HomeMy WebLinkAboutNinyo and Moore; 2015-09-03; TRAN1265TRAN 1265
AGREEMENT FOR GEOTECHNICAL SERVICES
NINYO & MOORE
'THIS AGREEMENT is made and entered into as of the Z5 day of
\<f/)/^v\ Jq f2015, by and between the CITY OF CARLSBAD, a municipal
corpdfation, ("City"), and NINYO & MOORE, a California corporation, ("Contractor").
RECITALS
A. City requires the professional services of a firm that is experienced in geotechnical
engineering and testing services.
B. Contractor has the necessary experience in providing professional services and
advice related to geotechnical observation, special inspection and materials testing for the
construction ofthe Romeria Drainage Improvement and La Costa Avenue Slope Repair projects.
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 one (1) year from the date first above
written.
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
twenty eight thousand seven hundred forty eight dollars ($28,748). No other compensation forthe
Services will be allowed except for items covered by subsequent amendments to this Agreement.
The City reserves the right to withhold a ten percent (10%) retention until City has accepted the
work and/or Services specified in Exhibit "A".
Incremental payments, if applicable, should be made as outlined in attached Ex hibit "A".
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
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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 em ploy other Contractors in co nnection 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 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 ofthis 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 tiie 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-:Vir'; 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.
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10.1 Coveraqe 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 rninimum 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 ofthe
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.
10.1.1 Commercial General Liabilitv Insurance. $2,000,000 combined single-limit per
occurrence for bodily injury, personal injury and property damage. Ifthe submitted policies contain
aggregate limits, general aggregate limits will apply separately to the work underthis Agreement
orthe general aggregate will be twice the required per occurrence limit.
10.1.2 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.
10.1.3 Workers' Compensation and Emplover'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.
10.1.4 Professional Liabilitv. 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 conta in, the following provisions:
10.2.1 The City will be named as an additional insured on Commercial General Liability
which shall provide primary coverage to the City.
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 ofthe 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 ofthis 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 Coveraqe. 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.
10.5 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.
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11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carisbad 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 cleariy 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 ofthree
(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 claim s to the copyrights in favor of City.
15. 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.
For Citv For Contractor
Name Sherri Howard Name Jeffrey Kent
Title Associate Engineer Title Senior Engineer
Department Public Works Address 5710 Ruffin Road
City of Carisbad San Diego CA 92123
Address 1635 Faraday Avenue Phone No. 858-576-1000
Carisbad CA 92008 Email jkent@ninyoandmoore.com
Phone No. 760-602-2756
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
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report
investments or interests in all four categories.
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
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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 ofthe requirements ofthe 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.
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 othenwise 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 fon/varded 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. Ifthe resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be fonwarded 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 ofthe 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 ofthe 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 ofthis Agreement. For breach or violation
of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion,
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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 ofthe 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 ef 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 entitleii 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. 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.
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 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.
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
ofthe 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.
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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 term s and conditions of this Agreement.
CONTRACTOR
NINYO & MOORE, a California
corporation
(sign here)
Avram Ninyo / President
(print name/title)
CITY OF CARLSBAD, a municipal
corporation of the State of California
Patrick A. Thom •as^ Public Works Director
as authorized by the City Manager
By:
(sign here)
Elaine O. Autus / Assistant Secretary
(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, CityAttorney
Assistant City Attorney \
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EXHIBIT "A"
SCOPE OF SERVICES & FEE
SCOPE OF SERVICES:
Provide geotechnical observation, special inspection, and materials testing services during the
construction of the Romeria Drainage Improvements (Project No. 66041) and the La Costa
Avenue Slope Repair (Project No. 60241) projects to include the following:
1. Engineering consultation and project management, including distribution of field dailies
and test reports.
2. Attending preconstruction and site meetings, as requested.
3. Geologic/engineering field services to evaluate the suitability of remedial grading
operations.
4. Performing field observation and in-place density testing during earthwork operations,
including remedial grading, subgrade preparation, aggregate base placement, and slope
reconstruction.
5. Laboratory testing of the soils used for the earthwork operations. The tests performed on
soils are anticipated to include Proctor density/optimum moisture content. Tests in
addition to these may be performed as appropriate.
6. Performing special inspection by certified inspector during placement ofthe channel lining
and headwall. The special inspector will perform continuous inspection during the
concrete placements for proper mix designs, age of concrete, allowable water, proper
ingredient proportions, and sample the fresh material. The inspector will test the sampled
material for temperature and slump as well as cast one set of four concrete cylinders for
every 150 cubic yards placed, or fraction thereof, during a day's placement per project
specifications. In the event that shotcrete is used in lieu of concrete for the channel lining,
additional inspection and/or laboratory fees may apply.
7. Performing special inspection during the placement and grouting of the brow ditch splash
wall for the Romeria Drainage Improvements project by certified inspector. Mortar and
grout samples will be fabricated and tested for the compressive strength in accordance
with the California Building Code (CBC) Standards for masonry.
8. Performing laboratory material conformance testing at consultant's in-house laboratory of
masonry mortar, masonry grout, and concrete samples.
9. Preparing a compaction testing summary report at the completion of earthwork operations.
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FEE:
TABLE 1 - BREAKDOWN OF ESTIMATED FEE
ROMERIA DRAINAGE IMPROVEMENTS
GEOTECHNICAL OBSERVATION AND TESTING
Project Engineer/Geologist 8 hours @ $133/hour $1,064
Senior Field/Laboratory Technician 40 hours @ $ 85 / hour $3,400
Reinforced Concrete, Special Inspector 24 hours @ $ 85/hour $2,040
Reinforced Masonry, Special Inspector 16 hours @ $ 85 / hour $1,360
Subtotal $7,864
LABORATORY TESTING
Proctor Density - D 1557 & D 698 2 tests @ $180 / test $ 360
Masonry Grout, 3x3x6 prism compression, UBC 21-18 3 tests @ $30/test $ 90
Masonry Mortar, 2x4 cylinder compression, UBC 21-16 3 tests @ $30/test $ 90
Compression Tests, 6x12 Cylinder, C39 12 tests @ $22/test $264
Subtotal $ 804
ENGINEERING CONSULTATION, PRECONSTRUCTION/SITE MEETINGS,
PROJECT MANAGEMENT, AND REPORT PREPARATION
Principal Engineer/Geologist 2 hours @ $148/hour $296
Senior Engineer/Geologist 8 hours @ $141/hour $1,128
Staff Engineer/Geologist 4 hours @ $109/hour $ 436
Technical lllustrator/CAD Operator 2 hours @ $ 75/hour $150
Subtotal $2,010
TOTAL ESTIMATED FEE $10,678
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TABLE 2 - BREAKDOWN OF ESTIMATED FEE
LA COSTA AVENUE SLOPE REPAIR
GEOTECHNICAL OBSERVATION AND TESTING
Project Engineer/Geologist 40 hours @ $133/hour $5,320
Senior Field/Laboratory Technician 120 hours @ $ 85/hour $10,200
Subtotal $15,520
LABORATORY TESTING
Proctor Density - Dl 557 & D 698 3 tests @ $180 / test $ 540
Subtotal $ 540
ENGINEERING CONSULTATION, PRECONSTRUCTION/SITE MEETINGS,
PROJECT MANAGEMENT, AND REPORT PREPARATION
Principal Engineer/Geologist 2 hours @ $148 / hour $ 296
Senior Engineer/Geologist 8 hours @ $141 / hour $1,128
Staff Engineer/Geologist 4 hours @ $109/hour $436
Technical lllustrator/CAD Operator 2 hours @ $ 75/hour $150
Subtotal $2,010
TOTAL ESTIMATED FEE $18,070
GRAND TOTAL NOT TO EXCEED: $28,748
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10
Kathy Hamilton
From: Kathy Hamilton
Sent: Tuesday, September 15, 2015 11:22 AM
To: 'jkent@ninyoandmoore.com'
Cc: Shelley Collins; Donna Heraty; Sherri Howard; Faviola Medina
Subject: REQUIRED CONFUCT OF INTEREST
Dear Jeffrey,
You are receiving this email because your company has a consultant agreement with the City of Carisbad. The City of
Carisbad's Conflict of Interest Code requires all consultants to file a statement disclosing certain economic interests, that
may foreseeably be affected materially by any decisions made, or participated in, by a designated official because of
their position. To comply with this requirement a Statement of Economic Interest Form 700 "Assuming Office" is
required to be filed with the City of Carisbad City Clerk's Office.
To file the Assuming Office statement, please follow the instructions below:
• As reflected in the City Conflict of Interest Code - Resolution No. 2012-114 (below), the employee(s) of your
company that work directiv with citv staff are required to complete the Statement of Economic Interest Form
(Form 700). Consultants are required to claim -
Category (A) Investment and Real Property Disclosure
Category (B) Personal Income Disclosure
Category (C) Business Entity Income Disclosure
Category (D) Business Position Disclosure
• Your "Assuming Office" date for this filing is September 3, 2015.
• Even if there are no reportable interests, the cover page is still required to be completed with box "None" in
Section 4 checked.
• THE COMPLETED FORM 700 IS DUE IN THE CITY CLERK'S OFFICE BY 5:00 PM. OCTOBER 5. 2015.
Mailing Address: Citv Clerk's Office. 1200 Carisbad Village Drive. Carisbad, CA 92008.
• Form 700
• Form 700 Reference Pamphlet
Other documents you mav use as reference:
• FAQ: Form 700 Disclosure
• Local Gift Fact Sheet
• Resolution Nos. 2012-114 and 2013-237
In addition, when your contract with the City of Carisbad is completed, the employee(s) that filed the Assuming Office
statement is/are required to file a "Leaving Office" statement, utilizing the same Form 700 and entering the date the
contract ended in the "Leaving Office" date line, and submitting to the City Clerk's Office no later than 30 days following
completion ofthe agreement.
**Failure to file the Assuming and/or Leaving Office statement(s) could result in penalties assessed at $10.00 per day,
not to exceed $100.00, in addition to any other penalties per California Government Section Code 91013.
Ifyou have any questions or need additional information, please feel free to contact me orthe Fair Political Practices
Commission (FPPC) at 1-866-ASK-FPPC (1-866-275-3772).
Sincerely,
Ccityof
CarlsDad
Shelley Collins, CMC
Assistant City Clerk
City of Carisbad
1200 Carlsbad Village Drive
Carisbad, CA 92008-1949
www.carisbadca.gov
760-434-2917 | shellev.collins(5)carisbadca.gov
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