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HomeMy WebLinkAbout1998-12-01; City Council; Resolution 98-3881 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 0 0 RESOLUTION NO. 98-388 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT WITH GALEN PETERSON, CONSULTING ENGINEER, FOR PROFESSIONAL ENGINEERING SERVICES, PROJECT #3184. WHEREAS, the City Council of the City of Carlsbad, California, has reviewed the nl the utilization of consultant services to perform an audit of the costs incurred by Carlsbad Company, L.P., for the construction of a portion of the Cannon Road West project; and WHEREAS, the City Council has determined that Galen Peterson, Consulting En has the needed professional engineering skills; and WHEREAS, the City Council recognizes the need to ensure the apprc reimbursement of eligible costs to Carlsbad Ranch Company, L.P., by utilizing Galen Pel Consulting Engineer. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ca, California, as follows: 1. That the above recitations are true and correct. 2. That the agreement with Galen Peterson, Consulting Engineer, a copy of w attached and made a part hereof is hereby approved. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City C held on the 1st day of December , 1998 by the following vote, to wit: AYES: Council Members Lewis , Nygaard, Finnila, Kulchin & Hall NOES: None ABSENT: None I I ATTEST: ALETHA L. RAUTENKRANZ, City Clerk 1 (SEAL) 28 0 a AGREEMENT FOR AUDIT OF COSTS FOR CANNON ROAD WEST REACH 1 IMPROVEMENTS AS CONSTRUCTED BY CARLSBAD RANCH COMPANY, L.P. THIS AGREEMENT is made and entered into as of the 1 st day c December ,19%, by and between the CITY OF CARLSBAD, a municipz corporation, hereinafter referred to as "City", and Galen N, Peterson, hereinafte referred to as "Contractor." RECITALS City requires the services of an engineering Contractor to provide the necessar professional engineering services for preparation of an audit of costs; and Contract0 possesses the necessary skills and qualifications to provide the services required b! the City; NOW, THEREFORE, in consideration of these recitals and the mutual covenant contained herein, City and Contractor agree as follows: 1. CONTRACTORS OBLIGATIONS Contractor will audit costs incurred by Carlsbad Ranch Company, L.P., fol the construction of a portion of Cannon Road West from LEG0 Drive to the western abutment of the Macario Canyon Bridge based on the improvement: that were included in Bridge and Thoroughfare District No. 3 (Cannon Roac West) and the agreement between the City and Carlsbad Ranch Company, L.P. dated July 30, 1998 (reimbursement agreement). Task I - Review all costs and supporting documents submitted by Carlsbac Ranch Company, L.P., and provide written draft opinions of the costs which arc eligible for reimbursement in accordance with the terms of the reimbursemen agreement. Task 2 - Review eligible costs for items listed under Task 1 with Carlsbad Ranch Company, L.P., and come to an agreement on the final eligible costs for reimbursement. rev. 8/25/98 -1 - 0 0 2. CITY OBLIGATIONS The City shall provide Contractor with a copy of the reimbursement agreemer between the City and Carlsbad Ranch Company, L.P. 3. PROGRESS AND COMPLETION The work under this contract will begin within ten (10) days after receipt c notification to proceed by the City and be completed within one (I) year of that date Extensions of time may be granted if requested by the Contractor and agreed to i writing by the Assistant City Engineer. The Assistant City Engineer will give allowanc for documented and substantiated unforeseeable and unavoidable delays not cause by a lack of foresight on the part of the Contractor, or delays caused by City inaction c other agencies' lack of timely action. 4. FEES TO BE PAID TO CONTRACTOR The total fee payable for Task 1 shall be $29,000. Task 2 fees will be paid on a time and materials basis at an hourly rate of $1 1 per hour plus expenses as follows: mileage at $0.32 per mile and any other expense: such as reproduction at cost plus 15%. Task 2 fees shall not exceed $9,000. No other compensation for services will be allowed except those items covere by supplemental agreements per Paragraph 8, "Changes in Work." The City reserve the right to withhold a ten percent (10%) retention until the project has been accepte by the City. rev. 812519 -2 - 0 0 5. DURATION OF CONTRACT This agreement shall extend for a period of one (1) year from date thereof. Thl contract may be extended by the City Manager for an additional one (1) year period c part thereof, based upon a review of satisfactory performance and the City’s needs. Th parties shall prepare extensions in writing indicating effective date and length of th extended contract. 6. PAYMENT OF FEES Payment of approved items on the invoice shall be mailed to the Contractc within 30 days of receipt of the invoice. 7. FINAL SUBMISSIONS Within ten (IO) days of completion and approval of the audit of costs, th Contractor shall deliver to the City the following item: Written report indicating whic costs are eligible for reimbursement. 8. CHANGES IN WORK If, in the course of the contract, changes seem merited by the Contractor or th City, and informal consultations with the other party indicate that a change in th conditions of the contract is warranted, the Contractor or the City may request a chang in contract. Such changes shall be processed by the City in the following manner: letter outlining the required changes shall be forwarded to the City by Contractor 1 inform them of the proposed changes along with a statement of estimated changes i charges or time schedule. A Standard Amendment to Agreement shall be prepared t the City and approved by the City according to the procedures described in Carlsba rev. 812519 -3 - 0 e Municipal Code Section 3.28.172. Such Amendment to Agreement shall not rendt ineffective or invalidate unaffected portions of the agreement. 9. COVENANTS AGAINST CONTINGENT FEES The Contractor warrants that their firm has not employed or retained ar company or person, other than a bona fide employee working for the Contractor, 1 solicit or secure this agreement, and that Contractor has not paid or agreed to pay ar company or person, other than a bona fide employee, any fee, commissio percentage, brokerage fee, gift, or any other consideration contingent upon, or resultir from, the award or making of this agreement. For breach or violation of this warrant the City shall have the right to annul this agreement without liability, or, in its discretio to deduct from the agreement price or consideration, or otherwise recover, the ft amount of such fee, commission, percentage, brokerage fees, gift, or contingent fee. 10. NONDISCRIMINATION CLAUSE The Contractor shall comply with the state and federal laws regardir nondiscrimination. 11. TERMINATION OF CONTRACT In the event of the Contractor's failure to prosecute, deliver, or perform the wo as provided for in this contract, the City Manager may terminate this contract fc nonperformance by notifying the Contractor by certified mail of the termination of tt Contractor. The Contractor, thereupon, has five (5) working days to deliver sa documents owned by the City and all work in progress to the Assistant City Engineel The Assistant City Engineer shall make a determination of fact based upon tt rev. 81251s -4 - 0 0 documents delivered to City of the percentage of work which the Contractor ha performed which is usable and of worth to the City in having the contract completed, Based upon that finding as reported to the City Manager, the Manager shall determin the final payment of the contract. This agreement may be terminated by either party upon tendering thirty (3C days written notice to the other party. In the event of such suspension or terminatiot upon request of the City, the Contractor shall assemble the work product and put sam in order for proper filing and closing and deliver said product to City. In the event ( termination, the Contractor shall be paid for work performed to the termination datt however, the total shall not exceed the lump sum fee payable under paragraph 4. Th City Manager shall make the final determination as to the portions of tasks complete and the compensation to be made. 12. CLAIMS AND LAWSUITS The Contractor agrees that any contract claim submitted to the City must b asserted as part of the contract process as set forth in this agreement and not i anticipation of litigation or in conjunction with litigation. The Contractor acknowledge that if a false claim is submitted to the City, it may be considered fraud and th Contractor may be subject to criminal prosecution. The Contractor acknowledges th; California Government Code sections 12650 et sea., the False Claims Act, provides fc civil penalties where a person knowingly submits a false claim to a public entity. Thes provisions include false claims made with deliberate ignorance of the false informatic or in reckless disregard of the truth or falsity of information. If the City of Carlsbad seek rev. 8125K -5 - 0 a to recover penalties pursuant to the False Claims Act, it is entitled to recover it litigation costs, including aftorney's fees. The Contractor acknowledges that the filing c a false claim may subject the Contractor to an administrative debarment proceedin1 wherein the Contractor may be prevented to act as a Contractor on any public work c improvement for a period of up to five years. The Contractor acknowledges debarmer by another jurisdiction is grounds for the City of Carlsbad to disqualify the Contractc from the selection process. / (Initial) The provisions of Carlsbad Municipal Code sections 3.32.025, 3.32.026 3.32.027 and 3.32.028 pertaining to false claims are incorporated herein by reference p(1nitial) 13. STATUS OF THE CONTRACTOR The Contractor shall perform the services provided for herein in Contractor's ow way as an independent Contractor and in pursuit of Contractor's independent callin! and not as an employee of the City. Contractor shall be under control of the City on as to the result to be accomplished, but shall consult with the City as provided for in th request for proposal. The persons used by the Contractor to provide services under th agreement shall not be considered employees of the City for any purposes whatsoeve The Contractor is an independent Contractor of the City. The payment made ' the Contractor pursuant to the contract shall be the full and complete compensation . which the Contractor is entitled. The City shall not make any federal or state k withholdings on behalf of the Contractor or its employees or subcontractors. The Ci shall not be required to pay any workers' compensation insurance or unemployme rev. 812516 -6 - 0 contributions on behalf of the Contractor or its employees or subcontractors. Th Contractor agrees to indemnify the City within 30 days for any tax, retiremer contribution, social security, overtime payment, unemployment payment or worker! compensation payment which the City may be required to make on behalf of th Contractor or any employee or subcontractor of the Contractor for work done under thi agreement or such indemnification amount may be deducted by the City from an balance owing to the Contractor. The Contractor shall be aware of the requirements of the Immigration Reforr and Control Act of 1986 and shall comply with those requirements, including, but nc limited to, verifying the eligibility for employment of all agents, employee: subcontractors and Consultants that are included in this agreement. 14. CONFORMITY TO LEGAL REQUIREMENTS The Contractor shall cause all drawings and specifications to conform to 2 applicable requirements of law: federal, state and local. Contractor shall provide E necessary supporting documents, to be filed with any agencies whose approval necessary. The City will provide copies of the approved plans to any other agencies. rev. 8/25/< -7 - 0 0 15. OWNERSHIP OF DOCUMENTS All plans, studies, sketches, drawings, reports, and specifications as herei required are the property of the City, whether the work for which they are made b executed or not. In the event this contract is terminated, all documents, plans specifications, drawings, reports, and studies shall be delivered forthwith to the City. Contractor shall have the right to make one (1) copy of the plans for its records. 16. REPRODUCTION RIGHTS The Contractor agrees that all copyrights which arise from creation of the wor pursuant to this contract shall be vested in City and hereby agrees to relinquish a claims to such copyrights in favor of City. 17. HOLD HARMLESS AGREEMENT Contractor agrees to indemnify and hold harmless the City of Carlsbad and it$ officers, officials, employees and volunteers from and against all claims, damages losses and expenses including attorneys fees arising out of the performance of thc work described herein caused by any willful misconduct, or negligent act, or omission o the contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. 18. ASSIGNMENT OF CONTRACT The Contractor shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the City. rev. 8/25/98 -8 - 0 0 19. SUBCONTRACTING If the Contractor shall subcontract any of the work to be performed under thi contract by the Contractor, Contractor shall be fully responsible to the City for the act and omissions of Contractor's subcontractor and of the persons either directly c indirectly employed by the subcontractor, as Contractor is for the acts and omissions ( persons directly employed by Contractor. Nothing contained in this contract shz create any contractual relationship between any subcontractor of Contractor and th City. The Contractor shall bind every subcontractor and every subcontractor of ' subcontractor by the terms of this contract applicable to Contractor's work unles specifically noted to the contrary in the subcontract in question approved in writing b the City. 20. PROHIBITED INTEREST No official of the City who is authorized in such capacity on behalf of the City t8 negotiate, make, accept, or approve, or take part in negotiating, making, accepting, c approving of this agreement, shall become directly or indirectly interested personally i this contract or in any part thereof. No oficer or employee of the City who is authorize1 in such capacity and on behalf of the City to exercise any executive, supervisory, c similar functions in connection with the performance of this contract shall becomc directly or indirectly interested personally in this contract or any part thereof. rev. 8/25/91 -9 - 0 0 21. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of th City, either before, during or after the execution of this contract, shall affect or modif any of the terms or obligations herein contained nor entitle the Contractor to an additional payment whatsoever under the terms of this contract. 22. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 17, "Hold Harmless Agreement," i terms, conditions, and provisions hereof shall inure to and shall bind each of the partie hereto, and each of their respective heirs, executors, administrators, successors, an assigns. 23. EFFECTIVE DATE This agreement shall be effective on and from the day and year first writte above. 24. CONFLICT OF INTEREST The City has determined, using the guidelines of the Political Reform Act and th City's conflict of interest code, that the Contractor will not be required to file a conflict I interest statement as a requirement of this agreement. However, Contractor heret acknowledges that Contractor has the legal responsibility for complying with th Political Reform Act and nothing in this agreement releases Contractor from th responsibility. rev. 812515 -10 - 0 a 25. INSURANCE The Contractor shall obtain and maintain for the duration of the contract and an and all amendments insurance against claims for injuries to persons or damage t property which may arise out of or in connection with performance of the wor hereunder by the Contractor, his agents, representatives, employees or subcontractor! Said insurance shall be obtained from an insurance carrier admitted and authorized 1 do business in the State of California. The insurance carrier is required to have current Best's Key Rating of not less than "A-:V" and shall meet the City's policy fc insurance as stated in Resolution No. 91-403. A. Coverages and Limits. Contractor shall maintain the types of coverages and minimum limi indicated herein, unless a lower amount is approved by the City Attorney or Ci Manager: 1. Comprehensive General Liability Insurance. $1,000,000 combine single-limit per occurrence for bodily injury, personal injury and property damage. If tt submitted policies contain aggregate limits, general aggregate limits shall app separately to the work under this contract or the general aggregate shall be twice tk required per occurrence limit. 2. Automobile Liability (if the use of an automobile is involved 1 Contractor's work for the City). $1,000,000 combined single-limit per accident for bod injury and property damage. rev. 8/29 -11 - 0 0 3. Workers' Compensation and Employer's Liability. Worker! Compensation limits as required by the Labor Code of the State of California an Employer's Liability limits of $1,000,000 per accident for bodily injury. 4. Professional Liability. Errors and omissions liability appropriate t the contractor's profession with limits of not less than $1,000,000 per claim. Coverag shall be maintained for a period of five years following the date of completion of th work. B. Additional Provisions. Contractor shall ensure that the policies of insurance required under th agreement contain, or are endorsed to contain, the following provisions. 1. The City shall be named as an additional insured on all policic excluding Workers' Compensation and Professional Liability. 2. The Contractor shall furnish certificates of insurance to the Ci before commencement of work. 3. The Contractor shall obtain occurrence coverage, excludir Professional Liability which shall be written as claims-made coverage. 4. This insurance shall be in force during the life of the agreement ar any extension thereof and shall not be canceled without 30 days prior written notice the City sent by certified mail. 5. If the Contractor fails to maintain any of the insurance coveragc required herein, then the City will have the option to declare the Contractor in breach, may purchase replacement insurance or pay the premiums that are due on existir rev. 8/251! -12 - 0 0 policies in order that the required coverages may be maintained. The Contractor i: responsible for any payments made by the City to obtain or maintain such insurance and the City may collect the same from the Contractor or deduct the amount paid fron any sums due the Contractor under this agreement. 26. RESPONSIBLE PARTIES The name of the persons who are authorized to give written notices or to receiv written notice on behalf of the City and on behalf of the Contractor in connection wit the foregoing are as follows: For City: Title Assistant City Engineer Name David Hauser Address 2075 Las Palmas Drive Carlsbad. CA 92009 For Contractor: Title Principal Name Galen Peterson Address 16064 Sun Summit Pt. San Diego, CA 92127-2050 Registered Civil EngineedLicense Number: 18364 27. BUSINESS LICENSE Contractor shall obtain and maintain a City of Carlsbad Business License for tt- duration of the contract. rev. 8/25/! -13 - 0 0 28. ENTIRE AGREEMENT This agreement, together with any other written document referred to I contemplated herein, embody the entire agreement and understanding between tt parties relating to the subject matter hereof. Neither this agreement nor any provisir hereof may be amended, modified, waived or discharged except by an instrument writing executed by the party against which enforcement of such amendment, waiver discharge is sought. Executed by Contractor this ZB -day of t7€ 7D /3 /+Z , 19$& CONTRACTOR: CITY 0 CARLSBAD, a municip GALEN N. PETERSON By: &f 44LLW /2/ (/7GTe5€7J (sign here G#hWLT,A& LGiAi5 /JEL% (print nameltitle) By: ATTEST: (print nameltitle) h4.Rl (sign here) ALETHA L. RAUTENKRANZ City Clerk (Proper notarial acknowledgment of execution by Contractor must be attached.) (President or vice-president and secretary or assistant secretary must sign f corporations. If only one officer signs, the corporation must attach a resolution certifit by the secretary or assistant secretary under corporate seal empowering that officer bind the corporation.) APPROVED AS TO FORM: -14 - rev. 8125/! 1 0 0 State of California ) ) County of San Diego ) On October 20, 1998, before me, Belinda R. Guzman, Notary Public, personally appear€ Galen N. Peterson, personally known me to be the person whose name is subscribed t the within instrument and acknowledged to me that he executed the same in hi authorized capacity, and that by his signature on the instrument the person, or entity up0 behalf of which the person acted, executed the instrument. WITNESS my hand and official seal BRlMlA R. GtlzMAN m # 1126619 “-cdlwo -&A& (This area for Signature of Notary official notary seal) Title or Type of Document Agreement for Audit of costs for Cannon Road West Re Improvements as Constructed by Carlsbad Ranch Con L.P. Date of Document none No. of Pages 14 Signer(s) other than named above None