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HomeMy WebLinkAboutNolte Associates Inc; 2010-04-12; PWENG758AGREEMENT FOR ENGINEERING PROFESSIONAL SERVICES DESIGN OF CARLSBAD BLVD. RIP RAP EXTENSION NEAR ENCINA BRIDGE (NOLTE ASSOCIATES, INC.) THIS AGREEMENT is made and entered into as of the /2+ dayof & I , 20m, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and NOLTE ASSOCIATES, INC., a California corporation, ("Contractor"). RECITALS A. City requires the professional services of a professional engineer that is experienced in rip rap design. B. Contractor has the necessary experience in providing professional services and advice related to the extension of the rip rap design that was originally part of the Las Encinas Creek Bridge Replacement project. 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 "~6rvices") 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 nine (9) 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 in an amount not to exceed thirty one thousand one hundred ninety nine dollars ($31,199) 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 #05.06.08 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 thirty one thousand one hundred ninety nine dollars ($31,199). No other compensation for the 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 Exhibit "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 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. City Attorney Approved Version #05.06.08 2 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 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-:VII". OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coveraaes 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 anv reauired insurance coveraae is inadeauate. Contractor will obtain such additional insurance coverage, as ~Gtractor deems adequate, at Contractor's sole expense. 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. City Attorney Approved Version #05.06.08 3 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. 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 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 Providinq Certificates of lnsurance 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. 10.5 Submission of lnsurance 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. City Attorney Approved Version #05.06.08 4 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: For Contractor: Name Jacob Moeder Name Jack Abcarius Title Associate Enqineer Title AssociatelEnqineer Manaqer Department Transportation Address 15070 Avenue of Science City of Carlsbad Suite 100 Address 1635 Faradav Avenue San Dieqo, CA 92128 Carlsbad. CA 92008 Phone No. 858-385-2128 Phone No. 760-602-2736 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 City Attorney Approved Version #05.06.08 5 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 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. City Attorney Approved Version #05.06.08 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 sea., 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 City Attorney Approved Version #05.06.08 7 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 #05.06.08 8 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent aid warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR NOLTE ASSOCIATES, INC., CITY OF CARLSBAD, a municipal corporation of the State of California gp (:i.;&5&(&/ City anager&&tqwr ~ -- -N/?~E& (print nadeltitle) ATTEST: **By: (sign here) (print nameltitle) (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. **Group B. Chairman, Secretary, President, or Assistant Secretary, Vice-president CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the offtcer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: City Attorney Approved Version #05.06.08 BEYOND ENGINEERING INTERNAL MEMORANDUM TO: Parties Delegated Signing Authority DATE: December 1,2009 Below FROM: Joseph Minner, Regional Managing cc: Contracts Department, Director Project Analysts and Office Administrators SUBJECT: Signing Authority Southern California Region Regarding signing authority for the Southern California Region, all authority granted by prior memorandums and resolutions is hereby revoked and replaced by that granted in this Internal Memorandum and the attached Corporation's Contract Signature Authority Resolution dated September 24,2009. For purposes of this authority "contracts" include client contracts, Nolte standard contracts, change orders which modify or add to original contract terms and conditions, sub consultant agreements, and their task orders which have been approved by the Contracts Manager. The following individuals have been delegated the authority, per Paragraph 5 of the Resolution, to sign contracts which have been approved by the Contracts Manager up to $100,000. Jack Abcarius Scan Berkebile Jennifer Crain James Owens Julian Palacios Jonathan Smith Rich Miller Scott Vinton Stephen Crevoiserat The following individuals have been delegated the authority, per Paragraph 5 ofthe Resolution, to sign contracts which have been approved by the Contracts Manager up to $200,000. Vickie Bridenstine Mauricio Lam Jim Hettinger Ronald Parker Paul Robotta Jeff Safford MEMORANDUM (cont.) Page 2 Please note that Regional Managing Directors may sign contracts up to $500,000. Managing Directors may sign contracts up to $300,000. Contracts in excess of $500,000 must be signed by the President or Chief Financial Officer unless the procedure described in Paragraph 4 of the Resolution is utilized. Signing Authority The undersigned, being all of the persons entitled to vote at a meeting of the Directors of Nolte Associates, Inc., a California Corporation, pursuant to Section 307(b) of the California Corporations Code, hereby adopt and authorize the following resolution by unanimous written consent: WHEREAS, it is deemed to be in the best interest of the Corporation and its shareholders to update the Corporation's Contract Signature Authority; NOW, THEREFORE, IT IS RESOLVED that the officers of the Corporation shall have authority to execute contracts on behalf of the Corporation as follows: 1. The President may sign all contracts and delegates to the Executive Vice President authority to sign all contracts which have been reviewed and approved by the Contracts Manager. 2. Contracts up to $500,000 which have been reviewed and approved by the Contracts Manager, may be signed by a Regional Managing Director. 3. Contracts up to $300,000 which have been reviewed and approved by the Contracts Manager, may be signed by a Managing Director. 4. Contracts exceeding $500,000, which have been reviewed and approved by the Contracts Manager, may be signed by a Regional Managing Director after discussion with, and approval by, the President or Executive Vice President. A memo to the contract file will document the discussion and approval. 5. The President, Executive Vice President and Regional Managing Directors may individually delegate authority to sign contracts up to $200,000, which have been reviewed and approved by the Contracts Manager, to others within their region(s). 6. Managing Directors may individually delegate authority to sign contracts up to $100,000, which have been reviewed and approved by the Contracts Manager, to others within their region(s) or discipline(s). IN WITNESS WHEREOF, the undersigned have executed this Action by Unanimous Written Consent of Directors, as of this 24" day of Se~tember, 2009. BEYOND ENGINEERING February 24, 2010 Mr. Jacob Moeder, P.E. Associate Engineer City of Carlsbad Public Works - Engineering 1635 Faraday Avenue Carlsbad, CA 92008 Subject: Proposal letter for extending the Rip Rap along southbound Carlsbad Boulevard past the end of our current project. Dear Mr. Moeder, Please accept this letter as our formal proposal to provide you with engineering services related to the extension of the rip rap embankment. The City of Carlsbad is currently under contract with Bert W. Salas, Inc., a general contractor, to replace the Las Encinas Creek Bridge along southbound Carlsbad Boulevard. As part of this construction, the contractor is responsible for placing rip rap to protect the new bridge wingwall foundations as well as the approach roadway embankment on the west side. The construction documents currently call for the rip rap construction to stop around Station 107+30. We understand that construction has already started, and the roadway is completely closed to traffic from Solamar to approximately 1200' north of Island Way. Because of the recent severe storm events and high tidal wave action that occurred in the past few weeks, the west side roadway embankment south of our project limits have eroded significantly and caused the City to declare a state of emergency to replace the embankment and protect the roadway from further erosion. The City would like to extend the rip rap placement approximately 300' south up to the location of the State Park's sewer lift station. This proposal is based on duplicating the revetment detail that we used for the bridge replacement project, taking into account the existing outfall line which is located around Station 108+00. Furthermore, it is our understanding that the existing State Parks sewer line, a 6" Asbestos Cement Pipe currently running parallel to the west side of the roadway, will be abandoned and relocated by State Parks. Therefore, this proposal does not account for any special protection measures to be taken. Our plans will identify the pipe and call it out to be abandoned and relocated by others. Task 1 Nolte will perform additional surveys to extend the footprint of our base map to approximately 50' south of the sewer lift station. In order to expedite design and processing, this work was approved via email by the City on 2/23/2010 and performed on 2/24/2010. Task 2 Download all data points and prepare base map for use with the engineering drawings. Task 3 Prepare one or two typical sections as needed for the rip rap using the survey information and the rip rap detail previously approved by the California Coastal Commission. Based on a site investigation, the City and Nolte have mutually agreed to extend the rip rap detail to a point just north of the sewer lift station. That point shall be clearly defined on our plan. Task 4' Project Management and Coordination shall also include two meetings with City staff and Encina staff to be held either at the City or at the Wastewater Treatment Plant, and one on-site meeting. Task 5 After the City's potholing operations to clearly locate the outfall line horizontally and vertically, if it is deemed necessary, Nolte will retain the services of Geo-Logic to perform site specific investigations in the vicinity of the outfall line so that they can provide us with the appropriate soil parameters to design a protection structure over the line to avoid damage from the rip rap. Task 6 Design a structure straddling the outfall line, and provide the appropriate details. Task 7 Calculate quantities for all items of work and prepare an estimate of construction cost. Task 8 Submit plans and estimate to the City for review and approval. Due to the emergency nature of this project, we are assuming that these plans will be incorporated into our current construction plans as additional sheets, and therefore will be subject to the same specifications. No additional specifications will be prepared. We anticipate completion of the above tasks in approximately two weeks after receipt of the potholing information. If no protective structure is required over the outfall line, we anticipate completion of Tasks 1 through 4, 7 and 8 within two weeks or less from today's date. PROPOSEDFEEBYTASK Task 1 Task 2 $859 Task 3 $4,456 Task 4 $3,333 Task 5 $8,999 Task 6 $4,298 Task 7 $2,018 Task 8 $398 Contingencies @ 20% of Total Grand Total If you have any questions regarding this proposal, please do not hesitate to call me at (858) 385-2128. Respecffully submitted, Nolte Assopiates, Inc.