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HomeMy WebLinkAboutHabitat West Inc; 2017-05-16; TRAN1558AMENDMENT NO. 1 TO EXTEND AND AMEND AGREEMENT FOR CMP REPLACEMENT PROGRAM AT HOOVER AND AGUA HEDIONDA PLANT WATERING SERVICES HABITAT WEST, INC. TRAN1558 ~ Amendment No. 1 is entered into and effective as of the _m_ day of Du bee , 2017, extending and amending the agreement dated May 16, 2017, (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Habitat West, Inc., a California corporation, ("Contractor") (collectively, the "Parties") for plant watering. RECITALS A The Parties desire to extend and fund the Agreement for a period of one ( 1) year in an amount not to exceed five thousand dollars ($5,000). NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. That the Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on November 16, 2018,on a time and materials basis not-to-exceed five thousand dollars ($5,000) per agreement year. 2. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 3. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill City Attorney Approved Version 1 /30/13 TRAN1558 4. The individuals executing this Amendment 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 Amendment. CONTRACTOR HABITAT WEST, INC., a California corporation By AcVc \k,4 ( ign here) C:;, a,,~ Hwsc '1' AL/\, c~d l<".Go ' (print name/title) G~•u·: t· 1 -(f'_(s. ign here) L 1v ,.::,...._ / • .Q,0--L;,"~ C (print na CITY OF CARLSBAD, a municipal corporation of the State of California By: rks Di rector 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 Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, 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: CELIA A. BREWER, City Attorney BY: -~----=------l:--~--------------=-->--- Deputy City Attorney City Attorney Approved Version 1/30/13 2 Hl\BIT/\ T \\!EST N/\TIVE H/\BIT/\T RESTOR/\TION RESOLUTIONS ADOPTED BY UNANIMOUS WRITTEN CONSENT OF THE BOARD OF DIRECTORS OF HABITAT WEST, INC. A CALIFORNIA CORPORATION The undersigned, being all the directors of Habitat West, Inc., a California Corporation, by this writing approve the following resolutions and consent to their adoption: WHEREAS, THE Board of Directors of this Corporation, desires to grant to the Officers of this Corporation, the power to execute all corporate instruments and documents, or to sign the corporate names without limitation, each acting alone and without approval of signature of any other corporate officer. NOW, THEREFORE, BE IT RESOLVED, THAT Georgia L. Hurst, is hereby authorized and directed to act alone in signing any and all corporate documents of any kind or nature, and/or related instruments, for the benefit of the Corporation, on such terms and conditions as GEORGIA L. HURST, in her sole discretion, deems advisable In the best interest of the corporation. This consent is executed pursuant to subdivision (b) of Section 307 of the California Corporation code, and is filed with the Minutes of Board proceedings. Executed effective December 1, 2007 k,c~f lLd- Georgia L. Hurst 5 President G;4':,~? ; ll~ CEO G~'f l, I !-Ld Secretary/Treasurer Habitat West, Inc. 2067 Wineridge Place, Suite B, Escondido, CA 92029 (760) 735-9378 Fax (760) 735-9351 www.HabitatWest.com Contractor's License C-27 #672030 HABIT-3 OP ID: JM ACORD CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/00/YYYY) ~ 04/20/2017 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($), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must 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 ~2~~~CT Rancho Mesa Insurance Services Rancho Mesa Insurance Services ~NNEo Extl: 619-937 -0164 [ ;ffc Nol: 619-937-0168 250 Riverview Parkway #401 Santee, CA 92071 E-MAIL ADDRESS: INSURER(Sl AFFORDING COVERAGE NAIC# INSURER A: Wesco Insurance Company Inc. 25011 INSURED Habitat West, Inc. INSURER B : Great American Alliance Ins Co 26832 2067 Wineridge Pl Escondido, CA 92029-1952 INSURERC: INSURERD: INSURER E: INSURERF: COVERAGES CERTIFICATE NUMBER· 4 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 ~-'~~hl%~ 1~2hl%~ LlR TYPE OF INSURANCE "'" ... ,.n,n POLICY NUMBER LIMITS A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 1--D CLAIMS-MADE 0 OCCUR X WPP1511196 00 11/23/2016 11/23/2017 IURl::Nll::U 100,000 PREMISES IEa occurrence\ $ 1-- MED EXP (Any one person) $ 5,000 - PERSONAL & ADV INJURY $ 1,000,000 - GEN'L AGGREGATE L· MIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 ~ QgPRO-DLOC 2,000,000 POLICY JECT PRODUCTS -COMP/OP AGG $ OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 1,000,000 ,-Ea accident\ A x ANY AUTO WPP1511196 00 11/23/2016 11/23/2017 BODILY INJURY (Per person) $ ~ ALL OWNED u SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) $ 1--1X HIRED AUTOS M NON-OWNED iP~~~&fd7;;;;t~AMAGE $ r-AUTOS $ UMBRELLA LIAB N OCCUR EACH OCCURRENCE $ 2,000,00C B x EXCESS LIAB CLAIMS-MADE XS9953018 11/23/2016 11/23/2017 AGGREGATE $ 2,000,000 I OED I ! RETENTION $ I $ WORKERS COMPENSP,TION I ~¥rruTE I I ERn-AND EMPLOYERS' LIABILITY YIN ANY PROPRIETOR/PARTNER/EXECUTIVE D E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? NIA (Mandatory In NH) E.L. DISEASE -EA EMPLOYEE $ If yes, describe under DESCRIPTION OF OP~RATIONS below E.L. DISEASE -POLICY LIMIT $ A Rented/LeasedEqulp WPP1511196 00 11/23/2016 11/23/2017 Limit 30,00( / Ded 1,00( DESCRIPTION OF OPERATIONS/ LOCATIONS /VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space is required) RE: PLANT WATERING SERVICES FOR CMP REPLACEMENT AT HOOVER AND AGUA HEDIONDA PROJECT-CARLSBAD, CA. CITY OF CARLSBAD, ITS OFFICERS OFFICIALS, EMPLOYEES, AGENTS AND VOLUNTEERS ARE INCLUDED AS ADDITIONAL INSURED PER FORM CG2038 AND CG2037 ATTACHED. CERTIFICATE HOLDER CANCELLATION CITYCAR SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE CITY OF CARLSBAD THE EXPIRATION DATE THEREOF, NOTICE Will BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. PUBLIC WORKS CONTRACT ADMINISTRATION AUTHORIZED REPRESENTATIVE 1635 FARADAY AVENUE /aO(!~' CARLSBAD, CA 92008 I © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD POLICY NUMBER:WPP1511196 00 / COMMERCIAL GENERAL LIABILITY CG 20 37 0413 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 Oraanization(s) Location And Description Of Completed Operations Blanket as required by written contract. Blanket as required by written contract. Information required to comolete 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 shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. CG 20 37 0413 © Insurance Services Office, Inc., 2012 Page 1 of 1 POLICY NUMBER WPP1511196 00/ COMMERCIAL GENERAL LIABILITY CG 20 38 0413 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -OWNERS, LESSEES OR CONTRACTORS -AUTOMATIC STATUS FOR OTHER PARTIES WHEN REQUIRED IN WRITTEN CONSTRUCTION AGREEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART A. Section II -Who Is An Insured is amended to include as an additional insured: 1. Any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy; and 2. Any other person or organization you are required to add as an additional insured under the contract or agreement described in Paragraph 1. above. Such person(s) or organization(s) is an additional insured only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: a. Your acts or omissions; or b. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured. However, the insurance afforded to such additional insured described above: a. Only applies to the extent permitted by law; and b. Will not be broader than that which you are required by the contract or agreement to provide for such additional insured. A person's or organization's status as an additional insured under this endorsement ends when your operations for the person or organization described in Paragraph 1. above are completed. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: 1. "Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services, including: a. The preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or b. Supervisory, inspection, architectural or engineering activities. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "property damage", or the offense which caused the "personal and advertising injury", involved the rendering of, or the failure to render, any professional architectural, engineering or surveying services. 2. "Bodily injury" or "property damage" occurring after: a. 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 CG 20 38 0413 © Insurance Services Office, Inc., 2012 Page 1 of 2 b. 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: The most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement described in Paragraph A.1.; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not applicable Limits of Insurance Declarations. increase the shown in the Page 2 of 2 © Insurance Services Office, Inc., 2012 CG 20 38 0413 ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) ~ 5/1/2017 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 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 ~i~i~cT Stacy Manning, CISR --- Landscape Contractors (Lic#07 55906) J.,tJgNr,\=0, Ext): (559) 650-3555 'FAX ! {M;J'!Q): (559) 650-3558 Insurance Services, Inc. ioMD~~SS: smanning@lcisinc.com 1835 N. Fine Avenue INSURER(~) AFFORDING COVERAGE NAIC# Fresno CA 93727 INSURER A :State Compensation Insurance Fund 35076 INSURED INSURER B: I Habitat West, Inc. INSURER C: 2067 Wineridge Place, Suite B INSURER D: --- INSURER E: Escondido CA 92029-1952 INSURER F: I COVERAGES CERTIFICATE NUMBER·l 7-18 WC 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. tf~ ! TYPE OF INSURANCE ~--------------~~=---~=~--------------IADDC"ISUBR! I POLICY EFF I POLICY EXP I ',.,~n "'"" I POLICY NUMBER /MMIDD/YYYYl /MM/DD/YYYYl , LIMITS I, I COMMERCIAL GENERAL LIABILITY r--:-II CLAIMS-MADE c ___ OCCUR 1,=:J ==--=--=-~-~------- 1 GEN'L AGGREGATE LIMIT APPLIES PER: I ~ PRO-~' [ __ POLICY ,_ 1 JECT l--~ LOC I I OTHER: I i I l_~LI__TOMOBILE LIABILITY I , ANY AUTO -, ALL OWNED 'l SCHEDULED , __ AUTOS AUTOS I 1 ,-------__ NON-OWNED 1--i HIRED AUTOS 1 ____ 1 AUTOS I j I j_j UMBRELLA LIAB _ I OCCUR I _ --_/ EXCESS LIAB I l CLAIMS-MADE I OED I ! RETENTION $ I 'WORKERS COMPENSATION I I 1 AND EMPLOYERS' LIABILITY y / N II ANY PROPRIETOR/PARTNER/EXECUTIVE O '1 ', , OFFICER/MEMBER EXCLUDED? I N / A A '1 (Mandatory in NH) lf yes, describe under i , DESCRIPTION OF OPERATIONS below 1 1 9128526-17 4/1/2017 4/1/2018 I I EACH~c;c:_u_R~E_NCE~--+~$ ____ _ !-'DAMAGE TO RENTED 1 t PREMISES /Ea occurrence) : $ MED EX:P (Any one person) _ -i-1 ~$ __________ _ _PERSONAL & ADV INJU_R_Y_--+-$ ____ _ GENERAL AGGREGATE 1-----------+---------------~- I PRODUCTS -COMP/OP AGG '$ i $ COMBINED SINGLE LIMIT $ (Ea accident\ BODILY INJURY (Per person) : $ BODILY INJURY (Per accident) PROPERTY DAMAGE rPer accident) EACH OCCURRENCE AGGREGATE ---- I PER I X / STATUTE I OTH-ER $ '$ $ $ $ $ --- ------ --- ----- ------ i---:E.-"'L.---'E'---A--'-C_H_A_c_C~C_ID_E_N_T __ -+$ ___ 1J 000 Lo_o_o_ E_L. DISEASE -EA EMPLOYEE! $ 1 1 000, 000 1 E.L. DISEASE_ POLICY LIMIT r-$-----1~0_0_0~0-0_0_, i I DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) RE: Plant Watering Services for CMP Replacement at Hoover and Agua Hedionda -TRAN1558 CERTIFICATE HOLDER City of Carlsbad Public Works 1635 Faraday Carlsbad, ACORD 25 (2014/01) INS0251201401) CA Contract Ave 92008 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Administration ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE s Manning, CISR/KSAEN '?f-'t-o--~ ....... ,_,/\_, . ....__ __ _.,. __ ... -- © 1988-2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD AGREEMENT FOR CMP REPLACEMENT AT HOOVER AND AGUA HEDIONDA PROJECT PLANT WATERING SERVICES HABITAT WEST, INC. TRAN1558 THIS AGREEMENT is made and entered into as of the //.() ft-t day of I , 20.Q_, by and between the CITY OF CARLSBAD, a municipal 'City"), and HABITAT WEST, INC., a California corporation, ("Contractor''). RECITALS A. City requires the professional services of a consultant that is experienced in maintenance services. B. Contractor has the necessary experience in providing professional services and advice related to maintenance 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 for a period of six (6) months from the date first above written. The City Manager may amend the Agreement to extend it for one (1) additional one (1) year periods 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 Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be three thousand three hundred forty dollars ($3,340). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed five thousand dollars ($5,000) per Agreement year. 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". City Attorney Approved Version 2/29/16 TRAN1558 6. PREVAILING WAGE RATES Any construction, alteration, demolition, repair, and maintenance work, including work performed during design and preconstruction such as inspection and land surveying work, cumulatively exceeding $1,000 and performed under this Agreement are subject to state prevailing wage laws. The general prevailing rate of wages, for each craft or type of worker needed to execute the contract, shall be those as determined by the Director of Industrial Relations pursuant to the Section 1770, 1773 and 1773.1 of the California Labor Code. Pursuant to Section 1773.2 of the California Labor code, a current copy of applicable wage rates is on file in the office of the City Engineer. Contractor shall not pay less than the said specified prevailing rates of wages to all such workers employed by him or her in the execution of the Agreement. Contractor and any subcontractors shall comply with Section 1776 of the California Labor Code, which generally requires keeping accurate payroll records, verifying and certifying payroll records, and making them available for inspection. Contractor shall require any subcontractors to comply with Section 1776. 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 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 indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, City Attorney Approved Version 2/29/16 2 TRAN1558 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. 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 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the 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. 11.1.1 Commercial General Liability Insurance. $2,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 11.1.2 Automobile Liabilitv. (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 11.1.3 Workers' Compensation and Employer's Liabilitv. 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. City Attorney Approved Version 2/29/16 3 TRAN1558 11.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 11.2.3 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. 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 three (3) 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. 16. 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. City Attorney Approved Version 2/29/16 4 For City Name Sherri Howard Title Associate Engineer Department Public Works City of Carlsbad Address 1635 Faraday Av Carlsbad, CA 92008 Phone No. 760-602-2756 For Contractor Name Gigi Hurst Title Project Manager TRAN1558 Address 2067 Wineridge Place, Suite B Escondido, CA 92029 Phone No. 760-735-9378 Email HabitatGal@habitatwest. com 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. 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 in all four categories. 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. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 20. 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 Manager will be binding City Attorney Approved Version 2/29/16 5 TRAN1558 upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 21. 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. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event 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. 22. 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. 23. 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. City Attorney Approved Version 2/29/16 6 TRAN1558 24. JURISDICTION AND VENUE 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. 26. 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. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill City Attorney Approved Version 2/29/16 7 TRAN1558 27. 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. CONTRACTOR HABITAT WEST, INC., a California corporation By: By~ ·~ · Hu<~T CITY OF CARLSBAD, a municipal corporation of the State of California By: /iu.~ Elaine Lukey I Pu~s Director as authorized by the City Manager 1~-o ~sign here) G,· . 1-Iu(hl"" s~ lf (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 Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, 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: CELIA A. BREWER, City Attorney BY:~~'""'--~----­ Deputy City Attorney City Attorney Approved Version 2/29/16 8 Exhibit A Corrugated Metal Pipe Replacement Program 6607 Scope of Work Provide hand watering for 36 container plants planted to provide slope stabilization in the Hoover Drive easement located just north of the Agua Hedionda lagoon. Task 1-Hand Watering Container Plantings every Two Weeks. (Each) Scope of Services includes providing all labor, tools, materials, equipment, and incidentals to perform hand water of 36 container plants 13 time through September 2017. Submittal at completion of services of a Daily Work Report identifying worker name, classification and services performed. Task 2 -Unforeseen Circumstances to be paid per Section 3-3 EXTRA WORK of the Standard Specifications for Public Works Construction. (Stipulated Lump Sum) The contract stipulated lump sum price shall include full compensation for furnishing all labor, materials, tools, equipment, and incidentals, and for doing all the work involved in providing and materials and labor to address unforeseen conditions not shown on plans and as required by engineer. The contract stipulated lump sum price paid shall be considered full compensation for furnishing all materials, labor, tools, equipment, and all incidentals, necessary to complete the work in accordance with Section 3-3 of the Standard Specifications for Public Works Construction and as directed by the Engineer. 9