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HomeMy WebLinkAboutWinzler & Kelly Consulting Engineers; 2006-11-09; PWGS309RATIFICATION OF AMENDMENT NO. 4 TO EXTEND AND AMEND AGREEMENT FOR AS-NEEDED ENVIRONMENTAL ENGINEERING SERVICES WINZLER & KELLY CONSULTING ENGINEERS PWGS309 rdThis Ratification of Amendment No. 4 is entered into as of the <=33 day of Fg£>rv<3.rc/ , 20 It. but effective as of the 9th day of November, 2010, extending and amending the agreement dated November 9, 2006 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Winzler & Kelly Consulting Engineers, ("Contractor") (collectively, the "Parties") for as-needed Environmental Engineering Services. RECITALS A. On January 31, 2008, the Parties executed Amendment No. 1 to the Agreement to extend and fund the agreement for one-year period, retroactive to November 9, 2007; and B. On October 20, 2008, the Parties executed Amendment No. 2 to the Agreement to extend and fund the agreement for one-year period, ending November 9, 2009; and C. On August 20, 2009, the Parties executed Amendment No. 3 to the Agreement to extend and fund the agreement for one-year period, ending November 9, 2010; and D. The Agreement, as amended from time to time expired on November 9, 2010 and Contractor continued to work on the services specified therein without the benefit of an agreement; and E. The Parties desire to extend and fund the Agreement for a period of one year retroactive to November 9, 2011; and NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. The retroactive extension and amendment of the Agreement is ratified. 2. That the Agreement, as may have been amended from time to time, is hereby extended for a period of one year ending on November 9, 2011 on a time and materials basis not-to-exceed One Hundred Thousand dollars ($100,000.00). 3. Contractor will complete ail work associated with this Agreement by November 9, 2011 and by November 9 of all subsequent agreement years. 4. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 5. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. City Attorney Approved Version 09.22.10 6. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this amendment. CONTRACTOR (sign here) ^ J. (print name/title) "By: (sign here) (print name/title CITY OF CARLSBAD, a municipal corporation of the State of California /-^ City Manager w Mayor or Directed ATTEST: LORRAINE M. WOOD City Clerk 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 Deputy^ity Attorney City Attorney Approved Version 09.22,10 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Here Insert Name and Title of tne Officer BONNIE L. BURRED. Commission * 1888800 SoQOffNi County Comffl.ExpjrMMay9.2014 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the persorf^s)) whose nam^(sj) is/are)subscribed to the within instrument and acknowledged to me that he/she/rfiewexecuted the same in h|s/her^hej? authorized capacity's)! and that by.his/her/1(ne^)signatur^syon the instrumemthe person^/ or the ^entity upon behalf of which the person/s)yfected, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS mflhand and official seal. Signature. Signature of Notary Publift./ OPTIONAL Though the information below /'s nof required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date:. Number of Pages:. Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 AMENDMENT NO.3 TO EXTEND AND AMEND AGREEMENT FOR AS-NEEDED ENVIRONMENTAL ENGINEERING SERVICES (Winzler & Kelly Consulting Engineers) PWGS309 This Amendment No. 3 is entered into and effective as of the O® _ day of , 2009, extending and amending the agreement dated November 9, 2MD06 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Winzler & Kelly Consulting Engineers ("Contractor") (collectively, the "Parties") for As-Needed Environmental Engineering Services. RECITALS A. On January 31, 2008, the Parties ratified Amendment No.1 to the Agreement to extend and fund the agreement for a one-year period, retroactive to November 9, 2007; and B. On October 20, 2008, the Parties executed Amendment No. 2 to the Agreement to extend and fund the agreement for a one-year period ending November 9, 2009; and, C. The parties desire to extend and fund the Agreement for a period of one year. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. That the Agreement, as may have been amended from time to time, is hereby extended for a period of one year ending on November 9, 2010 on an agreed price not to exceed One Hundred Thousand dollars ($100,000). 2. Contractor will complete all work associated with this Agreement by November 9, 2010, and by November 9 of all subsequent agreement years. 3. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 4. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. City Attorney Approved Version #05.22.01 5. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR *By- (print name/title) (e-mail address) ,(L (sign here) rint name/title) (e-mail address) CITY OF CARLSBAD, a municipal corporation of the State of California ity Manager or Mayor ATTEST: City Clerk TXpLukfr- ,\f»nui, 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 Deputy City ey City Attorney Approved Version #05.22.01 AMENDMENT NO.2 TO EXTEND AND AMEND AGREEMENT FOR AS-NEEDED ENVIRONMENTAL ENGINEERING SERVICES (Winzler & Kelly Consulting Engineers) PWGS309 ^ThisAmendment No. 2 is entered into and effective as of the Q/O^M day of w(DCo\-^lA , 2008, extending and amending the agreement dated November 9, 2006 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Winzler & Kelly Consulting Engineers ("Contractor") (collectively, the "Parties") for As-Needed Environmental Engineering Services. RECITALS A. On January 31, 2008, the Parties ratified Amendment No.1 to the Agreement to extend and fund the agreement for a one-year period, retroactive to November 9, 2007; and B. The Parties have negotiated and agreed to a modified fee schedule attached hereto as Exhibit "A", Scope of Services & Fee; and C. The parties desire to extend and fund the Agreement for a period of one year. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. That the Agreement, as may have been amended from time to time, is hereby extended for a period of one year ending on October 20, 2009 on an agreed price not to exceed One Hundred Thousand dollars and Zero cents ($100,000). 2. Contractor will complete all work associated with this Agreement by November 9, 2009, and by November 9 of all subsequent agreement years. 3. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 4. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. City Attorney Approved Version #05.22.01 5. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR *By: CITY OF CARLS corporation okthe 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 Deputy City Atto City Attorney Approved Version #05.22.01 AMENDMENT NO 2 TO EXEND AND AMEND AGREEMENT FOR AS NEEDED ENVIRONMENTAL ENGINEERING SERVICES Winzler & Kelly Consulting Engineers (PWGS309) EXHIBIT "A" SCOPE OF SERVICES AND FEE 1. This amendment authorizes Winzler & Kelly Consulting Engineers to bill on a time & material basis in accordance with the attached fee schedule for 2008-2009. Total compensation is not to exceed One Hundred Thousand dollars and Zero cents ($100,000) per agreement year. City Attorney Approved Version #05.22.01 Exhibit "A" Amendment #2 City of Carlsbad As-Needed Environmental Engineering Consultant Services (Win?ler & Kelly Consultina Engineers)City of Carlsbad Rates 2008 -7009 ' Staff Description Managing Principal, Certified Industrial Hygienist, Hazardous Material Division Manager Project Manager Certified Asbestos Consultant, DHS Lead Inspector / Project Monitor Certified Site Surveillance Technician, Environmental Field Engineer Technical Illustrator (CAD Services) Data Processing Reproduction Testing/Laboratory Analysis/Reimbursable PLM Analysis (24 Hour Turn around Time (TAT) Point Counting Analysis (1,000 pt.) 24 Hour TAT) PCM Analysis (14 Hour TAT) TEM Analysis (24 Hour TAT) Lead Analysis (wipe and/or air samples) (24 Hour TAT) TTLC Analysis (Lead only) (5 day TAT) STLC Analysis (Lead only) (5 day TAT) TCLP Analysis (Lead only) (5 day TAT) Non-Viable Mold (24 Hour TAT) Viable Mold (24 Hour TAT) Vehicle Mileage Consumables Field XRF Source Deterioration Fee Consumables Office Anv Other Outside Cost Rate $155/hr $103/hr $88/hr $73/hr $73/hr $52/hr $52/hr $13/Each $78/Each $1 I/Each $83/Each $16/Each $42/Each $99/Each $155 /Each $50/Each $73/Each Cost +15% $12/hr $103/Day $7/hr Cost+ 15% RATIFICATION OF AMENDMENT NO. 1 TO EXTEND AND AMEND AGREEMENT FOR AS-NEEDED ENVIRONMENTAL ENGINEERING SERVICES Winzler & Kelly Consulting Engineers This Ratification of Amendment No. 1 is entered into as of the <^)\ day of Ij^i/vUA-TLAjA ^ , 200_gx, but effective as of the ninth da/if (November^2007, attending and amending the agreement dated November 9, 2006 (the "Agce/ement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Winzler & Kelly Consulting Engineers, ("Contractor") (collectively, the "Parties"). RECITALS A. The Agreement, as amended from time to time expired on November 9, 2007, and Contractor continued to work on the services specified therein without the benefit of an agreement. B. The Parties desire to extend the Agreement for a period of one year ending November 9, 2008 C. The Parties have negotiated and agreed that all services and fees will remain unchanged. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. The retroactive extension and amendment of the Agreement is ratified. 2. That the Agreement, as may have been amended from time to time, is hereby extended for a period of one year ending on November 9, 2008 on a time and materials basis not-to-exceed One Hundred Thousand dollars ($100,000) per Agreement year. 3. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 4. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. City Attorney Approved Version #05.22..01 5. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this amendment. CONTRACTOR CITY OF, corporatio By: unicipal (print name/title) X" U '•- P t <fo (e-mail address) (sign tjjerje)CJ T/print name/title r i Ic ^ LORRINE M. City Cl (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 "OTO11P B: Aooietant-Seerotary, Or@'ui AjjijtontTr 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 #05.22..01 AGREEMENT FOR AS-NEEDED ENVIRONMENTAL ENGINEERING SERVICES (Winzler & Kelly Consulting Engineers) THIS AGREEMENT is made and entered into as of the if _ day of • 20A(o. by and between the CITY OF CARLSBAD, a municipal. corporation, fCity"), and Winzler & Kelly Consulting Engineers, a Corporation, ("Contractor"). RECITALS A. City requires the professional services of an Environmental Engineering Consultant that is experienced in providing Environmental Engineering services. B. Contractor has the necessary experience in providing professional services and advice related to Environmental Engineering. 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 one-year from the date first above written. The City Manager may amend the Agreement to extend it for four additional one-year periods or parts thereof in an amount not to exceed One Hundred Thousand dollars ($100,000.00) 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. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION City Attorney Approved Version #04.01.02 The total fee payable for the Services to be performed during the initial Agreement term will be not to exceed One Hundred Thousand dollars ($100,000.00). 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. 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 City Attorney Approved Version #04.01.02 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. 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. 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. City Attorney Approved Version #04.01.02 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. 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, City Attorney Approved Version #04.01.02 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 Citv: For Contractor: Name: Dale A. Schuck Name Matt Dorman Da Title: Public Works Supervisor Title Office Manager Department: General Services Address 4180 Ruffin Rd. City of Carlsbad San Diego , CA 92123 Address: 405 Oak Avenue Phone No. 858-244-0440 Carlsbad, CA 92008 Phone No.: (760) 434-2949 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. City Attorney Approved Version #04.01.02 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 #04.01.02 6 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 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 #04.01.02 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. fn 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 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 *By: (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California Bv: ^^fv^"City Manager or Mayor ATTEST: (e-mail address) LORRAINE M. WOOD City Clerk (print name/title) -As\d -fc. 3-mail address) If required by City, proper notarial acknowledgment of execution by cofttr.astofc 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:. Deputy City Attorney City Attorney Approved Version #04.01.02 AGREEMENT FOR AS-NEEDED ENVIRONMENTAL ENGINEERING SERVICES (Name of Contractor) EXHIBIT "A" SCOPE OF SERVICES 1.00 Definitions 1.01 CONTRACT ADMINISTRATOR: The Public Works Manager, General Services or his authorized representative. 1.02 CITY: The City of Carlsbad. 1.03 CONSULTANT: The Consultants responsible management individual or his authorized representative. 1.04 PROPOSAL: A fixed cost proposal prepared by the Consultant for work requested by the Contract Administrator. 1.05 TIME AND MATERIALS: Work performed by the Consultant on an agreed hourly price per negotiated fee schedule. 2.00 Negotiated Proposal and Acceptance 2.01 The CITY may award work to the CONSULTANT, at the discretion of the CONTRACT ADMINISTRATOR. New work will be awarded on a negotiated proposal and acceptance basis as when the CONTRACT ADMINISTRATOR determines that it is appropriate to negotiate a fixed price for work in lieu of utilizing unit prices. Payment for Work under this section shall be performed by negotiated agreement between the CITY and the CONSULTANT or on an agree price basis in accordance with Section 2.00. 2.02 Prior to performing any work, the CONSULTANT shall prepare and submit a written proposal including a description of the work, a list of materials, and a schedule for completion. No work shall commence without written approval of the CONSULTANT'S proposal by the CONTRACT ADMINISTRATOR. This proposal is subject to acceptance or negotiation by the CONTRACT ADMINISTRATOR. City Attorney Approved Version #04.01.02 10 2.03 All work shall commence on the specified date established and CONSULTANT shall proceed diligently to complete said work within the time allotted. 3.00 Time and Materials 3.01 In the event that the CONTRACT ADMINISTRATOR determines that work requested is of an unknown duration, not easily quantified or the CONSULTANT'S proposal for work is not approved, the CONTRACT ADMINISTRATOR reserves the right to perform such work with other forces or to compel the CONSULTANT to perform the work on a TIME AND MATERIALS Basis. Invoices for Work on a TIME AND MATERIALS basis are subject to the CONSULTANT'S negotiated fee schedule attached to this agreement. 3.02 When a condition exists which the CONTRACT ADMINISTRATOR deems urgent, the CONTRACT ADMINISTRATOR may verbally authorize the work to be performed upon receiving a verbal estimate from the CONSULTANT. However, within forty-eight (48) hours after receiving a verbal authorization, the CONSULTANT shall submit a written estimate, consistent with the verbal authorization, to the CONTRACT ADMINISTRATOR for approval. 3.03 Prior to performing any work, the CONSULTANT shall prepare and submit a written proposal including a description of the work, a list of materials, and a schedule for completion. No work shall commence without written approval of the CONSULTANT'S proposal by the CONTRACT ADMINISTRATOR. This proposal is subject to acceptance or negotiation by the CONTRACT ADMINISTRATOR. 3.04 All work shall commence on the specified date established and CONSULTANT shall proceed diligently to complete said work within the time allotted. 4.00 Payments and Invoices 4.01 The CONSULTANT shall present monthly invoices, for all work performed during the preceding month. Said invoice shall include all required certifications and reports as specified hereinafter. The invoice shall be submitted on or before the fifth (5th) day of each month in the amount of the compensation to be paid by the CITY for all services rendered by the CONSULTANT under the terms and conditions of this CONTRACT. Said payment shall be made within thirty (30) days upon receiving the invoices, providing that all work performed during the preceding month has been inspected and accepted by the CONTRACT ADMINISTRATOR and that City Attorney Approved Version #04.01,02 11 applicable certifications have been submitted in accordance with the provisions of this CONTRACT. 4.02 Monthly invoices shall be prepared and submitted in the following format: Invoice; Project Account Number Monthly Cost PROJECT A (Account Number) PROJECT B (Account Number) TOTAL MONTHLY COST $(AMOUNT) SfAMOUNT) $(AMOUNT) 4.03 Invoices for approved TIME AND MATERIALS Work shall be in a format acceptable to the CONTRACT ADMINISTRATOR, including attachments, such as copies of suppliers' invoices, which the CONTRACT ADMINISTRATOR may require to verify the CONSULTANT'S billing. Invoices for Time and Materials work shall be submitted on separate invoices. Unless otherwise requested by the CONTRACT ADMINISTRATOR, one invoice shall be submitted for each discrete and complete item of TIME AND MATERIALS work. City Attorney Approved Version #04.01.02 12 09/07/2006 12:34 8582440441 WINZLER KELLY PAGE 02 EXHIBIT "A" City of Carlsbad Rates for Environmental Consulting Services Staff Description Managing Principal, Certified Industrial Hygienist, Hazardous Material Division Manager Project Manager Certified Asbestos Consultant, DHS Lead Inspector / Project Monitor Certified Site Surveillance Technician, Environmental Field Engineer Technical Illustrator Data Processing Reproduction Consumables Field Consumables Office Testing/Laboratory Analysis XRF Source Deterioration Fee PLM Analysis (24 hr TAT) Point Counting Analysis (24 hr TAT) PCM Analysis (24 hr TAT) TEM Analysis (24 hr TAT) Lead Analysis (24 hr TAT) TTLC Analysis / Lead (5 day TAT) STLC Analysis / Lead (5 day TAT) TCLP Analysis / Lead (5 day TAT) Non-viable mold analysis, air or bulk (24 hr TAT) Soil and Groundwater sample analysis costs can be provided if needed Rate $ L50/hr $ 100/hr $85/hr $7(Vhr S 70/hr $50/hr $50/hr $) 1/hr $6/br Rate $ 100/Day $ 12/Each $ 75/Eacti $ 10/Each $ 80/Each $1 5 /Each $40/Eacl» $96/Each $ ISO/Each $70/Each To be determined