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HomeMy WebLinkAbout1998-04-07; City Council; 14621; Consultant Inspection Services Agreement Approval.- - CITY OF CARLSBAD - AGENbA BILL 14,621 TITLE: APPROVAL OF AGREEMENT FOR 4/07/98 CONSULTANT INSPECTION SERVICES CITY ATTY. Pubic Wks CITY MGR. 1 Ih IF AGREEMENT FOR I RECOMMENDED ACTION: Adopt Resolution No. 98-96 approving an agreement with Powell & Associates, Inc., for Inspection Services. ITEM EXPLANATION: The increase in the volume of development and capital projects in Carlsbad has resulted in a corresponding increase in the need for construction inspection services. Rancho California Consultants, Kleinfelder, and Law Crandall are currently under contract to provide such services to the Engineering Department. However, it is desirable to add Powell and Associates, Inc., as a service provider. It is desirable that Powell & Associates, Inc., be added since they are currently providing these services under CMWD contract and continued utilization of their forces is cost effective. Approval of the attached contract enables the Engineering Department to utilize consultant inspection services on an as-needed basis. development projects when specifically budgeted for. Individual budgets for inspection services It is intended to use these services primarily on capital projects. However, they may be used on will be established on a project-by-project basis. Consultant fees will be paid from the specific capital projects fund as work is assigned to the consultant or general fund when assigned to development projects. The La Costa Avenue Widening Project will be the first assignment. FISCAL IMPACT: The contract amount is not-to-exceed $200,000 and will be charged to the various capital project accounts or the general fund when specifically budgeted for. EXHIBITS: 1. Resolution No. 98-96 approving an agreement with Powell & Associates, Inc., for Inspection Services. I b 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 RESOLUTION NO. 98-96 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT WITH INSPECTION SERVICES. POWELL AND ASSOCIATES, INC.. FOR AS-NEEDED WHEREAS, the City Council of the City of Carlsbad, California, has determined it lecessary, desirable, and in the public interest to enter into a contract for as-needed inspection iervices; and WHEREAS, Powell and Associates, Inc., has qualified personnel with the necessary skills o provide the services required by the City; and WHEREAS, funds for inspection services are available in capital project construction iccounts or has been specifically budgeted for in the Engineering Department annual budget. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, :alifornia, as follows: 1. That the above recitations are true and correct. 2. That the agreement with Powell and Associates, Inc., a copy of which is attached IS Exhibit "A" and made a part hereof, is hereby approved. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council ield on the 7th day of *Pril , 1998 by the following vote, to wit: AYES: Council Members Lewis, Finnila, Nygaard. Kulchin and Hall NOES: None 4TTEST: .LETHA L. RAUiENKFbNZ, City Clerk (SEAL) AGREEMENT FOR INSPECTION SERVICES THIS AGREEMENT is made and entered into as of the 9% day of APbr L , 1@2, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and POWELL 8 ASSOCIATES, INC., hereinafter referred to as "Contractor." RECITALS City requires the services of an inspection Contractor to provide the necessary inspection services on an as-needed basis; and Contractor possesses the necessary skills and qualifications to provide the services required by the City; NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. CONTRACTORS OBLIGATIONS Contractor shall provide inspection services for various City projects on an as-needed basis and as directed by the Public Works Director or designated representative as outlined in Exhibit "A". 2. CITY OBLIGATIONS The City shall: A. Supply the Contractor with plans and specifications or other available information within City records that may be necessary for Contractor to perform the requested inspections. rev. 10/22/97 I 9. Determine the scope of work to be performed for each inspection project. 3. p The work under this contract will commence immediately after execution of the contract. 4. FEES TO BE PAID TO CONTRACTOR The total fee payable for the services to be performed shall not exceed $200,000. No other compensation for services will be allowed except those items covered by supplemental agreements per Paragraph 8, "Changes in Work." The City reserves the right to withhold a ten percent (10%) retention until the project has been accepted by the City. Incremental payments, if applicable. should be made as outlined in attached Exhibit "A." 5. ' DURATION OF CONTRACT This agreement shall extend for a period of one (1) year from date thereof. The contract may be extended by the City Manager for three (3) additional one (1) year periods or parts thereof, based upon a review of satisfactory performance and the Cis needs. The parties shall prepare extensions in writing indicating effective date and length of the extended contract. 6. PAYMENT OF FEES Payment of approved items on the invoice shall be mailed to the Contractor within 30 days of receipt of the invoice. 2 rev. 10122/97 7. CHANGES IN WORK If, in the course of the contract, changes seem merited by the Contractor or the City, and informal consultations with the other party indicate that a change in the conditions of the contract is warranted, the Contractor 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 by Contractor to inform them of the proposed changes along with a statement of estimated changes in charges or time schedule. A Standard Amendment to Agreement shall be prepared by the City and approved by the City according to the procedures described in Carlsbad Municipal Code Section 3.28.172. Such Amendment to Agreement shall not render ineffective or invalidate unaffected portions of the agreement. 8. COVENANTS AGAINST CONTINGENT FEES The Contractor warrants that their firm has not employed or retained any company or person, other than a bona fide employee working for the 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, 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 fees, gift, or contingent fee. 3 rev. 10122197 9. NONDlSCRlMlNATlON CLAUSE The Contractor shall comply with the state and federal laws regarding nondiscrimination. IO. TERMINATION OF CONTRACT In the event of the Contractor's failure to prosecute, deliver, or perform the work as provided for in this contract, the City Manager may terminate this contract for nonperformance by notifying the Contractor by certified mail of the termination of the Contractor. The Contractor, thereupon, has five (5) working days to deliver said documents owned by the City and all work in progress to the Public Works Director. The Public Works Director shall make a determination of fact based upon the documents delivered to City of the percentage of work which the Contractor has performed which is usable and of worth to the City in having the contract completed. Based upon that finding as reported to the City Manager, the Manager shall determine the final payment of the contract. This agreement may be terminated by either party upon tendering thirty (30) days written notice to the other party. In the event of such suspension or termination, upon request of the City, the Contractor 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 Contractor shall be paid for work performed to the termination date; however, the total shall not exceed the lump sum fee payable under paragraph 4. The City Manager shall make the final determination as to the portions of tasks completed and the compensation to be made. rev. 10122197 4 11. 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 Contractor or the Public Works Director. 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 Public Works Director or principal receiving the letter shall reply to the letter along with a recommended method of resolution within ten (IO) days: If the resolution thus obtained is unsatisfactory to the aggrieved 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 the directed solution 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. 12. CI AIMS AND LAWSUITS The Contractor agrees that any contract claim submitted to the City must be asserted as part of the contract process as set forth in this agreement and not in anticipation of litigation or in conjunction with litigation. The Contractor acknowledges that if a false claim is submitted to the City, it may be considered fraud and the Contractor may be subject to criminal prosecution. The Contractor acknowledges that rev. 10122/97 5 California Government Code sections 12650 et sea., the False Claims Act, 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 the City of Carlsbad seeks to recover penalties pursuant to the False Claims Act. it is entitled to recover its litigation costs, including attorney's fees. The Contractor acknowledges that the filing of a false claim may subject the Contractor to an administrative debarment proceeding wherein the Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five years. The Contractor acknowledges debarment by another jurisdiction is gro nds for the City of Carlsbad to disqualify the Contractor from the selection proces . (Initial) # The provisions Carlsbad Municipal Code sections 3.32.025, 3.32.026. 3.32.027 and 3.32.028 pertaining to false claims are incorporated herein by reference. (Initial) @ STATUS OF THF, CONTRACTOR The Contractor shall perform the services provided for herein in Contractor's own way as an independent Contractor and in pursuit of Contractor's independent calling, and not as an employee of the City. Contractor shall be under control of the City only as to the result to be accomplished, but shall consult with the City as provided for in the request for proposal. The persons used by the Contractor to provide services under this agreement shall not be considered employees of the City for any purposes whatsoever. 6 rev. 10122197 The Contractor is an independent Contractor of the City. The payment made to the Contractor pursuant to the contract shall be the full and complete compensation to which the Contractor is entitled. The City shall not make any federal or state tax withholdings on behalf of the Contractor or hidher employees or subcontractors. The City shall not be required to pay any workers' compensation insurance or unemployment contributions on behalf of the Contractor or hidher employees or subcontractors. The Contractor agrees to indemnify the City within 30 days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which the City may be required to make on behalf of the Contractor or any employee or subcontractor of the Contractor for work done under this agreement or such indemnification amount may be deducted by the City from any balance owing to the Contractor. The Contractor shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and Consultants that are included in this agreement. 14. CONFORMITY TO LEGAL REQUIREMENTS The Contractor shall cause all drawings and specifications to conform to all applicable requirements of law: federal, state and local. Contractor shall provide all necessary supporting documents, to be filed with any agencies whose approval is necessary. The City will provide copies of the approved plans to any other agencies. rev. 10/22/97 7 15. 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. Contractor shall have the right to make one (1) copy of the plans for hislher records. 16. REPRODUCTION RIGHTS The Contractor agrees that all copyrights which arise from creation of the work pursuant to this contract shall be vested in City and hereby agrees to relinquish all claims to such copyrights in favor of Ci. 17. HOLD HARMLESS AGREEMENT Contractor agrees to indemnify and hold harmless the City of Carlsbad 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 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. 18. ASSIGNMFNT OF CONTRACT The Contractor shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the City. rev. 1 Oi22l97 c 19. SUBCONTRACTING If the Contractor shall subcontract any of the work to be performed under this contract by the Contractor, Contractor shall be fully responsible to the 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 contract shall create any contractual relationship between any subcontractor of Contractor and the City. The Contractor shall bind every subcontractor and every subcontractor of a subcontractor by the terms of this contract applicable to Contractor's work unless specifically noted to the contrary in the subcontract in question approved in writing by the City. 20. 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 this agreement, shall become directly or indirectly interested personally in this contract or in any part thereof. No ofticer or employee of the City who is authorized in such capacity and on behalf of the City to exercise any executive, supervisory, or similar functions in connection with the performance of this contract shall become directly or indirectly interested personally in this contract or any part thereof. 9 rev. 10122197 21. 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 entitle the Contractor to any additional payment whatsoever under the terms of this contract. 22. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 18, "Hold Harmless Agreement," all terms, conditions. and provisions hereof shall inure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. 23. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written above. 24. CONFLICT OF INTEREST The Contractor shall file a conflict of interest statement with the City Clerk in accordance with the requirements of the Cis conflict of interest code incorporating Fair Political Practices Commission Regulation 18700 as it defines A consultant. The disclosure category shall be Category 1 (Investment and Real Property Disclosure). 10 rev. 10/22/97 25. INSURANCE The Contractor shall obtain and maintain for the duration of the contract 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 work hereunder by the Contractor, his agents, representatives, employees or subcontractors. Said insurance shall 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" and shall meet the City's policy for insurance as stated in Resolution No. 91-403. A. Coveraaes and Limit& Contractor shall maintain the types of coverages and minimum limits indicated herein, unless a lower amount is approved by the City Attorney or City Manager: 1. Comprehensive General Liability Insurance. $1 ,,OOO,OOO combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits shall apply separately to the work under this contract or the general aggregate shall be twice the required per occurrence limit. 2. Automobile Liability (if the use of an automobile is involved for Contractots work for the City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 11 rev. 10122197 3. Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the Labor Code of the State of California and Employer's Liability limits of $1,000,000 per accident for bodily injury. 4. Professional Liability. Errors and omissions liability appropriate to the contractor's profession with limits of not less than $1,000,000 per claim. Coverage shall be maintained for a period of five years following the date of completion of the work. B. Additional Provisions. Contractor shall ensure that the policies of insurance required under this agreement contain, or are endorsed to contain, the following provisions. 1. The City shall be named as an additional insured on all policies excluding Workers' Compensation and Professional Liability. 2. The Contractor shall furnish certificates of insurance to the City before cornmencement of work. 3. The Contractor shall obtain occurrence coverage. excluding Professional Liability which shall be written as claims-made coverage. 4. This insurance shall be in force during the life of the agreement and any extension thereof and shall not be canceled without 30 days prior written notice to the City sent by certified mail. 12 rev. 10/22/97 5. If the Contractor fails to maintain any of the insurance coverages required herein, then the City will have the option to declare the Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order that the required coverages may be maintained. The Contractor is responsible for any payments made by the City to obtain or maintain such insurance and the City may collect the same from the Contractor or deduct the amount paid from any sums due the Contractor under this agreement. 26. RESPONSIBLE PARTIES The name of the persons who are authorized to give written notices or to receive written notice on behalf of the City and on behalf of the Contractor in connection with the foregoing are as follows: For City: For Contractor: Title Name Address Title Name Address Principal Construction Inspector Richard Cook 2075 Las Palmas Drive Carlsbad, CA 92009-1457 President John Powell 175 Calle Magdalena, Suite 101 Encinitas, CA 92024 ArchitedLicense Number: ArchitectlLicense Number: 27. BUSINESS LICENSE Contractor shall obtain and maintain a City of Carlsbad Business License for the duration of the contract. 13 rev. 10122197 28. ENTIRE AGREEMFNT This agreement, together with any other written document referred to or contemplated herein, embody the entire agreement and understanding between the parties relating to the subject matter hereof. Neither this agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. Executed by Contractor this "i tt, day of A A r c 1, ,199. CONTRACTOR: A'TTEST By: (print nameltitle) ALETHA L. RA{E@RA*! (sign here) Lhilitk City Clerk (Proper notarial acknowledgment of execution by Contractor must be attached.) corporations. If only one officer signs, the corporation must attach a resolution certified (President or vice-president and secretary or assistant secretary must sign for by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL City Attorney 14 rev. 10122197 EXHIBIT "A" SCOPE OF SERVICES AND FEE SCHEDULE POWELL 8 ASSOCIATES, INC. FOR January 23,1998 SCOPE OF SERVICES transportation and tools. Inspection services to be provided between 7:OO a.m. and Provide inspection services on an as-needed basis. Contractor will provide own 4:OO p.m.. Monday through Friday, except holidays. FEE SCHEDULE Classification I Rate Inspector $51 .OO per hour No additional payments will be made for mileage. rev. 1 Ol22l97 15 RESOLUTION ADOPTED BY UNANIMOUS WRITTEN CONSENT OF DIRECTORS OF JOHN POWELL & ASSOCIATES, INC. A California Corporation " e+ The undersigned, being the only members of the Board of Directors of John Powell & Associates, Inc.. A California Corporation, do by this writing, consent to take the following actions and adopt the following Resolutions without a formal meeting of the Board: Be it resolved that: John M. Powell, in his capacity as President, has the authority to contractually commit the corporation without prior knowledge, consent or action of the Board of Directors. We direct that this consent by filed with the Minutes of the proceedings of the Board of Directors of the corporation. This unanimous written consent is executed pursuant to section 307(c) of the Corporations Code of the State of California, U.S.A., and the Bylaws of the corporation, which authorize the taking of action by the Board of Directors by written unanimous consent without a meeting. State of California } ss. On & 9 (94% before me. ilk h. w.w\cs personally appeared 0-ll @personally known to me - OR- 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) idare subscribed to the within instrument and acknowledged to me that hdshdthey executed the same in hislherltheir authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the (DAW (NOTARA EIONel(S, person(s) acted, executed the instrument. WITNESS my hand and official seal. OPTIONAL INFORMATION The information below is not required by law. However. it could prevent fraudulent attachment of this achowl- edgment to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT I i i i i i i i i i i i i i i 'OWELL, JOHN n. ~ ~~ ~ 75 UILSTONE AV CORP. OFFICER :NCINITAS, CA. 92024 G 19 -542-1 903 'OUELL. RORY 6. 824 WILSTONE AV CORP . OFF ICE :NCINITAS, CA 92024 6 19-942-1 803 JOHN POWELL 6 ASSOCIniES. !NC. ENCINITAS, CA 175 CALLE HAGDALENA n!ol 92024 'c i b FEE-SCHEDULE PB OHN POWELL-6 ASSOCIATES. INC. 75 CALLE HAGDALENA #lo1 LICENSE MUST 3E POSTED ON BUSINESS PREMISES NOTIFT BUSINESS LICENSE 9FFI';:E IF 'fOU CHANGE LgCATION JH iE4SE . . .~ OPERATION. ...(<:b>;::$. :. . ; i_ ~ . 75 CALLE MAGDALENA 8101 :*.::>A:. . ..4 .. . .: .. . .. . . ..._ .: >. . .. . C.. ~. April 13,1998 Powell Construction Management 175 Calle Magdalena, Suite 101 Encinitas, CA 92024 RE: CONTRACT FOR CONSTRUCTION INSPECTION SERVICES Enclosed for your records is a copy of Council Agenda Bill No. 14,621 and Council Resolution No. 98-96 which approved the above referenced contract with the City of Carlsbad for inspection services. Also enclosed is a signed, original contact. If you have any specific questions regarding this action please contact your project coordinator, Richard Cook, in Engineering Inspection. Mr. Cook can be reached by phone at (760) 438-1 161 ext. 4323. KATHLEEN D. SHOUP Sr. Office Specialist 1200 Carlsbad Village Drive - Carlsbad, California 92008-1989 - (760) 434-2808 @ To: From: Kathleen Farmer Kathleen Shoup Date: Subject: 4/9/98 3:29PM Signed Agmts. Kathleen, Please send signed agmt for Powell to: Powell Construction Management Encinitas, CA 92024 175 Calk Magdalena. Ste. 101 QI Send the 3rd copy to Eng. Inspection. altn: Kathy Farmer /<if Thanks, Kathy F. AGREEMENT FOR INSPECTION SERVICES THIS AGREEMENT is made and entered into as of the qth day of -4PRLL , 1 @J, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and POWELL & ASSOCIATES, INC., hereinafter referred to as "Contractor." REClTALS City requires the services of an inspection Contractor to provide the necessary inspection services on an as-needed basis; and Contractor possesses the necessary skills and qualifications to provide the services required by the City; NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. CONTRACTORS OBLIGATIONS Contractor shall provide inspection services for various City projects on an as-needed basis and as directed by the Public Works Director or designated representative as outlined in Exhibit "A. 2. CITY OBLIGATIONS The City shall: A. Supply the Contractor with plans and specifications or other available information within City records that may be necessary for Contractor to perform the requested inspections. rev. 10122197 1 6. Determine the scope of work to be performed for each inspection project. 3. PROGRESS AND COMPLETION The work under this contract will commence immediately after execution of the contract. 4. FEES TO BE PAID TO CONTRACTOR The total fee payable for the services to be performed shall not exceed $200,000. No other compensation for services will be allowed except those items covered by supplemental agreements per Paragraph 8, "Changes in Work." The City reserves the right to withhold a ten percent (10%) retention until the project has been accepted by the City. Incremental payments, if applicable, should be made as outlined in attached Exhibit "A." 5. DURATION OF CONTRACT This agreement shall extend for a period of one (1) year from date thereof. The contract may be extended by the City Manager for three (3) additional one (1) year periods or parts thereof, based upon a review of satisfactory performance and the City's needs. The parties shall prepare extensions in writing indicating effective date and length of the extended contract. 6. PAYMENT OF FEES Payment of approved items on the invoice shall be mailed to the Contractor within 30 days of receipt of the invoice. rev. 10122197 2 7. CHANGES IN WORK If, in the course of the contract, changes seem merited by the Contractor or the City, and informal consultations with the other party indicate that a change in the conditions of the contract is warranted, the Contractor 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 fotwarded to the City by Contractor to inform them of the proposed changes along with a statement of estimated changes in charges or time schedule. A Standard Amendment to Agreement shall be prepared by the City and approved by the City according to the procedures described in Carlsbad Municipal Code Section 3.28.172. Such Amendment to Agreement shall not render ineffective or invalidate unaffected portions of the agreement. 8. COVENANTS AGAINST CONTINGENT FEES The Contractor warrants that their firm has not employed or retained any company or person, other than a bona fide employee working for the 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 tide 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, 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 fees, gift, or contingent fee. rev. 10122197 3 9. NONDISCRIMINATION CLAUSE The Contractor shall comply with the state and federal laws regarding nondiscrimination. IO. TERMINATION OF CONTRACT In the event of the Contractor's failure to prosecute, deliver, or perform the work as provided for in this contract, the City Manager may terminate this contract for nonperformance by notifying the Contractor by certified mail of the termination of the Contractor. The Contractor, thereupon, has five (5) working days to deliver said documents owned by the City and all work in progress to the Public Works Director. The Public Works Director shall make a determination of fact based upon the documents delivered to City of the percentage of work which the Contractor has performed which is usable and of worth to the City in having the contract completed. Based upon that finding as reported to the City Manager, the Manager shall determine the final payment of the contract. This agreement may be terminated by either party upon tendering thirty (30) days written notice to the other party. In the event of such suspension or termination, upon request of the City, the Contractor 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 Contractor shall be paid for work performed to the termination date; however, the total shall not exceed the lump sum fee payable under paragraph 4. The City Manager shall make the final determination as to the portions of tasks completed and the compensation to be made. 4 rev. 10122197 11. 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 Contractor or the Public Works Director. 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 Public Works Director or principal receiving the letter shall reply to the letter along with a recommended method of resolution within ten (IO) days. If the resolution thus obtained is unsatisfactory to the aggrieved 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 the directed solution 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. 12. CLAIMS AND LAWSUITS The Contractor agrees that any contract claim submitted to the City must be asserted as part of the contract process as set forth in this agreement and not in anticipation of litigation or in conjunction with litigation. The Contractor acknowledges that if a false claim is submitted to the City, it may be considered fraud and the Contractor may be subject to criminal prosecution. The Contractor acknowledges that rev. 10122197 5 California Government Code sections 12650 et sea., the False Claims Act, 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 the City of Carlsbad seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. The Contractor acknowledges that the filing of a false claim may subject the Contractor to an administrative debarment proceeding wherein the Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five years. The Contractor acknowledges debarment by another jurisdiction is gro nds for the City of Carlsbad to disqualify the Contractor from the selection proces . (Initial) # The provisions Carlsbad Municipal Code sections 3.32.025, 3.32.026, 3.32.027 and 3.32.028 pertaining to false claims are incorporated herein by reference. ?Y (Initial) ' 13. STATUS OF THE CONTRACTOR The Contractor shall perform the services provided for herein in Contractor's own way as an independent Contractor and in pursuit of Contractor's independent calling, and not as an employee of the City. Contractor shall be under control of the City only as to the result to be accomplished, but shall consult with the City as provided for in the request for proposal. The persons used by the Contractor to provide services under this agreement shall not be considered employees of the City for any purposes whatsoever. rev. 10122197 6 The Contractor is an independent Contractor of the City. The payment made to the Contractor pursuant to the contract shall be the full and complete compensation to which the Contractor is entitled. The City shall not make any federal or state tax withholdings on behalf of the Contractor or hislher employees or subcontractors. The City shall not be required to pay any workers' compensation insurance or unemployment contributions on behalf of the Contractor or hislher employees or subcontractors. The Contractor agrees to indemnify the City within 30 days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which the City may be required to make on behalf of the Contractor or any employee or subcontractor of the Contractor for work done under this agreement or such indemnification amount may be deducted by the City from any balance owing to the Contractor. The Contractor shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and Consultants that are included in this agreement. 14. CONFORMITY TO LEGAL REQUIREMENTS The Contractor shall cause all drawings and specifications to conform to all applicable requirements of law: federal, state and local. Contractor shall provide all necessary supporting documents, to be filed with any agencies whose approval is necessary. The City will provide copies of the approved plans to any other agencies. rev. 10122197 7 15. 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. Contractor shall have the right to make one (1) copy of the plans for hislher records. 16. REPRODUCTION RIGHTS The Contractor agrees that all copyrights which arise from creation of the work pursuant to this contract shall be vested in City and hereby agrees to relinquish all claims to such copyrights in favor of City. 17. HOLD HARMLESS AGREEMENT Contractor agrees to indemnify and hold harmless the City of Carlsbad 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 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. 18. ASSIGNMENT OF CONTRACT The Contractor shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the City. rev. 10122197 8 19. SUBCONTRACTING If the Contractor shall subcontract any of the work to be performed under this contract by the Contractor, Contractor shall be fully responsible to the 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 contract shall create any contractual relationship between any subcontractor of Contractor and the City. The Contractor shall bind every subcontractor and every subcontractor of a subcontractor by the terms of this contract applicable to Contractor's work unless specifically noted to the contrary in the subcontract in question approved in writing by the City. 20. 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 this agreement, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer or employee of the City who is authorized in such capacity and on behalf of the City to exercise any executive, supervisory, or similar functions in connection with the performance of this contract shall become directly or indirectly interested personally in this contract or any part thereof. 9 rev. 10/22/97 21. 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 entitle the Contractor to any additional payment whatsoever under the terms of this contract. 22. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 18, "Hold Harmless Agreement," all terms, conditions, and provisions hereof shall inure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. 23. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written above. 24. The Contractor shall file a conflict of interest statement with the City Clerk in accordance with the requirements of the City's conflict of interest code incorporating Fair Political Practices Commission Regulation 18700 as it defines A consultant. The disclosure category shall be Category 1 (Investment and Real Property Disclosure). rev. 10/22/97 10 25. INSURANCE The Contractor shall obtain and maintain for the duration of the contract 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 work hereunder by the Contractor, his agents, representatives, employees or subcontractors. Said insurance shall 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" and shall meet the City's policy for insurance as stated in Resolution No. 91-403. A. Coveraaes and Limits. Contractor shall maintain the types of coverages and minimum limits indicated herein, unless a lower amount is approved by the City Attorney or City Manager: 1. Comprehensive 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 shall apply separately to the work under this contract or the general aggregate shall be twice the required per occurrence limit. 2. Automobile Liability (if the use of an automobile is involved for Contractor's work for the City). $1,000,000 combined single-limit per accident for bodily injury and property damage. rev. 10122197 11 3. Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the Labor Code of the State of California and Employer's Liability limits of $1,000,000 per accident for bodily injury. 4. Professional Liability. Errors and omissions liability appropriate to the contractor's profession with limits of not less than $1,000,000 per claim. Coverage shall be maintained for a period of five years following the date of completion of the work. B. Additional Provisions. Contractor shall ensure that the policies of insurance required under this agreement contain, or are endorsed to contain, the following provisions. 1. The City shall be named as an additional insured on all policies excluding Workers' Compensation and Professional Liability. 2. The Contractor shall furnish certificates of insurance to the City before commencement of work. 3. The Contractor shall obtain occurrence coverage, excluding Professional Liability which shall be written as claims-made coverage. 4. This insurance shall be in force during the life of the agreement and any extension thereof and shall not be canceled without 30 days prior written notice to the City sent by certified mail. rev. 10122197 12 5. If the Contractor fails to maintain any of the insurance coverages required herein, then the City will have the option to declare the Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order that the required coverages may be maintained. The Contractor is responsible for any payments made by the City to obtain or maintain such insurance and the City may collect the same from the Contractor or deduct the amount paid from any sums due the Contractor under this agreement. 26. RESPONSIBLE PARTIES The name of the persons who are authorized to give written notices or to receive written notice on behalf of the City and on behalf of the Contractor in connection with the foregoing are as follows: For City: For Contractor: Title Principal Construction Inspector Name Richard Cook Address 2075 Las Palmas Drive Carlsbad. CA 92009-1457 Title Name Address President John Powell ArchitectlLicense Number: ArchitectlLicense Number: 27. BUSINESS LICENSE Contractor shall obtain and maintain a City of Carlsbad Business License for the duration of the contract. rev. 10/22/97 13 28. ENTIRE AGREEMENT This agreement, together with any other written document referred to or contemplated herein, embody the entire agreement and understanding between the parties relating to the subject matter hereof. Neither this agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. Executed by Contractor this 4 * day of ./JI Ar c 1, ,19%. CONTRACTOR: By: (sign here) By: (sign here) (print namekitle) ALETHA L. RAUTENKRANZ City Clerk (Proper notarial acknowledgment of execution by Contractor must be attached.) (President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL City Attorney rev. 10122197 14 EXHIBIT "A SCOPE OF SERVICES AND FEE SCHEDULE FOR POWELL &ASSOCIATES, INC. January 23,1998 SCOPE OF SERVICES transportation and tools. Inspection services to be provided between 7:OO a.m. and Provide inspection services on an as-needed basis. Contractor will provide own 4:OO p.m., Monday through Friday, except holidays. FEE SCHEDULE Classification Rate Inspector $51 .OO per hour 1 No additional payments will be made for mileage. rev. 10122/97 15 RESOLUTION ADOPTED BY UNANIMOUS WRITTEN CONSENT OF DIRECTORS OF JOHN POWELL & ASSOCIATES, INC. A California Corporation &.. t " The undersigned, being the only members of the Board of Directors of John Powell &. Associates, Inc., A California Corporation, do by this writing, consent to take the following actions and adopt the following Resolutions without a formal meeting of the Board: Be it resolved that: John M. Powell, in his capacity as President, has the authority to contractually commit the corporation without prior knowledge, consent or action of the Board of Directors. We direct that this consent by tiled with the Minutes of the proceedings of the Board of Directors of the corporation. This unanimous written consent is executed pursuant to section 307(c) of the Corporations Code of the State of California, U.S.A., and the Bylaws of the corporation, which authorize the taking of action by the Board of Directors by written unanimous consent without a meeting. Dated: b/7 /9 Z; . State of California County of C" CA-, Oa0 c ~ On moi,h ct. \9+m before me, AA Eu\. hAC 3 personally appeared x SIGtieR(S) } ss. 3 (DATE? (NOTARPI apersonally known to me - OR- 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that hdshdthey executed the same in hislherltheir authorized capacity(ies), and that by hislherltheir signature(s) on the instrument the person(s), or the entity upon behalf of which the c OPTIONAL INFORMATION The information below is nor required by law. However, it could prevent fraudulent attachment of this acknowl- edgment IO an unauthorized document. CAPACm CWMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT - 1 i i i i i i i i i i i i i i u INDIVIDUAL 'NCINITAS, CA. 92024 G 19-542-1.803 'OWELL. RORY 6. CORP. 1524 WILSTONE AV ZFICINITAS, CA 92024 JOHN POWELL 6 ASSOCIATES, !NC 175 CALLE MAGDALENA #! 01 ENCINITAS, CA 92024 IOHN POWELL-& ASSOCIATES, iNC 75 CALLE MAGDALENA #lo1 LICENSE flUST BE POSTED ON INCINITAS CA_., rO:,d~~~.y~~E~~~J~CATlON): INGINEERING SERVICES NOTIFY BUSINESS LICENSE ilFFI:E 9?g4 BUSINESS PREMISES ~usi~E~s~baA~~sl~E~~E~~~ IF 'fOU iCHANGi L->CATION OR CE:;5E cv OPERATION. . - .. . :,. ! . ' r:.. . .,..., ... . . ..J ..f 75 CALLE MAGDALENA 8101 .... .