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HomeMy WebLinkAboutHarris & Associates; 2008-02-27;AGREEMENT FOR ASSESSMENT DISTRICT ADMINISTRATION, ENGINEERING AND ANNEXATION SERVICES HARRIS & ASSOCIATES THIS AGREEMENT is made and entered into as of the °*^ day of ^P 2008, by and between the CITY OF CARLSBAD, a municipal corporation ,$/City"), and Harris & Associates, a corporation, ("Contractor"). RECITALS A. City requires the professional services of an Engineering Firm that is experienced in assessment district administration, engineering and annexation services. B. Contractor has the necessary experience in providing professional services and advice related to assessment district administration, engineering and annexation services. C. Selection of Contractor is expected to achieve the desired results in an expedited fashion. D. 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 five (5) years from the date first above written. The term of the contract is based upon a satisfactory review of Contractor's performance and the annual appropriation of funds by the City Council. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. City Attorney Approved Version #11.28.06 5. COMPENSATION Engineering and Administration Services The total fee payable for the Services to be performed on an annual basis during the term of the agreement will be eighteen thousand dollars ($18,000.00) for the Street Lighting Improvement Zone, the Street Tree Improvement Zone, the Median Landscaping Improvement Zone and the Buena Vista Channel Maintenance District. The total fee payable for the Services to be performed on an annual basis during the term of the agreement will be five hundred dollars per zone ($500.00 per zone) for Street Lighting and Landscaping District No. 2. No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. A more detailed breakout of the fees are defined in attached Exhibit "A", which is incorporated by this reference in accordance with the Agreement's terms and conditions. Annexation Services The total fee payable for the Services to be performed during the term of the agreement will be four thousand dollars per annexation ($4,000.00 per annexation) in Street Lighting and Landscaping District No. 2. Annexations will be done on an as-needed basis, with no more than six annexations per year. No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. 6. 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. 7. 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 City Attorney Approved Version #11.28.06 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. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. 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 to the extent 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. 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. 10. 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-:V". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney 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. City Attorney Approved Version #11.28.06 10.1.1 Commercial General Liability Insurance. $1.000.000 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. 10.1.2 Automobile Liability (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. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 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. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. City Attorney Approved Version #11.28.06 10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. 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. 12. 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. 13. 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. 14. 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. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City: Name: Kevin Branca Title: Assistant Finance Director Department: Finance City of Carlsbad Address: 1635 Faraday Avenue Carlsbad, CA 92008 Phone No.: (760)602-2418 For Contractor: Name: Joan E. Cox, PE Title: Senior Project Manager Address: 34 Executive Park, Suite 150 Irvine, CA 92614-4705 Phone No.: (800) 827-4901 Ext. 337 City Attorney Approved Version #11.28.06 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. 16. CONFLICT OF INTEREST City will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City's Conflict of Interest Code is required of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor's affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. 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 that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. 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 City Attorney Approved Version #11.28.06 party and may then opt to direct a solution to the problem. In such cases, the action of the City 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. 20. 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. 21. 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. 22. 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 City Attorney Approved Version #11.28.06 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. 23. JURISDICTIONS 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. 24. 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 or 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. 25. 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. City Attorney Approved Version #11.28.06 8 26. 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 CITY OF corporatio (sign here) Dennis Anderson danderson @ harris-assoc.com LO City Clerk •^ •=?<t3BB^: xIf required by City, proper notarial acknowledgment of execution by contr*ajjtor£'''x v^sS must be attached. If a Corporation. Agreement must be signed by one corporaVe"nOXV 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: RONALTp^zBALL, City Attorney ^ Deputy City Attorney City Attorney Approved Version #11.28.06 EXHIBIT "A" SCOPE OF SERVICES Administration and Engineering Services 1. Coordinate with City departments, the County Assessor's office and County Auditor/Controller's office as necessary to obtain the necessary information to prepare the Engineer's Reports and calculate the assessment for the annual assessment levy. This includes Assessor's parcel maps, Assessor's data files, boundary maps, budget data, and other required information. 2. Maintain an assessment database for each assessment district from the previous year's assessment data, and update the databases based on changes to assessor's parcels. Programs will be updated / created as necessary to calculate the Benefit Units for each parcel based on the approved assessment formula. 3. Prepare the Engineer's Reports, to be signed by a Registered Professional Engineer, including review of the budget information, the general benefit contribution calculation, assessment methodology, improvements to be funded and levels of service, assessment diagram and general compliance with the authorizing codes. Assist with the preparation of Agenda Bills and Resolutions, and presentation of the Engineer's Report to the City Council and property owners, as required. 4. Assist with and present material, as needed, at public meetings and workshops and public hearings to discuss the Districts' services, budgets, compliance with Proposition 218, and any concerns generated by property owners. 5. Prepare and submit all required forms and transmittals to the County for acceptance of the assessments for inclusion on the property tax bills. Provide to the City electronic and paper reports of the district databases, as required by the City. 6. Provide administration services throughout the year, including appeals processing, assessment apportionments, and citizen inquiries. A toll-free telephone number will be provided for such inquiries. 7. Provide an annual report for each District to City staff listing the "noticed" levy amounts for each Assessor's parcel number and certain information requested by the City that may include acreage, land use codes, number of dwelling units, owner information, situs address, etc. City Attorney Approved Version #04.01.02 10 8. Provide advisory services to the City regarding long-term projections on the future costs and assessments for the individual Zones in the District, and including Proposition 218 compliance issues, public education and outreach concepts and general methodology options. Fee Schedule for Administration and Engineering Services Street Lighting and Landscaping District No. 1 Street Lighting Improvement Zone $6,000 lump sum per year Street Tree Improvement Zone $2,500 lump sum per year Median Landscaping Improvement Zone $6,000 lump sum per year Street Lighting and Landscaping District No. 2 9+ Improvement Zones $500 lump sum per Zone per year Buena Vista Channel Maintenance District Benefit Area No. 1 $3,500 lump sum per year Notes: 1. Attendance at meetings as described in the Scope of Work and indirect expenses (such as mileage, duplicating and postage) are included in the lump sum fees. 2. The fees shown above assume the Districts and Improvement Zones have concurrent proceedings. 3. Any methodology modifications or noticing and balloting costs associated with Proposition 218 compliance issues are specifically excluded from the fees shown above. Invoices will be submitted monthly for services performed in the previous month, not to exceed the cumulative percentages shown below. Undisputed invoices will be paid within 30 days of receipt. Preliminary Engineer's Report 30 % Final Engineer's Report 50 % Council Meeting adopting Resolution of Intention 55 % Public Hearing 60% Initial Submittal of Assessments to County 85 % Final Submittal of Assessments to County 100 % City Attorney Approved Version #04.01.02 11 Annexation Services (Street Lighting and Landscaping District No. 2) 1. Coordinate with City staff to obtain copies of the area map for the parcels/developments being annexed and with developer representatives to obtain all needed information. 2. Prepare a description of the District improvements that specially benefit the property being annexed. Each improvement must be discussed separately and the types of services the improvements will receive must also be discussed. 3. Prepare an Assessment Calculation Information sheet, to include such items as the District name, total District assessment, proposed maximum assessment for property being annexed, duration of the proposed assessment, reason for the assessment, and calculation of the methodology for the assessment. The assessment calculation will be specific to the Benefit Zone the parcel/development being annexed is in and should provide a description of the Zone, the estimated actual EDU rates by land use, and the maximum assessment rates per EDU. 4. Prepare and provide to the City Assessment Ballots for the properties being annexed. 5. Prepare and submit required information to the County for each annexation. 6. Update the ensuing fiscal year's Engineer's Report and levy to include the annexed parcels. 7. 7. Assist with and present material, as needed, at public meetings and workshops and public hearings to discuss the District's services, budgets, compliance with Proposition 218, and any concerns generated by the property owners being annexed. This also entails assistance, as needed, with the preparation of agenda bills and resolutions. City Attorney Approved Version #04.01.02 12 MINUTES OF ACTION of BOARD OF DIRECTORS of HARRIS & ASSOCIATES, Inc. A California Corporation September 11, 2006 Pursuant to California Corporations Code Section 307(b) and the Bylaws of the corporation, the following action is hereby taken pursuant to the Harris & Associates, Inc., September 11, 2006 Board of Directors' meeting. AUTHORIZATION TO ENTER INTO CONTRACTS: The Board has discussed the matter of signing authority for contracts and the appropriate limits on signing authority. The Board is in agreement that such limits should be expressly set forth and therefore upon motion duly made, seconded and carried by a majority vote adopts the following resolutions: RESOLVED, the contracts to be executed on behalf of this corporation obligating it to perform services shall require only one (1) authorized signature as hereinafter provided. RESOLVED FURTHER, that all contracts up to Fifty Thousand Dollars ($50,000) may be executed on behalf of the corporation by the following Office Managers of the corporation: Cindy Laffoon Keri McQueen Denise Owen Bonnie Volkle RESOLVED FURTHER, that all contracts up to Two Hundred and Fifty Thousand Dollars ($250,000) may be executed on behalf of the corporation by the following Managers of the corporation: Dennis A. Anderson Randall Berry Joan Cox Isaac C. Dee Ehab S. Gerges Greg Griffith William Little III Scott E. Perry RESOLVED FURTHER, that all contracts up to Five Hundred Thousand Dollars ($500,000) may be executed on behalf of the corporation by the following Managers of the corporation: Dennis Anderson James Bissell Leonardo Flor Ramon Guiao Ramiro S. Herrera Javier Saunders Darren Schulz Kim Sloat Minutes of Action September 11, 2006 RESOLVED FURTHER, that all contracts up to One Million Dollars ($1,000,000) may be executed on behalf of the corporation by the following Vice Presidents of the corporation: Michael K. Cooper Robert DeLiso Stephen M. Ehninger James R. Guerrero Edward A. Kozlowski Gregory G. Ow Steven E. Roberts Larry G. Timmer Roland P. Williams Sr. Brian A. Danley Edgar E. Edwards Jules P. Feher Robert S. Guletz Russell A. Moore Raymond K. Polidoro Eric R. Tholen Byron G. Tobey RESOLVED FURTHER, that all contracts up to Two Million Five Hundred Thousand Dollars ($2,500,000) may be executed on behalf of the corporation by the following Vice Presidents of the corporation: Randall S. Duncan Mario Maciel Dana O. LeSher David T. Seevers RESOLVED FURTHER, that all contracts without limitation to the amount may be executed on behalf of the corporation by the following Board of Directors and Executive Team of the corporation: L. Carl Harris Jeffrey M. Cooper James D. Morris Vernon A. Phillips Marie A. Shockley Guy A. Erickson Neil M. McCosker James L. Parmley Marian S. Ross RESOLVED FURTHER, that the above authorities shall remain in effect until the designated individual's employment, or position of employee indicated above, is terminated, or the resolution granting signing authority is revoked, changed or amended by duly adopted resolution of the Board of Directors. Dated: September 11, 2006 GUYA^ERICKSON JEFFREY M. COOPE VERNON A. PHILLIPSJAMES L. PARMLEY Minutes of Action September 11, 2006