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.
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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
....
.