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HomeMy WebLinkAboutMichael J Holzmiller Planning; 2004-12-28;AMENDMENT NO. 3 TO EXTEND THE AGREEMENT FOR PLANNING CONSULTANT SERVICES MICHAEL J. HOLZMILLER PLANNING This Amendment No. 3 is entered into and effective as of the IP*"* day of , 200*/Extending the agreement dated December 28, 2004 (the reement") toy and between the City of Carlsbad, a municipal corporation, ("City"), and hael J. Holzmiller Planning, ("Contractor") (collectively, the "Parties"). RECITALS A. On January 18, 2006, the Parties executed Amendment No. 1 to the Agreement to provide planning consultant services for the City; and B. On January 23, 2007, the Parties executed Amendment No. 1 to the Agreement to continue to provide planning consultant services for the City; and C. The Parties desire to extend the Agreement for a period of one (1) year; and NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. The Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on December 31, 2008. 2. All other provisions of the Agreement, as may have been amended from time to time, shall 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, shall include coverage for this Amendment. City Attorney Approved Version #05.22.01 4. The individuals executing this Amendment and the instruments referenced 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 hereof of this Amendment. CONTRACTOR *By: (signhere) (print name/title) (e-mail address) *By: (sign here) /ORRAfNlE M. WO0D//c -•'-•' ^CityCI (print name/title) ^v» ••'•«"• V ', H;*;;^' (e-mail address) 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: =r, City Attorney Deputy City Attorney City Attorney Approved Version #05.22.01 CERTIFICATE OF EXEMPTION FROM WORKERS COMPENSATION/ EMPLOYERS' LIABILITY INSURANCE I, Michael J. Holzmiller, am a sole proprietor. I hereby certify that I, Michael J. Holzmiller, have no employees and are not required by law to maintain workers compensation or employers' liability insurance. Should I, Michael J. Holzmiller, employ any person during the term of the Agreement with the City of Carlsbad for Planning consulting services, then workers compensation and employers' liability insurance will be obtained. Executed on this £ day of aAtJJfrP-1 . 20G& at ^A£^g/vb . California. Michael J. Holzmffler Consultant CITY ATTORNEY APPROVED VERSION 09.05.01 AMENDMENT NO/2 TO EXTEND THE AGREEMENT FOR PLANNING CONSULTANT SERVICES MICHAEL J. HOLZMILLER PLANNING This Amendment No. 2 is entered into and effective as of the QlO day of _ 200ft_, extending the agreement dated December 28, 2004 (the_ "Agreement ) by and between the City of Carlsbad, a municipal corporation, ("City"), and Michael J. Holzmiller Planning, ("Contractor") (collectively, the "Parties"). RECITALS A. On January 18, 2006 the Parties executed Amendment No. 1 to the Agreement to provide planning consultant services for the City; and B. The Parties desire to extend the Agreement for a period of one (1) year; and NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. The Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on December 31, 2007. 2. All other provisions of the Agreement, as may have been amended from time to time, shall 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, shall include coverage for this Amendment. City Attorney Approved Version #05.22.01 4. The individuals executing this Amendment and the instruments referenced 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 hereof of this Amendment. CONTRACTOR *By: CITY OF CARLSBAD, a municipal corporation of the State of California (print name/title) (e-mail address) City Manager or Mayor ATTEST: L *By:LORRV'llNE M. WOOD City Clerk (sign here) •<• c.*X* "'. O "*•' V*' cURfi*. '•>—» • (print name/title) (e-mail address) 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 *6roup 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: RONALD R. BALL, City Attorney By:•?> City Attorney City Attorney Approved Version #05.22.01 CERTIFICATE OF EXEMPTION FROM WORKERS COMPENSATION/ EMPLOYERS' LIABILITY INSURANCE I, Michael J. Holzmiller, am a sole proprietor. I hereby certify that I, Michael J. Holzmiller, have no employees and are not required by law to maintain workers compensation or employers' liability insurance. Should I, Michael J. Holzmiller, employ any person during the term of the Agreement with the City of Carlsbad for Planning consulting services, then workers compensation and employers' liability insurance will be obtained. Executed on this "-1 day of PE^cJMgQ? . 2QO&, at ££,£u,gAS> California. Michael J. HolzmHler u Consultant CITY ATTORNEY APPROVED VERSION 09.05.01 REQUEST FOR WAIVER OF INSURANCE REQUIREMENTS FOR MICHAEL HOLZMILLER I am requesting that the City waive the insurance requirements for this one-year contract with Michael Holzmiller for the following reasons: 1. Michael will not be using City vehicles or equipment in his capacity as "Consultant". 2. Michael will be performing all work directly under my supervision. As a result, I will be responsible for the direction.of the work and for signing any documents related to the scope of work. 3. Michael is not a designer or engineer and will not be performing any work of this nature that typically requires errors and omissions insurance coverage. 4. Michael will not be representing the City in any of these work assignments. Sandra L. Holder Community Development Director AMENDMENT NO. 1 TO EXTEND THE AGREEMENT FOR PLANNING CONSULTANT SERVICES MICHAEL J. HOLZMILLER PLANNING This Amendment No. 1 is entered into and effective as of the / day of , 200_0_, extending the agreement dated December 28, 2004 (the__ "Agreement by and between the City of Carlsbad, a municipal corporation, ("City"), and Michael J. Holzmiller Planning, ("Contractor") (collectively, the "Parties"). RECITALS A. The Parties desire to extend the Agreement for a period of one(1) year; and NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. The Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on December 31, 2006. 2. All other provisions of the Agreement, as may have been amended from time to time, shall 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, shall include coverage for this Amendment. City Attorney Approved Version #05.22.01 4. The individuals executing this Amendment and the instruments referenced 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 hereof of this Amendment. CONTRACTOR *By: *By: (signnere) (print name/title) (e-mail address) (sign here) (print name/title) (e-mail address) CITY OF CARLSBAD, a municipal corporation of the State of California City Manager or Mayor. ATTEST: rVaC{^^ A*&( LORRAIN City Clerk f 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: RONALD R. BALL, City Attorney By: _ City Attorney City Attorney Approved Version #05.22.01 AGREEMENT FOR PLANNING CONSULTANT SERVICES MICHAEL J. HOLZMILLER PLANNING THIS AGREEMENT is made and entered into as of the 2 pa, day of -- , 2Oq1 by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and Michael J. Holzmiller Planning, a sole proprietor, ("Contractor"). RECITALS A. City requires the professional services of a City Planning Consultant that B. Contractor has the necessary experience in providing professional C. Selection of Contractor is expected to achieve the desired results in an D. Contractor has submitted a proposal to City and has affirmed its is experienced in current and advanced planning. services and advice related to these professional services. expedited fashion. willingness and ability to perform such work. NOW, THEREFOREl 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 one (1) year from the date first above written. This agreement cannot be terminated prior to a one-year period without the mutual consent of both parties. The City Manager may amend the Agreement to extend it for three (3) additional one (1) year periods or parts thereof in an amount not to exceed One Hundred Thousand dollars ($100,000) per Agreement year. 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. City Attorney Approved Version #04.01.02 1 4. Time is of the essence for each and every provision of this Agreement. TIME IS OF THE ESSENCE 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be One Hundred Thousand dollars ($100,000) payable at a rate of $125 per hour. 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 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. City Attorney Approved Version #04.01.02 2 9. 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 in whole or in part by any willful misconduct or negligent act or omission 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. IN D EM N I Fl CAT1 ON 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. IO. 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. 11 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. 12. OWNERSHIP OF DOCUMENTS All work products 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 products 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 (I) copy of the work product for Contractor’s records. 13. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City ._ - and Contract& relinquishes all claims to the copyrights in favor of City. City Attorney Approved Version #04.01.02 3 14. NOTICES The names of the person(s) who are authorized to give written notices or to receive written notice on behalf of the City and on behalf of the Contractor under this Agreement are: For City: For Contractor: Title: Community Development Director Name: Michael J. Holzmiller Department: Community Development Title: Principal City of Carlsbad Address: 7065 Murillo Lane Address: 1635 Faraday Avenue Carlsbad CA 92009 Carlsbad CA 92008-7314 Phone No. (760) 431-5061 Phone No. (760) 602-271 0 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. 15. 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. 16. 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 4 City Attorney Approved Version #04.01.02 the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 17. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 18. 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 (IO) 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 upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 19. TERMINATION This Agreement shall only be terminated upon the mutual consent of both parties. If ' either party intends to telminate this Agreement, it shall provide the other party with thirty days written notice of intent to terminate. Upon notification of intent to terminate, the parties shall meet and confer and mutually agree to terminate the Agreement. If mutual consent is established, Contractor will assemble any work product in process and will deliver it to the City. Contractor will be paid for work performed not to exceed the lump sum payable under this Agreement. 20. 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, commis@on, 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. 21. 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 City Attorney Approved Version #04.01.02 5 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. 22. 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 . 23. 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. 24. 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 #04.01.02 6 25. 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 . . ATTES~ (e-mail address) sign here) **\ City Clerk (e-mail address) 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-Presiden t **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: RONALD R. BALL, City Attorney City Attorney Approved Version #04.01.02 7 EXHIBIT “A” SCOPE OF SERVICES Michael J. Holzmiller Planning submits this proposal to provide Planning Consulting Services. Scope of Services Consultant will provide services to the City for the following projects: 1. Centre City Gateway Study 2. Implementing ordinances and documents for the Carlsbad Habitat Management Plan 3. Implementation of the South Carlsbad Coastal Redevelopment Plan 4. Plaza Camino Real Mall Redevelopment 5. Zoning/General Plan Consistency Program 6. Carlsbad Desalination Project including review of the Environmental Impact Report (EIR) 7. Assistance in the hiring of a Planning Director including briefinghnformational sessions 8. Other miscellaneous projects as requested by the Community Development Director. Work Direction/Supervision All work shall be performed under the direction and supervision of the Community Development Director. Compensation for Services Hourly compensation shall be paid to the consultant at a rate of $125 per hour not to exceed $100,000 per agreement year. Monthly billings for staff time incurred during the period will be payable within thirty (30) days of invoice date. City Attorney Approved Version #04.01.02 8