Agreement by either party and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 23.COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 24.CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 PSA25-3683FAC City Attorney Approved Version 5/22/2024 Page 8 25.JURISDICTION AND VENUE This Agreement shall be interpreted in accordance with the laws of the State of California. Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 26.SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 27.THIRD PARTY RIGHTS Nothing in this Agreement should be construed to give any rights or benefits to any party other than the City and Contractor. 28.ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. This Agreement may be executed in counterparts. 29.AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. [signatures on following page] Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 PSA25-3683FAC City Attorney Approved Version 5/22/2024 Page 9 CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California KIMLEY-HORN AND ASSOCIATES, INC., a California corporation By: By: (sign here) Paz Gomez, Deputy City Manager, Public Works, as authorized by the City Manager Anthony J. Podegracz, Vice President (print name/title) ATTEST: By: SHERRY FREISINGER, City Clerk (sign here) By: Deputy City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CINDIE K. McMAHON, City Attorney By: _____________________________ Assistant City Attorney Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 PSA25-3683FAC City Attorney Approved Version 5/22/2024 Page 10 EXHIBIT A SCOPE OF SERVICES AND FEE Item No. Unit of Measure Qty Description Unit Price Extended Total 1 LS 1 EV charger Design: • Revise the State Street EV plans to include the demolition, removal and reinstallation of the existing Electric Vehicle (EV) charging station foundation(s) previously installed for the accessible Direct Current Fast Charger (DCFC). This task includes reorienting the foundation(s) of the charger(s). • Anchorage design calculations for two Chargepoint Single Port Express 250 (CPE250) Fast Charging Stations including: -Establish project-specific design loads, including seismic and wind loads, for CPE250 charger anchorage analysis. This task assumes that there is one unique anchorage configuration. An anchorage configuration is defined by anchor layout, size, type, and spacing. -Produce a plan sheet illustrating a typical anchorage detail per typical anchorage configuration. -Submit issue for permit documents. -Submit signed and sealed 100% construction documents for construction in electronic PDF format based on any resulting comments from the permit review process. • Deliverables: o Issue for Permit drawing o Issue for Construction Documents o Structural Design Calculations $8,500 $8,500 2 LS 1 Opinion of Probable Construction Cost $1,150 $1,150 3 Hourly 20 Construction Administration: • Review of Contractor submittals related to the scope of work described herein • Review of Contractor Requests for Information (RFI) for the work described herein • Participation in weekly virtual meetings as needed for the duration of the construction • Up to one (1) site visit to observe the construction progress $230 $4,600 TOTAL NOT-TO-EXCEED (Including reimbursables) TOTAL: $14,250.00 Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 PSA25-3683FAC Exhibit "B" Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 California Energy Commission Pass-Through Grant Subaward to the City of Carlsbad 1. Background and Authority for this Grant: The Budget Act of 2023, as reflected in California Senate Bill 104 (SB 104), Chapter 189/Statutes of 2023, section 90, amending section 19.561, included an appropriation to fund the installation of EV charging stations in the City of Carlsbad (City): Sec. 19.561 ... (b) "To be allocated by the Department of Parks and Recreation as follows: (11) $600,000 to the Port of San Diego and City of Carlsbad, for the EV and Portable Solar Powered Charging Stations Installation. In a letter dated October 9, 2023, which provided a "List of Changes Pursuant to Section 19.561 through 19.569 (SB 104, Ch. 189/2023)," the Department of Finance transferred the allocating authority for these funds from the Department of Parks and Recreation to the California Energy Commission (CEC), pursuant to section 19.561(a)(6) of the Budget Act of 2023. Therefore, the CEC and the City are entering into this pass-through agreement (Agreement) to exercise this authority and fund the Citywide Electric Vehicle Infrastructure Project in the amount of $350,000. 2. Scope of Work and Products The City shall only use funds received under this Agreement for its citywide electric vehicle infrastructure project. The City shall provide two products to the CEC: . Products 1. Midway Project Submitted with the second invoice (see next section below "Budget, Report Invoices, and Payment"). 2. Final Project Report Submitted on or before the Agreement end date. Both the Midway Project Report and Final Project Report can be brief documents, around 1-3 pages. At a minimum, the reports shall include the project status, actual or anticipated issues regarding project completion, and if the project is still within budget. If the project is not within the budget, the City should elaborate on efforts that have been completed or anticipated to resolve this issue. Additionally, for the Final Project Report, the City shall include at least one photo of the completed project. It is up to the City to choose a photo submission format, but digital photo submission is preferred due to the nature of remote work. The City shall submit reports and photos to the Commission Agreement Manager (CAM) listed in Section 4. Page 1 ofS OTF-24-003 City of Carlsbad PSA25-3683FAC Exhibit "B" Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 3. Budgets, Invoices, and Payments The CEC only has authority to provide up to $350,000 under this Agreement. The CEC will provide this amount in two equal half payments of $175,000 each upon receiving and approving invoices from the City. The City's first invoice may be submitted upon execution of the Agreement. During the midway point of the project, close to when the first payment is close to being paid out, the second invoice may be submitted, in conjunction with the Submission of the Midway Project Report. Under Senate Bill 104, Section 90, amending section 19.561, the CEC has the authority to allocate the payments as an advanced lump sum. Funding can be applied to incurred costs that are prior to the effective date of this agreement (AB 104, Section 19.561(a)(5)). For allocations in this section that include a designated state entity, the entity shall allocate the funds to the recipients identified in the paragraphs following each designation. The state entity shall determine the best method for allocation to ensure the funds are used for the purposes specified in this section. To maximize efficiency and minimize costs for the CEC and the City, this Agreement will include a two-part advanced payment approach. Because payments by the CEC to the City will be made in advanced, invoices submitted by the City will not need be detailed. However, if requested, the City, shall promptly provide any information regarding this Agreement consistent with the requirements listed in the following Agreement sections: (1) Terms and Conditions under Section D. 'Audit' and (2) Section L: Access to Sites and Records. 4. CEC and City Pro,ject Contacts california Energy City of Carlsbad Commission Project Contacts Project Contact Commission Agreement Manager: Program Manager City of Carlsbad: Julianne Lea John Maashoff 715 P Street City of Carlsbad Sacramento, CA 95814 1635 Faraday Avenue Phone: 916-252-9747 Carlsbad, CA 92008 e-mail: julianne.lea@energy.ca.gov Phone: 760-573-3368 e-mail: john.maashoff@carlsbadca.gov 5. Certification By signing this Agreement, the City hereby certifies that all funds received pursuant to this Agreement shall be spent exclusively for its citywide electric vehicle infrastructure project. The Page 2 ofS OTF-24-003 City of Carlsbad I I PSA25-3683FAC Exhibit "B" Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 City further certifies that it shall comply with all applicable laws in performing under this Agreement and in carrying out and administering the citywide electric vehicle infrastructure project. 6. California Environmental Quality Act (CEQA) Before signing this Agreement, CEC staff considered the applicability of CEQA. The CEC's execution of this Agreement for the citywide electric vehicle charging station project is not a project under CEQA. CEQA only applies to "to discretionary projects proposed to be carried out or approved by public agencies." (Public Resources Code section 21080(a).) The CEC does not have discretion to not award these funds to the City for this project. SB 104 (2023) section 90, amending section 19.561(a)(2), states, "For allocations in this section that include a designated state entity, the entity shall allocate the funds to the recipients identified in the paragraphs following each designation." (Underline added.) Accordingly, the CEC's part in this pass-through appropriation from the Legislature is not a project for purposes of CEQA, but the City must still comply with any applicable CEQA requirements. 7. Terms and Conditions A. Nondiscrimination Statement of Compliance During the performance of this Agreement, the City and its subcontractors will not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decision making, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status, or denial of family care leave. The City and its subcontractors will ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. The City and its subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code Sections 12990 et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 11000 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4.1 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part of it as if set forth in full. The City and its subcontractors will give written notice of their obligations under this section to labor organizations with which they have a collective bargaining or other Agreement. The City shall include the nondiscrimination and compliance provisions of this section in all subcontracts to perform work under this Agreement. B. Drug-Free Workplace Certification By signing this Agreement, the Recipient certifies under penalty of perjury under the laws of the State of California that it will comply and will ensure its subcontractors will comply with the requirements of the Drug-Free Workplace Act of 1990 (Government Code Section 8350 et seq.). In addition to any other rights and remedies available to the CEC, failure to comply with these requirements may result in suspension of payments under the Agreement or termination of the Agreement or both, and the Page 3 of S OTF-24-003 City of Carlsbad PSA25-3683FAC Exhibit "B" Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 Recipient may be ineligible for any future state awards if the CEC determines that any of the following has occurred: (1) the Recipient has made false certification, or (2) violates the certification by failing to carry out the requirements of the Act. C. Americans With Disabilities Act By signing this Agreement, the City assures the CEC that it complies with the Americans with Disabilities Act (ADA) of 1990 (42 U.S.C. Section 12101, et seq.), which prohibits discrimination on the basis of disability, as well as applicable regulations and guidelines issued pursuant to the ADA. D. Audit The City agrees that the CEC, the Bureau of State Audits, or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. The City agrees to maintain such records for possible audit for a minimum of three (3) years after the Agreement ends in any way. The City agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, the City agrees to include a similar right of the CEC, the Bureau of State Audits, or their designated representative, to audit records and interview staff in any subcontract related to performance of this Agreement. These rights and responsibilities are in addition to and not restrictive of those in Section 7. L. Access to Sites and Records. E. Public Works The City is responsible for complying with all applicable laws, which can include public works requirements under the Labor Code. The City acknowledges acceptance of Agreement funds may trigger public works laws (Labor Code Section 1720 et seq.), a requirement of which is to pay prevailing wages, applying to its entire project. If the project is public works, then it is subject to compliance monitoring and enforcement by the Department of Industrial Relations. By signing this Agreement, the City certifies that it shall comply with all applicable Public Works laws and requirements. F. Intellectual Property As between the City and the CEC, the City owns all intellectual property it or its subcontractors create under this Agreement. The CEC has a no-cost, non-exclusive, transferable, irrevocable, royalty-free, worldwide, perpetual license to use, publish, translate, modify, and reproduce the products identified in Section 2. above, for governmental purposes. G. Amendment No amendment or variation of this Agreement shall be valid unless made in writing and signed by both the City and CEC. H. Governing Law This Agreement is governed by the laws of the State of California as to interpretation and performance. Any action at law or in equity brought by either of the Parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the Parties waive all provisions of law providing for a change of venue Page 4 of 5 OTF-24-003 City of Carlsbad PSA25-3683FAC Exhibit "B" Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 in these proceedings to any other county. I. Independent Capacity In the performance of this Agreement, the City and its agents, subcontractors, and employees will act in an independent capacity and not as officers, employees, or agents of the CEC or the State of California. J. Severability If any provision of this Agreement is unenforceable or held to be unenforceable, all other provisions of this Agreement will remain in full force and effect. K. Waiver No waiver of any breach of this Agreement constitutes waiver of any other breach. All remedies in this Agreement will be taken and construed as cumulative, meaning in addition to every other remedy provided in the Agreement or by law. L. Access to Sites and Records The City shall provide during the Agreement and for at least 3 years after the Agreement ends in any way to the CEC or its representatives reasonable access to all project sites and to all records related to this Agreement. These rights and responsibilities are in addition to and not restrictive of those in Section 7. D. Audit. M. Survival of Terms The following terms survive this Agreement no matter how the Agreement ends, such as by its own terms or via termination: • D. Audit • E. Public Works • F. Intellectual Property • H. Governing Law • J. Severability • K. Waiver • L. Access to Sites and Records N. Executive Order N-6-22 - Russia Sanctions o n March 4, 2022, Governor Gavin Newsom issued Executive Order N-6-22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. "Economic Sanctions" refers to sanctions imposed by the U.S. government in response to Russia's actions in Ukraine, as well as any sanctions imposed under state law. The EO directs state agencies to terminate agreements with, and to refrain from entering any new agreements with, individuals or entities that are determined to be a target of Economic Sanctions. Accordingly, should the State determine Recipient is a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for termination of this Agreement. The CEC shall provide the Recipient advance written notice of such termination, allowing the Recipient at least 30 calendar days to provide a written response. Termination shall be at the sole discretion of the CEC. Page S of 5 OTF-24-003 City of Carlsbad Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) ~ 7/31/2024 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S}, AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER ~~l~CT Jerry Noyola Edgewood Partners Ins. Center/Greyling r1J8NJ:o Fxtl· 7702207699 I FAX 3780 Mansell Rd. Suite 370 IA/C Nol: Alpharetta GA 30022 :to'J~ss: greylingcertsl@areyling.com INSURER/SI AFFORDING COVERAGE NAIC# INSURER A: National Union Fire Ins Co of Pittsburg 19445 INSURED KIMLASS INSURER B: Allied World Assurance Co (U.S.) Inc. 19489 Kimley-Horn and Associates, Inc. INSURER c: New Hampshire Insurance Company 23841 421 Fayetteville Street, Suite 600 Raleigh, NC 27601 INSURER D : Llovd's of London 85202 INSURERE: INSURERF: COVERAGES CERTIFICATE NUMBER: 604534743 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUBR POLICYEFF POLICY EXP LIMITS LTR ,.,~n un,n POLICY NUMBER IMM/DD/VYVYl IMM/DD/VYVYl A X COMMERCIAL GENERAL LIABILITY GL5268169 4/1/2024 4/1/2025 EACH OCCURRENCE $2,000,000 ~ ~ CLAIMS-MADE 0 OCCUR DAMAGE TO RENTED PREMISES /Ea occurrence\ $1,000,000 X Contractual Liab MED EXP (Any one person) $25,000 ~ PERSONAL & ADV INJURY $2,000,000 ~ GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $4,000,000 ~ [K]PRO-[K]Loc PRODUCTS -COMP/OP AGG $4,000,000 POLICY JECT OTHER: $ A AUTOMOBILE LIABILITY CA4489663 (AOS) 4/1/2024 4/1/2025 n:~~~~~~llNGLE LIMIT $2,000,000 A ~ CA2970071 (MA) 4/1/2024 4/1/2025 X ANY AUTO BODILY INJURY (Per person) $ ~ ~ OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) $ X HIRED X NON-OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY /Per accidentl $ B X UMBRELLA LIAB MOCCUR 03127930 4/1/2024 4/1/2025 EACH OCCURRENCE $5,000,000 ~ X EXCESSLIAB CLAIMS-MADE AGGREGATE $5,000,000 DED I X I RETENTION $ 1n nnn $ C WORKERS COMPENSATION WC015893685 !AOS) 4/1/2024 4/1/2025 X I ~ffTUTE I I OTH-ER C AND EMPLOYERS' LIABILITY Y/N WC015893686 CA) 4/1/2024 4/1/2025 ANYPROPRIETOR/PARTNER/EXECUTIVE ~ N/A E.L. EACH ACCIDENT $2,000,000 OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L. DISEASE -EA EMPLOYEE $2,000,000 If yes, describe under E.L. DISEASE -POLICY LIMIT $2,000,000 DESCRIPTION OF OPERATIONS below D Professional Liability B0146LDUSA2404949 4/1/2024 4/1/2025 Per Claim $2,000,000 Aggregate $2,000,000 DESCRIPTION OF OPERATIONS/ LOCATIONS /VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Re: Agreement #PSA21-1341 FAC -Fleet Fuel Station UST Replacement. The City of Carlsbad is named as an Additional Insured with respects to General Liability where required by written contract. Waiver of Subrogation is applicable where required by written contract & allowed by law. Should any of the above described policies be cancelled by the issuing insurer before the expiration date thereof, 30 days' written notice {except 10 days for nonpayment of premium) will be provided to the Certificate Holder. Umbrella Follows Form with respects to General, Automobile & Employers Liability Policies. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Carlsbad/CMWD ACCORDANCE WITH THE POLICY PROVISIONS. c/o EXIGIS Insurance Compliance Services P.O. Box 4668 -ECM #35050 AUTHORIZED REPRESENTATIVE New York NY 10163-4668 0/\.P_14 fJ_/4c_iJ... I © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 POLICY NUMBER: GL5268169 COMMERCIAL GENERAL LIABILITY CG 20 10 12 19 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -OWNERS, LESSEES OR CONTRACTORS -SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) Location(s) Of Covered Operations ANY PERSON OR ORGANIZATION WHOM YOU PER THE CONTRACT OR AGREEMENT. BECOME OBLIGATED TO INCLUDE AS AN ADDITIONAL INSURED AS A RESULT OF ANY CONTRACT OR AGREEMENT YOU HAVE ENTERED INTO. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. CG 20 10 12 19 0 Insurance Services Office, Inc., 2018 Page 1 of 2 □ Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 A. Section II -Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. C. With respect to the insurance afforded to these additional insureds, the following is added to Section Ill -Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable limits of insurance; whichever is less. This endorsement shall not increase the applicable limits of insurance. Page 2 of 2 0 Insurance Services Office, Inc., 2018 CG 20 10 12 19 Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 POLICY NUMBER: GL5268169 COMMERCIAL GENERAL LIABILITY CG 20 37 12 19 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -OWNERS, LESSEES OR CONTRACTORS -COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) Location And Description Of Completed Operations ANY PERSON OR ORGANIZATION WHOM YOU PER THE CONTRACT OR AGREEMENT. BECOME OBLIGATED TO INCLUDE AS AN ADDITIONAL INSURED AS A RESULT OF ANY CONTRACT OR AGREEMENT YOU HAVE ENTERED INTO. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II -Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work" at the location designated and described in the Schedule of this endorsement performed for that additional insured and included in the "products-completed operations hazard". However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following is added to Section Ill -Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable limits of insurance; whichever is less. This endorsement shall not increase the applicable limits of insurance. CG 20 37 12 19 © Insurance Services Office, Inc., 2018 Page 1 of 1 Docusign Envelope ID: 693BB967-74E5-490D-9611-E34BA40336D1 BLANKET WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT This endorsement changes the policy to which it is attached effective on the inception date of the policy unless a different date is indicated below. (The following "attaching clause" need be completed only when this endorsement is issued subsequent to preparation of the policy). This endorsement, effective 12:01 AM 04/01/2024 Issued to KI M LEY -HORN AND ASSOC I ATES, I NC . By New Hampshire Insurance Company forms a part of Policy No. WC 015-89-3686 We have a right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against any person or organization with whom you have a written contract that requires you to obtain this agreement from us, as regards any work you perform for such person or organization. The additional premium for this endorsement shall be 2. 00 % of the total estimated workers compensation premium for this policy. WC 04 03 61 (Ed. 11/90) ~~M·~ Countersigned by _____________________________ _ Authorized Representative