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HomeMy WebLinkAbout1999-03-02; City Council; 15073; Consultant Agreementsa B 2 % p Y d 0 5 8 48# IS,073 .3-?;99 MTG. DEPT. ENG Cl‘;; OF CARLSBAD - AGENDA;ILL Adopt Resolution No 7 ‘% 13 approving consultant agreements with: Fraser Engineering; Lintvedt, McCall & Associates; John Powell and Associates; O’Day Consultants; Willdan Associates; and Berryman and Henigar for Professional Engineering Services. TITLE- APPROVAL OF CONSULTANT AGREEMENTS WITH L FRASER ENGINEERING; LINTVEDT, McCOLL & ASSOCIATES; JOHN POWELL AND ASSOCIATES; O’DAY CONSULTANTS; WILLDAN ASSOCIATES AND BERRYMAN AND HENIGAR FOR PROFESSIONAL ENGINEERING SERVICES RECOMMENDED ACTION: ITEM EXPLANATION: The Fiscal Year 98-99 Capital Improvement Program (CIP) budget included over 100 new projects with a combined appropriation of 73.8 million dollars. Additionally, there were numerous prior year projects with appropriations totaling 46.4 million dollars which remained to be designed and/or constructed during this or subsequent fiscal years. To facilitate implementation of the CIP, staff is requesting Council approval of general engineering service agreements with six engineering design firms. Approval of the agreements will significantly reduce the time required to award engineering service contracts for small to medium sized CIP projects (projects costing less than $150,000). Without the use of these general service agreements, staff would need to go through the lengthy and time consuming consultant selection process for each of the remaining CIP projects. The six selected engineering firms are as follows: Fraser Engineering; Lintvedt, McCall & Associates; John Powell and Associates; O’Day Consultants; Willdan Associates and Berryman and Henigar. The six firms were selected based upon their responses to a Request for Qualifications sent out by staff to twelve engineering firms. Of the twelve firms invited to submit their statement of qualifications, eight responded. A selection committee comprised of engineering staff members reviewed the submittals and recommended selection of the six engineering firms based upon their qualifications, performance with similar work, ability to provide services and quality of their proposal. The selected firms will assist staff, on an as-needed basis, with facility planning, project design, environmental studies, project management, engineering audits, plancheck services and assessment engineering. As services are required, staff will develop an engineering task scope of work, select one of the six available firms, negotiate a project fee and prepare a task authorization form. Prior to commencement of the work task, the authorization form must be signed by the engineering firm and the Public Works Director. The consultant fees will be paid from funds previously appropriated by Council for such purposes. Each agreement is established for a one year time period with provisions for three consecutive one year extensions as approved by the City Manager. The maximum payment to each engineering contractor pursuant to the agreement is not to exceed $150,000 per fiscal year. FISCAL IMPACT: Each of the six agreements has a maximum potential to incur costs up to $150,000 per fiscal year for a total of $900,000. All costs incurred will be paid from previously appropriated CIP or Operating Budget funds approved by Council for such purposes. I Page 2 of Agenda Bill No. b - , (3 ‘7 3 EXHIBITS: 1. Resolution No. 99-33 approving consultant agreements with: Fraser Engineering; Lintvedt, McCall & Associates; John Powell and Associates; O’Day Consultants; Willdan Associates and Benyman and Henigar for professional engineering services. 2. Consultant Agreement for Professional Engineering Services with Fraser Engineering. 3. Consultant Agreement for Professional Engineering Services with Lintvedt, McCall and Associates. 4. Consultant Agreement for Professional Engineering Services with John Powell & Associates, Inc. 5. Consultant Agreement for Professional Engineering Services with O’Day Consultants. 6. Consultant Agreement for Professional Engineering Services with Willdan Associates. 7. Consultant Agreement for Professional Engineering Services with Berryman and Henigar. 3 4 5 6 7 6 9 IO 11 12 13 14 15 16 17 16 19 20 21 22 -23 24 25 26 27 28 RESOLUTION NO. 99-73 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT WITH FRASER ENGINEERING; LINTVEDT, MCCOLL & ASSOCIATES; JOHN POWELL AND ASSOCIATES; O’DAY CONSULTANTS; WILLDAN ASSOCIATES; AND BERRYMAN AND HENIGAR FOR PROFESSIONAL ENGINEERING SERVICES. WHEREAS, the City Council of the City of Carlsbad, California has adopted an annual Capital Improvement Program (CIP) which requires engineering services to complete the projects included within the CIP; and WHEREAS, the City Council has determined that there is a need to retain outside consultant services on an ongoing, as needed basis, in order complete the CIP projects in a timely and effective manner; and WHEREAS, the City Council has determined that Fraser Engineering; Lintvedt, McCall 81 Associates; John Powell and Associates; O’Day Consultants; Willdan Associates; and Berryman and Henigar possess the needed professional engineering skills and services required by the City; and WHEREAS, the City Council recognizes the need to maintain the continuity of work in progress by utilizing these firms to provide professional engineering services. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the agreements between the City of Carlsbad and Fraser Engineering; Lintvedt, McCall & Associates; John Powell and Associates; O’Day Consultants; Willdan Associates; and Berryman and Henigar for professional engineering services, copies identified as Exhibits 2 through 7, are hereby approved. Ill Ill Ill Ill 1 2 3 4 5 6 7 8 9 10 11 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute said agreements for and on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 2 ndday of March f 1999 by the following vote, to wit: AYES: Council Members Lewis. __ _ I Nvsaard. Finn ATTEST: RAUTENl%ANZ, City Clerk / ila, Kulchin & Hall ww a AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES WITH FRASER ENGINEERING THIS AGREEMENT is made and entered into as of the 2 nd day of March , 192, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as “City”, and FRASER ENGINEERING, a consulting engineer, hereinafter referred to as “Contractor.” RECITALS City requires the services of a professional engineering Contractor to provide the necessary studies, reports, cost estimates and general engineering services for preparation of various engineering projects; 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. CONTRACTOR’S OBLIGATIONS The Contractor shall provide qualified professional engineering services as requested by the City including, but not limited to, facility planning, project design, environmental studies, project management, engineering audits, plancheck services and assessment engineering. Contractor shall provide all equipment and standard reference materials necessary to perform said engineering services. rev. 0125198 -1 - 2. CITY OBLIGATIONS The City shall: 0 Provide Contractor with City standards, specifications, and direction for Contractor to perform services as requested by the City. 0 Provide Contractor with documents or other materials related to the scope of work. 3. . PROGRESS AND COMPLETION The work under this contract will begin within ten (10) days after receipt of notification to proceed by the City and be completed within dates mutually agreed upon between City and Contractor for individual projects. Extensions of time may be granted if requested by the Contractor and agreed to in writing by the City Manager or the Public Works Director as his designee. The City Manager of Public Works Director as his designee will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of the Contractor, or delays caused by City inaction or other agencies’ lack of timely action. 4. FEES TO BE PAID TO CONTRACTOR The Contractor’s fee shall be determined on a project-by-project basis and shall be based upon the Contractor’s Schedule of Hourly Rates attached hereto as Exhibit “A”. Prior to initiation of any project work by the Contractor, the City shall prepare a Project Task Description and Fee Allotment which, upon signature by the contractor and the City Manager or Public Works Director as his designee, shall be considered a part of this agreement. The Project Task Description and Fee Allotment shall include a detailed scope of services for the particular project being considered together with a rev. 8125198 -2 - statement of the Contractor’s fee required to complete the project in accordance with the specified scope of services. The Project Task Description and Fee Allotment shall also include a description of the method of payment and shall be based upon an hourly rate, percentage of project complete, completion of specific project task or combination thereof. The total fee to be paid to the Contractor for any one project or for the cumulative total of all projects allowed pursuant to this agreement shall not exceed $150,000 per fiscal year. 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. 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 fowarded to the City by Contractor to -3 - rev. 8125198 . 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. a. 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 fid’e 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. 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 rev. 8125198 -4 - 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. 11. 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 California Government Code sections 12650 et sea., the False Claims Act, provides for rev. 8125198 -5 - 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 grounds for the City of Carlsbad to disqualify the Contractor from the selection process. The provisions of Municipal Code sections 3.32.025, 3.32.626, 3.32,.027 and 3.32.028 pertaining to false claims are incorporated herein by reference. # (Initial) ly 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. 8125198 -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 its employees or subcontractors. The City shall not be required to pay any workers’ compensation insurance or unemployment contributions on behalf of the Contractor or its 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. 13. 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. 8125198 -7 - 14. 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 its records. 15. 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. 16. 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. 17. 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. 8125198 -8 - ia. 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. 19. 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. 8125198 20. 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. 21.. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 17, “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. 22. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written above. 23. CONFLICT OF INTEREST 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 categories 1, 3 and 4. rev. 8/25/98 -10 - h - 24. INSURANCE The Contractor shall obtain and maintain for the duration of the contract and any and all amendments insurance against claims for injunes 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-Y 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 ,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 Contractor’s work for the City). $1 ,OOO,OOO combined single-limit per accident for bodily injury and property damage. rev. 8125198 -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 ,OOO,OOO 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 ,OOO,OOO 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. 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 -12 - rev. B/25198 h . 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. 25. 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: Title Public Works Director Name Lloyd B. Hubbs Address City of CarlsbadlEngineering Dept 2075 Las Palmas Drive For Contractor: Architect/License Number: 27616 27. BUSINESS LICENSE Carlsbad, CA 92009-I 576 Title Name Address Graham Fraser, President 2191 El Camino Real, Suite 208 Oceanside, CA 92054 Contractor shall obtain and maintain a City of Carlsbad Business License for the duration of the contract. rev. 8125198 -13 - 2%. 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 5fi day of f&Z&--) ,197-F. A CONTRACTOR: SBAD a mu FRASER ENGINEERING w:B fsLd5.A z-~z4sse - /?w&szH ATTEST: (sign here) gint name/title) nn G i%isGY-- CF a 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: rev. 8125198 -14 - State of California ) 1 s County of San Diego ) On Februaiy 5, 1999 before me, Belinda R. Guzman, Notary Public, personally appeared Ann H. Fraser and Graham T. Fraser proved to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by his signature on the instrument the persons, or entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand al nd official seal 9&$M&kK& Signature of Notary (This area for official notary seal) Title or Type of Document Agreement for Professional Services with Fraser Engineering Date of Document 2-5-99 No. of Pages 14 Signer(s) other than named above None - AlTACHMENT ‘A’ FRASER ENGINEERING, INC. Standard Compensation Rate Schedule City of Carlsbad As Needed Civil Engineering Services Effective January 1,1999 ENGINEERING 8. PLANNING SERVICES: COST/HOUR Chief Engineer/Company Principal Principal Engineer Senior Engineer Engineer Associate Engineer Assistant Engineer Engineering Technician IV . Engineering Technician Ill Engineering Technician II Engineering Technician I $140.00 120.00 114.00 94.00 83.00 70.00 83.00 78.00 63.00 57.00 SURVEYING SERVICES: Principal Surveyor Senior Surveyor Surveyor Survey Technician IV Survey Technician Ill Survey Technician II Survey Technician I 120.00 114.00 94.00 83.00 69.00 63.00 57.00 a-Man Field Survey Crew l 250.00 J-Man Field Survey Crew ‘208.00 P-Man Field Survey Crew ‘156.00 l-Field Crew ‘99.06 INSPECTION SERVICES: Principal Inspector Senior Inspector Inspector Ill Inspector II Inspector I ‘120.00 ‘94.00 78.00 ‘63.00 57.00 OFFICE SUPPORT SERVICES: office Engineer/Project Coordinator Office Technician II Oftice Technician I 70.00 40.06 32.00 MISCELLANEOUS SERVlCES AND EXPENSES Expert Testimony/Court Appearanca Forensic Engineering CADD Equipment Usage Computer Usage Microfiche m Mileage Subsistencs outside sewIces Material and other Expenses ‘225.00 ‘135.ocr “25.00 “10.06 “10.00 0.35/mi cost cost + 15% cost + 20% NOTES: Hourly billing rates include overhead, profit, employee fringe benetks, including sick pay, vacation, holidays, social security, medical benefits, pension, Workman’s Compensation. and State and Federal Unemployment Tax, etc. All rates are subject to change without notice. Rates indiied above are for Prevailing Wage projects. Overtii is defined as the excess above 8 hours on weekdays and all Saturdays, Sundays and holidays. Hourly rates indicated shall apply to all travel time. Rates are subject to annual adjustments on January 1 of each year. l 4 Hour Minimum ” 1 Hour Minimum (Initial) Date: AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES WITH LINVEDT, MCCOLL AND ASSOCIATES THIS AGREEMENT is made and entered into as of the 2 na day of March , 192, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as “City”, and LINVEDT, MCCOLL AND ASSOCIATES, a consulting engineer, hereinafter referred to as “Contractor.” RECITALS City requires the services of a professional engineering Contractor to provide the necessary studies, reports, cost estimates and general engineering services for preparation of various engineering projects: 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. CONTRACTOR’S OBLIGATIONS The Contractor shall provide qualified professional engineering services as requested by the City including, but not limited to, facility planning, project design, environmental studies, project management, engineering audits, plancheck services and assessment‘ engineering. Contractor shall provide all equipment and standard reference materials necessary to perform said engineering services. rev. 8125198 -1 - 2. CITY OBLIGATIONS The City shall: 0 Provide Contractor with City standards, specifications, and direction for Contractor to perform services as requested by the City. 0 Provide Contractor with documents or other materials related to the scope of work. 3. I PROGRESS AND COMPLETION The work under this contract will begin within ten (10) days after receipt of notification to proceed by the City and be completed within dates mutually agreed upon between City and Contractor for individual projects. Extensions of time may be granted if requested by the Contractor and agreed to in writing by the City Manager or the Public Works Director as his designee. The City Manager of Public Works Director as his designee will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of the Contractor, or delays caused by City inaction or other agencies’ lack of timely action. 4. FEES TO BE PAID TO CONTRACTOR The Contractor’s fee shall be determined on a project-by-project basis and shall be based upon the Contractor’s Schedule of Hourly Rates attached hereto as Exhibit “A”. Prior to initiation of any project work by the Contractor, the City shall prepare a Project Task Description and Fee Allotment which, upon signature by the contractor and the City Manager or Public Works Director as his designee, shall be considered a part of this agreement. The Project Task Description and Fee Allotment shall include a detailed scope of services for the particular project being considered together with a -2 - rev. 8125198 statement of the Contractor’s fee required to complete the project in accordance with the specified scope of services. The Project Task Description and Fee Allotment shall also include a description of the method of payment and shall be based upon an hourly rate, percentage of project complete, completion of specific project task or combination thereof. The total fee to be paid to the Contractor for any one project or for the cumulative total of all projects allowed pursuant to this agreement shall not exceed $150,000 per fiscal year. 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 length of the extended contract. 6. PAYMENT OF FEES extensions in writing indicating effective date and Payment of approved items on the invoice shall be mailed to the Contractor within 30 days of receipt of the invoice. 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 outlininb the required changes shall be forwarded to the City by Contractor to rev. 8125198 -3 - 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. a . I 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. 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 nonperforma&ze by notifying the Contractor by certified mail of the termination of the rev. 8125198 -4- 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. 11. 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 California Government Code sections 12650 et seq., the False Claims Act, provides for rev. 8125198 -5 - - 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 grounds for the City of Carlsbad to disqualify the Contractor from the selection process. ?fl@@nitial) The provisions of 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. ?lit’Qlnitial) 12. 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. 8125198 -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 its employees or subcontractors. The City shall not be required to pay any workers’ compensation insurance or unemployment contributions on behalf of the Contractor or its 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, 13. 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. 8125198 -7 - - 14. 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 its records. 15. 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. 16. 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. 17. 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. 8125198 -8 - . ia. 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. 19. 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. rev. 8125198 -9 - 20. 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. 21.. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 17, “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. 22. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written above. 23. CONFLICT OF INTEREST 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 categories I, 3 and 4. rev. 8125198 -10 - 24. INSURANCE The Contractor shall obtain and maintain for the duration of the contract and any and all amendments insurance against claims for injunes 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 ,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 Contractor’s work for the City). $1 ,OOO,OOO combined single-limit per accident for bodily injury and property damage. rev. 8125198 -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 ,OOO,OOO 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. 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 rev. 812 5/98 -12 - - 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. 25. 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: Title Name Address Public Works Director Lloyd B. Hubbs City of CarlsbadlEngineering Dept 2075 Las Palmas Drive Carlsbad, CA 92009-I 576 For Contractor: Architect/License Number: .%f?T3 Title Name Address , Patricia McCall, P.E., Principal 3737 Camino Del Rio South, Suite 200 San Diego, CA 92108 27. BUSINESS LICENSE Contractor shall obtain and maintain a City of Carlsbad Business License for the duration of the contract. rev. 8125198 -13 - 20. 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 day of cd m&q 97 / 919 * CONTRACTOR: LINVEQT, MCCOLL AND ASSOCIATES (sign here) pq 7p , < /CjJ /q /I//(+ ppA&, /i/f iil/Z/p~)/q,q/j + -=Yi A EST: -(sign here) csy I$ L;,+kidt/~a&h,, j (print’name/title) / 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: rev. 8/25/98 CAIMORNIA- LL-PURPOSE ACKNOW-EDGEMENT State of CALIFORNIA County of SAN DIEGO On FEBRUARY 4, 1999 before me, SHEILA D. WATSON, A NOTARY PUBLIC personally appeared **PATRICIA M. McCOLL and GARY A. LINTVEDT** J personally known to me -OR- 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/ their 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 person(s) acted, executed the instrument. Comm. I1206125 NOTARY PUBLIC- CALIFORNIA ul J San Diego County - My Comm. Expires Jan. 22.2003 td WITNES$ my hand and official seal. OPT bough the information below is not required by law, it may 1 revent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER q CORPORATE OFFICER -(a 0 PARTNE 0 LIMITED \ ‘7 TRUSTEES SIGNER IS REPRESENTING NAME OF PERSON(S) OR ENTIWIES) IONAL rove valuable to persons relying on the document and could DESCRIPTION OF AlTACHED DOCUMENT AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES TITLE OR TYPE OF DOCUMENT \ NUMBEROFPAGES - DATE OF DOW SIGNER(S) OTHER THAN NAMED ABOVE 6 RSSOCIRTfS PLANNING ’ CIVIL ENGINEERING ’ LAND SURVEYING ! FEE SCHEDULE January 1, 1999 Principal Engineer/Surveyor .......................................... $ 145.00/hr Senior Engineer/Surveyor ............................................. $ 102.00/hr Project Engineer/Surveyor ............................................ $ 96.00/hr Associate Engineer/Surveyor ........................................ $ 88.00/hr Assistant Engineer/Surveyor ......................................... $ 80.00/hr Junior Engineer .......................................................... $ 65.00/hr Technician IV ............................................................. $ 75.00/hr Technician III .............................................................. $ 70.00/hr Technician II ............................................................... $ 62.0d/hr Technician I ............................................................... $ 56.00/hr Engineering Aide ......................................................... $ 50.00/hr Clerk/Word Processor .................................................. $ 50.00/hr Three-man Survey Crew .............................................. $ 2 1 O.OO/hr Two-man Survey Crew ................................................ $ 150.00/hr Court or Deposition Appearance . . . . . . . . . . . . . . . . . . . . . ..a............ $ 215.00/hr . . Overttme, Listed rates times 1.30 will be charged when authorized. . . iscellaneous. All charges for travel, subsistence, printing, materials, consultant services, and special equipment will be bifled at cost plus 15%. 3737 Cornno Del RIO South, Sure 200 l Son Dlego. CA 92108-4008 . (619) 280-3100 n FAX (619) 280-I 515 n e-mall: Ima@odnc.com AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES WITH JOHN POWELL &ASSOCIATES, INC. THIS AGREEMENT is made and entered into as of the 2 nd day of March , 1999, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as “City”, and JOHN POWELL & ASSOCIATES, INC., a consulting engineer, hereinafter referred to as “Contractor.” RECITALS City requires the services of a professional engineering Contractor to provide the necessary studies, reports, cost estimates and general engineering services for preparation of various engineering projects; 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. CONTRACTOR’S OBLIGATIONS The Contractor shall provide qualified professional engineering services as requested by the City including, but not limited to, facility planning, project design, environmental studies, project management, engineering audits, plancheck services and assessment engineering. Contractor shall provide all equipment and standard reference materials necessary to perform said engineering services. rev. 8125198 -1 - 2. CITY OBLIGATIONS The City shall: 0 Provide Contractor with City standards, specifications, and direction for Contractor to perform services as requested by the City. l Provide Contractor with documents or other materials related to the scope of work. 3. * PROGRESS AND COMPLETION The work under this contract will begin within ten (10) days after receipt of notification to proceed by the City and be completed within dates mutually agreed upon between City and Contractor for individual projects. Extensions of time may be granted if requested by the Contractor and agreed to in writing by the City Manager or the Public Works Director as his designee. The City Manager of Public Works Director as his designee will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of the Contractor, or delays caused by City inaction or other agencies’ lack of timely action. 4. FEES TO BE PAID TO CONTRACTOR The Contractor’s fee shall be determined on a project-by-project basis and shall be based upon the Contractor’s Schedule of Hourly Rates attached hereto as Exhibit “A”. Prior to initiation of any project work by the Contractor, the City shall prepare a Project Task Description and Fee Allotment which, upon signature by the contractor and the City Manager or Public Works Director as his designee, shall be considered a part of this agreement. The Project Task Description and Fee Allotment shall include a detailed scope of services for the particular project being considered together with a -2 - rev. 8125198 statement of the Contractor’s fee required to complete the project in accordance with the specified scope of services. The Project Task Description and Fee Allotment shall also include a description of the method of payment and shall be based upon an hourly rate, percentage of project complete, completion of specific project task or combination thereof. The total fee to be paid to the Contractor for any one project or for the cumulative total of all projects allowed pursuant to this agreement shall not exceed $150,000 per fiscal year. 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. 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 outlininb the required changes shall be forwarded to the City by Contractor to rev. 8125198 -3 - 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. a. 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. 9. NONDISCRIMINATION CLAUSE The Contractor shall comply with the state and federal laws regarding nondiscrimination. 10. 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 rev. 8125198 -4- 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. 11. 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 California Government Code sections 12650 et sea., the False Claims Act, provides for rev. 8125198 -5 - 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 the City of Carlsbad to disqualify the Contractor from the selection process. The provisions Code sections 3.32.025, 3.32.026, 3.32.027 and 3.32.028 pertaining to false claims are incorporated herein by reference. 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. 8125198 -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 its employees or subcontractors. The City shall not be required to pay any workers’ compensation insurance or unemployment contributions on behalf of the Contractor or its 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. 13. 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. 8125198 -7 - 14. 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 its records. 15. 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. 16. 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. 17. 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. 8125198 -a - 18. 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. 19. 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. rev. B/25/98 -9 - 20. 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. 21.. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 17, “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. 22. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written above. 23. CONFLICT OF INTEREST 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 categories 1, 3 and 4. rev. 8125198 -10 - 24. 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-Y 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 ,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 Contractor’s work for the City). $1 ,OOO,OOO combined single-limit per accident for bodily injury and property damage. rev. 8/25/98 -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 ,OOO,OOO 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 ,OOO,OOO 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. 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 rev. 8125198 -12 - - 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. 25. 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 For Contractor: the foregoing are as follows: For City: Title Name Address Title Name Address Architect/License Number: 27. BUSINESS LICENSE Public Works Director Lloyd B. Hubbs City of Carlsbad/Engineering Dept 2075 Las Palmas Drive Carlsbad, CA 92009-I 576 John M. Powell, P.E., President 175 Calle Magdalena, Suite 201 Encinitas, CA 92024 Contractor shall obtain and maintain a City of Carlsbad Business License for the duration of the contract. rev. 8125198 -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 CONTRACTOR: 07 * GkJs.t\ (P ri&ame/title) ATTEST: By: (sign here) (print name/title) 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: rev. 8125198 -14 - ALL-PURPOSE ACKNOWLdDCMENT ~*~o~e~o~e~o~o~o~*~*I)*~o-o-e~e~e~e i I l I l I l I l I l I l I l I l I l I l I l I l I l I l I l I l I l I l I l I l I l I 9 State of California , County of 2% r, *\C,; L ( r a l ss. On G,. . I);‘? before me, , (DATE) (NOTARY) ’ personally appeared >L r r. li\. GC: ,i II SIGNER(S) % personally known to me - OR- 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their 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 person(s) acted, executed the instrument. WITNESS my hand and official seal. ‘i 6-m m&d& . / NOTARY’ShfbNAlURE OPTIONAL INFORMATION The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- edgment to an unauthorized document. CAPAClTYCLAIMED BYSICNER (PRINCIPAL) DESCRIPTIONOFA'ITACEED DOCUMENT cl cl cl cl cl cl cl INDIVIDUAL CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT Tm(S) PARTNER(S) ATTORNEY-IN-FACT TRUSTEE(S) GUARDIAN/CONSERVATOR OTHER: NUMBER OF PAGES DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OP PERSON(S) OR ENTTTY(lES) OTHER l I l I l I l I l I l I l I l I l I l I l I l I l I l I l I l I l I l I l I l I l I l I t I- e-ewe-e-e-e-•-•-ewe-•-e-e-e-e-e-ewe 3 APA l/94 VALLEY-SIERRA, K&362-3369 RESOLUTION ADOPTED BY UNANIMOUS WRITTEN CONSENT OF DIRECTORS OF JOHN POWELL & ASSOCIATES, INC. A California Corporation The undersigned, being the only members of the Board of Directors of John Powell & Associates, Inc., A California Corporation, do by this wrrting, consent to take the following actions and adppt the following Resolutions without a -formal meeting of the Board: , ‘ Be it resolved that: John M. Powell, ln his capacrty as President, has t.hc authorrty 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 unanimnrlc writ,t,en cnnsent is cxecutcd pursx~-.t t; r,n::t:;;;; X7(~) ;f tb,L 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: Q/7/b- Dated: b/7 I9 F Dated: &!I\;qc _ Q C~‘?Q.&Q, \ \ PO\VELL - - John Powell & Asso- Ates, Inc. I Consulting Civil Engineers STANDARD RATE SCHEDULE EFFECTIVE JULY 1,1998 GRADE CLASSIFICATION Pll PlO Principal Project Director Senior Management Engineer P9 P8 P7 ’ Principal Engineer Supervising Engineer Senior Construction Manager Senior Engineer Construction Manager P6 P5 Engineer Resident Engineer -Administrative Manager Senior Design Manager Associate Engineer Senior Designer Senior Field Representative Senior CADD Operator Senior Administrator P4 P3 Assistant Engineer Designer Field Representative II C-ADD Operator II Administrator III Drafter Field Representative I CADD Operator I Administrator II Word Processor II P2 Engineering Tech Administrator I Word Processor I HOURLY RATE $ 145.00 $ 136.00 $ 115.00 $ 101.00 $ 91.00 $ 82.00 $ 74.00 $ 63.00 $ 51.00 $ 46.00 $ 38.00 In addition, identifiable non-salary costs which are directly attributable to the project such as reproduction costs, telephone charges, postage, etc., are billed at actual cost plus 15 percent to cover overhead and administration plus 3 percent for insurance costs. CADD system time is charged at $10 per hour. Mileage is billed at $0.35 per mile for required travel. Time spent in travel in the interest of the client is charged at the standard hourly rates. Fees for litigation and expert witness services will be charged at $150.00 per hour with a 4 hour minimum per day, Fees for subconsultant services provided through John Powell & Associates, Inc. are billed at actual cost plus 15 percent to cover overhead and administration, plus 3 percent for insurance costs. A late payment finance charge at a rate of 18 percent per annum will be applied to any unpaid balance commencing 30 days after the date of original invoice. This rate schedule is subject to annual and/or periodic revisions as necessary to accommodate inflationary trends, salary adjustments and the general costs of business. - 175 Calle Magdalena. Suite 101. Encinitas. CA 92024 I C7601763-1120 I Fax C7601763-0730 ! E-M& merketingOjpowell.com AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES WITH O’DAY CONSULTANTS THIS AGREEMENT is made and entered into as of the 2 nd day of March , 192, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as “City”, and O’DAY CONSULTANTS, a consulting engineer, hereinafter referred to as “Contractor.” RECITALS City requires the services of a professional engineering Contractor to provide the necessary studies, reports, cost estimates and general engineering services for preparation of various engineering projects; 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. CONTRACTOR’S OBLIGATIONS The Contractor shall provide qualified professional engineering services as requested by the City including, but not limited to, facility planning, project design, environmental studies, project management, engineering audits, plancheck services and assessment engineering. Contractor shall provide all equipment and standard reference materials necessary to perform said engineering services. rev. 8125198 -1 - 2. CITY OBLIGATIONS The City shall: 0 Provide Contractor with City standards, specifications, and direction for Contractor to perform services as requested by the City. 0 Provide Contractor with documents or other materials related to the scope of work. 3. > PROGRESS AND COMPLETION The work under this contract will begin within ten (10) days after receipt of notification to proceed by the City and be completed within dates mutually agreed upon between City and Contractor for individual projects. Extensions of time may be granted if requested by the Contractor and agreed to in writing by the City Manager or the Public Works Director as his designee. The City Manager of Public Works Director as his designee will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of the Contractor, or delays caused by City inaction or other agencies’ lack of timely action. 4. FEES TO BE PAID TO CONTRACTOR The Contractor’s fee shall be determined on a project-by-project basis and shall be based upon the Contractor’s Schedule of Hourly Rates attached hereto as Exhibit “A”. Prior to initiation of any project work by the Contractor, the City shall prepare a Project Task Description and Fee Allotment which, upon signature by the contractor and the City Manager or Public Works Director as his designee, shall be considered a part of this agreement. The Project Task Description and Fee Allotment shall include a detailed scope of services for the particular project being considered together with a rev. 8125198 -2 - P statement of the Contractor% fee required to complete the project in accordance with the specified scope of services. The Project Task Description and Fee Allotment shall also include a description of the method of payment and shall be based upon an hourly rate, percentage of project complete, completion of specific project task or combination thereof. The total fee to be paid to the Contractor for any one project or for the cumulative total of all projects allowed pursuant to this agreement shall not exceed $150,000 per fiscal year. 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. 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 -3 - rev. 8125198 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. 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 nonperformarice by notifying the Contractor by certified mail of the termination of the rev. 8125198 -4- 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. 11. 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 California Government Code sections 12650 et sea., the False Claims Act, provides for rev. 8125198 -5 - 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 from the selection proces s for the City of Cansbad to disqualify the Contractor itial) The provisions of Carlsbad Municipal Code sections 3.32.025, 3.32.026, .027 and 3.32.028 pertaining to false claims are incorporated herein by reference. 12. 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. 8125198 -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 its employees or subcontractors. The City shall not be required to pay any workers’ compensation insurance or unemployment contributions on behalf of the Contractor or its 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. 13. 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 Cib will provide copies of the approved plans to any other agencies. rev. 8125198 -7 - 14. 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 its records. 15. 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. 16. 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. 17. ASSIGNMENT OF CONTRACT The Contractor shall not assign this contract or any part thereof or any monres due thereunder without the prior written consent of the City. rev. 8/25/98 -a - 18. 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. 19. 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. rev. 8/25/98 -9 - 20. 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. 21.. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 17, “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. 22. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written above. 23. CONFLICT OF INTEREST 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 categories 1, 3 and 4. rev. 8125198 -10 - h 24. 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 ,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 Contractor’s work for the City). $1 ,OOO,OOO combined single-limit per accident for bodily injury and property damage. rev. 8125198 -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 ,OOO,OOO 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 ,OOO,OOO 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. 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 rev. 8125198 -12 - 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. 25. 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: Title Name Address Public Works Director Lloyd B. Hubbs City of CarlsbadlEngineering Dept 2075 Las Palmas Drive Carlsbad, CA 92009-I 576 For Contractor: Title Name Address Patrick N. O’Day, R.C.E., President 5900 Pasteur Court, Suite 100 Carlsbad, CA 92008 Architect/License Number: 27. BUSINESS LICENSE Contractor shall obtain and maintain a City of Carlsbad Business License for the duration of the contract. rev. 8125198 -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 writing executed by the party against which enforcement of such amendment, waiver discharge is sought. in or Executed by Contractor this CONTRACTOR: day of O’DAY CONSULTANTS By: y&$~, /-4% 55 /i&m&k N# 4?!?!Aw AaT. (print name/title) ATTEST: ALETHA L. RAUTEN 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 Cit rev. 8/25/g% C ATTACHMENT “A” SCHEDULE OF HOURLY BILLING RATES MAY 1998 Billing will be based on the actual hours worked on the project, and invoiced monthly at our following hourly rates: OFFICE ENGINEERING PROJECT MANAGER PROJECT ENGINEER DESIGN ENGINEER AUTOCAD TECHNICIAN DRAFTER/ENGINEERING AIDE WORD PROCESSING FIELD ENGINEERING . 3 MAN SURVEY CREW $180.00 2 MAN SURVEY CREW 135.00 1 MAN SURVEY CREW 87.00 CONSULTATION PRINCIPAL $160.00 All out-of-pocket expenses, such as filing fees, printing, and reproduction costs, will be extra and invoiced at our direct cost plus 15 % . h AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES WITH WILLDAN ASSOCIATES THIS AGREEMENT is made and entered into as of the 2 nd day of March P 192, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as “City”, and WILLDAN ASSOCIATES, a consulting engineer, hereinafter referred to as “Contractor.” RECITALS City requires the services of a professional engineering Contractor to provide the necessary studies, reports, cost estimates and general engineering services for preparation of various engineering projects; 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. CONTRACTOR’S OBLIGATIONS The Contractor shall provide qualified professional engineering services as requested by the City including, but not limited to, facility planning, project design, environmental studies, project management, engineering audits, plancheck services and assessment engineering. Contractor shall provide all equipment and standard reference materials necessary to perform said engineering services. -1 - rev. a/25/98 2. CITY OBLIGATIONS The City shall: l Provide Contractor with City standards, specifications, and direction for Contractor to perform services as requested by the City. 0 Provide Contractor with documents or other materials related to the scope of work. 3. PROGRESS AND COMPLETION The work under this contract will begin within ten (10) days after receipt of notification to proceed by the City and be completed within dates mutually agreed upon between City and Contractor for individual projects. Extensions of time may be granted if requested by the Contractor and agreed to in writing by the City Manager or the Public Works Director as his designee. The City Manager of Public Works Director as his designee will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of the Contractor, or delays caused by City inaction or other agencies’ lack of timely action. 4. FEES TO BE PAID TO CONTRACTOR The Contractor’s fee shall be determined on a project-by-project basis and shall be based upon the Contractor’s Schedule of Hourly Rates attached hereto as Exhibit “A”. Prior to initiation of any project work by the Contractor, the City shall prepare a Project Task Description and Fee Allotment which, upon signature by the contractor and the City Manager or Public Works Director as his designee, shall be considered a part of this agreement. The Project Task Description and Fee Allotment shall include a detailed scope of services for the particular project being considered together with a rev. 8/25/98 -2 - statement of the Contractor’s fee required to complete the project in accordance with the specified scope of services. The Project Task Description and Fee Allotment shall also include a description of the method of payment and shall be based upon an hourly rate, percentage of project complete, completion of specific project task or combination thereof. The total fee to be paid to the Contractor for any one project or for the cumulative total of all projects allowed pursuant to this agreement shall not exceed $150,000 per fiscal year. 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. 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 fowarded to the City by Contractor to rev. 8/25/98 -3 - 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. a. 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. 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 -4- rev. 8125198 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. 11. 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 California Government Code sections 12650 et sea., the False Claims Act, provides for -5 - rev. 8125198 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 grounds for the City of Carlsbad to disqualify the Contractor from the selection proce Initial) The provisions of’ Carisbad Municipal . 3.32.027 and 3.32.028 pertaining to false claims Code sections 3.32.025, 3.32.026, are incorporated herein by reference. Initial) 12. 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. 8125198 -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 its employees or subcontractors. The City shall not be required to pay any workers’ compensation insurance or unemployment contributions on behalf of the Contractor or its 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. 13. 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. -7- rev. 8125198 14. 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 its records. 15. 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. 16. 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. 17. 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. -a - rev. 8125198 18. 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. 19. 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. rev. 8125198 -9 - 20. 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. 21. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 17, “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. 22. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written above. 23. CONFLICT OF INTEREST 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 categories 1,3 and 4. -10 - rev. at25198 24. 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. 91403. 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 ,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 Contractor’s work for the City). $1 ,OOO,OOO combined single-limit per accident for bodily injury and property damage. rev. a/25/98 -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 ,OOO,OOO 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. 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 -12 - rev. 8125198 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. 25. 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: Title Name Address Public Works Director Lloyd B. Hubbs City of CarlsbadlEngineering Dept 2075 Las Palmas Drive Carlsbad, CA 92009-l 576 For Contractor: Title Name Address 6363 Greenwich Drive, Suite 250 San Diego, CA 92122 Architect/License Number: 27. BUSINESS LICENSE Contractor shall obtain and maintain a City of Carlsbad Business License for the duration of the contract. rev. 8125198 -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 CONTRACTOR: WILLDAN ASSOCIATES D p aul%&ad/l/t<fl F&mu~b s&t name/title) \ ‘7 ATTEST: 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 cl. GFfu2a Assistant City Attorney 3/+/ 9 9, rev. 8125198 -14 - n personally appeared q personally known to me ” q proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their 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 person(s) acted, executed the instrument. Place Notay Seal Above Sign&-e of Nou~pUalic OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Docuyt Title or Type of Document: fJ lf+Q/P P- - Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer’s Name: 0 Individual 0 Corporate Officer -Title(s): Cl Partner- 0 Limited 0 General Cl Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: Top of thumb here 0 1997 National Notary Association l 9350 De Soto Ave., P.O. Box 2402 l Chatsworth. CA 91313-2402 Prod. No. 5907 Reorder: Call Toll-Free l-800-876-6827 WILLDAN ASSOCIATES SCHEDULE OF HOURLY RATES July 1,1998 - June 30,1999 Classification Hourly Rate Classification Hourlv Rate ENGINEERING Principal Engineer Division Manager City Engineer Project Director Supervising Engineer Senior Engineer Senior Project Manager Project Manager Associate Engineer Senior Designer (CADD) Designer (CADD) Engineering Associate Senior Designer Senior Design Engineer Design Engineer Senior Drafter Designer Senior Drafter (CAD) Drafter (CAD) Drafter Technical Aide Spv. Senior - Public Works Observation Senior Public Works Observer Public Works Observer SURVEYING Senior Survey Analyst Senior Calculator Calculator II Calculator I Survey Analyst II Survey Analyst I Supv. Senior - Survey Survey Party Chief Two-Man Field Party Three-Man Field Party SPECIAL DISTRICTS Supv.Senior - Special Districts Services Senior Special Districts Coordinator $125.00 120.00 120.00 110.00 110.00 99.00 99.00 90.00 90.00 90.00 82.00 90.00 82.00 76.00 66.00 66.00 65.00 66.00 65.00 54.00 46.00 60.00 73.00 63.00 85.00 85.00 73.00 60.00 73.00 61 .OO 94.00 89.00 156.00 210.00 104.00 95.00 Special Districts Coordinator 88.00 Special Districts Analyst II 71 .oo Special Districts Analyst I 60.00 PLANNING Principal Planner Senior Planner Associate Planner Assistant Planner Planning Technician Principal Community Development Planner Senior Community Development Planner Associate Community Development Planner Assistant Community Development Planner Community Development Technician $105.00 95.00 80.00 68.00 48.00 105.00 95.00 80.00 68.00 48.00 BUILDING Supervising Plan Check Engineer Plan Check Engineer Senior Plans Examiner Plans Examiner Plans Examiner Aide Spv. Senior - Building Inspection Building Inspector Senior Permit Specialist Assistant Building Inspector Permit Specialist Building Official Deputy Building Official 98.00 82.00 79.00 70.00 45.00 73.00 63.00 59.00 52.00 45.00 98.00 88.00 LANDSCAPE ARCHITECTURE Principal Landscape Architect Senior Landscape Architect Associate Landscape Architect Assistant Landscape Architect 95.00 80.00 70.00 60.00 COMPUTER SERVICES Computer Data Entry Personal Computer Time Clerical Word Processing 45.00 15.00 40.00 40.00 Additional billing classifications may be added to the above listing during the year as new positions are created. Consultation in connection with litigation and court appearances will be quoted separately. The above schedule is for straight time. Overtime will be charged at 1.25 times the standard hourly rates. Sundays and holidays will be charged at 1.70 times the standard hourly rates. Blueprinting, reproduction, messenger services, and printing will be invoiced at cost plus fifteen percent (15%). A subconsultant management fee of fifteen percent (15%) will be added to the direct cost of all subconsultant services to provide for the cost of administration, consultation, and coordination. These hourly rates are effective through June 30, 1999, and may be adjusted after that date to compensate for labor adjustments and other increases in costs. AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES WITH BERRYMAN AND HENIGAR THIS AGREEMENT is made and entered into as of the 2 nd day of March 9 192, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as “City”, and BERRYMAN AND HENIGAR, a consulting engineer, hereinafter referred to as “Contractor.” RECITALS City requires the services of a professional engineering Contractor to provide the necessary studies, reports, cost estimates and general engineering services for preparation of various engineering projects; 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. CONTRACTOR’S OBLIGATIONS The Contractor shall provide qualified professional engineering sewices as requested by the City including, but not limited to, facility planning, project design, environmental studies, project management, engineering audits, plancheck services and assessment engineering. Contractor shall provide all equipment and standard reference materials necessary to perform said engineering services. rev. ai25198 -1 - 2. CITY OBLIGATIONS The City shall: 0 Provide Contractor with City standards, specifications, and direction for Contractor to perform services as requested by the City. 0 Provide Contractor with documents or other materials related to the scope of work. 3. * PROGRESS AND COMPLETION The work under this contract will begin within ten (IO) days after receipt of notification to proceed by the City and be completed within dates mutually agreed upon between City and Contractor for individual projects. Extensions of time may be granted if requested by the Contractor and agreed to in writing by the City Manager or the Public Works Director as his designee. The City Manager of Public Works Director as his designee will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of the Contractor, or delays caused by City inaction or other agencies’ lack of timely action. 4. FEES TO BE PAID TO CONTRACTOR The Contractor’s fee shall be determined on a project-by-project basis and shall be based upon the Contractor’s Schedule of Hourly Rates attached hereto as Exhibit “A”. Prior to initiation of any project work by the Contractor, the City shall prepare a Project Task Description and Fee Allotment which, upon signature by the contractor and the City Manager or Public Works Director as his designee, shall be considered a part of this agreement. The Project Task Description and Fee Allotment shall include a detailed scope of services for the particular project being considered together with a -2 - rev. a/25/98 - statement of the Contractor’s fee required to complete the project in accordance with the specified scope of services. The Project Task Description and Fee Allotment shall also include a description of the method of payment and shall be based upon an hourly rate, percentage of project complete, completion of specific project task or combination thereof. The total fee to be paid to the Contractor for any one project or for the cumulative total of all projects allowed pursuant to this agreement shall not exceed $150,000 per fiscal year. 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. 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 -3 - rev. a/25/98 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 3.23172. Such Amendment to Agreement shall not render ineffective or invalidate unaffected portions of the agreement. a . . 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. 9. NONDISCRIMINATION CLAUSE The Contractor shall comply with the state and federal laws regarding nondiscrimination. 10. 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 -4- rev. a/25/98 - 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. 11. 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 California Government Code sections 12650 et sea., the False Claims Act, provides for -5 - rev. a/25/98 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 grounds for the City of Carlsbad to disqualify the Contractor from the selection process. F(lnitial) The provisions of 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) 12. 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 Contractol’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. 8125198 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 its employees or subcontractors. The City shall not be required to pay any workers’ compensation insurance or unemployment contributions on behalf of the Contractor or its 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. 13. 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. -7 - rev. 8125198 14. 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 its records. 15. 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. 16. HOLD 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. 17. 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. -8 - rev. 8125198 18. 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 Contractors 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. 19. 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. rev. 8/25/98 -9 - 20. 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. 21 .* SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 17, “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. 22. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written above. 23. CONFLICT OF INTEREST 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 categories 1, 3 and 4. -10 - rev. 8125198 24. 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-:!/” 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 ,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 Contractor’s work for the City). $1 ,OOO,OOO combined single-limit per accident for bodily injury and property damage. rev. 8125198 -11 - 3. Workers’ Compensation and Employer’s Liability. Workers’ Compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1 ,OOO,OOO 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. 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 -12 - rev. 8125198 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. 25. 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: Architect/License Number: 27. BUSINESS LICENSE Title Public Works Director Name Llovd B. Hubbs Address City of Carlsbad/Engineering Dept 2075 Las Palmas Drive Cartsbad, CA 92009-l 576 Title Name Address Keith Gillifillan, P.E., Project Manager 11590 W. Bernard0 Court, Suite 100 San Dieao. CA 92127 Contractor shall obtain and maintain a City of Carlsbad Business License for the duration of the contract. rev. 8125198 -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 CONTRACTOR: BERRYMAN AND HENIGAR By: g/- AL@& -3 /+- (sign here) / (print name/title) )i e:QF ;~~~;fl~,~3~~~ATTEST: By: (print frame/title) tia/j ,uR J*c-+ c 7 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 rev. 8125198 . CALIFORNIA State of California County of San Diego On January 28, 1999 , before me, Cheryl L Hollenbeck, Notary Public , Date Name and We of ORcer (e.g.. ‘Jane Doe. Ndary P&W) personally appeared H. Roger Frauenfelder and Mary J. Berryman Name(s) d Sir) I Cl personally known to me [Ib proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) A@‘3 subscribed to the within instrument and acknowledged to me tha the same capacit (ies), signat I in ~ZFZZZ and that by w re(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNEg my hand and qfficiql s@l. OPTIONAL Though the information below is not required by law, if may pnw8 Valuable fo persons mlying on the docwnent and could prevent fraudulent removal and reattachment of this form to anoth8r document. Description of Attached Document ~tleorTypeofDocument: Agreement for PrOfeSSiOnal Engineering Services with Berryman and Henigar Document Date: January 28, 1999 Number of Pages: I4 Signer(s) Other Than Named Above: Capaclty(los) ClaImed by Signer Signer’s Name: Cl Individual q corporata officer - m(s): 0 Partner - 0 Limited q General 0 Attorney in Fact Cl Trustee 0 Guardian or Conservator q Other: : Signer Is Representing: 8 1897 Natlocd Notrry A8adalb .0350 IJo &to Ave. P.O. Box 2402 * C-. CA 91313-2402 Rod. No. 5907 Recdr Cdl Tow-Fme 14004764327 The Power to Change The Power to Build ATTACHMENT A Schedule of Hourly Rates Title Principalsultant Senior Engineer Engineer V Engineer IV Engineer III Engineer II Engineer I Engineer Assistant Planner III Planner II Planner I Designer II Designer I Senior Draftperson Draftperson Plan Checker IV Plan Checker Ill Plan Checker II Plan Checker I Technician III Technician Ill Technician I 3-Man Survey Crew 2-Man Survey Crew Survey Analyst CADD Designer CADD Operator II CADD Operator I Word Processor III Word Processor II Word Processor I Clerical II Clerical I Plotter Charge Rate $14Gi $122.00 $111.00 $99.00 $87.00 $76.00 $70.00 $65.00 $87.00 $76.00 $65.00 $84.00 $76.00 $65.00 $52.00 $99.00 $87.00 $82.00 $76.00 $50.00 $42.00 $38.00 $213.00 $176.00 $87.00 $87.00 $76.00 $65.00 $65.00 $52.00 $42.00 $36.00 $32.00 $12.00 Out-of-pocket expenses (blueprinting, reproduction, and printing) will be invoiced at cost plus 15%. A 15Oh fee for administration, coordination and handling will be added to subcontracted services. Mileage will be invoiced at $0.36/mile. Scheduled overtime will be performed at 125%. This Schedule of Hourly Rates is effective as of December 23,1998. Rates may be adjusted after that date to compensate for labor cost increases and other increases due to inflationary trends. City of Ca.rlsbad March 9,1999 John Powell & Associates 175 Calle Magdalena, Suite 201 Encinitas, CA 92024 1, ACiREfZhrlE&f”FgR P;ROFE$@ONAt ENGINEERING SERVICES I Enclosed for your reference are copies of Carlsbad City Council Agenda Bill No. 15,073, and Resolution No. 99-73. These documents went before the City Council on March 2, 1999, when the Resolution was adopted, approving the agreement with your company. Also enclosed is one original, fully executed agreement for the provision of professional engineering services to the City of Carlsbad. If you have any questions regarding your contract, please call the City Engineering Department at (760) 438-l 161. Kathleen D. Shoup Sr. Office Specialist 1200 Carlsbad Village Drive - Carlsbad, CA 92008-l 989 - (760) 434-2808 @ City March 9,1999 O’Day Consultants 5900 Pasteur Court, Suite 100 Carlsbad, CA 92008 I AGREEMEffPF~~ @WFE#%ONAL ENGINEERING SERVICES 1 Enclosed for your reference are copies of Carisbad City Council Agenda Bill No. 15,073, and Resolution No. 99-73. These documents went before the City Council on March 2, 1999, when the Resolution was adopted, approving the agreement with your company. Also enclosed is one original, fully executed agreement for the provision of professional engineering services to the City of Carlsbad. If you have any questions regarding your contract, please call the City Engineering Department at (760) 438-l 161. Kathleen D. Shoup Sr. Office Specialist 1200 Carlsbad Village Drive - Carlsbad, CA 92008-1989 - (760) 434-2808 a3 City March 9,1999 Berryman and Henigar Keith Giliifillan, Project Mgr. 11590 W. Bernard0 Court, Suite 100 San Diego, CA 92127 I AmqEptgp4WWR m3oFEsStoNAL ENGINEERING SERVICES I Enclosed for your reference are copies of Carlsbad City Council Agenda Bill No. 15,073, and Resolution No. 99-73. These documents went before the City Council on March 2, 1999, when the Resolution was adopted, approving the agreement with your company. Also enclosed is one original, fully executed agreement for the provision of professional engineering services to the City of Carlsbad. If you have any questions regarding your contract, please call the City Engineering Department at (760) 438-l 161. Kathleen D. Shoup Y Sr. Office Specialist 1200 Carlsbad Village Drive * Carlsbad, CA 92008-l 989 0 (760) 434-2808 @ City March 9,1999 Willdan Associates Attn: David R. Anderson, V.P. 6363 Greenwich Drive, Suite 250 San Diego, CA 92122 RE: PROFESSIONAL ENGINEERING SERVICES Enclosed for your records are copies of Carlsbad City Council Agenda Bill No. 15,073 and Resolution No. 99-73. These documents were approved by Council on March 2, 1999. Also enclosed is one original and fully executed agreement for the above referenced project. In accordance with Section 24 of enclosed agreement, you are required to file a Conflict of Interest Statement with the Carlsbad City Clerk. Anyone in the company who is working on this City project must file a Form 700, Statement of Economic Interests, and must report all Disclosure Categories which includes 1, 2, 3, and 4. Enclosed for your use are the following documents, which you may copy if necessary: I. Form 700 1998-l 999 Statement of Economic Interests 2. Amended Appendix to the Local Conflict of Interest Code 3. Limitations and other Restrictions on Gifts, Honoraria, Travel and Loans Your completed Assuming Office Statement is due in the City Clerk’s Office no later than 5:00 PM on April I, 1999. If you have questions regarding this process, please call Karen Kundtz. Assistant Citv Clerk. at (760) 434-2917. KATHLEEN D. SHOUP Sr. Office Specialist 1200 Carlsbad Village Drive * Carlsbad, CA 92008-l 989 * (760) 434-2808 a!9 City March 9.1999 Linvedt, McCall and Associates Attn: Patricia McCall, Principal 3737 Camnio Del Rio South, Suite 200 San Diego, CA 92108 RE: PROFESSIONAL ENGINEERING SERVICES Enclosed for your records are copies of Carlsbad City Council Agenda Bill No. 15,073 and Resolution No. 99-73. These documents were approved by Council on March 2, 1999. Also enclosed is one original and fully executed agreement for the above referenced project. In accordance with Section 24 of enclosed agreement, you are required to file a Conflict of Interest Statement with the Carlsbad City Clerk. Anyone in the company who is working on this City project must file a Form 700, Statement of Economic Interests, and must report all Disclosure Categories which includes 1, 2, 3, and 4. Enclosed for your use are the following documents, which you may copy if necessary: 1. Form 700 1998-l 999 Statement of Economic Interests 2. Amended Appendix to the Local Conflict of Interest Code 3. Limitations and other Restrictions on Gifts, Honoraria, Travel and Loans Your completed Assuming Office Statement Is due in the City Clerk’s Office no later than 5:00 PM on April 1,1999. If you have questions regarding this process, please call Karen Kundtz. Assistant Citv Clerk. at (7601434-2917, KATHLEEN D. SHOUP Sr. Office Specialist 1200 Carlsbad Village Drive - Carlsbad, CA 92008-1989 - (760) 434-2808 @ City of Carlsbad March 9,1999 Fraser Engineering Attn: Graham Fraser, President 2191 El Camino Real, Suite 208 Oceanside, CA 92054 RE: PROFESSIONAL ENGINEERING SERVICES Enclosed for your records are copies of Carlsbad City Council Agenda Bill No. 15,073 and Resolution No. 99-73. These documents were approved by Council on March 2, 1999. Also enclosed is one original and fully executed agreement for the above referenced project. In accordance with Section 24 of enclosed agreement, you are required to file a Conflict of Interest Statement with the Carlsbad City Clerk. Anyone in the company who is working on this City project must file a Form 700, Statement of Economic Interests, and must report all Disclosure Categories which includes 1, 2, 3, and 4. Enclosed for your use are the following documents, which you may copy if necessary: 1. Form 700 1998-1999 Statement of Economic Interests 2. Amended Appendix to the Local Conflict of Interest Code 3. Limitations and other Restrictions on Gifts, Honoraria, Travel and Loans Your completed Assuming Office Statement is due in the City Clerk’s Office no later than 5:00 PM on April 1,1999. If you have questions regarding this process, please call Karen Kundtz Assistant City Clerk. at !760) 434-2917, KATHLEEN D. SHOUP Sr. Office Specialist 1200 Carlsbad Village Drive - Carlsbad, CA 92008-l 989 - (760) 434-2808 @