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HomeMy WebLinkAbout1983-06-07; City Council; 7306-2; Consultant Agreement approval James DriveCIT OF CARLSBAD - AGEND BILL MTG..6/7/83 ENG TITLE: CONSULTANT AGREEMENT APPROVAL JAMES DRIVE ASSESSMENT DISTRICT occa.Q. O |_j O RECOMMENDED ACTION: Adopt Resolution No.^/y*/ approving consultant agreements and authorizing Mayor to execute. ITEM EXPLANATION: On March 1, 1983, the Council authorized staff to proceed with an assessment district for James Drive. The Engineering staff has received proposals for the engineering and assessment work on the district. Two agreements have been developed. One is for legal services for Brown and Nazarek, and the other is for engineering services for the firm of Berryman & Stephenson. FISCAL IMPACT: The special counsel agreement is for 2% of confirmed assessment, or on an estimated $4,000, based on a preliminary cost of $200,000. If the proceedings are abandoned, the maximum fee would be $1,250. 'The total cost of the Berryman & Stephenson agreement would be $25,780. Funds in the amount of approximately $95,000 are in the Special Assessment Revolving Fund Account No. 80-92-44-0519. Of this amount, $40,000 is already appropriated. These costs are reimburs- able from the proceedings of the district. EXHIBITS: 1. Agreement: Brown and Nazarek - Special Counsel Agreement 2. Agreement: Berryman & Stephenson - Engineering and Assessment Proceedings. ii i 3. Resolution No.VAfy authorizing Mayor to execute agreements for Brown and Nazarek and for Berryman & Stephenson. SPECIAL COUNSEL AGREEMENT THIS AGREEMENT is made and entered into this day of , 1983, by and between the CITY Of CARLSBAD, CALIFORNIA, a public corporation (hereinafter referred to as "City"), and BROWN i NAZAREK, Attorneys at Law, (hereinafter referred to as "Counsel"). NOW, THEREFORE, IT IS HEREBY AGREED by and between the parties hereto as follows: SECTION 1. That Counsel shall perform legal services in connection with the pro- posed assessment proceedings and bond issuance in the matter of a proposed special assessment district known and designated as - ASSESSMENT DISTRICT NO. 83-2 (JAMES DRIVE) (hereinafter referred to as the "Assessment District") under proceed- ings conducted pursuant to the provisions of the- "Municipal Improve- ment Act of 1913", being Division 12 of the Streets and Highways Code of the State of California. ». Said services shall include: « A. Review of the dedication and acquisition of the streets and ease-nents or other property in which proposed work is to be performed; B. Examination of the plans and specifications for the proposed work, the boundary map and assessment diagram of the Assessment Dist- rict, the assessment roll and bonds, and the giving of - instructions and advice in connection with the foregoing; C. Recommendations as to procedure, schedules and actions that should .be conducted and taken; 0. Preparation of all .resolutions, notices, contracts, bond forms, and other papers and documents required in the proceedings; £. Examination of the proceedings, step by step, as taken; F. Appear at all hearings under the proceedings, and attend any meet- ing where attendance is requested; 6. Hake recommendations as to sale of bonds, if desired; H. Perform leqal services, if required, pursuant to the provisions of the "Special Assessment Investigation, Limitation and Majority Protest Act of 1931", being Division.4 of the Streets and Highways Code of the State of California; J. Issuance of an unqualified legal opinion attesting to the validity of the proceedings and the issuance of the bonds. Such legal services shall not include any services in connection with the acquisition, by easement or condemnation, of any easements or other interest in real property necessary for the proposed imnrove- nents. These services can be provided by Counsel, by separate agree- «ent, if desired by City. EXHIBIT 1 SECTION 2. That the City shall perform as follows: A. Furnish to Counsel such maps, records, title searches, and other documents and proceedings, or certified copies thereof, as may be reasonably required by Counsel in the performance of the services hereunder; B. Pay to Counsel a fee computed on the confirmed assessment a^ follows: TWO PERCENT (2%} on the first $500,000; ONE PERCENT (1%) from $500,001 to SI,500,000; • '' " ONE-HALF PERCENT (.50%) on the balance thereof. C. Payment of the above-referenced fee shall be as follows: All due and payable upon receipt of money from the sale and deli- very of bonds to the successful underwriter. SECTION 3. In the event the proceedings are terminated or abandoned prior tocompletion, Counsel shall be paid a reasonable fee for services ren- • dered to date based on an hourly rate of $90.00 per hour, not to . exceed $2,500.00; however, if the proceedings are abandoned prior toor at the time of a public hearina under the provisions of the "1931Act", said fee shall not exceed $1,250.00. SECTION 4. That this Agreement may be terminated by either party hereto by mail- ing written notice thereof to the other party. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first hereinabove written. ATTEST: CITY CLERK CITY OF CARLSBAD STATE OF CALIFORNIA •CITY" CITY OF CARLSBAD By: MAYOR CITY OF CARLSBAD STATE OF CALIFORNIA "COD 'BROWN I. By;'• mncmrzir AGREEMENT FOR PREPARATION OF PLANS AND SPECIFICATIONS - • • FOR-JAMES DRIVE ASSESSMENT DISTRICT THIS AGREEMENT, made and entered into as of the day of , 19_. , by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City," and BERRYMAN AND STEPHENSON, INC., a civil engineering firm, hereinafter referred to as "Consultant." . RECITALS f ' • City requires the services of an engineering consulting firm to provide the necessary engineering services for preparation of final plans and specifications for the Games Drive Assessment District; and Consultant possesses the necessary skills and qualifications to provide the services required by City; NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Consultant agree as follows: ' I. CONSULTANT'S OBLIGATIONS (A) Scope of Work The Consultant shall prepare the plans, specifications and bid documents and assessment district documents for the construction of the* James Drive, from Basswood to approximately 525' North of Basswood. In addition, all existing facilities requiring removal, redesign or restoration due to project construction shall be included In the contract within their project limits. (B) Procedure The Consultant shall prepare all. necessary assessment district documents for James Drive Assessment. In order to do this, the Consultant shall work closely with the assessment attorney designated by the City.. This shall include the timely submittal of all engineering and assessment reports required under the assessment procedure. The Consultant shall submit a complete civil design package # which shall consist of the following: 1. All surveys necessary to obtain precise and clear locations of rights-of-way and proposed street construction. Rights-of-way shall be located precisely in relationship to the control line used. 2. Utility research and provision of utilities and tentative disposition or relocation of any interfering utilities. 3. Outline of design alternatives and cost-saving measures and preliminary layout plan of the various alternatives. 4. Complete calculations for the street design, 5. A complete set of reproducible plans in accordance with City requirements. Drawings shall be neat and legible with dimensions to all installations. Details should provide for clear and definite manner of installation. Type, grade, and quality of all materials « • required should be clearly indicated. 6. Plans and Specifications shall be certified as to correctness, and signed by a registered civil engineer and R.C.E. number-provided. 7. The following items should appear on the final drawings (this : list is indicative, not exhaustive): , • A. A plan and profile of the street construction work. B. Existing or proposed utilities with current ownership and disposition. -2- • C. Pavement sections, trenching details, and pavement . ..•..•«• -t restoration. 8. Specifications shall be provided in conformance with appropriate 3 Standards and the 1982 edition of Standard Specifications for Public Works Contracts. 9. - Final quantity and cost estimates. 10. All plans and specifications and submitted items shall be developed in a form satisfactory to the City. Attached as Appendix A is itemized breakdown of items under the contract. 11. CITY'S OBLIGATIONS-' The scope of City staff responsibilities shall be as follows: » A. Supply the preliminary design and specif ideation for « reference only. B. The City will make available upon request any documentary record or existing right-of-way data available to it. C. Blank mylars for this project shall be supplied by the City. D. Provide review of consultant's submittal in accordance with an agreed schedule. E. Provide payment of approved invoices within 30 days of • approval by the City Engineer. . ' F. Legal requirements for noticing for assessment will be complied with by the City or the Assessment Lawyer. III. PROGRESS AND COMPLETION The work under thi^s contract will begin within ten days after +receipt of Notification to Proceed by the City and be completed within -3- the following periods of that date. * * • • " * A. Preliminary Study One month after Notice to Proceed. B. Engineering Design Three months after completion of preliminary study. C. Assessment Engineering -- Four months after completion of preliminary study. 'The Consultant has prepared a P.E.R.T. schedule, which is attached hereto as Attachment B and made a part of the scheduling of tf)is Project. Extensions of time may be granted if requested by the Consultant and agreed to in writing by the City Engineer. In consideration of such requests of extension of time, the City Engineer will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by lack of foresight on the"" part of the Consultant, or delays caused by City inaction or other agencies' lack of timely action. IV. FEES TO BE PAID TO CONSULTANT The Tump sum fee payable according to Paragraph V shall be $25,780. No other compensation for services will be allowed except those items covered by supplemental agreements per Paragraph VII, Changes in Work. V. PAYMENT OF FEES ; ' .Payment for work performed shall be under the following schedule: 1. Preliminary Study $9,130.00 2. Engineering Design $11,450.00 3. Assessment Engineering $5,200.00 Work may be terminated at anytime or portion thereof. .4. •VI. FINAL SUBMISSIONS..,.-•• i. Within 10 days of the approval of the final design package, the Consultant will deliver: (a) Original mylars at scale of the drawings reproducible on standard 24" by 36"sheets. Quality of mylars submitted shall be subject to the approval of the City. (b) All final engineering certificatons and documents. The plans shall be signed and certified to correctness by a registered civil engineer. (c) Fifty copies of the plans and specifications in a form suitably bound and on white paper.. A reduced set of drawings shall be bound into each set of specificatons. VII. CHANGES IN WORK' If, in the course of this contract and design changes seem merited to the Consultant or to the City, and informal consultations with the other party indicate that a change in the conditions of the contract is warranted, the Consultant or the City may request a change in contract. Such changes shall be processed by the City in the following manner: A letter outlining the required changes shall be forwarded to the City or Consultant to inform them of the proposed changes along with a statement of estimated changes in charges or time schedule. After reaching mutual agreement on the proposal, a supplemental agreement shall be prepared by the City and approved by the City Council. Such supplemental agreement shall not • . * render ineffective or invalidate unaffected portions of the agreement. Changes requiring immediate action by the Consultant or City shall be ordered by the City Engineer who will inform a. principal of the Consultant's firm of the necessity of such action and follow up with a supplemental agreement covering such work. -5- •VIII. DESIGN STANDARDS The Consultant shall prepare the plans and specifications in accordance with the design standards of the City of Carlsbad and recognized current design practices. Applicable City of Carlsbad standards and regional . standards shall be used where appropriate. Copi.es of such standards shall be obtained from the City of Carlsbad. IX. COVENANT AGAINST CONTINGENT FEES The Consultant warrants that their firm has not employed or retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this agreement, and that Consultant 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 4 resulting from, the award or making this agreement. For breach or violation of this warranty, the City shall 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 such fee, commission, percentage, brokerage fee, gift or contingent fee. X. NONDISCRIHINATION CLAUSE The Consultant shall comply with the State and Federal Ordinances regarding nondiscrimination. . ' XI. TERMINATION OF CONTRACT ' ; In the event of the Consultant's failure to prosecute, deliver, or perform the work as provided for in this contract, the City may terminate this contract for nonperformance by notifying the Consultant ,by certified mail of the termination of the contract. The Consultant, -6- .thereupon, has five working days to deliver said documents owned by . .* . • -t. the City and all work in progress to the City Engineer. The City Engineer shall make a determination of fact based upon the documents delivered to City of the percentage of work which the Consultant has performed which is acceptable in compliance with the scope of workand of worth to the City in having the contract completed. Based upon that finding as reported to the City Council, the Council shall determine the final payment of the contract.* XII. DISPUTES If a dispute should arise regarding the performance of work under this agreement, the following procedure shall be used to resolve any question of fact or interpretation not otherwise settled by agreement . » between parties. Such questions, if they become identified as a part % of a dispute among persons operating under the provisions of this contract, shall be reduced to writing by the principal of the Consultant or the City Engineer. A copy of such documented dispute • . shall be forwarded to both parties involved along with recommended methods of resolution which would be of benefit to both parties. The City Engineer or principal receiving the letter shall reply to the letter along with a recommended method of resolution within ten days. If the resolution thus obtained is unsatisfactory to the aggrieved v party, a letter outlining the dispute shall be forwarded to the City Council for their resolution through the office of the City Manager. The City Council may then opt to consider a directed solutign to the problem. In such cases, the action of the City Council shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties seeking remedies available to them at law. -7- • • ID XIII. RESPONSIBILITY OF THE CONSULTANT . . . «• -i • The Consultant is hired to render professional services of designing and providing drawings and assessment documents for street design, any payments made to Consultant are compensation solely for such services. Consultant shall certify as to the correctness of all designs and sign all plans, specifications and estimates furnished with Registered Civil Engineer's number, or landscape Architect's registration number. XIV. SUSPENSION OR TERMINATION OF SERVICES This agreement .may be terminated by either party upon tender- ing 30 days written notjce to the other party. In the event of such suspension or termination, upon request of the City, the Consultant shall assemble the work product and put same in order for proper « filing and closing and deliver said product to City. In the event of termination, the Consultant shall be paid for work performed to the termination date; however, the total shall not exceed the guaranteed •total maximum. The City shall make the final determination as to the portions of tasks completed and the compensation to be made. Compensation to be made in compliance with the Code of Federal Regulations. XV. STATUS OF THE CONSULTANT The Consultant shall perform the services provided for herein in Consultant's own way as an Independent Contractor and in pursuit of Consultant's independent calling, and not as an employee of the City. Consultant shall be under control of the City only as to the result to be accomplished and the personnel assigned to the project, but shall "consult with the City a's provided for in'the request for proposal. -8- •XVI. CONFORMITY TO LEGAL REQUIREMENTS . „ . - t The Consultant shall cause all drawings and specifications to •, conform to all applicable requirements of law: Federal, State, and local. Consultant shall provide all necessary supporting documents, to be filed with any agencies whose approval is necessary for the design of this project. The City will provide copies of the approved plans to any other agencies. . XVII. OWNERSHIP OF DOCUMENTS All plans, studies, sketches, drawings, reports and specifications as herein required are the property of the City, whether the work for which they are made be executed or not. In the "* event this contract is terminated, all documents, plans, specifications, drawings, reports and studies shall be delivered forthwith to the City. Consultant shall have the right to make one copy of the plans for his/her records. XVIII.HOLD HARMLESS AGREEMENT The City, its agents, officers and employees shall not be liable for any claims, liabilities, penalties, fines, or any damage to goods, properties, or effects of any person whatever, nor for personal injuries or death caused by, or resulting from, or claimed to have * «been caused by, or resulting from, any act or omission of Consultant or Consultant's agents, employees or representatives. Consultant agrees to defend, indemnify and save free and harmless the City and*• its authorized agents, officers, and employees against any of the foregoing liabilities or claims of any kind and any cost and expense that is incurred by;the City on account of any of the foregoing -9- liabilities, including liabilities or claims by reason of . ....•.«. alleged defects in any plans and specifications, unless the liability or claim 1s due, or arises out of, solely to the City's negligence. XIX. ASSIGNMENT OF CONTRACT x- The Consultant shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent ' of the City. XX. SUBCONTRACTING . ' « If the Consultant shall subcontract any of the work to be performed under this contract by the Consultant, Consultant shall be fully responsible to the City for the acts and omissions of Consultant's Subcontractor and of the persons either directly or » indirectly employed by the Subcontractor, as Consultant is for the acts and omissions of persons directly employed by Consultant. Nothing contained in this contract shall create any contractual relationship between any Subcontractor of Consultant and the City. i The Consultant shall bind every Subcontractor and every Subcontractor of a Subcontractor by the terms of this contract applicable to Consultant's work unless specifically noted to the contrary in the subcontract in question approved in writing by the City. XXI. PROHIBITED INTEREST No official of the City who is authorized in such Capacity on • behalf of the City to negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or approving of any • architectural, engineering inspection, construction or material supply -10- .Contractor, or any Subcontractor in connection with the construction . • «•. t. of the project, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer, employee, architect, attorney, engineer, or inspector of or for the City who is authorized in such capacity and on behalf of the City to e.xercise any executive, supervisory, or other similar functions in connection with the performance of this contract shall become directly or indirectly interested personally in this contract or any > part thereof. XXII. VERBAL AGREEMENT OR CONVERSATION' No verbal agreement or conversation with any officer, agent, or employee of the City, either before, during, or after the execution » of this contract, shall affect or modify any of the terms or obligations herein contained nor such verbal agreement or conversation entitle the Consultant to any additional payment -whatsoever under the terms of this contract. * • XXIII.SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph XVIII, Hold Harmless Agreement, all terms, conditions, and provisions hereof shall insure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors and assigns. XXIV. EFFECTIVE DATE This .agreement shall be effective on and from the day and year first above' written. XXV. CONFLICT OF INTEREST ••. - • • • *•The Consultant shall file a conflict of Interest statement with the City Clerk of the City of Carlsbad. The Consultant shall report investments or interests in real property within the jurisdictional limits of the City of Carlsbad. IN WITNESS WHEREOF, we have hereunto set our hands and seals. CITY OF CARLSBAD Mayor Title ATTEST:IPFffOVfcD' A'S TO FORM: €i ty Clerk s t arn t /£ i t y ' A11 o r n e y -12- ATTACHMENT A . ...,—-•!• JAMES DRI.VE ASSESSMENT DISTRICT BREAKDOWN OF ESTIMATED FEE • PRELIMINARY STUDY . $9,130.00 Right-of-Way: * $ 1,400 "Title Work - $1,400 (fixed cost) Appraisals - $1,200 ea. X 8 = $9,600 Preliminary Design, Quantity & Cost Estimate 2,982 Survey - 20 hrs. @ $126 2,520 Boundary Map / ' 1,200 Preliminary Assessment Spread 676 t Project Management - 4 hrs. @ $62 -. 248 * Reproduction and Miscellaneous 104 * ENGINEERING DESIGN . $11,450.00 Design & PS&E - " .$ 9,110 • Project Engineer 50 hrs. @ $58 = $2,900 Senior Designer 68 hrs. @ 49 = 3,332 Draftsman 70 hrs. @ 37 = 2,590 Clerical 18 hrs. @ 16 = 288 Meetings (City) 480 Project Management 992 Reproduction and Miscellaneous (50 sets) 868 ASSESSMENT ENGINEERING . $ 5,200.00 « Assessment Diagram . • $ . 590 Assessment Roll & Analyze Protests 3,360 r Meetings 944 Project Management 248 Reproduction and Miscellaneous - . 58 SUB TOTAL (fixed fee) - $25,780.00 -13- RESOLUTION NO. 7184 1 2 3 4 . 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AGREEMENTS BETWEEN THE CITY OF CARLSBAD AND THE FIRM OF BROWN AND NAZAREK FOR | LEGAL SERVICES FOR THE JAMES DRIVE ASSESSMENT DISTRICT BETWEEN THE CITY OF CARLSBAD AND THE FIRM OF BERRYMAN AND STEPHENSON FOR ENGINEERING CONSULTING SERVICES. The City Council of the City of Carlsbad, California, does hereby resolve as follows: 1. Those certain agreements between the City of Carlsbad and the firm of Brown and Nazarek for legal services and the firm of Berryman and Stephenson for consulting engineering services, copies of which are attached hereto and incorporated herein by reference, is hereby approved. 2. The Mayor of the City of Carlsbad is hereby authorized and directed to execute such agreements for and on behalf of the City -of Carlsbad. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad held the 7th day of June , 1983, by the following vote, to wit: AYES: Council Marchers Casler, Lewis, Kulchin, Chick and Prescott NOES: None i ABSENT: None U- • MAR ATTEST: --^^r - • ~-<' Y H./CASLER, Mayor ALTTHA L. RAUTENKRANZ, City Clefk (SEAL) J SPECIAL COUNSEL AGREEMENT THIS AGREEMENT is made and entered into this day of , 1983, by and between the CITY OF CARLSBAD"CALIFORNIA, a public corporation (hereinafter referred to as "City"), and BROWN & NAZAREK, Attorneys at Law, (hereinafter referred to as "Counsel"). NOW, THEREFORE, IT IS HEREBY AGREED by and between the parties hereto as follows: SECTION 1. That Counsel shall perform legal services in connection-with the pro- posed assessment proceedings and bond issuance in the matter of a proposed special assessment district known and designated as ASSESSMENT DISTRICT NO. 83-2 (JAKES DRIVE) (hereinafter referred to as the "Assessment District") under proceed- ings conducted pursuant to the provisions of the "Municipal Improve- ment Act of 1913", being Division 12 of the Streets and Highways Code of the State of California. Said services shall include: A. Review of the dedication and acquisition of the streets and ease- ments or other property in which proposed work is to be performed; B. Examination of the plans and specifications for the proposed work, the boundary map and assessment diagram of the Assessment Dist- rict, the assessment roll and bonds, and the giving of instructions and advice in connection with the foregoing; C. Recommendations as to procedure, schedules and actions that should be conducted and taken; D. Preparation of all resolutions, notices, contracts, bond forms, and other papers and documents required in the proceedings; E. Examination of the proceedings, step by step, as taken; F. Appear at all hearings under the proceedings, and attend any meet- ing where attendance is requested; G. Make recommendations as to sale of bonds, if desired; H. Perform legal services, if required, pursuant to the provisions of the "Special Assessment Investigation, Limitation and Majority Protest Act of 1931", being Division 4 of the Streets and Highways Code of the State of California; t I. Issuance of an unqualified legal opinion attesting to the validity of the proceedings and the issuance of the bonds. Such legal services shall not include any services in connection with the acquisition, by easement or condemnation, of any easements or other interest in real property necessary for the proposed improve- ments. These services can be provided by Counsel, by separate agree- ment, if desired by City. SECTION 2. '"at the City shall perform as follow 'A. Furnish to Counsel such maps, records, title searches, and other documents and proceedings, or certified copies thereof, as may be reasonably required by Counsel in the performance of the services hereunder; B. Pay to Counsel a fee computed on the confirmed assessment as follows: TWO PERCENT (2%) on the first $500,000; ONE PERCENT (1%) from $500,001 to $1,500,000; ONE-HALF PERCENT (.50%) on the balance thereof. C. Payment of the above-referenced fee shall be as follows: All due and payable upon receipt of money from the sale and deli- very of bonds to the successful underwriter. SECTION 3. In the event the proceedings are terminated or abandoned prior to completion, Counsel shall be paid a reasonable fee for services ren- dered to date based on an hourly rate of $90.00 per hour, not to exceed $2,500.00; however, if the proceedings are abandoned prior to or at the time of a public hearing under the provisions of the "1931 Act", said fee shall not exceed $1,250.00. m . . SECTION 4. That this Agreement may be terminated by either party hereto by mail- , ing written notice thereof to -the other party. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first hereinabove written. ATTEST: "CITY" 'CITY OF CARLSBAD By: MAYOR CITY OF CARLSBAD STATE OF CALIFORNIA CITY CLERK CITY OF CARLSBAD STATE OF CALIFORNIA "COUNSEL" BROWN & NAZAREK By: . F. MACKENZIE BROWN