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HomeMy WebLinkAbout2003-08-05; City Council; 17266; Award of Master Agreements for Various ServicesrB# 17,266 IITG. 8/5/03 )EPT. ENG RECOMMENDED ACTION: CITY COUNCIL OF THE CITY OF CARLSBAD: Adopt Resolution No. approving master agreements with RBF & Associates, Harris & Associates, Daniel Boyle Engineering, Krieger & Stewart, RECON, EDAW Inc., Ninyo & Moore, Group Delta Consultants, Right-of-way Engineering Services, Melchior Land Surveying, Anderson & Brabant, and Hendrickson Appraisal to provide professional services. BOARD OF DIRECTORS OF THE CARLSBAD MUNICIPAL WATER DISTRICT: Adopt Resolution No. 1187 approving master agreements with Daniel Boyle Engineering, Krieger & Stewart, RECON, EDAW Inc., Ninyo & Moore, Group Delta Consultants, Right-of-way Engineering Services, Melchior Land Surveying, Anderson & Brabant, and Hendrickson Appraisal to provide professional services. 2003-212 - TITLE: AWARD OF MASTER AGREEMENTS FOR PROFESSIONAL ENGINEERING, ENVIRONMENTAL, PLANNING, GEOTECHNICAL, SURVEYING, AND PROPERTY APPRAISAL SERVICES ITEM EXPLANATION: With City Council and CMWD Board approval, the Public Works Department contracts with consulting firms to obtain professional services to facilitate the timely completion of Capital Improvement Program projects. To reduce the time and cost to obtain professional services, staff is recommending that the City Council and the CMWD Board approve Master Agreements for roadway, drainage and traffic engineering, water, recycled water and sewer utility engineering, environmental planning, geotechnical, surveying, and property appraisal services. In addition to defining the terms of the agreement the subject Master Agreements identify the discipline of professional services to be provided and the maximum value of services that can be performed on Capital Improvement Program (CIP) projects over the term of the agreement. As project specific work tasks are identified, individual Task Description and Fee Allotments are negotiated with the appropriate Master Agreement consultants. Each Task Description and Fee Allotment will include an exhibit that defines a detailed scope of services, which corresponds to the discipline identified in the Master Agreement, and an associated fee. The disciplines for this set of Master Agreements are as follows: 1) Roadway, Drainage and Traffic Engineering, 2) Water, Recycled Water and Sewer Utility Engineering, 3) EnvironmentaVPlanning Studies, 4) Geotechnical, 5) Surveying/Potholing and 6) Property Appraisal Services. The most recent set of twelve Master Agreements for this same range of services has expired. Staff utilized the following process to identify the recommended consultants. After reviewing a listing of firms that have expressed interest in working for the City and the CMWD and a discussion of consulting firms known to staff, Statements of Qualifications (SOQ’s) were solicited from over forty consultants. To avoid concentrating the workload with too few consultants, the maximum number of disciplines a consultant team could be considered for was set at two. The SOQ’s were evaluated based on Firm Experience, Project Team, and Project Approach relative to the master agreement format and the consultant‘s discipline of expertise. The following table summarizes the number of SOQ’s submitted for each discipline. DISCIPLINE # OF SOWS RECIEVED 1) Roadway, Drainage and Traffic 10 ~ 2) Water, Recycled Water and Sewer 11 Selection committees for each discipline reviewed the SOQ’s and identified the two most qualified consultants based on the evaluation criteria noted above. By selecting two firms for each discipline, design projects will not be delayed by staffing constraints at any one firm. Based on ranking of the SOQ’s by the selection committees, consistent with Carlsbad Municipal Code section 3.28.070, staff is recommending that the City and CMWD execute master agreements with the selected firms as noted in the following table. t Page 2 of Agenda Bill No. 17,266 The proposed Master Agreements are for an initial term which will end on September 30, 2004 and they contain provisions for the City ManagerIExecutive Director to execute two, one-year extensions based upon a review of the Contractor's performance; City and District needs and; as needed, the appropriation of funds by the City Council/Executive Board. FISCAL IMPACT: The maximum amounts payable by the City and CMWD to each consultant during the initial contract term which will end on September 30, 2004, and any subsequent one-year extension periods are shown on the following table. During the initial contract term the total potential value of consulting services that could be contracted with the City in conjunction with the twelve contracts is $1,150,000. During this same initial term the total potential value of consulting services that could be contracted with the CMWD is $850,000. These values would also apply to the two, one-year extensions, which means the total potential value of these Master Agreements is $6,000,000 over a three-year period. The actual value and maximum expenditures for these consulting services will be established by each individual Task Description and Fee Allotment, which will be constrained by the available project funding appropriated in conjunction with the Capital Improvement Program. EXHIBITS: 1. City Council of the City of Carlsbad, Resolution No. 2003-212 approving master agreements with RBF & Associates, Harris & Associates, Daniel Boyle Engineering, Krieger & Stewart, RECON, EDAW, Ninyo & Moore, Group Delta Consultants, Right-of-way Engineering Services, Melchior Land Surveying, Anderson & Brabant and Hendrickson Appraisal to provide professional services. Agreement between the City of Carlsbad and RBF & Associates for Roadway Drainage and Traffic Engineering services. Agreement between the City of Carlsbad and Harris & Associates for Roadway Drainage and Traffic Engineering services. Agreement between the City of Carlsbad and Daniel Boyle Engineering for Sewer Utility Engineering services. 2. 3. 4. EXXIBITS 2-13 ON FILE IN THE CITY CLERK'S OFFICE Page 3 of Agenda Bill No. 17,266 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. Agreement between the City of Carlsbad and Krieger & Stewart for Sewer Utility Engineering services. Agreement between the City of Carlsbad and RECON for Environmental Planning services. Agreement between the City of Carlsbad and EDAW for Environmental Planning services. Agreement between the City of Carlsbad and Ninyo & Moore for Geotechnical services. Agreement between the City of Carlsbad and Group Delta Consultants for Geotechnical services. Agreement between the City of Carlsbad and Right-of-way Engineering Services for Surveying services. Agreement between the City of Carlsbad and Melchior Land Surveying for Surveying services. Agreement between the City of Carlsbad and Anderson & Brabant for Property Appraisal services. Agreement between the City of Carlsbad and Hendrickson Appraisal Services for Property Appraisal services. Board of Directors of the Carlsbad Municipal Water District, Resolution No. approving master agreements with Daniel Boyle Engineering, Krieger & Stewart, RECON, EDAW, Ninyo & Moore, Group Delta Consultants, Right-of-way Engineering Services, Melchior Land Surveying, Anderson & Brabant and Hendrickson Appraisal to provide professional services. Agreement between the Carlsbad Municipal Water District and Daniel Boyle Engineering for Water and Recycled Water Utility Engineering services. Agreement between the Carlsbad Municipal Water District and Krieger & Stewart for Water and Recycled Water Utility Engineering services. Agreement between the Carlsbad Municipal Water District and RECON for Environmental Planning services. Agreement between the Carlsbad Municipal Water District and EDAW for Environmental Planning services. 1187 Agreement between the Carlsbad Municipal Water District and Ninyo & Moore for Geotechnical services. Agreement between the Carlsbad Municipal Water District and Group Delta Consultants for Geotechnical services. Agreement between the Carlsbad Municipal Water District and Right-of-way Engineering Services for Surveying services. Agreement between the Carlsbad Municipal Water District and Melchior Land Surveying for Surveying services. Agreement between the Carlsbad Municipal Water District and Anderson & Brabant for Property Appraisal services. Agreement between the Carlsbad Municipal Water District and Hendrickson Appraisal Services for Property Appraisal services. DEPARTMENT CONTACT: Marshall Plantz, (760) 602-2766, mplan@ci.carlsbad.ca.us EXHIBITS 15-24 ON FILE IN THE CITY CLERK'S OFFICE 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2003-2 12 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING MASTER AGREEMENTS WITH RBF & ASSOCIATES, HARRIS & ASSOCIATES, DANIEL BOYLE ENGINEERING, KRIEGER & STEWART, RECON, EDAW, WAY ENGINEERING SERVICES, MELCHIOR LAND SURVEYING, ANDERSON & BRABANT, HENDRICKSON APPRAISAL SERVICES FOR PROFESSIONAL ENGINEERING, ENVIRONMENTAL PLANNING, GEOTECHNICAL, SURVEYING AND PROPERTY APPRAISAL SERVICES. NINYO & MOORE, GROUP DELTA CONSULTANTS, RIGHT-OF- WHEREAS, the City Council of the City of Carlsbad, California, has reviewed the need for the utilization of consultant services by the Department of Public Works on an ongoing, as-needed basis in order to maintain service levels; and WHEREAS, the Department of Public Works solicited, received and reviewed Statements of Qualifications for as-needed professional engineering, environmental planning, geotechnical, surveying and appraisal services consistent with Carlsbad Municipal Code section 3.28.070; and WHEREAS, subsequent to a review of the Statements of Qualifications, staff recommends RBF & Associates, Harris & Associates, Daniel Boyle Engineering, Krieger & Stewart, RECON, EDAW Inc., Ninyo & Moore, Group Delta Consultants, Right-of-way Engineering Services, Melchior Land Surveying, Anderson & Brabant, and Hendrickson Appraisal, as the most qualified consultants for the disciplines listed above; and WHEREAS, expenditures for these professional services are subject to availability of capital project funding; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, Zalifornia, as follows: 1. 2. That agreements with RBF & Associates, Harris & Associates, Daniel Boyle Sngineering, Krieger & Stewart, RECON, EDAW Inc., Ninyo & Moore, Group Delta Consultants, 3ight-of-Way Engineering Services, Melchior Land Surveying, Anderson & Brabant, and That the above recitations are true and correct. iendrickson Appraisal, copies of which are attached as Exhibits 2 thru 13 to Agenda Bill No. 17 266 are hereby approved. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute the agreements with RBF & Associates, Harris & Associates, Daniel Boyle Engineering, Krieger & Stewart, RECON, EDAW Inc., Ninyo & Moore, Group Delta Consultants, Right-of-way Engineering Services, Melchior Land Surveying, Anderson 8~ Brabant, and Hendrickson Appraisal 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 5th day of AUGUST , 2003 by the following vote, to wit: AYES: Council Members Lewis ila, Kulchin, Hall, Packard ATTEST 5 MASTER AGREEMENT FOR PROFESSIONAL APPRAISAL SERVICES HENDRICKSON APPRAISAL COMPANY, INC. GREEMENT is made and entered into as of the day of , 2003, by and between the CITY OF CARLSBAD, a municipal ereinafter referred to as "City", and HENDRICKSON APPRAISAL COMPANY, INC., a California Corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of a Professional Consultant that is experienced in Appraisal Services. project basis. services and advice related to Appraisal Services. expedited fashion. willingness and ability to perform such work. B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to City and has affirmed its NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. TheCity Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not to exceed fifty thousand dollars ($50,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 1 City Attorney Approved Version #04/03/02 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will -. - begin within ten (10) days after receipt of notification to proceed bycity and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by City inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed fifty thousand dollars ($50,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A'. Prior to initiation of any project work by Contractor, City shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for City, the City Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination there of. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 2 City Attorney Approved Version #04/03/02 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor’s subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor’s work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS Services. The City reserves the right to employ other Contractors in connection with the 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees-and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City’s self- administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor’s agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best’s Key Rating of not less than “A-:VI’. Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor’s indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor’s sole expense. 10.1 3 City Attorney Approved Version #04/03/02 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 1 0.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 1 0.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.1.2 10.1.4 10.3 Providinq Certificates of Insurance and Endorsements. Prior to 10.4 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the . 4 City Attorney Approved Version #04/03/02 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS City and Contractor relinquishes all claims to the copyrights in favor of City. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES written notice on behalf of City and on behalf of Contractor under this Agreement. The name of the persons who are authorized to give written notices or to receive For City: For Contractor: Name Lloyd Hubbs Title Public Works Director DeDt Public Works Citi of Carlsbad Address 1635 Faraday Avenue Phone No. (760) 602-2720 Phone No. (t$19) lk2-0YO0 Address , /O 9 9 2, 5 c, b t9 hS/- rr4, Carlsbad, CA 92008 <-,L Lo3 C.D&4 9WD% Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor‘s affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. 5 City Attorney Approved Version #04/03/02 Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED regulations prohibiting discrimination and harassment. Contractor will comply with all applicable local, state and federal laws and 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the patties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. 6 City Attorney Approved Version #04/03/02 Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant 'to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 7 City Attorney Approved Version #04/03/02 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this 4%~ of CONTRACTOR: (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Column B Chairman, president or vice-president Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: % *&2&&%7 Deputy City Attorney 8 City Attorney Approved Version #04/03/02 RENDRICKSON APPRAISAL COMPANY, INC. Real Estate Appraiser< m Consuttants rl 10992 San Diego Mission Road Sulk 203 San Diego Calitornia 92108 m 16191 282-0800 Fax 16191 282-1471 hacinc@worldnel att np! March 19,2003 Marshall Plantz Senior Civil Engineer City of Carlsbad Engineering Department 1635 Faraday Avenue Carlsbad, CA 92008 Re: Fee Schedule relating to “On Call” Appraisal Services for the City of Carlsbad Dear Marshall, Thank you for selecting our firm to continue to provide valuation services to the City.of Carlsbad. As requested, following is our Fee Schedule for appraisal, consulting, and expert testimony services: Auuraisal Preparation: Senior Appraisers Principal Appraiser ExDert Testimonv (Principal Amraiser): Trial Preparation and Consulting Expert Testimony $85.OOhour $120. OOhour $1 5 0. OOhour $275.OOhour Should you have any questions, please give us a call at (619) 282-0800. Thank you again for this opportunity to be of service to til2 City of Carlsbad. Sincerely, President TGH:rm CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California } ss. County of (4 ,u d/&dd pd personally known to me proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislherltheir authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Place Notary Seal Above OP TI0 NA L Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reaftachment of this form to another document. Description of Attached Document Document Date: U&/Oqq03 Number of Pages: 9 Signer(s) Other Than Named Above: Title or Type of Document: 3 ,srEe 4 6flEZ2flPuT fix p~~f~.~/ofl~~ Nj?.! /S 4C 3,s A Pi f Capacity(ies) Claimed by Signer Signer's Name: il individual U Corporate Officer - Title(s): 0 Partner - n Limited 11 General 3 Attorney in Fact El Trustee Kl Guardian or Conservator U Other: Signer Is Representing: I 0 1997 National Notary Association * 9350 De Soto Ave PO Box 2402. Chatsworth CA 91313-2402 Prod No 5907 Reorder Call Toll Free 1-800-876-6827 MASTER AGREEMENT FOR PROFESSIONAL APPRAISAL SERVICES ANDERSON & BRABANT, INC. -THIS AGREEMENT is made and entered into as of the Y+$( day of , 2003, by and between the CITY OF CARLSBAD, a municipal corporabbn, hereinafter referred to as "City", and ANDERSON & BRABANT, INC., a California Corporation, hereinafter referred to as "Contractor." - RECITALS A. City requires the professional services of a Professional Consultant that is B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to City and has affirmed its experienced in Appraisal Services. project basis. services and advice related to Appraisal Services. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK Citv retains Contractor to Derform, and Contractor aarees to render. those services (ihe "Services") that are defined in attached Exhibit "@, which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. - TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The City Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not to exceed fifty thousand dollars ($50,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 1 City Attorney Approved Version #04/03/02 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (IO) days after receipt of notification to proceed by City and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by City inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed fifty thousand dollars ($50,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A". Prior to initiation of any project work by Contractor, City shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for City, the City Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 2 City Attorney Approved Version #04/03/02 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontradts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS Services. The City reserves the right to employ other Contractors in connection with the 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self- administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V". Coveraqes and Limits. Cqntractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1 3 City Attorney Approved Version #04/03/02 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period.of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.1.2 10.1.4 10.3 10.4 10.5 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the 4 City Attorney Approved Version #04/03/02 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Con tractor’s records. 14. COPYRIGHTS City and Contractor relinquishes all claims to the copyrights in favor of City. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES written notice on behalf of City and on behalf of Contractor under this Agreement. The name of the persons who are authorized to give written notices or to receive For City: For Contractor: Name Lloyd Hubbs Title Public Works Director Dept Public Works City of Carlsbad Address 1635 Faraday Avenue Address 353 W. Ninth Avenue Carlsbad, CA 92008 Escondido. CA 92025 Phone No. (760) 602-2720 PhoneNo. uhnl 741 - 4146 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. 5 City Attorney Approved Version #Q4lQ3fQ2 Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keeD fully informed of federal, state and local laws and ordinances and regulations which in'any-manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED regulations prohibiting discrimination and harassment. Contractor will comply with all applicable local, state and federal laws and 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure wili be used to resolve-any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. 6 City Attorney Approved Version #04/03/02 Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney’s fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 7 City Attorney Approved Version #Q4IQ3102 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this /d&L day of CONTRACTOR: (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Chairman, president or vice-president Column B Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney 8 City Attorney Approved Version #04/03/02 State of Calg-40,71, } County of On personally appeared ss. Name@) 01 Bgner(k) known to me roved to me on the basis of satisfactory to be the person@) whose name(s) i@& subscribed to the within instrument and acknowledged to me that he/shd@ executed the same in hidhem authorized capacity(ies), and that by hislhem signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. OPTIONAL Though the information below is not required by law, it may prove valuable to persons reking on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Title or Type of Document: 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): 0 Partner - Limited General 0 Attorney-in-Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: 0 1999 Natwnal Notary Associamn * 93% De Sofo Ave PO Box 2402 * Chatsworth CA 91313-2402 - www nationalnotary org Prod No 5907 Reorder Call Toll-Free 1-800-876-6827 l' ANDERSON 8 BRABANT, INC. REAL ESTATE APPRAISERS AND CONSULTANTS 353 W. NINTH AVENUE ESCON DI DO. CALI FOR N IA 92025-5032 TELEPHONE (760) 741-4146 FAX (760) 74 1 - I049 March 18, 2003 Marshall Plantz Senior Civil Engineer City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Xe: ICE& ESTATE MPMSAL SERVICES MASTER AGREEMENT Dear Mr. Plantz: It was a pleasure to speak with you this week and to be notified that the appraisal firm of Anderson & Brabant, Inc. has been selected to provide Real Estate Appraisal Services to the City of Carlsbad under the terms of a Master Agreement. We have appreciated the opportunity to work for the City in the past and look forward to continuing the relationship. As you requested, I have attached a fee schedule for our firm with the fees indicated applicable for one year from the date of the Master Agreement. Respecthlly submitted, ANDERSON & BRABANT, INC. Gilbert F. Kunkel, MAI 'A'' FEE SCHEDULE 2003 ANDERSON & BRABANT, INC FOR Site Inspection, Research and Report Writing SENIOR APPRAISER $1 SO/Hour STAFF APPRAISER $1 25/Hour RESEARCH ASSISTANT $50-75/Hour CLERICAL $40/Hour Deposition and Court Testimony SENIOR APPRAISER $275/Hour STAFF APPRAISER $200/Hour MASTER AGREEMENT FOR PROFESSIONAL SURVEYING AND POTHOLE SERVICES MELCHIOR LAND SURVEYING, INC. GREEMENT is made and entered into as of the fa day of , 2003, by and between the CITY OF CARLSBAD, a municipal ereinafter referred to as "City", and MELCHIOR LAND SURVEYING, INC., a California Corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of a Professional Consultant that is experienced in Surveying and Potholing Services. project basis. services and advice related to Surveying and Potholing Services. expedited fashion. willingness and ability to perform such work. B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to City and has affirmed its NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3- - TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The City Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not to exceed fifty thousand dollars ($50,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 1 City Attorney Approved Version #04/03/02 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (IO) days-aft& receipt of notification to proceed bycity and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by City inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed fifty thousand dollars ($50,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A'. Prior to initiation of any project work by Contractor, City shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for City, the City Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 2 City Attorney Approved Version #04/03/02 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS Services. The City reserves the right to employ other Contractors in connection with the 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self- administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Aqreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VI'. Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1 3 City Attorney Approved Version #04/03/02 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liabilitv. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 1 0.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.1.2 10.1.4 10.3 Providinq Certificates of Insurance and Endorsements. Prior to 10.4 10.5 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the 4 City Attorney Approved Version #04/03/02 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS City and Contractor relinquishes all claims to the copyrights in favor of City. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES written notice on behalf of City and on behalf of Contractor under this Agreement. The name of the persons who are authorized to give written notices or to receive For City: For Contractor: Name Lloyd Hubbs Name Douglas R. Melchior Title Public Works Director Title President Dept Public Works Me1 chior Land Surveying, Ir City of Carlsbad Address Phone No. Address 5731 Palmer Way Suite I Carlsbad, CA 92008-7247 Phone No. 760-438- 1726 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor‘s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. 5 City Attorney Approved Version #04/03/02 Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keeo fullv informed of federal, state and local laws and ordinances and regulations which in' any-manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will complv with all applicable local, state and federal laws and regulations prohibiting discdmination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. 6 City Attorney Approved Version #04/Q3IQ2 Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et sea, the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. . 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 7 City Attorney Approved Version #04/03/02 25. ENTIRE AGREEMENT This Aareement. toaether with anv other written document referred to or contemplated 6y it, along wzh the purchase-order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this CONTRACTOR: SURVEYING, INC., By: Douglas R. Melchior, President ATTEST: I I Susan G. Melchior, Secretary LORRAINE M. mo D (print n am e/t i t le) City Clerk (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Column B Chairman, president or vice-president Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: A+'&+ /Deputy I City Attorney v 8 City Attorney Approved Version #04/03/02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California 'I 1 ss. County of On ;r/lzu 2 / , dUd3, before me, personally appeared / Date ' Name@) of Slgner(s) 0 p rsonally known to me 2 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that helshelthey executed the same in hislherltheir authorized capacity(ies), and that by hislherltheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. m,~AAa- Commission # 1289724 NotaVf'uwc-CafH#nb f Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, if 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 Docu Title or Type of Document: Document Date: 5 - f -d 3 Number of Pages: fl Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: 2lndividual 0 Partner - 0 Limited 0 General 0 Attorney in Fact Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: Corporate Officer - Title(s): P, &d; . 0 1999 Natknal Notary Assoelation * 9350 De Solo Ave.. P.O. Box 24M Chatswonh, CA 91 313-2402 * w.MtlOnaInOlaty.org Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827 MELCHIOR LAND SURVEYING INC. E Marshall Plantz, Senior Civil Engineer CITY OF CARLSBAD Department - Engineering 1635 Faraday Avenue Carlsbad, CA 92008 RE: City of Carisbad Master Agreement Consulting Services Discipline: Surveying / Potholing Dear Mr. Plantz; Melchior Land Surveying Inc. is pleased to have been selected by the City of Carlsbad to provide Surveying Consulting Services. As always, we are pleased and eager to begin providing services Please find enclosed, our current fee schedule for work to be done. Thank you again, for selecting Melchior Land Surveying Inc. to be part of your professional team. Sincerely, Q-72 Inc. ouglas R Me c or, P.L.S. President enclosure WN OFFICE: 5731 PALMER WAY SUITE G CARLSBAD, CA 92008 mlsi@pacbell. net [760] 438-1 726 FAX (7601 438-3991 L.S. 461 Date: 3/25/2003 Melchior Land Surveying he. FEES FOR PROFESSIONAL LAM) SURVEYING SERVICES Principal Professional Land Surveyor-------------------- * Expert Witness - Court Testimony . Associate Professional Land Surveyor--------------------- Overnight UPS (Drop Box) $100.00 per hour $ 160.00 per hour $ 220.00 perhour $ 128.00 perhour $ 225.00 perhour $ 1 10.00 per hour $ 90.00 perhour $ 90.00 perhour $ 97.00 perhour $143.00 per hour $ 33.00 perhour $ 31.00 per hour Time and Half Double Time $ 4.00 per sheet $ 5.50 per sheet $ 9.00 per sheet $ 13.50 per sheet $ 18.50 $ 20.00 MASTER AGREEMENT FOR PROFESSIONAL SURVEYING AND POTHOLE SERVICES RIGHT-OF-WAY ENGINEERING SERVICES, INC. THIS AGREEMENT is made and entered into as of the @fi day of 2003, by and between the CITY OF CARLSBAD, a municipal cor;-reinaftei referred to as "City", and RIGHT-OF-WAY ENGINEERING SERVICES, I NC., a California Corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of a Professional Consultant that is B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to City and has affirmed its experienced in Surveying and Potholing Services. project basis. services and advice related to Surveying and Potholing Services. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While Derformina the Services, Contractor will exercise the reasonable professional care and skll customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Aareement will be effective from the date first above written to September 30, 2004. ThgCity Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not to exceed fifty thousand dollars ($50,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 1 City Attorney Approved Version #04/03/02 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will .. . begin within ten (IO) days after receipt of notification to proceed by-City and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by City inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed fifty thousand dollars ($50,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A'. Prior to initiation of any project work by Contractor, City shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for City, the City Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 2 City Attorney Approved Version k04l03l02 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS Services. The City reserves the right to employ other Contractors in connection with the 9. IN DEM NI Fl CAT10 N Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees-and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self- administered workers' compensatidn is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VI'. Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1 3 City Attorney Approved Version #04/03/02 I 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.1.2 10.1.4 10.3 Providing Certificates of Insurance and Endorsements. Prior to 10.4 10.5 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the 4 City Attorney Approved Version #04/03/02 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS City and Contractor relinquishes all claims to the copyrights in favor of City. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES written notice on behalf of City and on behalf of Contractor under this Agreement. The name of the persons who are authorized to give written notices or to receive ForCity: For Contractor: Name Lloyd Hubbs Title Public Works Director - Dept Public Works Citv of Carlsbad Address 1635 Faraday Avenue Address a7 PwA,d A. 1 cc p& +, h /If Carlsbad, CA 92008 Phone No. (760) 602-2720 PhoneNo. 73 2-/= Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform- Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. 5 City Attorney Approved Version #04/03/02 Contractor, for Contractor and on behalf of Contractor’s agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor’s agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor’s services with all applicable laws, ordinances and regulations. Contractor will be aware of the re’quirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discri‘mination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the.resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. In the event of the Contractor’s failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. 6 City Attorney Approved Version #04/03/02 Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et sea, the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 7 City Attorney Approved Version #04/03/02 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this /7 dayof fly . ,2003 . CONTRACTOR: SERVICES, INC., a California corporation By: mwL/ L ~~4I-x / pres,& (print name/title) /L, RIGHT-OF-WAY EN G I N E ER I NG (sign here) ATTEST: By: (sign here) LORRAINE M. W City Clerk (print name/title) (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Chairman, president or vice-president Column B Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney eputy City Attorney By4 8 City Attorney Approved Version #04/03/02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT } SS. State of California County of On u&? 3d, ad3 beforeme, personally apgared ‘4; Date Namels) of Signer(s) f 4 e/ 4. 0 personally known to me Kproved to me on the basis of satisfactory evidence to be the person($) whose name(sf&?awF subscribed to the within instrument and acknowledged to me that @lsh&hey executed the same in &hrMeif authorized capacityw and that by &islhpFWI.reir signaturewn the instrument the persodor the entity upon behalf of which the persow acted. executed the instrument. OPTlONAL Though the information below is not required by law, /I may prove valuable to persons rewing on the document and could prevent fraudulent removal and reattachment of thrs form to another document. Description of Attached Document Document Date: r-% -63 Number of;agey Title or Type of Document: &&dQ-k?y& ?mP. L..?e&, $4 &kJ/P3 3z/c 5. /wf$7L&- 3 (b 7 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer’s Name: Individual Corporate Officer - Title@.): [3 Partner - 0 Limited 0 General 0 Attorney-in-Fact W Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: . 4hd g 0 1999 Nalwnal Notary Association - 9350 De Solo Ave.. P.0 Box 2402 - Chatsworlh, CA 91313-2402 ww nationalnotaryorg Prod. No 5907 Reorder: Call Toll-Free 1.800-876-6827 Right-Of-Way Engineering Services, Inc. Land Surveying KECEIVED MAR 17 2003 ENG~NEERING DEPARTMENT MARCH 13,2003 Mr. Marshall Plantz, P.E. City of Carlsbad 1635 Faraday Avenue Public Wok - Engineering Cwlsbad, CA 92008-73 14 Subject: ON-CALL SERVICES CONTRACT FOR SURVEYING AND POTHOLING SERVICES. DearMarshall, Right-of-way Enghe&ring Services, Inc. (ROW) appreciates the City of Carlsbad‘s choice to continue using our firm for its professional surveying needs. In response to our phone conversation, I acknowledge the extension of the on-call services contract for 2003 thru 2004. R-0-W will continue providing quality and timely response to requests for survey services 60m you and your sW. Thank YO& RIGHT-OF-WAY ENGINEERMG SERVICES, INC. Michael Schlumpberger P.L.S. Enclosures: Fee Schedule Carlsbadext2003 4167 Avenida de la Plata Suite 114 0 Oceanside, CA 92056 0 (760) 732-1366 FAX(760) 732-1367 Email roweng@cts.com EhU3.M ’A” Right-of-way Engineering Services, Inc. Land Surveying 2 PERSON SURVEY CREW 2 PERSON SURVEY CREW WITH GPS EQUIPhENT SCHEDULE OF HOURLY RATES 3 PERSON SURVEY CREW WITH GPS EQUIPMENT, 3 VEHICLES AND RADIOS CADD TECHNICIAN SURVEY SUPERVISOR LICENSED LAND SURVEYOR CLERICAL $235.Oo/HR SCHEDULE OF RATES.LTR MASTER AGREEMENT FOR PROFESSIONAL GEOTECHNICAL ENGINEERING SERVICES NINYO & MOORE , JHIS AGREEMENT is made and entered into as of the tu.. day of corporatid, hereinafter referred to as "City", and Ninyo & Moore, a California Corporation, hereinafter referred to as "Contractor." I #&&&A. , 2003, by and between the CITY OF CARLSBAD, a municipal RECITALS A. City requires the professional services of a Professional Engineering B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to City and has affirmed its Consultant that is experienced in Geotechnical Engineering Services. project basis. services and advice related to Geotechnical Engineering Services. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. - TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The City Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not to exceed seventy-five thousand dollars ($75,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 1 City Attorney Approved Version #04/03/02 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (10) days after receipt of notification to proceed by City and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by City inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed seventy-five thousand dollars ($75,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A". Prior to initiation of any project work by Contractor, City shall prepare a Prcject Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for City, the City Manager, or Puhk Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a co m bin at i o n the reof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 2 City Atrorncy Approved Version #04/03/02 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contracto; will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of . Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the - .- Services. 9. INDEMNIFICATION Contractor agrees' to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self- administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. IO. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VI'. Coveraaes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1 3 City Attorney Approved Version #04/03/02 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1 ,Q00,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: The City will be named as an additional insured on General Liability. Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.1.2 . provides, to City's satisfaction, a declaration stating this. 10.1.4 10.2.1 10.2.2 10.2.3 10.3 Providinq Certificates of Insurance and Endorsements. Prior to 10.4 10.5 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the 4 City Attorney Approved Version #04/03/02 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractorrelinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of contractor under this Agreement. For City: For Contractor: Name Lloyd Hubbs Name Mark Cuthbert Title Public Works Director Title Principal Engineer Dept Public Works City of Carlsbad Address 1635 Faraday Avenue Address 5710 ~uffin Road Carlsbz 3 San Diego. California 92123 - ~ --_id, CA 9200E Phone No. (760) 602-2720 Phone No. (858) 576-1000 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. 5 City Attorney Approved Version #04/03/02 Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in'any-manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discGmination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve-any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. 6 City Attorney Approved Version #04/03/02 Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et sea, the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 7 City Attorney Approved Version #04/03/02 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along wah the purchase-order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY . The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this 20 CONTRACTOR: - Avram Ninyo, Principal Engineer ATTEST: - (print namehitle) (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Column B Chairman, president or vice-president Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the off icer(s) signing to bind the corporation.) CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney eputy City Attorney 8 City Attorney Approved Version #Q4lO3lQ2 ALL-PURPOSE ACKNOWLEDGEMENT } ss. State of California County of J4nl &/cflj? personally appeared AHA4 A AY,.l/jn A# n /nA& 607 G2%vCPJ before me, JQ/A/ JL46.4'4 7 (NOTARY) LU, tad3 IDATF) On SICVERIS) 0- - OR - @ proved to me on the basis of satisfactory evidence to be the personmwhose name(s) dare - subscribed to the within instrument and acknowledged to me that -h&he/they executed the same in l-&+kr/their authorized capacity(ies), and that by l&+kr/their signatures(s) on the instrument the persou), or the e&ty upon behalf of which the person( s) acted, executed the instrument. 7 fl WITNESS my hand and official seal. NOTARY'S SIGNAT@w OPTIONAL INFORMATION The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- edgement to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) 0 INDIVIDUAL 0 CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLEIS) P NUMBER OF PAGES 0 GUARDIAN/CONSERVATOR OTHER SIGNER IS REPRESENTING: RIGHT THUMBPRINT NAME OF PERSONG) OR ENTITY(IES) APA SI99 VALLEY-SIERRA, 800-362-3369 March 17,2003 Proposal No. P-5722 Mr. Marshall Plank, Senior Civil Engineer City of Carlsbad, Engineering Department 1635 Faraday Avenue Carlsbad, California 92008 Subject: As-Needed Geotechnical Engineering Services For the City of Carlsbad Master Agreement Consultant Services Project Dear Mr. Plank: Ninyo & Moore is pleased to submit this letter as acknowledgement of our selection by the City of Carlsbad to pro- vide services as part of the Master Agreement Consultant Services project. We appreciate this opportunity to work with the City of Carlsbad and will provide the necessary resources to efficiently complete those project tasks as- signed to us. As requested, we have attached a schedule of fees for your review and use. Thank you and we look forward to working with the City. Sincerely, NINYO & MOORE Mark Cuthbert, P.E. Principal Engineer MC/ebm Attachment: Schedule of Fees 57 IO Ruffin Road 9 San Diego, California 92 I23 Phone (858) 576 IO00 Fa (858) 575-9600 __ - - - __ - - - . - - - San Drego lMne 9 Ontario - Los Angeles Oakland . L;rs Vegas * SaR Lake City Phwnrx EXxim City of Carlsbad On-Call Geotechnical Services March 17, 2003 Proposal No. P-5722 SCHEDULE OF FEES HOURLY CHARGES FOR PERSONNEL Principal EngineerlGeologistlEnvironmental Scientist .......... ......................................................... $ Senior Engineer/GeologistlEnvironmental Scientist ....................... Senior Project EngineerlGeologistlEnvironmental Scientist ........................................... Nondestructive Examination Technician, UT, MT, LP' ............................... ..................................... $ Special Inspector, Reinforced Masonry' ................................................... Special Inspector, Structural Steel' .................................. 139 133 127 123 1 09 96 96 85 85 85 85 71 71 71 71 71 71 71 71 71 71 69 53 52 44 - OTHER CHARGES Expert Witness Testimony .................... ...................................................... $ 250 ihr Special Preparation of Standard Test Specimens ................................................ ................ $ Mihr Coring Machine Usage (includes techn ......................................................................... $ 105 ihr Steel and Concrete Specimen Pidtup ................................................................... ................ $ 53 Itrip Inclinometer Usage .................... ......................................................... $ 32 hr $ 30kit Vapor Emission Kits .................... ......................................... Rebar Locator (Pachorneter) ...... ........................................................... ............................... $ 10 ihr Field Vehicle Usage $ 6hr Laboratory testing, geophysical equipment, and other special equipment provided upon request. Nuclear Density Gauge Usage ... ......................................................... $ 9ihr Direct Project Expenses ...................................................................................... ................. Cost PIUS 15 Yo ................................................................................................................... NOTES (Field Services) For field and laboratory technicians and special inspectors, regular hourly rates are charged during normal weekday construction hours. Overtime rates at 1.5 times the regular rates will be charged for work performed outside normal con- struction hours and all day on Saturdays and Sundays. Rates at twice the regular rates will be charged for all work in excess of 12 hours in one day or on holidays. Lead time for any requested service is 24 hours. Field Technician rates are based on a 2-hour minimum. Special inspection rates are based on a 4-hour minimum for the first 4 hours and an 8- hour minimum for hours exceeding 4 hours. Field personnel are charged portal to portal. hour minimum for hours exceeding 4 hours. Field personnel are charged portal to portal. Indicates rates that are based on Prevailing Wage Determination made by the State of California, Director of Industrial Relations and are subject to revision on 6/16/03. INVOICES Invoices will be submitted monthly and are due upon receipt. A service charge of 1 .O percent per month may be charged on accounts not paid within 30 days. City of Carlsbad On-Call Geotechnical Services March 17. 2003 Proposal No . P-5722 SCHEDULE OF FEES FOR LABORATORY TESTING Laboratory Test. Test Designation. and Price Per Test Soils Atterberg Limits, D 4318, CT 204 ........................................... California Bearing Ratio (CBR), D 1883 ................................. Chloride and Sulfate Content, CT 417 & CT 422 S Consolidation . D 2435, CT 219 ........................................................ $ . ............................. Durability Index, CT 229 ............................... Expansion Potential (Method A), D 4546 ......................................... $ Expansive Pressure (Method C) . D 4546 ........................................ $ Geofabric.Tensile and Elongation Test, D 4632 .............................. $ Hydraulic Conductivity, D 5084 . $ Hydrometer Analysis, D 422, CT 203 $ Double Hydrometer Analysis, D 422, CT $ Maximum Density D 1557, D 698, CT 216, 8 AASHTO T-180 ...... $ Moisture. Ash, 8 Organic Matter of PeaVOrganic Soils ................... Moisture Only. D 2216, CT 226 ...................................... Moisture and Density. D 2937 ................ Permeability. CH. D 2434. CT 220 ................................. pH and Resistivrty. CT 643 R.value, D 2844 . CT 301 ................................................ Sand Equivalent, D 241 9 . CT 21 7 .................................................... S Sieve Analysis . D 422, CT 202 ......................................................... S Sieve Analysis, 200 Wash, D 1140, CT202 .................................... S Triaxial Shear, C.D., three points, CT 230 ....................................... S Triaxial Shear, C.U., three poin Triaxial Shear, U.U., one point, D 2850. CT 230 ............................. S Unconfined Compression, D 2166, CT 221 ........................ s Wax Densty. D 1188 ........................................................................ S ............................................ ...... .................. (Rock corrections add $65) ........................................................ Specific Gravity, D 854 ............. 125 350 100 200 50 200 250 140 140 130 130 150 250 140 270 150 90 18 30 200 95 215 80 95 75 75 350 325 125 160 75 Roofinq Built-up Roofing. cutout samples . D 2829 ...................................... . S 150 Roofing Materials Analysis. D 2829 .................................................. $ Roofing Tile Absorption . (set of 5) . UBC 15-5 .................................. $ Roofing Tile Strength Test. (set of 5) . UBC 15-5 ............................. $ 450 150 150 Masonry Brick Absorption. 24-hour submersion. C 67 ................................... $ Brick Absorption . 5hour boiling. C 67 .............................................. $ Brick Absorption, 7day . C 67 ...................... Brick Moisture as received, Concrete Block Conformance Package, C 90 ................................. $ Concrete Block Linear Shrinkage, C 426 ......................................... 0 Concrete Block Unit Weight and Absorption . C 140 ........................ $ Cores. Compression or Shear Bond, CA Code ................. $ Masonry Grout. 3x3~6 prism compression. UBC 21-18 .................. $ Masonry Mortar, 2x4 cylinder compression. UBC 21-1 6 ................. $ Masonry Prism. half size, compression. UBC 21-17 ....................... S .................................... $ 35 48 53 34 34 34 28 44 39 350 100 50 34 19 19 90 Concrete Cement Analvsis Chemical and Phvsical . C 109 ........................... S 1500 .. ..... Compression Tests, 6x1 2 Cylinder. C 39 ....................................... $ Concrete Mix Design Review. Job Spec ........................................ $ Concrete Mix Design, per Trial Batch . 6 cylinder. AC Concrete Cores. Compression (exdudes sampling). Drying Shrinkage. C 157 ................................................................. $ Flexural Test. C 78 .......................................................................... 15 Flexural Test. C 293 ................................... Flexural Test, CT 523 ................................. GunitelShotcrete . Panels. 3 cut cores per panel and test. ACI ..... $ Jobsite Testing Laboratory ........................................................ Lightweight Concrete Fill. Compression. C 495 ....................... Petrographic Analysis. C 856 .................................................... 19 125 200 40 190 Splitting Tensile Strength, C 496 ...... ........................... $ 65 Reinforcins and Structural Steel Asohalt Concrete Asphalt Mix Design Review. Job Spec ..................................... Extraction. %Asphalt. including Gradation . D 2172. CT 310 .. Film Stripping . CT 302 ............................................................... Hveem Stability and Unit Weight CTM or ASTM, CT 366 ...... Manhall Stability. Flow and Unit Weight . T-245 ............................. $ Maximum Theoretical Unit Weight . D 2041 .................................... $ Swell . CT 305 ............................................................................. Unit Weight sample or core. D 2726. CT 308 ........................... Aaareaates Asphalt Mix Design. Caltrans .................................................... Sand Equivalent, CT217 ................................................................ $ Sieve Analysis. Coarse Aggregate, C 136 .......... ............ t Sieve Analysis, Fine Aggregate (including wash) . C 136 .............. $ Sodium Sulfate Soundness (per size fraction), C 88 ...................... $ Specific Gravity. Coarse, C 127 ...................................................... $ Specific Gravity. Fine. C 128 ........................................................... S 50 40 100 80 125 100 42 52 46 2. O00 135 190 80 170 190 90 150 75 25 25 95 110 130 120 120 165 245 50 350 80 95 95 145 65 75 Ninyo & Moore is accredited to perform the AASHTO equivalent of many ASTM test procedures . co MASTER AGREEMENT FOR PROFESSIONAL GEOTECHNICAL ENGINEERING SERVICES GROUP DELTA CONSULTANTS THIS AGREEMENT is made and entered into as of the 13~ dayof AUSUST I 2003, by and between the CITY OF CARLSBAD, a municipal corporatiorf hereinafter referred to as "City", and GROUP DELTA CONSULTANTSl a California Corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of a Professional Engineering B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to City and has affirmed its Consultant that is experienced in Geotechnical Engineering Services. project basis. services and advice related to Geotechnical Engineering Services. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3- - TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The City Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not to exceed seventy-five thousand dollars ($75,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 1 City Attorney Approved Version #04/03/02 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (IO) days after receipt of notification to proceed by City and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by City inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed seventy-five thousand dollars ($75,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Ra'tes specified in Exhibit "A'. Prior to initiation of any project work by Contractor, City shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for City, the City Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 2 City Attorney Approved Version #04/03/02 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor’s subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor’s work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City’s self- administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor’s agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best’s Key Rating of not less than “A-:VI’. Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor’s indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor’s sole expense. 10.1 3 City Attorney Approved Version #04/03/02 10.1.1 Commercial General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability (if the use of an automobile is involved for Contractor's work for City), $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.1.2 10.1.4 10.3 Providinq Certificates of Insurance and Endorsements. Prior to 10.4 10.5 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the 4 City Attorney Approved Version #04/03/02 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS City and Contractor relinquishes all claims to the copyrights in favor of City. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES written notice on behalf of City and on behalf of Contractor under this Agreement. The name of the persons who are authorized to give written notices or to receive For City: For Contractor: Name Lloyd Hubbs Title Public Works Director Dept Public Works City of Carlsbad Address 1635 Faraday Avenue Carlsbad, CA 92008 Phone No. (760) 602-2720 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. 5 City Attorney Approved Version #04/03/02 Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keeD fullv informed of federal. state and local laws and ordinances and regulations which in'any'manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED regulations prohibiting discrimination and harassment. Contractor will comply with all applicable local, state and federal laws and 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. 6 City Attorney Approved Version #04/03/02 Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any’company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et sea, the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney’s fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 7 City Attorney Approved Version #04/03/02 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this e’ day of ~U)L/ ,2003. CONTRACTOR: GROUP DELTA CONSULTANTS, a California corporation (sign here) By: - KUL &UUS#M/?PEJ/O~~- , (print n a m e/t it le) n ATTEST: (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Column 6 Chairman, president or vice-president Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney 8 City Attorney Approved Version #04/03/02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT . State of County of cmc- On .1.&.03 beforeme,bGa %e *- w ,L personally appeared LhA hsk- Date Name and Title of Officeue g , "Jane Doe, Notary Pub!") I Name(@ of Signer@) B.p&onally known to me - OR - 0 proved to me on the basis of satisfactory evidence to be the person@ whose name(sjis/a$esubscribed to the within instrument and acknowledged to me that he/sk&hey executed the same in his- 'r authorized capacity(*, and that by hislhP.ltkP'r signature@) on the instrument the person@), or the entity upon behalf of which the person(sJ-acted, executed the instrument. WITNESS my hand and official seal. q\Lxuc. * Signature ot NokqdPublic OPTlONA L 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 Document Title or Type of Document: .-cnasL- mw -& Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) 8 Signer's Name: ~ Individual I Corporate Officer 0 Partner - 0 Limited 0 General 0 Attorney-in-Fact Title(s): 0 Trustee- Guardian or Conservator 0 Other: I 1 Signer Is Representing: Signer's Name: 0 Individual 0 Corporate Officer Title(s): 0 Partner - 0 Limited 0 General 0 Attorney-in-Fact 0 Trustee 0 Guardian or Conservator Top of thumb here I I 0 Other: I I Signer Is Representing: D 1995 National Notaty Association * 8236 Remmet Ave , P 0 Box 71 84 Canoga Park, CA 91 309-71 84 Prod NO 5907 Reorder Call Toll-Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of On before me, L Date Name and TI of 6kicer (e.g.. “Jane Doe. Nota~uMii”) personally appeared Q-w/h &b& I Name(@ of Sgnw(s) ’ G&rsonally known to me - OR - G proved to me on the basis of satisfactory evidence to be the person(s) whose name@) is/= subscribed to the within instrument and acknowledged to me that he/sWWy executed the same in his/hprlthnlr ‘ authorized capacitv(ies), and that bv Notary Public - Calif hidhedtkk signature(+on the instrument the personej, or the entity upon behalf of which the person(@ acted, executed the instrument. WITNESS my hand and official seal. -- !!il OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and wuld prevent fraudulent removal and reattachment of this fon to another document. Description of Attached Document Title or Type of Document: Le Document Date: Number of Pages: . Signer(s) Other Than Named Above: 1 Capacity(ies) Claimed by Signer(s) 8 Signer’s Name: E Individual 0 Corporate Officer Title(s): 0 Partner - 0 Limited 0 General 0 Attorney-in-Fact O Trustee Guardian or Conservator Other: I I Signer Is Representing: I I Signer’s Name: El Individual C Corporate Officer Title(s): C Partner - 0 Limited 0 General C Attorney-in-Fact Signer Is Representing: 0 1995 National Notary Associalion 8236 Remrnet Ave., P.O. Box 7184 * Canoga Park. CA 91309-7184 Prod. No. 5907 Reorder Call Tdl-Free 1600676-6827 GROUP' Certified AlBE March 14,2003 Proposal No. SP02069 Mr. Marshall Plantz City of Carlsbad, Engineering Department 1635 Faraday Avenue Carlsbad, CA 92008 LE-ITER OF ACCEPTANCE OF MASTER AGREEMENT GEOTECHNICAL CONSULTING SERVICES CITY OF CARLSBAD CARLSBAD, CALIFORNIA Dear Mr. Plantz: Thank you for selecting Group Delta Consultants for the Master Agreement of Geotechnical Consulting Services for the City of Carlsbad. As you requested, we are providing this acknowledgement of being selected and our intent to provide geotechnical services to the City of Carlsbad. We are enclosing our 2003 Fee Schedule and Terms and Conditions for your review. We understand that you will be preparing a contract in the near future. We look forward to assisting the City with their Capital Improvement Projects. any questions, please call us. If you have Very truly yours, GROUP DELTA CONSULTANTS, INC. Barry R. bevier PrinciDal Enaineer 10989-A Via Frontera A San Diego, California 92127 A (858) 524-1500 uoicc A (858) 524-1599fax www GroupDelta corn Aliso Viejo, California A (949) 609-1020 Torrance, California A (310) 320-5100 GROUP DELTA CONSULTANTS, INC. 2003 FEE SCHEDULE HOURLY CHARGES FOR PERSONNEL SENIOR PRINCIPAL ENGINEEWGEOLOGIST PRINCIPAL ENGINEEWGEOLOGIST ASSOCIATE ENGINEER/GEOLOGIST SENIOR ENGINEER/GEOLOGIST PROJECT ENGINEEWGEOLOGIST STAFF ENGINEEWGEOLOGIST SEN 10 R TECH N ICIAN/PREVAl LI N G WAG E TECHNICIAN DESlGNERlILLUSTRATOWAUTOCAD TECHNICAL SUPPORT CHARGES FOR EQUIPMENT VEHICLE: Mobile Laboratory (Van) Other Vehicles Mi I e age INCLINOMETER NUCLEAR DENSITY GAUGE ORGANIC VAPOR ANALYZER $180 155 140 125 110 95 85 65 70 55 $7.50/hour 6.00hour 0.40/mile 30.00hour 8.00hour 75.00/day OTHER CHARGES Outside services will be charged at cost plus 15 percent. Technician and support personnel time for work over eight (8) hours per day will be charged at 1.25 times the regular rates. Holidays and weekends hours (all hours) will be charged 1.50 times the regular rates. LITIGATION FEES Fees for participation in deposition, arbitration, trial, etc., will be charged at an hourly rate of $300.00 per hour, 4-hour minimum, portal to portal. 10989-A Via Frontera A San Diego, California 92127 A (858) 524-1500 voicr' A (858) 524-1 599ffia ~\,w\~.GrouFDelta.com Ahso Viejo, California A (949) 609-1020 Torrance. California A (310) 320-5100 MASTER AGREEMENT FOR PROFESSIONAL ENVIRONMENTAL PLANNING SERVICES EDAW, INC. _- REEMENT is made and entered into as of the - pM day of , 2003, by and between the CITY OF CARLSBAD, a municipal corporaticd, hereinafter referred to as "City", and EDAW , INC., a California Corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of a Professional Consultant that is B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to City and has affirmed its experienced in Environmental Planning. project basis. services and advice related to Environmental Planning. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. - TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The City Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not to exceed one hundred thousand dollars ($100,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 1 City Attorney Approved Version #04/03/02 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (10) days after receipt of notification to proceed by City and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by City inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($100,000) per fiscal year. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A". Prior to initiation of any project work by Contractor, City shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for City, the City Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 2 City Attorney Approved Version #04/03/02 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor’s subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor’s work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the - Services. 9. IN D EM N I FIC AT1 0 N Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees-and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City’s self- administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor’s agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best’s Key Rating of not less than “A-:VI’. Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor’s indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor’s sole expense. 10.1 3 City Attorney Approved Version #04/03/02 10.?.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions : 10.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. Providinq Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. Failure to Maintain Coveralae. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.1.2 10.1.4 10.3 10.4 10.5 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the 4 City Attorney Approved Version #04/03/02 12. ACCOUNTING RECORDS Contractor will maintain comelete and accurate records with resDect to costs incurred under this Agreement. All ’records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS City and Contractor relinquishes all claims to the copyrights in favor of City. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES written notice on behalf of City and on behalf of Contractor under this Agreement. The name of the persons who are authorized to give written notices or to receive For City: For Contractor: Name Lloyd Hubbs Name Teri Fenner Title Public Works Director Title Principal DeDt Public Works Ciiy of Carlsbad Address 1635 Faraday Avenue Address 1420 Kettner Blvd., Suite 620 Phone No. (760) 602-2720 Phone No. (619) 233-1454 Carlsbad, CA 92008 San Diego, CA 92101 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor‘s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. 5 City Attorney Approved Version #04/03/02 Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED regulations prohibiting discrimination and harassment. Contractor will comply with all applicable local, state and federal laws and 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure wili be used to resolve-any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. 6 City Attorney Approved Version #04/03/02 Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 7 City Attorney Approved Version #04/03/02 25. ENTIRE AGREEMENT. This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this zXTN day of h& ,2003. CONTRACTOR: CITY OF CARLSBAD, a municipal corporation of the State of California By: ATTEST: DAVb N . ab& &&&& (print namehitle) LORRAINE M. WWD City Clerk (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Column B Chairman, president or vice-president Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney -.. ,, e?& City Attorney 8 City Attorney Approved Version #04/03/02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT / before me, 1 om P?&-~~ dam/ 9tleuc , I Dale Name and Titte of ottidr (e.g., "Jane DW, Notary Publid') On - 6d-U qW$42odr\j. &Am Name(s) ol Signer(s) / personally appeared gersonally known to me - OR - proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) idare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature@) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, 'A ' executed the instrument. WITNESmand and official seal. OPTlONA L Though the information below is not required by law, it may prove valuable to persons relying on the document and co fraudulent removal and reattachment of this form to another document. tion of Attached Document Document Dat Signer(s) Other Than N Capacity(ies) Claimed b 0 Individual 0 Corporate Officer 0 Attorney-in-Fact 0 Trustee 0 Guardian or Consed 0 Other: / Signer I epresenting: i" / 71 I / I / Signer's Name: 0 Individual 0 Corporate Officer 0 General 0 Trustee 0 Other: Signer Is Representing: \I I994 National Notary Association * 8236 Remmet Ave , P 0 Box 71 84 * Canoga Park, CA 91309-7184 Prod No 5907 Reorder Call Toll-Free 1-800-878-6827 EDAW INC 1420 KETTNER BOULEVARD SUITE 620 SAN DlEGO CALIFOUNIA 92101 TEL 619 233 1454 FAX 619 233 0952 www.edaw.com UNITED STATES EUROPE AUSTRALIA ASIA March 13,2003 Mr. Marshall Plantz Senior Civil Engineer City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 RECEIVEE ENGINEERING DEPARTMENT Subject: Statement of Qualifications - Master Agreement Consulting Services, EnvironmentaVPlanning Studies Dear Mr. Plantz: EDAW is thrilled to have been selected by the City of Carlsbad (City) as one of two on-call consultants to support the City in the area of Environmental/ Planning Studies. As requested, our schedule of fees is attached. We look forward to completing the contracting phase so we can begin immediately worlung with you and other City staff. Please do not hesitate to call if you need anything else. Wilkinson and I are eager to schedule a meeting in Carlsbad. Both Teresa Sincerely, Ten Fenner Principal DESIGN. PLANNING AND ENVIRONMENTS WORLDWIDE €DAW INC SCHEDULE OF FEES 1420 KETTNER BLVD SUITE 620 Environmental Services - Su~~0t-t Services SAN DIEGO CALIFORNIA ' Environmental Principal $195 Technical Editor 92101 Senior Environmental Engineer $140 CIS Specialist I11 Senior Environmental Associate $135 CIS Specialist I1 Senior Environmental Project Manager $1 15 CIS Specialist I - TEL 619 233 1454 Environmental Project Manager FAX 619 233 0952 Environmental Engineer rww.cdaw corn Environmental Specialist Environmental Analyst Environmental Monitor Environmental Technician Biological Resource Services Senior Biologist I1 Senior Biologist I Biologist 111 Biologist I1 Biologist 1 Cultural Resource Services Principal Archaeologist Senior Associate Archaeologist Senior Archaeologist Project Archaeologist Project Historian Architectural Historian Staff Archaeologist Archaeological Crew Chief Archaeological Monitor Archaeological Technician $90 Graphic Artist $90 Word Processor $90 Administrative $75 Clerical $70 Intern $50 $80 $95 $90 $65 $70 $65 $70 $50 $35 General Terms $1 15 EDAW 4x4 Vehicle Use (gas excluded) $75.00 daily $105 GPS System Use $75.00 daily $95 Digital Camera Use $15.00 daily $85 Film Charge $5.00 per roll $75 Cellular Phone $0.60 per min. $0.50 per page Facsimile $1 75 $1 15 $'O0 $80 invoice date. $80 $65 $65 $55 $55 $50 Other reimbursable expenses and subconsultants will be billed at cost plus 10%. Invoices will be submitted monthly for work in progress unless otherwise agreed. Invoices are due and payable within 30 days after Fees are valid through February 28,2004. Rates are subject to adjustment based on contract terms. UNITED STATES EUROPE AUSTRALIA ASIA DESIGN, PLANNING AND ENVIRONMENTS WORLDWIDE MASTER AGREEMENT FOR PROFESSIONAL ENVIRONMENTAL PLANNING SERVICES RECON IS AGREEMENT is made and entered into as of the day of , 2003, by and between the CITY OF CARLSBAD, a municipal corporagn, hereinafter referred to as "City", and RECON, a California Corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of a Professional Consultant that is experienced in Environmental Planning. project basis. services and advice related to Environmental Planning. expedited fashion. willingness and ability to perform such work. B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted' a proposal to City and has affirmed its NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. TERM The term of this Aareement will be effective from the date first above written to 3. - September 30, 2004. ThgCity Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not to exceed one hundred thousand dollars ($100,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 1 City Attorney Approved Version #04/03/02 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (10) days-after receipt of notification to proceed bycity and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by City inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($1 00,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A". Prior to initiation of any project work by Contractor, City shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for City, the City Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 2 City Attorney Approved Version #Q4/03/Q2 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS Services. The City reserves the right to employ other Contractors in connection with the 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self- administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VI'. Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1 3 City Attorney Approved Version #04/03/02 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. Professional LiabiliW. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. Providinq Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.1.2 10.1.4 10.3 10.4 10.5 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the 4 City Attorney Approved Version #04/03/02 12. ACCOUNTING RECORDS Contractor will maintain comdete and accurate records with resDect to costs incurred under this Agreement. All ‘records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractorrelinquishes all daims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City: For Contractor: Name Lloyd Hubbs Name Charles Bull Title Public Works Director Title Wnt Dept Public Works City of Carlsbad Address 1635 Faraday Avenue Address 1927 Fifth Ave. Phone No. (760) 602-2720 Phone No. (619) 308-9333 Carlsbad, CA 92008 San Dieqo, CA 92101 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor‘s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. 5 City Attorney Approved Version #04/03/02 Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in.any-manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED regulations prohibiting discrimination and harassment. Contractor will comply with all applicable local, state and federal laws and 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to4he problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. 6 City Attorney Approved Version #04/03/02 Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et sea, the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agree men t . 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 7 City Attorney Approved Version #04/03/02 25. ENTIRE AGREEMENT This Aareement. toaether with any other written document referred to or contemplated by it, along wzh the purchase-order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this 1 day of CONTRACTOR: ATTEST: (sign here) (v 2 - ,4//2k>dd4$/.?d& -7 6L,, i$yd~~ 3 &.&&&(J % . f- LORRAINE M. WWD City Clerk (print namehitle) (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Chairman, president or vice-president Column E3 Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney 8 City Attorney Approved Version #04/03/02 1927 Fihh Avenue Son Diego CA 92101 2358 P6193089333 F 6193080334 w recon-us cor RECL N March 13,2003 RECEIVED HAR 14 2003 ENGINEERING DEPARTMENT Mr. Marshall Plantz Senior Civil Engineer City of Carlsbad Engineering Department 1635 Faraday Avenue Carlsbad, CA 92008 Reference: Master Agreement Consultant Services - EnvironmentaVPlanning Studies (RECON Number 02-375) Dear Mr. Plantz: RECON is pleased to be selected by the City of Carlsbad (City) on March 13,2003 to provide EnvironmentaVPlanning Services under a Master Agreement for Consultant Services. We understand that this is a one-year agreement with the potential for two, one-year extensions. As requested, I have attached our current billing rates. We look forward to assisting you in meeting your environmental review and processing requirements for the City’s Capital Improvement Program projects. Please call me if you need additional information or to discuss upcoming projects. Sincerely, Principal LAS : tl g Enclosure March 13, 2003 CURRENT HOURLY RATES Position Rate Expert Witness Principal Senior Associate Assistant Research Assistant GIS Specialist Production Supervisor Production Specialist IlI Production Specialist 11 Production Specialist I Specialist 111 Specialist I1 Specialist I Resource Monitor I1 Resource Monitor I Technician III Technician II Technician I Field Supervisor Field Crew Chief Field Technician Seed Specialist $200.00 $129 .OO $lOO.OO $87.00 $78.00 $52.00 $52.00 $53.00 $43.00 $36.00 $31.00 $77.00 $67.00 $57.00 $50.00 $40.00 $31.00 $26.00 $21.00 $30.00 $22.00 $18.00 $22.00 Unless otherwise agreed upon, RECON shall charge, at cost, for blueprinting and reproduction desired by the client or public agencies, out-of-town transportation and expenses, and telephone calls. An administrative fee of 10% shall be added to all subcontractor’s charges. Personnel rates are in effect from July 1, 2002, through June 30, 2003. Increases occur annually on July 1. RECON 1927 Fifth Avenue Son Diego, CA 92 10 1 -2358 6191 308-9333 fax 308-9334 www.recon-us.com WJFORNIA ALL-PURPOSE ACKNOWLEDGMENT b. 51s & before me, UU~ h . ha, NO- ~BUC I County of On NAME, TITLE OF OFFlCffR - E.G.. 'JANE DOE. NOTARY WBW' DATE personally appeared b 5. ~ULC~D NAME@) OF SIGNNER(S) 'ItzcLc~ , fiersonally known to me - OW to be the person(s) whose name(s) Mare subscribed to the within instrument and ac- knowledged to me that k&ihe/they executed the same in hifCkerltheir authorized capacity(ies), and that by hkbher/their signature@) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. CAPACITY CLAIMED BY SIGNER moughstaMedoesmtrequireItteNotarym fill In the data below. doing sa may prove invekaMetopersonsre)yingonthedoarment INDIVIDUAL [7 PARTNER(S) LIMITED 0 GENERAL ATTORNEY-IN-FACT 0 TRUSTEE(S) 0 GUARDIANCONSERVATOR 0 OTHER: SIGNER IS REPRESENTING: 1 i I t [ l SIGNATURE OF NOTARY THIS CERTIFICATE MUST BE AlTACHED TO TITLE OR TYPE OF DOCUMENT &W UU3mL v4fikma-i- ( OPTIONAL SECTlO NUMBER OF PAGES 9' @& A DATE OF DOCUMENT sh! 10 3 i THE DOCUMENT DESCRIBED AT RIGHT: Though the data requested here IS not required by law, it cou~ prevent -lent reattachment ot this form. Isii ma2 SIGNEW) OTHER THAN NAMED ABOV ~__~__ 01993 NATIONAL NOTARY ASSOCIATION 8236 Aernmet Am.. P.O. Box 7184 Canoga Park, CA 91309-71&c -_ MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES KRIEGER & STEWART, INCORPORATED THIS AGREEMENT is made and entered into as of the k?fi day of , 2003, by and between the CITY OF CARLSBAD, a municipal corporatidn, hereinafter referred to as "City", and. KRIEGER & STEWART, INCORPORATED, a California Corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an Engineering Consultant that 6. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to City and has affirmed its is experienced in Water, Recycled Water and Sewer Utility Engineering. project basis. services and advice related to Water, Recycled Water and Sewer Utility Engineering. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3- - TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The City Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not to exceed one hundred fifty thousand dollars ($150,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 1 City Attorney Approved Version #04103/02 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (IO) days after receipt of notification to proceed by City and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by City inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred fifty thousand dollars ($150,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A'. Prior to initiation of any project work by Contractor, City shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for City, the City Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a corn bin at ion thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 2 City Attorney Approved Version #04/03/02 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor aarees to indemnifv and hold harmless the Citv 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 in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self- administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VI'. Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1 3 City Attorney Approved Version #04/03/02 10.1.1 Commercial General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the 10.1.2 10.1.4 work. 10.2. Additional Provisions. Contractor will required under this Agreement contain, or are provisions: 10.2.1 The City will be named as Liability. ensure that the policies of insurance endorsed to contain, the following an additional insured on General 10.2.2 10.2.3 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.3 Providinq Certificates of Insurance and Endorsements. Prior to 10.4 10.5 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the City Attorney Approved Version #04/03/02 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS City and Contractor relinquishes all claims to the copyrights in favor of City. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City: For Contractor: Name Lloyd Hubbs Name Jon C. Revnolds. P.E. Title Public Works Director Title Vice President Dept Public Works City of Carlsbad Address 1635 Faraday Avenue Address 3602 Universitv Avenue Phone No. (760) 602-2720 PhoneNo. (909) 684-6900 Krieger & Stewart, Incorporated Carlsbad, CA 92008 Riverside, CA 92501 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. 5 City Attorney Approved Version #04/03/02 Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in'any-manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will complv with all applicable local, state and federal laws and regulations prohibiting discimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. 6 City Attorney Approved Version #04/03/02 Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicii or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement. price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et sea, the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 7 City Attorney Approved Version #04/03/02 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this CONTRACTOR: Jon C. Reynolds. Vice President ATTEST: && c LORRAINE M. WOM City Clerk I Charles A. KrieEer, Secretary (print namehitle) (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Chairman, president or vice-president Column B Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney //Deputy City Attorney v 8 City Attorney Approved Version #04/03/02 NOTARY ACKNOWLEDGEMENT State of California County of Riverside On May 23, 2003, before me, Kim Renee' Soto, a Notary Public, personally appeared Jon C. Reynolds and Charles A. Krieger, Personally known to me -or- 0 Proven to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the attached instrument and acknowledged to me that they executed same in their authorized capacities, and that, by their signatures on the instrument, the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. P 3 Signature of Notary OPTIONAL INFORMATION Capacity Claimed by Signer Description of Attached Document Individual Llfl Corporate Officers: Vice President and Secretary, respectively Partner(s): Limited 0 General Attorney-in-Fact [7 Trustee(s) n GuardianEonservator Title($ Master Agreement for Professional Engineering Services (PW Eng 358) Document Title or Type 11 Number of Pages To be dated by the City of Carlsbad Document Date Other: City of Carlsbad representatives (City Manager or Mayor; Lorraine M. Wood; Ronald R. Ball) Other Signer(s) Signers are Representing: Name of Entity Krieger & Stewart, Incorporated KRIEGER INCORPORATE D E NG I N E E R I N G CONS U LTAN TS -33 ~~-JfijcfiS@Tfi@~iverside, CA 92501 -3380 Tel 909-684-6900 Fax 909-684-6986 &WmT March 17,2003 MAW I 2 2003 Marshall Plantz, Senior Civil Engineer City of Carlsbad Engineering Department 163 5 Faraday Avenue Carlsbad, CA 92008 Subject: Master Agreement Consulting Services For Water, Recycled Water and Sewer Projects Dear Mr. Plantz: 000-237.5 We are pleased to have been selected to provide engineering services to the City of Carlsbad Engineering Department (hereinafter City) for water, recycled water, and sewer projects per your December 19, 2002 request for qualifications. As requested, we are submitting our current fee schedule for your review and approval. Please note that our the fees shown therein will remain current through June, 2003, but are subject to change on or about July 1 of each year. We anticipate the fees will increase between 3% and 5%, depending upon cost of living and salary increases. Again, we are pleased to provide engineering services to the City, and will execute the annual agreement once received. Sincerely, JCR/blt 237PS-MP-Ll Enclosure: Fee Schedule 2002/2003 . KRIEGER INCORPORATED b FEE SCHEDULE 2002/2003 CLASSIFICATION Engineering Services Consulting Engineer Principal Engineer Senior Engineer Associate Engineer Staff Engineer I Staff Engineer I1 Staff Engineer 111 Staff Technician Environmental Services Senior Specialist Associate Specialist Staff Specialist I Staff Specialist I1 Staff Specialist 111 Staff Technician Forensic Services Senior Expert Witness Testimony Investigation Testimony Investigation Associate Expert Witness Computer Aided Design Services Senior Operator I Senior Operator I1 Senior Operator I11 Staff Operator I Staff Operator I1 Staff Operator 111 Surveying Services Principal Surveyor Senior Surveyor Associate Surveyor Staff Surveyor I Staff Surveyor I1 Staff Surveyor I11 Staff Technician 2 Man Crew with Survey Truck (including mileage) and Global Positioning 2 Man Crew with Survey Truck (including mileage) and Standard Equipment System Equipment 1 Man Crew with Global Positioning System Equipment RATES $/Hr. 165 .OO 135.00 120.00 107.00 96.00 84.00 72.00 59.00 120.00 107 .oo 96.00 84.00 72.00 59.00 260.00 185.00 210.00 160.00 86.00 81.00 76.00 72.00 68.00 62.00 135.00 120.00 107.00 96.00 84.00 72.00 59.00 230.00 190.00 Paee 1 of 2 KREGER r INCORPORATED FEE SCHEDULE 2002/2003 (continued) CLASSIFICATION Construction Services Resident Engineer Construction Inspector Regular Time Overtime Weekdays (8 hours to 12 hours) Weekdays (More thm 12 hours) Saturday (12 hours or less) Saturday (More than 12 hours) Sunday Holidays (New Years Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day and the Day AAer, Christmas Day) Support Services Senior Secretary Staff Secretary I Staff Secretary I1 Utility Technician Utility Clerk Outside Services Special Consultants and Purchased Services Reimbursable Expenses Vehicle Mileage (excluding survey trucks) Air Fare, Ground Fare, Parking, and Subsistence Copies, Prints, Telephone, Delivery, and Sundry Charges RATES $mr. 96.00 75.00 90.00 105.00 90.00 105.00 105.00 135.00 57.00 5 1 .OO 46.00 43.00 40.00 0.45/Mile cost cost The above rates are subject to change on or about July 1 each year due to salary and cost increases, except for Construction Inspector and Survey Crew rates which are also subject to change if California Department of Industrial Relations issues new prevailing wage determinations during the course of the year. TERMS OF PAYMENT: Unless charge accommodations have been established beforehand, all accounts shall be prepaid. For accounts having charge accommodations, payment in fill shall be made within 25 days of date of invoice. Any amount unpaid within said 25 days will be assessed a service charge of 1 1/2% per month (18% annual percentage rate), with a minimum charge of $1.00. Accounts with a past due balance of 25 or more days are subject, without notice, to credit discontinuance and mechanic's lien or stop notice. If it becomes necessary for Krieger & Stewart to instigate legal proceedings for the collection of any balance due, the action shall be brought and tried in the Judicial Districts wherein Krieger & Stewart offices are located. Client agrees that the court may award reasonable attorney's fees and costs of suit to the prevailing party. C5 1 10/2003-FEES-PW Page 2 of 2 0207 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES DANIEL BOYLE ENGINEERING THIS AGREEMENT is made and entered into as of the day of 2003, by and between the CITY OF CARLSBAD, a municipal coriz%ereinafter' referred to as "City", and DANIEL BOYLE ENGINEERING, a California Corporation, hereinafter referred to as "Contractor." 8fi .. RECITALS A. City requires the professional services of an Engineering Consultant that is experienced in Water, Recycled Water and Sewer Utility Engineering. project basis. services and advice related to Water, Recycled Water and Sewer Utility Engineering. expedited fashion. willingness and ability to perform such work. 8. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to City and has affirmed its NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 39 - TERM The term of this Aareement will be effective from the date first above written to September 30, 2004. Thecity Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not to exceed one hundred fifty thousand dollars ($150,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 1 City Attorney Approved Version #04/03/02 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (10) days after receipt of notification to proceed by City and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by City inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred fifty thousand dollars ($150,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A". Prior to initiation of any project work by Contractor, City shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for City, the City Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a com bin at ion thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 2 City Attorney Approved Version #04/03/02 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS Services. The City reserves the right to employ other Contractors in connection with the 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self- administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V". Coveraaes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1 3 City Attorney Approved Version #Q4lQ3lQ2 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.1.2 10.1.4 10.3 Providinq Certificates of Insurance and Endorsements. Prior to 10.4 10.5 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the 4 City Attorney Approved Version #04/03/02 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All ‘records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS City and Contractor relinquishes all claims to the copyrights in favor of City. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City: For Contractor: Name Lloyd Hubbs Name ThomasB. Hooker, Jr. Title Public Works Director Title President Dept Public Works City of Carlsbad Address 1635 Faraday Avenue Address 23231 South Pointe Drive Phone No. (760) 602-2720 Phone No. 949-768-2600, ext. 11 4 Carlsbad, CA 92008 Suite 103, Laguna Hills, CA 92653 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. 5 City Attorney Approved Version #04/03/02 Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keeD fullv informed of federal, state and local laws and ordinances and regulations which in'any'manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discdmination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. 6 City Attorney Approved Version #04/03/02 Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 7 City Attorney Approved Version #04/03/02 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this !$day of CONTRACTOR: DANIEL BOYLE ENGINEERING, Thomas B. Hooker, Jr.. President (print name/title) ATTEST: By: (sign here) LORRAINE M. WHOD (print namehitle) City Clerk (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Column 6 Chairman, president or vice-president Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney Byi eputy City Attorney 8 City Attorney Approved Version #04/03/02 c/ i i i i i i i i i i i i i i i i i i i i i i State of California \ i SIGNEMS) i 0 personally known to me - OR- 0 proved to me on the basis of satisfactory evidence to be the person@) whose name(s) islare subscribed to the within instrument and acknowledged to me that hdshdthey 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. i -i i -1 i i i i i i OPTIONAL INFORMATION ?he information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- edgment to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) 0 INDIVIDUAL CORPORATE OFFICER TITUP) 0 PARTNER(S) ATTORNEY-IN-FACT [7 TRUSTEE(S) 0 GUARDIANKONSERVATOR 0 OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(1eS) i a DESCRIPTION OF ATTACHED DOCUMENT I i TlTLE OR TYPE OF DOCUMENT NUMBER OF PAGES * I DATE OF DOCUMENT I OTHER 0 VALLEY-SIERRA, 800-362-3369 MA 1/94 DfiNlEL BOYLE ENGINEERING Consulting Engineers CERTIFIED RESOLUTION OF BOARD OF DIRECTORS OF DANIEL BOYLE ENGINEERING, INC. I, Lois E. Hooker, Secretary of Daniel Boyle Engineering, Inc., a corporation organized March 23, 1982 and existing under the laws of the State of California, do hereby certify that at a duly convened meeting of the Board of Directors of Daniel Boyle Engineering, Inc., held on the 7th day of March, 2002, at the offices of said corporation at 23231 South Pointe Drive, Suite 103, Laguna Hills, CA 92653, the following resolution was duly adopted: RESOLVED: That the following company officer is designated and authorized to execute and sign documents, or to sign the corporate name without limitation, except where otherwise provided by law, and such execution or signature shall be binding on the corporation: Thomas B. Hooker, Jr.; President IN WITNESS WHEREOF, I have hereunto set my hand as of the 7th day of March, 2002. 23231 South Pointe Drive Suite 103 Laguna Hills * CA * 92653 (949) 768-2600 - Fax (949) 586-5188 - www.dboyle-eng.com CITY OF CARLSBAD Engineering Department 1635 Faraday Avenue Carlsbad, CA 92008 Atteiition: Mr. Marshall Plantz, ?.E. Senior Civil Engineer City of Carlsbad Master Agreement Consulting Services for Water, Recvcled Water and Sewer Utilitv Engineering March 21, 2003 Thank you for the notification of our selection to provide As-Needed Engineering Servic for Water, Recycled Water and Sewer Utility projects. In accordance with your reque attached herewith is a copy of our hourly rates for 2003. If you have any other questions or need additional information, please do not hesitate contact us. DANIEL BOYLE ENGINEERING Daniel G. Smith, P.E. Principal Engineer DGS:jmb End. B99-197-01 DGS103-21.197-01 .wpd :es !St, to 3142 Vista Way - Suite 303 - Oceanside * CA * 92056 * (760) 433-8710 * Fax (760) 433-9709 www.dboyle-eng.com e. . . n .. LI HOURLY RATE SCHEDULE FOR SERVICES BY DANIEL BOYLE ENGINEERING March 1, 2003 CLASS IF1 CAT10 N BILLING RATE Managing Engineer.. .................................. $146.00 per hour Principal Engineer .................................... $135.00 per hour Senior Engineer II ..................................... $1 15.00 per hour Senior Engineer I ..................................... $109.00 per hour Senior Engineer ...................................... $100.00 per hour Associate Engineer II .................................... $93.00 per hour Associate Engineer I .................................... $88.00 per hour Senior Assistant Engineer ................................. $81 .OO per hour Assistant Engineer II .................................... $77.00 per hour Assistant Engineer I ..................................... $70.00 per hour Construction Representative .............................. $77.00 per hour Senior Designer II ...................................... $86.00 per hour Senior Designer I ...................................... $79.00 per hour Designer ............................................. $70.00 per hour CAD / Drafter II ....................................... $64.00 per hour CAD / Drafter I ........................................ $54.00 per hour Intern / Aide .......................................... $46.00 per hour Word Processor ....................................... $59.00 per hour Color Exhibit Plotting ................................... 2.00 per sq. foot Mylar Plotting ......................................... 3.00 per sq. foot Other Supplies & Outside Services .................... Actual Cost Plus 10% Subconsultants .................................... Actual Cost Plus 10% Preparation for Testimony, Deposition, Court Appearance, Expert Witness ....................... $250.00 per hour 4 Hour Minimum, Plus Expenses It is agreed that the above rates and charges include normal clerical services (excluding word processing), auto travel, equipment and materials used in connection with providing our engineering services, except as noted above or within our written proposal or agreement. Monthly billings will be furnished for all services rendered. Payments shall be due and payable upon presentation of invoices. All rates are effective until March 1, 2004. For contracts beyond March 1, 2004 there will be a 4% increase per year, unless otherwise agreed upon in writing. All fees will be billed using the current rate in effect unless otherwise stipulated by proposal or agreement. MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES HARRIS & ASSOCIATES THIS AGREEMENT is made and entered into as of the h?&* day of , 2003, by and between the CITY OF CARLSBAD, a municipal einafter referred to as "City", and HARRIS & ASSOCIATES, a California Corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an Engineering Consultant that 6. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to City and has affirmed its is experienced in Roadway, Drainage and Traffic Engineering. project basis. services and advice related to Roadway, Drainage and Traffic Engineering. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise . 3. TERM The term of this Aareement will be effective from the date first above written to September 30, 2004. Thecity Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not to exceed one hundred fifty thousand dollars ($150,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 1 City Attorney Approved Version #04/03/02 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (IO) days after receipt of notification to proceed by City and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by City inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred fifty thousand dollars ($150,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A". Prior to initiation of any project work by Contractor, City shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for City, the City Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a com bina ti on thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 2 City Attorney Approved Version #04/03/02 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. 1NDEMNlFlCATlON Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees-and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self- administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V". Coveraaes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1 3 City Attorney Approved Version #Q4/03/02 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.1.2 10.1.4 10.3 Providinn Certificates of Insurance and Endorsements. Prior to 10.4 10.5 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the 4 City Attorney Approved Version #04/03/02 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS City and Contractor relinquishes all claims to the copyrights in favor of City. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES written notice on behalf of City and on behalf of Contractor under this Agreement. The name of the persons who are authorized to give written notices or to receive For City: For Contractor: Name Lloyd Hubbs Name Ehab Gerges Title Public Works Director Title Project Manager DeDt Public Works Ci& of Carlsbad Address 1635 Faraday Avenue Address 17140 Bernard0 Center Dr, Ste 212 Harris & Associates Carlsbad, CA 92008 San Diego, CA 92128 Phone No. (760) 602-2720 Phone No. (858) 674-5552 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST Citv will evaluate Contractor’s duties pursuant to this Aareement to determine whether disclosure under the Political Reform Act and City’s Cotiflict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. 5 City Attorney Approved Version #04/03/02 Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with 17. and way the City an affidavit disclosing this interest. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances regulations which in any manner affect those employed by Contractor, or in any affect the performance of the Services bv Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discdmination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve-any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will'be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. 6 City Attorney Approved Version #04/03/02 Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 7 City Attorney Approved Version #04/03/02 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along wiih the purchase-order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this CONTRACTOR: HARRIS & ASSOCIATES, a California or ‘on By: m JJL5 M.Lp, 1 ZQ ti& ?k&k (print namehitle) ATTEST: By: c I (sign here) LORRAINE M. V@OD City Clerk (print nam e/t i t le) (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Chairman, president or vice-president Column 6 Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney By:: puty City Attorney City Attorney Approved Version #04/03/02 a v CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT I Name(s) of Signer@) personally appeared $@ersonally known to me - pv to be the personrs). whose name(?$is/are subscribed to the within instrument and acknowledged to me that helsbekey executed the same in his/her3Hreir authorized capacity(ies), and that by his/he&Mr signatureo on the instrument the personfa), or the entity upon behalf of which the person(% acted, executed the instrument. WITNESS my hand and official seal. &Ge?@& Signature of Nofary Public Though the informatron 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 Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) (7 Individual ,@?Corporate Officer 0 Partner - 0 Limited 0 General Titte(s): SL ~U PZ /&*T 0 Guardian or Conservator Signer’s Name: Individual 0 Corporate Officer Title(s): Partner - 0 Limited 0 General Attorney-in-Fact 0 Trustee- 0 Guardian or Conservator E! Other: I I I I Signer Is Representing: I I I 0 1994 National Notary Association 8236 Rmrnel Ave.. P.O. Box 71 FA Canoga Park, CA 91309-7184 Prod. NO. 5907 Reorder: Call Toll-Free 1-600-876-6827 March 3 I, 2003 Marshall Plank, PE, Senior Civil Engineer City of Carlsbad Engineering Department 1635 Faraday Avenue Carlsbad, CA 92008 Subject: Master Agreement Consulting Services Roadway, Drainage & Traffic Engineering Dear Marshall: Harris & Associates Program Managers I Construction Managers Civil Engineers We are excited about the opportunity to work with the City of Carlsbad in providing on-call design services for roadway, drainage and traffic improvements. Per your request, please see attached our proposed project team fee schedule for your consideration. We understand that the master agreement will have a period of one year with the potential for two, one-year extensions. Again, we are looking forward to this exciting opportunity to work with the City of Carlsbad, and are committed to the successful and timely completion of your projects. If you have any questions, or need additional information, please do not hesitate to contact me. Sincerely, Hflj&g derges, PE Project Manager Jeff& M. hoper, PE Project Director/ Senior Vice President 17140 Bernard0 Center Drive, Suite 212, San Diego, California 92128-2093 (858) 674-5552, (858) 674-5553 FAX "A" Master Agreement Roadway, Drainage & Traffic Engineering Effective July 1,2003 - June 30,2004 Project DirectorNice President Project Manager Project Engineer Sr. CADD Designer Project Designer CADD Drafter Technical Support Administration Harris & Associates Fee Schedule $175.00 Per Hour 145.00 120.00 95.00 90.00 90.00 65.00 55.00 Notes: 1. These individuals include professionals and support personnel who might work on Harris projects. Support personnel include technicians and administrative staff. 2. These hourly rates will be held through June 30,2004. The hourly rates will increase thereafter by 5% on annual (fiscal year) basis. 3. Unless otherwise indicated in the agreement, Harris’ hourly rates include most direct costs such as vehicle usage and mileage, equipment usage (including computer and telephone), and printing and copying (except large quantities such as construction documents for bidding purposes). Schmidt Design Group Fee Schedule Principal Landscape Architect (Glen Schmidt) Associate Landscape Architect / Head of Production (Jeff Justus) Senior Project Manager Project Manager Project Landscape Architect Irrigation Designer Assistant Landscape Architect Landscape Architectural Drafter ClericaVTypist $150.00 Per Hour 1 15.00 95.00 75.00 65.00 65.00 55.00 50.00 50.00 Notes: 1. These hourly rates will be held through June 30,2004. The hourly rates will increase thereafter by 5% on annual (fiscal year) basis. 2. Time spent in travel in the interest of the client will be charged at hourly rates. A minimum of 1 hour will be charged for any site visit. 3. Vehicular use for travel will be billed at .37/mile 4. Consultants employed by Schmidt Design Group, Inc.: their billing marked up by a factor of 1.15. 5. Reproduction printing costs, film and film developing, delivery service fees, soils testing, etc.: Schmidt Design Group, Inc. cost is marked up by a factor of 1.15. I Harris & Associates Expert Witness Principal Senior Engmeer/Planner Associate EngineerPlanner Assistant EngineerBlanner Junior Engineerplanner Engineering Designer Technician Administrative Aide Assistant Technician Katz, Okitsu & Associates Fee Schedule $180.00 Per Hour 140.00 135.00 95.00 80.00 65.00 70.00 50.00 40.00 25.00 Notes: 1. These hourly rates will be held through June 30,2004. The hourly rates will increase thereafter by 5% on annual (fiscal year) basis. 2. Mileage will be billed at $0.36 per mile. 3. Direct expenses will be marked up 10%. " Harris & Associates =I 7,dO 5 HARRAND-01 JOCH I ACORQM CERTIFICATE OF LIABILITY INSURANCE DATE (MWllDDIYY) 5/22/2003 INSURED Harris and Associates Inc. Attn: Tracy Rapozo 120 Mason Circle Concord, CA 94520-1238 PRODUCER (510) 547-3203 Diversified Risk Insurance Brokers Liranse #0529776 f Christie Avenue INSURER c. Steadfast lnsuran THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. , COVERAGES ISURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING XUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR :REIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH 2LAIM.S. NSR A B TYPE OF INSURANCE POLICY NUMBER GENERAL LIABILITY - X COMMERCIAL GENERAL LIABILITY 02PKG00743 x ")(" "C" """ X Severability of Interest J CLAIMS MADE OCCUR GENL AGGREGATE LIMIT APPLIES PER. LOC PRO- 7 PoLicY JFCT n AUTOMOBILE LIABILITY 7 x ANYAUTO PST414719 ALL OWNED AUTOS SCHEDULED AUTOS - - x HIREDAUTOS ,I I LIMITS 1,000,000 EACHOCCURRENCE 5 FIRE DAMAGE (Anybne fire) S 50,000 MED EXP (Any one persan) $ 5,000 1,000,000 2,000,000 2,000,000 PERSONAL 8 ADV INJURY $ GENERAL AGGREGATE S PRODUCTS - COMPlOP AGG S GARAGE LIABILITY ANY AUTO COMBINED SINGLE LIMIT (Ea accident) TESS LIABILITY x OCCUR CLAIMSMADE 3 RETENTION WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DEDUCTIBLE 1 ,ooo,oo $ AUC-9305561-00 02 HWD40007 OTHER E Professional Liability AEAl13822501 E See Remarks ** AEAl13822501 JESCRIPTION OF OPERATIONSlLOCATIONSfVEHlCLESlEXCLUSIONS ADDED BY ENDORSEMEI POLICY EFFECTIVE POLICY EXPIRATION 8/1/2002 81112003 81112002 81112003 8/1/2002 811 12003 8/1/2002 8/1/2003 81112002 811 I2003 SPECIAL PROVISIONS n the event of cancellation for non-payment of premium, a 10 day notice will apply. le: Professional Engineering Services I I I I BODILY INJURY (Per person) I BODILY INJURY (Per accident) PROPERlY DAMAGE (Peracddent) AUTO ONLY - EA ACCIDENT EACHOCCURRENCE City of Carlsbad Engineering Department Attn: Donna Harvey 1635 Faraday Avenue Carlsbad, CA 92008- DATE THEREOF, THE ISSUING INSURER WILLIMXXMXB ACORD 25-S(7/97) 0 ACORD CORPORATION 1988 ZEMARKS HARRAND-01 JOCH PAGE1 OF1 'rofessionzl Liability As respects PROFESSIONAL LIABILITY Coverage: All operations of the Named Insured including but not limited to any eferenced project. The Aggregate limit is the total limit of insurance available for all claims presented under the policy. A ',OOO deductible applies to each and every claim submitted under the policy. POLICY #: 02PKG00743 INSURED: Harris and Associates Inc. COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES or CONTRACTORS (Form B) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: The City of Carlsbad, (andlor if applicable - the City of Carlsbad Redevelopment Agency, Housing Authority or Carlsbad Municipal Water District) its officials and employees. Re: Professional Engineering Services (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section 11) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of "your work" for that insured by or for you. Subject to all other terms and provisions of the policy, such insurance as provided by this endorsement shall be deemed primary, but only with respect to work performed by or for the named insured in connection with the above described contract. Any other insurance maintained by the Additional Insured(s) shall be excess and non-contributory. CG 20 10 11 85 POLICY #: PST414719 Endorsement Effective: Named Insured: 5/22/03 Harris and Associates Inc. COMMERCIAL AUTO CA 20 48 02 99 Countersigned By: (Authorized Representative) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED INSURED This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM GARAGE COVERAGE FORM MOTOR CARRIER COVERAGE FORM TRUCKERS COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by this endorsement. (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to the endorsement.) Each person or organization shown in the Schedule is an “insured” for Liability Coverage, but only to the extent that person or organization qualifies as an “insured” under the Who Is An Insured Provision contained in Section II of the Coverage Form. Subject to all other terms and provisions of the policy, such insurance as provided by this endorsement shall be deemed primary, but only with respect to work performed by or for the named insured in connection with the above described contract. Any other insurance maintained by the Additional Insured(s) shall be excess and non- contributory. CA 20 48 02 9s Copyright, Insurance Services Office, Inc., 1998 Page 1 of 1 I v) a 0 n 2 a a -- P a W W Y ai 0 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES RBF CONSULTING THIS AGREEMENT is made and entered into as of the fd day of L;1'&U - . , 2003, by and between the CITY OF CARLSBAD, a municipal corpQation, hedinafter referred to as "City", and RBF CONSULTING, a California Corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an Engineering Consultant that B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to City and has affirmed its is experienced in Roadway, Drainage and Traffic Engineering. project basis. services and advice related to Roadway, Drainage and Traffic Engineering. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A, which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The City Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not to exceed one hundred fifty thousand dollars ($150,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 3- - 1 City Attorney Approved Version #04/03/02 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (IO) days after receipt of notification to proceed by City and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by City inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not .- exceed one hundred fifty thousand dollars ($150,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A". Prior to initiation of any project work by Contractor, City shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for City, the City Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a com bin at ion thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 2 City Attorney Approved Version #04/03/02 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees-and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self- administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VI'. Coveracles and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1 3 City Attorney Approved Version #04/03/02 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions : 10.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. Failure to Maintain Coveraae. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.1.2 10.1.4 10.3 Providinq Certificates of Insurance and Endorsements. Prior to 10.4 10.5 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the 4 City Attorney Approved Version #04/03/02 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS City and Contractor relinquishes all claims to the copyrights in favor of City. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES written notice on behalf of City and on behalf of Contractor under this Agreement. The name of the persons who are authorized to give written notices or to receive For City: For Contractor: Name Lloyd Hubbs Name &&~,,.J p. /2bjh Title Public Works Director Title e- ,/:a PfegjAt Dept Public Works City of Carlsbad Address 1635 Faraday Avenue Address q7~5cj&:~--f Id- &OD Carlsbad, CA 92008 &. c#+ e74 24 Phone No. (760) 602-2720 NFY>p) tt4 c c;~~L Address 1635 Faraday Avenue Carlsbad, CA 92008 Phone No. (760) 602-2720 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. 5 City Attorney Approved Version #04/03/02 Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keeD fullv informed of federal. state and local laws and ordinances and regulations which in' any'manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will complv with all applicable local, state and federal laws and regulations prohibiting discdmination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. 6 City Attorney Approved Version #04/03/02 Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 7 City Attorney Approved Version #04/03/02 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms a Executed by Contractor this CONTRACTOR: RBF CONSULTING, a California corporation A,;Ah/J /+A .M A, 'e. 522. d.j? (print nam-e/titIe) st. Exec. VP & CFO ATTEST: LORRAINE M. WOO (print namekitle) v City Clerk (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Chairman, president or vice-president Column B Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney eputy City Attorney "fl 8 City Attorney Approved Version #Q4lQ3/Q2 v CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Orange } ss. On May 28,2003 , before me, Jayne L. Tubb, Notary Public Date Name and Title of Officer (e g , "Jane Doe, Notary Public") Name@.) of Signer@) personally appeared Douglas J. Frost ppersonally known to me proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that 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 Notary Seal Above OPllONA L 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 Document Title or Type of Document: Master Agreement for Professional Engineering Services Document Date: May 28,2003 Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed bbsida Signer's Name: 0 Individual B' Corporate Officer - Title(s): 0 Partner - 0 Limited 0 General U Attorney in Fact Trustee 0 Guardian or Conservator U Other: s J. Frost Executive VP 81. CFO Signer Is Representing: RBF Consulting 0 1997 National Notary Association 9350 De Solo Ave PO Box 2402 - Chatsworth. CA 91313-2402 Prod No 5907 Reorder Call Toll-Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT I State of California , before me, ERIN REBECCA NEWTON, NOTARY PUBLIC on JUNE 9, 2003 Date Name and Title of Officer (e.g., "Jane Doe. Notary Public") I Narne(s) of Signer(s) personally appeared A- RUBIN personally known to me proved to me on the basis of satisfactory evidence Place Notary Seal Above 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. OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the documenf and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SVCS. Document Date: JUNE 9, 2003 Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed b Signer Signer's Name: RICHARIY A. RUBIN Q. Individual Corporate Officer - Titte(s): 0' Partner - Limited 0 General 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: SENIOR V. P . RBF CONSULTING Signer Is Representing: 0 1999 Natha! Notary Association - 9350 De Solo Am.. P.O. Box 2402 - Chatswo*. CA 91313-2402 * www.nationalmlary.org Prod. No. 5907 Rawder: Call Tal-Free 1-8W-876.68!27 C 0 N S U LTI N G March 19, 2003 Mr. Marshall Plantz Senior Civil Engineer City of Carlsbad 1635 Faraday Avenue Carisbad, CA 92008 JN 25-101000 Re: Selection of RBF Consulting for a Roadway, Drainage and Traffic Engineering On- Call Services Agreement Contract Dear Marshall: On behalf of the entire Project Team, we are very excited to have been selected to provide Master Agreement Consulting Services to the City of Carlsbad for roadway, drainage and traffic engineering projects. It is our understanding that the contract duration will be for one year with the potential for two, one-year extensions. The contract value will be between $50,000 and $150,000 for any given contract year. RBF Consulting is completely committed to the City of Carsbad and our 'future partnership to improve the City's infrastructure for local residents, businesses and the general public. We look forward to receiving the City's Agreement and learning more about upcoming projects. Attached is our standard hourly rate schedule for year 2003. If necessary, we can also provide rate schedules for option years. Please call if you need anything from us to support the City Council Hearing. ' Again, thank you for the great news and we will be in touch very soon. ' . Sincerely, Robert R. Gehrke, P.E. Project Manager PLAN N I N G DESIGN CONSTRUCTION 9755 Clawnicn! Mesa Boulevard. Suite 100, San Diego. CA 9212d-:ci24 8% Gill 5000 Far 858 614 500: Offices located throucncut Califorrm Arizona & ideala YNV~ RBFcoq L ;r , , _.-, PXL~C.~ 'ab C 0 N 5 U LTI N G HOURLY RATE SCHEDULE Effective January. 2003 OFFICE PERSONNEL Senior Principal .................................................................................................................................... $200.00 Principal ................................................................................................................................................. 175.00 Project Director ...................................................................................................................................... 155.00 Project Manager ..................................................................................................................................... 136.00 Structural Engineer ................................................................................................................................ 136.00 Electrical Engineer ................................................................................................................................. 120.00 Senior EngineedSenior Planner ............................................................................................................ 115.00 Landscape Architect .............................................................................................................................. 1 1C.00 Project EngineedProject Planner ........................................................................................................... 105.00 Environmental Specialist ....................................................................................................................... 100.00 Corrosion Engineer ................................................................................................................................ 100.00 Design EngineerlSenior DesignerlMapper .............................................................................................. 96.00 Designedplanner ..................................................................................................................................... 84.00 GIS Analyst .............................................................................................................................................. 80.00 Graphic Artist ........................................................................................................................................... 74.00 Environmental AnalysVStaff Planner ....................................................................................................... 73.00 Design Technician ................................................................................................................................... 70.00 Assistant EngineedPlanner ..................................................................................................................... 66.00 Engineering AidlPlanning Aid .................................................................................................................. 54.00 FIELD PERSONNEL 2-Person Survey Crew ........................................................................................................................ $190.00 I-Person Survey Crew ......................................................................................................................... 132.00 Field Supervisor ................................................................................................................................... 124.00 CONSTRUCTION MANAGEMENT PERSONNEL Construction Manager .......................................................................................................................... $135.00 Resident EngineedProject Manager ...................................................................................................... 1 15.00 Senior Construction Inspector ................................................................................................................. 93.00 Construction Inspector ............................................................................................................................. 87.00 Field Office Engineer .......................................................................................................................... 82.00 Construction Technician .................... : .................................. 1 .................................................................. 68.00 OTHERSERVICESANDFEES Permit Processor .................................................................................................................................. $ 65.00 ClericalNVord Processing ....................................................................................................................... 45.00 Consultation Relative to Legal Actions ................................................................................................. 270.00 Vehicle Mileage ................................................................................................................................ 0.40lmile Note . Blueprinting. reproduction . messenger service and other dired expenses will be charged as an additional cost plus 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. subconsultant consultation and insurance . PLANNING DESIGN CONSTRUCTION 5755 Cialremoni Mesa Boulevard Suite 100 San Diego CA 92124-1324 858 614 5000 Fax 853 6 1.1 5001 Offices located rhrouyhodt Californ,a Arizona & Nevada m VVW’C‘ RGFcc.1 e3 I ??-Ld i j. i I :. I i j i I I I i No.265 mEl3 9484548576 1 ' 1-528 P.02/04 PO19 JAN-09-01 lO:31AM FRWRBF CONSULTING .- ..-.- Lams I 1 5 .- .-.. !FA- k. -. 1 If .I -. . RE C'JNSULTING + 6821852 01/09/2083 89: 38 w.265 0864 JAN-08-03 \0:3lAM FROM-RBF CONSULTING 9494541576 7-528 P.03/04 F-810 I ! i -- u i I i ! i ! 1 i i i ! .. -. i I i I .. JAN-08-03 10:31AM FROM-RBF CONSULTING Q484548576 T-628 P 04/04 F-618 POLICY NUMBER: P6 3 0 5 0 OD40 92 0 2 cowYeR@IAc GCNEW LlABlun THIS ENDORSEMEW MANOES TNE POLICY. PLWE READ IT CAR€WUY. ADDITIQNAL INSURED - OWNERS, LESSEES QT CONTRACTORS (FORM B) This eiumsemam modiie imurancc prwldeo under the folWtrt!& COMMERCIAL GWEW UABlLtW COVERAGE PART Name of Pm or Organization: Cicy of Carlsbad Artn; Concracta hdmiaiatrator 2965 Rooaevelt SL., SCe. B Carlabad, CA 92008-2389 PRIMARV INSURANCE! i IT IS UNDERSTOOD AND AGREED THAT THIS INSURANCE IS PRIMARY AND ANY OTXER TNSWCS MAINTAINED BY THE ADPXTIONAI, INSURED SmI, EXCESS ONLY AND NOT CONTRIBUTING WITH TXIS INSWCE . WAIVER OF SUBROGATION: IT XS UNDE!RSTOOD AND AGREED TKhT THE COMPANY WAIVES THE RraHT OF SUBRoaATXOrJ AGAINST THB ADPITSOMU. IMSVRGp(S), BUT ONLY AS RESPECTS THE JOB OR PREMISES DESCRIBED IN THE CERTIFICATE A'JXACHED HERETO. Q005 1: i !/ I ! I i I j ! ._ CO 20 10 11 85 81’09/tB83 @9:38 RBF CONSULTING + 6821052 94945485’16 JAN-00-03 10:31AU FRWRBF CONSULTING 8496568516 T-5ZE P 01/04 F-818 c CERTlFlC ‘E OF L -708 - -2300 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 1187 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD MUNICIPAL WATER DISTRICT, APPROVING MASTER AGREEMENTS WITH DANIEL BOYLE ENGINEERING, KRIEGER & STEWART, RECON, EDAW, NINYO & MOORE, GROUP DELTA MELCHIOR LAND SURVEYING, ANDERSON & BRABANT, HENDRICKSON APPRAISAL SERVICES FOR PROFESSIONAL ENGINEERING, ENVIRONMENTAL PLANNING, GEOTECHNICAL, SURVEYING AND PROPERTY APPRAISAL SERVICES. CONSULTANTS, RIGHT-OF-WAY ENGINEERING SERVICES, WHEREAS, the Board of Directors of the Carlsbad Municipal Water District, has reviewed the need for the utilization of consultant services by the Department of Public Works on an ongoing, as-needed basis in order to maintain service levels; and WHEREAS, the Department of Public Works solicited, received and reviewed Statements of Qualifications for as-needed professional engineering, environmental planning, geotechnical, surveying, and appraisal services consistent with Carlsbad Municipal Code section 3.28.070; and WHEREAS, subsequent to a review of the Statements of Qualifications, staff recommends Daniel Boyle Engineering, Krieger & Stewart, RECON, EDAW Inc., Ninyo & Moore, Group Delta Consultants, Right-of-way Engineering Services, Melchior Land Surveying, Anderson & Brabant, and Hendrickson Appraisal, as the most qualified consultants for the disciplines listed above; and WHEREAS, expenditures for these professional services are subject to availability of capital project funding; NOW, THEREFORE, BE IT RESOLVED by the Carlsbad Municipal Water District, as follows: 1. 2. That agreements with Daniel Boyle Engineering, Krieger & Stewart, RECON, EDAW Inc., Ninyo & Moore, Group Delta Consultants, Right-of-way Engineering Services, Melchior Land Surveying, Anderson & Brabant, and Hendrickson Appraisal, copies of which are attached as Exhibits 15 thru 24 to Agenda Bill No. 17,266 , are hereby approved. That the President of the Carlsbad Municipal Water District is hereby authorized and That the above recitations are true and correct. 3. jirected to execute the agreements with Daniel Boyle Engineering, Krieger & Stewart, RECON, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EDAW Inc., Ninyo & Moore, Group Delta Consultants, Right-of-way Engineering Services, Melchior Land Surveying, Anderson & Brabant, and Hendrickson Appraisal for, and on behalf of, the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad Municipal Water District held on the 5th day of AUGUST , 2003 by the following vote, to wit: AYES: Board Members nis, Finnila, Kulchin, Hall, Packard ATTEST (SEAL) MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES DANIEL BOYLE ENGINEERING THIS AGREEMENT is made and entered into as of the &?M day of 2003, by and between the CARLSBAD MUNICIPAL WATER OlST'f%kcy organized under the Municipal Water Act of 191 1, and a subsidiary District of the City of Carlsbad hereinafter referred to as "District", and DANIEL BOYLE ENGINEERING, a California Corporation, hereinafter referred to as "Contractor." RECITALS A. District requires the professional services of a Professional Engineering Consultant that is experienced in Water, Recycled Water and Sewer Utilities Engineering. B. The professional services are required on a non-exclusive, project-by- project basis. C. Contractor has the necessary experience in providing professional services and advice related to Water, Recycled Water and Sewer Utilities Engineering. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to District and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, District and Contractor agree as follows: 1. SCOPE OF WORK District retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 1 3. - TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The Executive Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not-to-exceed one hundred fifty thousand dollars ($150,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, District needs, and appropriation of funds by the District Board. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (10) days after receipt of notification to proceed by District and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by District inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred fifty thousand dollars ($150,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A". Prior to initiation of any project work by Contractor, District shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for District, the Executive Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of District. Contractor will be under control of District only as to the result to be accomplished, but will consult with District as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of District for any purposes. 2 The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. District will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. District will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify District within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which District may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the District's election, District may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of District. If Contractor subcontracts any of the Services, Contractor will be fully responsible to District for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and District. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by District. 8. OTHER CONTRACTORS Services. The District reserves the right to employ other Contractors in connection with the 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the District 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 in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense District incurs or makes to or on behalf of an injured employee under the District's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 3 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VI'. 10.1 Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless General Counsel or Executive Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. District, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability. (if the use of an automobile is involved for Contractor's work for District). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to District's satisfaction, a declaration stating this. Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The Carlsbad Municipal Water District will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to District sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providinq Certificates of Insurance and Endorsements. Prior to District's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to District. 10.1.2 10.1.4 4 10.4 Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then District will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by District to obtain or maintain insurance and District may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. District reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.5 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of District during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of Bstrict. In theevent this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to District. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS District and Contractor relinquishes all claims to the copyrights in favor of District. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES The name of the Dersons who are authorized to aive written notices or to receive written notice on behalf 6f District and on behalf of ContFactor under this Agreement. For District: For Contractor: Name Lloyd Hubbs Name Thomas B. Hooker, Jr. Carlsbad Municipal Water District Address 1635 Faraday Avenue Address 23231 South Pointe Drivr Phone No. (760) 602-2720 Phone No. 949-768-2600, ext. 11 4 Title President Carlsbad, CA 92008 Suite 103, Laguna Hills, CA 92653 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 5 16. CONFLICT OF INTEREST District will evaluate Contractor’s duties pursuant to this Aqreement to determine whether disclosure under the Political Reform Act and City’s Coniict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the Secretary those schedules specified by District and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor’s agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor’s agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the District an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor’s services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED regulations prohibiting discrimination and harassment. Contractor will comply with all applicable local, state and federal laws and 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolveany questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or District will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the Executive Manager. The Executive Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the Executive Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 6 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, District may terminate this Agreement. for nonperformance by notifying Contractor by certified mail of the termination. If District decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, District may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by District and all work in progress to District address contained in this Agreement. District will make a determination of fact based upon the work product delivered to District and of the percentage of work that Contractor has performed which is usable and of worth to District in having the Agreement completed. Based upon that finding District will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of District, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to District. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. District will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, District will have the . right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to District must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to District, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If District seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for District to terminate this Agreement. 7 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court' of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon District and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of District, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill a 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this [& day of ,A, , 20 6 . CONTRACTOR: CARLSBAD MUNICIPAL WATER DANIEL BOYLE ENGINEERING, Thomas B. Hooker, Jr., President (print namehitle) By: (sign here) (print namehitle) ATTEST: Secretary (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Column B Chairman, president or vice-president Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the off icer(s) signing to bind the corporation.) CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 191 1, and a subsidiary District of the City of Carlsbad APPROVED AS TO FORM: RONALD R. BALL, General Counsel BY: uty General Counsel 9 i i i i i i i i i i i i i i i i i i i i i 0 State of California \ firsonally known to me - OR- 0 proved to me on the basis of satisfactory evidence to be the personcs) whose name@) idare subscribed to the within instrument and acknowledged to me that hdshdthey 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. i I i i i i i -i i i i i OPTIONAL INFORMATION The information below is not required by law. However, it could prevent fraudulent attachment of this abowl- edgment to an unauthorized document. ? CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCU~NT 1 0 I~DWIDUAL 0 CORPORATE OFFICER i rn i TITLE OR TYPE OF DOCUMENT TITLE(S) 0 PAR"JER(S) 0 ATTORNEY-IN-FACT i NUMBER OF PAGES 0 TRUSTEE(S) GUARDIAN/CONSERVATOR 0 OTHER: i 0 DATE OF DOCUMENT SIGNER IS REPRESENTING: i i NAME OF P€RSON(S) OR ENTm(1ES) OTHER 0 VUEY-SIERRA, 800-362-3369 APA 1194 D~NIEL BOYLE ENGINEERING Co n 5 u I tin g En gin e e rs CERTIFIED RESOLUTION OF BOARD OF DIRECTORS I OF DANIEL BOYLE ENGINEERING, INC. I, Lois E. Hooker, Secretary of Daniel Boyle Engineering, Inc., a corporation organized March 23, 1982 and existing under the laws of the State of California, do hereby certify that at a duly convened meeting of the Board of Directors of Daniel Boyle Engineering, Inc., held on the 7th day of March, 2002, at the offices of said corporation at 23231 South Pointe Drive, Suite 103, Laguna Hills, CA 92653, the following resolution was duly adopted: RESOLVED: That the following company officer is designated and authorized to execute and sign documents, or to sign the corporate name without limitation, except where otherwise provided by law, and such execution or signature shall be binding on the corporation: Thomas B. Hooker, Jr.; President IN WITNESS WHEREOF, I have hereunto set my hand as of the 7th day of March, 2002. 23231 South Pointe Drive Suite 103 Laguna Hills * CA - 92653 - (949) 768-2600 - Fax (949) 586-51 88 - www.dboyle-eng.corn CITY OF CARLSBAD Engineering Department 1635 Faraday Avenue Carlsbad, CA 92008 . ,- -. , .- 6, - DC~NIEL BOYLE ENGINEERING ’- 1- ’. , March 2 1, 2003 Atteiition; Mr. Maishall Pla:itz, ?.E. Senior Civil Engineer City of Carlsbad Master Agreement Consulting Services for Water, Recvcled Water and Sewer Utilitv Engineering Thank you for the notification of our selection to provide As-Needed Engineering Services for Water, Recycled Water and Sewer Utility projects. In accordance with your request, attached herewith is a copy of our hourly rates for 2003. If you have any other questions or need additional information, please do not hesitate to contact us. DANIEL BOYLE ENGINEERING Daniel G. Smith, P.E. Principal Engineer DG S:j rn b End. B99-197-01 DGS 103-2 1.197-01 .wpd 3142 Vista Way - Suite 303 - Oceanside CA * 92056 (760) 433-8710 Fax (760) 433-9709 - www.dboyle-eng.com L- A - .I HOURLY RATE SCHEDULE FOR SERVICES BY DANIEL BOYLE ENGINEERING March 1, 2003 CLASS I F I CAT1 0 N BILLING RATE Managing Engineer .................................... $146.00 per hour Principal Engineer .................................... $1 35.00 per hour Senior Engineer II ..................................... $1 15.00 per hour Senior Engineer I ..................................... $109.00 per hour Senior Engineer ...................................... $100.00 per hour Associate Engineer II .................................... $93.00 per hour Associate Engineer I .................................... $88.00 per hour Senior Assistant Engineer ................................ $81 .OO per hour Assistant Engineer II .................................... $77.00 per hour Assistant Engineer I ..................................... $70.00 per hour Construction Representative .............................. $77.00 per hour Senior Designer II ...................................... $86.00 per hour Senior Designer I ...................................... $79.00 per hour Designer.. ........................................... $70.00 per hour CAD / Drafter II ....................................... $64.00 per hour CAD/DrafterI ........................................ $54.00perhour Intern /Aide ......................................... $46.00 per hour Word Processor ....................................... $59.00 per hour Color Exhibit Plotting ................................... 2.00 per sq. foot Mylar Plotting ......................................... 3.00 per sq. foot Other Supplies & Outside Services .................... Actual Cost Plus 10% Subconsultants .................................... Actual Cost Plus 10% Court Appearance, Expert Witness ....................... $250.00 per hour . Preparation for Testimony, Deposition, 4 Hour Minimum, Plus Expenses It is agreed that the above rates and charges include normal clerical services (excluding word processing), auto travel, equipment and materials used in connection with providing our engineering services, except as noted above or within our written proposal or agreement. Monthly billings will be furnished for all services rendered. Payments shall be due and payable upon presentation of invoices. All rates are effective until March 1, 2004. For contracts beyond March 1, 2004 there will be a 4% increase per year, unless otherwise agreed upon in writing. All fees will be billed using the current rate in effect unless otherwise stipulated by proposal or agreement. MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES KRIEGER & STEWART, INCORPORATED made and entered into as of the B& day of 2003, by and between the CARLSBAD MUNICIPAL WATER subsidiary District of the City of Carlsbad hereinafter referred to as "District", and KRIEGER & STEWART, INCORPORATED, a California Corporation, hereinafter referred to as "Contractor." organized under the Municipal Water Act of 191 1 , and a RECITALS A. District requires the professional services of a Professional Engineering Consultant that is experienced in Water, Recycled Water and Sewer Utilities Engineering. B. The professional services are required on a non-exclusive, project-by- project basis. C. Contractor has the necessary experience in providing professional services and advice related to Water, Recycled Water and Sewer Utilities Engineering. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to District and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, District and Contractor agree as follows: 1. SCOPE OF WORK District retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 1 3- - TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The Executive Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not-to-exceed one hundred fifty thousand dollars ($150,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, District needs, and appropriation of funds by the District Board. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (10) days after receipt of notification to proceed by District and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by District inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred fifty thousand dollars ($150,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A'. Prior to initiation of any project work by Contractor, District shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for District, the Executive Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of District. Contractor will be under control of District only as to the result to be accomplished, but will consult with District as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of District for any purposes. 2 The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. District will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. District will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify District within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which District may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the District's election, District may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of District. If Contractor subcontracts any of the Services, Contractor will be fully responsible to District for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and District. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by District. 8. OTHER CONTRACTORS The District reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the District 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 in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense District incurs or makes to or on behalf of an injured employee under the District's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 3 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V". 10.1 Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless General Counsel or Executive Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. District, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liabilitv. (if the use of an automobile is involved for Contractor's work for District). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to District's satisfaction, a declaration stating this. Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The Carlsbad Municipal Water District will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to District sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providinq Certificates of Insurance and Endorsements. Prior to District's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to District. 10.1.2 10.1.4 4 10.4 Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then District will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by District to obtain or maintain insurance and District may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. District reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with resDect to costs incurred under this Agreement. All 'records will be clearly identifiable. Contractor will allow a representative of District during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of District. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to District. Contractor will have the right to make one (1) copy of the work product for Contractor's records. ' 14. COPYRIGHTS District and Contractor relinquishes all claims to the copyrights in favor of .District. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES The name of the persons who are authorized to Qive written notices or to receive written notice on behalf of District and on behalf of ContTactor under this Agreement. For District: For Contractor: Name Jon C. Reynolds, P.E. - Name Lloyd Hubbs Title vice Pre - 1 , t Krieger & Stewart, Incorporated Carlsbad Municipal Water District Address 1635 Faraday Avenue Address 3602 University Avenue Phone No. (760) 602-2720 Phone No. (909) 684-6900 Carlsbad, CA 92008 Riverside. CA 92501 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 5 16. CONFLICT OF INTEREST District will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the Secretary those schedules specified by District and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor’s agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor’s agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the District an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keeD fullv informed of federal, state and local laws and ordinances and regulations which in’any’manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor’s services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED regulations prohibiting discrimination and harassment. Contractor will comply with all applicable local, state and federal laws and 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or District will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the Executive Manager. The Executive Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the Executive Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 6 20. TERMINATION In the event of the Contractor's failure to Prosecute, deliver, or Perform the Services, District may terminate this Agreement' for nonperformance by notifying Contractor by certified mail of the termination. If District decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, District may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by District and all work in progress to District address contained in this Agreement. District will make a determination of fact based upon the work product delivered to District and of the percentage of work that Contractor has performed which is usable and of worth to District in having the Agreement completed. Based upon that finding District will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of District, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to District. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. District will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement, For breach or violation of this warranty, District will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By. signing this Agreement, Contractor agrees that any Agreement claim submitted to District must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to District, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If District seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for District to terminate this Agreement. 7 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon District and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of District, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. a 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this 23rd day of ,2003 . CONTRACTOR: CARLSBAD MUNICIPAL WATER KRIEGER & STEWART, INCORPORAT Jon C. Reynolds, Vice President ATTEST: Charles A. Krieger, Secretary (print n ame/t i t le) LORRAINE M. WUOD Secretary (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Chairman, president or vice-president Column B Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 191 1 , and a subsidiary District of the City of Carlsbad APPROVED AS TO FORM: RONALD R. BALL, General Counsel BY: 7ieputy General Counsel 9 NOTARY ACKNOWLEDGEMENT State of California County of Riverside On May 23, 2003, before me, Kim Renee' Soto, a Notary Public, personally appeared Jon C. Reynolds and Charles A. Krieger, Personally known to me -or- 0 Proven to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the attached instrument and acknowledged to me that they executed same in their authorized capacities, and that, by their signatures on the instrument, the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and offtcial seal. Signature of Notary Notary Seal OPTIONAL INFORMATION Capacity Claimed by Signer Description of Attached Document Individual Master Agreement for Professional Engineering Services (PW Eng 3 57) Document Title or Type 1 XI Cornorate Officers: 1. Vice President and Secretary, respectively Title($ ~. 12 Partner(s): 0 Limited General Number of Pages Attorney-in-Fact Trustee(s) rI GuardidConservator Document Date To be dated by the City of Carlsbad Other: Carlsbad Municipal Water District representatives (Executive Manager or President; Lorraine M. Wood; Ronald R. Ball) Other Signer(s) Signers are Representing: Name of Entity Krieger & Stewart, Incorporated KRIEGER INCORPORATED ENGINEERING CONSULTANTS 35 ~~~iI~if~fp?~Iverstde, CA 92501 -3380 Tel 909-684-6900 Fox 909-684-6986 STEWmT March 17,2003 000-237.5 Marshall Plantz, Senior Civil Engineer City of Carlsbad Engineering Department 163 5 Faraday Avenue Carlsbad, CA 92008 Subject: Master Agreement Consulting Services For Water, Recycled W-ater ana Sewer Frojects Dear Mr. Plantz: We are pleased to have been selected to provide engineering services to the City of Carlsbad Engineering Department (hereinafter City) for water, recycled water, and sewer projects per your December 19, 2002 request for qualifications. As requested, we are submitting our current fee schedule for your review and approval. Please note that our the fees shown therein will remain current through June, 2003, but are subject to change on or about July 1 of each year. We anticipate the fees will increase between 3% and 5%, depending upon cost of living and salary increases. Again, we are pleased to provide engineering services to the City, and will execute the annual agreement once received. Sincerely, JCWblt 23 7P5-MP-L 1 Enclosure: Fee Schedule 2002/2003 KRIEGER IN CO RP 0 R A1 E D FEE SCHEDULE 2QQ2l2QQ3 CLASSIFICATION Engineering Services Consulting Engineer Principal Engineer Senior Engineer Associate Engineer Staff Engineer I Staff Engineer I1 Staff Engineer iiI Staff Technician Environmental Services Senior Specialist Associate Specialist Staff Specialist I Staff Specialist I1 Staff Specialist 111 Staff Technician Forensic Services Senior Expert Witness Testimony Investigation Testimony Investigation Associate Expert Witness Computer Aided Design Services Senior Operator I Senior Operator I1 Senior Operator 111 Staff Operator 1 Staff Operator I1 Staff Operator 111 Surveying Services Principal Surveyor Senior Surveyor Associate Surveyor Staff Surveyor I Staff Surveyor I1 Staff Surveyor 111 Staff Technician 2 Man Crew with Survey Truck (including mileage) and Global Positioning 2 Man Crew with Survey Truck (including mileage) and Standard Equipment E System Equipment 1 Man Crew with Global Positioning System Equipment RATES $Mr. 165 .OO 135.00 120.00 107.00 96.00 84.00 72.OG 59.00 120.00 107.00 96.00 84.00 72.00 59.00 260.00 185.00 2 10.00 160.00 86.00 8 1 .OO 76.00 72.00 68.00 62.00 135.00 120.00 107.00 96.00 84.00 72.00 59.00 230.00 190.00 Page 1 of 2 KQIEGER WART INCORPORATED FEE SCHEDULE 2002f2003 (continued) CLASSIFICATION Construction Services Resident Engineer Construction Inspector Regular Time Overtime Weekdays (8 hours to 12 hours) Weekdays (More thm 12 hours) Saturday (1 2 hours or less) Saturday (More than 12 hours) Sunday Holidays (New Years Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day and the Day After, Christmas Day) Support Services Senior Secretary Staff Secretary I Staff Secretary I1 Utility Technician Utility Clerk RATES %/Hr. 96.00 75.00 90.00 105 .OO 90.00 105 .OO 105.00 135.00 57.00 51.00 46.00 43.00 40.00 Outside Services Special Consultants and Purchased Services Cost -+ 15% Reimbursable Expenses Vehicle Mileage (excluding survey trucks) Air Fare, Ground Fare, Parking, and Subsistence Copies, Prints, Telephone, Delivery, and Sundry Charges 0.45Mle cost cost The above rates are subject to change on or about July 1 each year due to salary and cost increases, except for Construction Inspector and Survey Crew rates which are also subject to change if California Department of Industrial Relations issues new prevailing wage determinations during the course of the year. TERMS OF PAYMENT: Unless charge accommodations have been established beforehand, all accounts shall be prepaid. For accounts having charge accommodations, payment in full shall be made within 25 days of date of invoice. Any amount unpaid within said 25 days will be assessed a service charge of 1 1/2% per month (1 8% annual percentage rate), with a minimum charge of $1.00. Accounts with a past due balance of 25 or more days are subject, without notice, to credit discontinuance and mechanic's lien or stop notice. If it becomes necessary for Krieger & Stewart to instigate legal proceedings for the collection of any balance due, the action shall be brought and tried in the Judicial Districts wherein Krieger & Stewart offices are located. Client agrees that the court may award reasonable attorney's fees and costs of suit to the prevailing party. CSI 10D003-FEES-PW Page 2 of 2 0207 Policy Ndmber: MZX80807293 Krieger & Stewart, Incorporated E% 11/15/2002 to 11/15/2003 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS (FORM B) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART. SCHEDULE Name of Person or Organization: City of Carlsbad, City of Carlsbad Redevelopment Agency, Housing Authority Carlsbad Municipal Water District, their omcials, employees and volunteers are Named as additional insureds. (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement .) WHO IS AN INSURED (Section 11) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of “your work” for that insured by or for you. RE: Engineering Design Services for the Poinsettia Lift Station - Project #38401 CG 20 10 I1 85 Copyright, Insurance Services Office, Inc., 1984 a CERTIFICATE OF LIABILITY INSURANCE I INSURERS AFFORDING COVERAGE Ig26~9070 I DATE (MWWYYJ Oslwps INSURERA: Zurich Amerkan lnaunnce Co. ("!! INsLlRED I INSURER 8: INSURER C INSURER D: Kriegor & Stewart, Inc. 3802 Unhrersky Avenue Rhrerskle, CA 92501 PROLXJCER Dealey, Ronton & Assoclateo 600 S. Lake Ave, Sulte 308 Pasadona, CA 91 106 I 1 I INSURER E: I :OVERAGES THE POLI(3ES OF INSURANCZ L.IsIED BELOW HAW BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOlWTIHSTAND ANY REQUIREMENT, TERM OR CONDITTON OF ANY COKIXACT OR OTHER DOCUMENT lUTH RESPECT TO WHIM THIS CXRTlFICAm MAY BE ISSUED 0 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIRCATE HOLDER THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. MAY PERTAIN, TRE INSWU! AFFORDED BY ?HE POLICIES DESCRIESED HER" IS SUBECT TO Au THE TERMS. EXCLUSIONS AND CONDITIONS OF SU POLICIES. AGGREGATE LIMITS SHOWN MAY K4E BEEN WUCED BY PAID CUJMS. POLICT EFTECTIYE POUCY EXPUUTlOl rsa I TWE OFINSURANCE POUCY NUMBER CERTIFICATEHOLDER I I ADDmONALNS~D;MSUl(eRLEITIER: CANCELLATION SHOULDANYCWTHEABOVEDFSCRIBEDFQLKJES BECANCEllEDBEFCKETHEEXPOUTION Clty of Carlsbad DATE THERE-, THE I~NG INSURER WILLENDEAVCR TOMAILDAYS W~N Englneerlng Department 1896 Faraday Avenue Carlsbad, CA 92008-7314 REPReSIZNTATIVEB NUllCETOTHE CERmXATE HCXDERNAMEDTOTHEL&FI', BUTFALURE TODOSOSHALL IMPOSE NO OBLIGATI~ ORLIABL~Y OF ANY KIND UPON THE h'SURE&lrs AGENTS OR 1 JMV 0 ACORD CORPORAnON 198% ACORD 25-S (7197) 1 of 1 #S87968/M80007 GENERAL LIABILITY - COMMBRClALGENERAL LL4BlLRy J cum -E wcm ipaI,nE n Loc GBN'LMiGREGATE LlMFAPPUES PER: AUl'OMOBILE WABIUW - ANYAUTO ALL OWNED AUTOS SCHEDULEDAUTCS - HIREDAUTCS NON-OWNEDAUTCS H- RR 1.L. MCHACCIDENT 3.L.DIM -EABMPLOYEE 3.L.DISBASB -POLICYLIMIT I s s S I I I I hGE LIABILITY 9 ANYAW0 ~HER Professional EOC491042900 1 011 sp2 lO/lslOs Jabllky I. I I (RETENTION S I I WORKERSCOMF'ENSATIONAND EMPLCRERP LIABILITY LIMl MM OCCURRENCE RREDAMAGE(Anlonefirc) MED Bxp (Ally Mcpmn) PERSONAL & ADV INJURY C8NERAL AGGRKiATE PRODUCPS -coMP/opAG3 COMBINED SINGLE LlMiT @. ddnt) BODILY INJURY v= -) BODILY INJURY (ps .ctihrt) PROWRTY DAMAGE Bs mi-) AUTO ONLT - EA ACCIDENT PAM OCCURRENCE AGGREGATE , MASTER AGREEMENT FOR PROFESSIONAL ENVIRONMENTAL PLANNING SERVICES RECON THIS AGREEMENT’ is made and entered into as of the f$4 day of 2003, by and between the CARLSBAD MUNICIPAL WATER DISkflPublic AgLncy organized under the Municipal Water Act of 1911, and a subsidiary District of the City of Carlsbad hereinafter referred to as “District”, and RECON, a California Corporation, hereinafter referred to as “Contractor.” RECITALS A. District requires the professional services of a Professional Engineering B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to District and has affirmed its Consultant that is experienced in Environmental Planning. project basis. services and advice related to Environmental Planning. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, District and Contractor agree as follows: 1. SCOPE OF WORK District retains Contractor to perform, and Contractor agrees to render, those services (the “Services”) that are defined in attached Exhibit “A”, which is incorporated by this reference in accordance with this Agreement’s terms and conditions. Contractor’s obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor’s profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 1 3. TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The Executive Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not-to-exceed one hundred thousand dollars ($1 00,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, District needs, and appropriation of funds by the District Board. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (IO) days after receipt of notification to proceed by District and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by District inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($1 00,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A. Prior to initiation of any project work by Contractor, District shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for District, the Executive Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of District. Contractor will be under control of District only as to the result to be accomplished, but will consult with District as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of District for any purposes. 2 The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. District will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. District will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify District within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which District may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the District's election, District may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of District. If Contractor subcontracts any of the Services, Contractor will be fully responsible to District for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and District, Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by District. 8. OTHER CONTRACTORS The District reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the District 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 in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense District incurs or makes to or on behalf of an injured employee under the District's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 3 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VI'. 10.1 Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless General Counsel or Executive Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. District, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate] Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liabilitv. (if the use of an automobile is involved for Contractor's work for District). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to District's satisfaction, a declaration stating this. Professional. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The Carlsbad Municipal Water District will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage] excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to District sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providinq Certificates of Insurance and Endorsements. Prior to District's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to District. 10.1.2 10.1.4 4 10.4 Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then District will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by District to obtain or maintain insurance and District may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. District reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of District during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. Contractor will obtain and maintain a City of Carlsbad Business License for the 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of astrict. In theevent this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to District. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS District and Contractor relinquishes all claims to the copyrights in favor of District. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of District and on behalf of Contractor under this Agreement. For District: For Contractor: Name Lloyd Hubbs Name marlps ~,~11 Carlsbad MuniciDal Water District Title ETeqi dent 927 Fifth Ave. [blyjl 308 9333 101 - Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 5 16. CONFLICT OF INTEREST District will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor‘s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the Secretary those schedules specified by District and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor‘s agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor’s agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the District an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any-manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor’s services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED regulations prohibiting discrimination and harassment. Contractor will comply with all applicable local, state and federal laws and 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or District will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the Executive Manager. The Executive Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the Executive Manager will be blinding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 6 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, District may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If District decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, District may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by District and all work in progress to District address contained in this Agreement. District will make a determination of fact based upon the work product delivered to District and of the percentage of work that Contractor has performed which is usable and of worth to District in having the Agreement completed. Based upon that finding District will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of District, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to District. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. District will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, District will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to District must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to District, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et sea, the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If District seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for District to terminate this Agreement. 7 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon District and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of District, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 8 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this 4 day of CONTRACTOR: RECON, a California corporation - By: ps Tign here) CARLSBAD MUNICIPAL WATER E"mn6ger Wrtkiflent ATTEST: (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Column B Chairman, president or vice-president Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(@ signing to bind the corporation.) CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 191 1 , and a subsidiary District of the City of Carlsbad APPROVED AS TO FORM: RONALD R. BALL, General Counsel Deputy General Counsel B; 9 1927 Fifth Avenue Son Diego CA 92101 2358 P6193089333 F 6193089334 w recon-us COT RECC N RECEIVED HAR 14 2003 ENGINEERING DEPARTMENT March 13,2003 Mr. Marshall Plantz Senior Civil Engineer City of Carlsbad Engineering Department 1635 Faraday Avenue Carlsbad, CA 92008 Reference: Master Agreement Consultant Services - EnvironmentaWlanning Studies (RECON Number 02-375) Dear Mr. Plantz: RECON is pleased to be selected by the City of Carlsbad (City) on March 13,2003 to provide EnvironmentaVPlanning Services under a Master Agreement for Consultant Services. We understand that this is a one-year agreement with the potential for two, one-year extensions. As requested, I have attached our current billing rates. We look forward to assisting you in meeting your environmental review and processing requirements for the City's Capital Improvement Program projects. Please call me if you need additional information or to discuss upcoming projects. Sincerely, " Principal LAS : tlg Enclosure CURRENT HOURLY RATES Position Expert Witness Principal Senior Associate Assistant Research Assistant GIS Specialist Production Supervisor Production Specialist III Production Specialist I1 Production Specialist I Specialist I11 Specialist 11 Specialist I Resource Monitor I1 Resource Monitor I Technician I11 Technician II Technician I Field Supervisor Field Crew Chief Field Technician Seed Specialist $200.00 $129.00 $100.00 $87.00 $78.00 $52.00 $52.00 $53.00 $43.00 $36.00 $31 .OO $77.00 $67.00 $57.00 $50.00 $40.00 $31.00 $26.00 $21.00 $30.00 $22.00 $18.00 $22.00 Unless otherwise agreed upon, RECON shall charge, at cost, for blueprinting and reproduction desired by the client or public agencies, out-of-town transportation and expenses, and telephone calls. An administrative fee of 10% shall be added to all subcontractor’s charges. Personnel rates are in effect from July 1,2002, through June 30, 2003. Increases occur annually on July 1. RECON 1927 Fifth Avenue Son Diego, CA 92101-2358 619 1 308-9333 fax 308-9334 www.recon-uscorn ...,.,,_... ._.. .r. ... . I . ... .. . . . .. ., . .. ... _i . I I .. ... . . . . . .. ..I. .. '. . r . 5). , '. ,\. ... ;e.\ :.i d * ..." a"". :. .. , _. ;,:. ._ .: I , . , CALIFORNIA ALGPUR POSE ACKNOWLEDGMENT Pa 519 County of sital Qiao NAME, TITLE OF OFFICER - E G , 'JANE DOE, NOTARY PUBLIC' % before me, On DATE (!,W3 5. &u. MQ Dim6 PQW~O%UL , NAME(S) OF SIGNER(S) personally appeared $ personally known to me - 1 to be the person(s) whose name(s) islare subscribed to the within instrument and ac- knowledged to me that hdshe/they executed the same in bkdlmrltheir authorized capacity(ies), and that by ki9Ckerltheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. SIGNATURE OF NOTARY - OPTIONAL SECTION - CAPACITY CLAIMED BY SIGNER Thwgh statubdoes nol require the Notaryto fill in the data below, doing so may prove invaluable to persons relying on the document c] INDIVIDUAL 0 PARTNER@) LIMITED 0 GENERAL 0 ATTORNEY-IN-FACT 0 TRUSTEE(S) 0 GUARDIANCONSERVATOR OTHER: I I ! SIGNER IS REPRESENTING: i I OPTIONAL SECTION THIS CERTIFICATE MUST BE AITACHED TO TITLE OR P~PE OF DOCUMENT- UM &m em t NUMBER OF PAGESq @% -A DATE OF DOCUMENT 9 b 3 1 THE DOCUMENT DESCRIBED AT RIGHT: Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. SIGNER@) OTHER THAN NAMED ABOV 61993 NATIONAL NOTARY ASSOCIATION 8236 Remmet Ave., P.O. Box 7184 * Canoga Park, CA 91309-71M MASTER AGREEMENT FOR PROFESSIONAL ENVIRONMENTAL PLANNING SERVICES EDAW, INC. made and entered into as of the 84, day of , 2003, by and between the CARLSBAD MUNICIPAL WATER subsidiary District of the City of Carlsbad hereinafter referred to as "District", and EDAW, INC., a California Corporation, hereinafter referred to as "Contractor." organized under the Municipal Water Act of 1911, and a RECITALS A. District requires the professional services of a Professional Engineering B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to District and has affirmed its Consultant that is experienced in Environmental Planning. project basis. services and advice related to Environmental Planning. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, District and Contractor agree as follows: 1. SCOPE OF WORK District retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 1 3. TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The Executive Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not-to-exceed one hundred thousand dollars ($1 00,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, District needs, and appropriation of funds by the District Board. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (10) days after receipt of notification to proceed by District and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, as his designee will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of Contractor, or delays caused by District inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars~($l00,000) per fiscal year. Fees-will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A". Prior to initiation of any project work by Contractor, District shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for District, the Executive Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of District. Contractor will be under control of District only as to the result to be accomplished, but will consult with District as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of District for any purposes. 2 The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. District will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. District will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify District within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which District may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the District's election, District may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of District. If Contractor subcontracts any of the Services, Contractor will be fully responsible to District for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and District. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by District. 8. OTHER CONTRACTORS Services. The District reserves the right to employ other Contractors in connection with the 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the District 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 in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense District incurs or makes to or on behalf of an injured employee under the District's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 3 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VI'. 10.1 Coveraaes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless General Counsel or Executive Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. District, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability. (if the use of an automobile is involved for Contractor's work for District). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to District's satisfaction, a declaration stating this. Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The Carlsbad Municipal Water District will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to District sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providinq Certificates of Insurance and Endorsements. Prior to District's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to District. 10.1.2 10.1.4 4 10.4 Failure to Maintain Coveraae. If Contractor fails to maintain any of these insurance coverages, then District will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by District to obtain or maintain insurance and District may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. District reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.5 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with resDect to costs incurred under this Agreement. All 'records will be clearly identifiable. Contractor will allow a representative of District during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of District. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to District. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS District and Contractor relinquishes all claims to the copyrights in favor of District. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES , The name of the persons who are authorized to give written notices or to receive written notice on behalf of District and on behalf of Contractor under this Agreement. For District: For Contractor: Name Lloyd Hubbs Name Teri Fenner Carlsbad MuniciDal Water District Title Principal Address 1635 Faraday Avenue Address 1420 Kettner Blvd. Suite 67 0 Carlsbad, CA 92008 San Diego, CA 97101 Phone No. (760) 602-2720 Phone No. &19) 333-1454 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 5 16. CONFLICT OF INTEREST District will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the Secretary those schedules specified by District and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor’s agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor’s agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the District an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor’s services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED regulations prohibiting discrimination and harassment. Contractor will comply with all applicable local, state and federal laws and 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or District will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the Executive Manager. The Executive Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the Executive Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 6 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, District may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If District decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, District may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by District and all work in progress to District address contained in this Agreement. District will make a determination of fact based upon the work product delivered to District and of the percentage of work that Contractor has performed which is usable and of worth to District in having the Agreement completed. Based upon that finding District will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of District, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to District. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. District will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not emdoved or retained any comDanv .- or person, other than a bona fide employee working for Contractor, to solicii 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, District will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to District must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to District, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If District seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for District to terminate this Agreement. 7 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon District and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of District, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. . Ill 8 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of thk Agreement- Executed by Contractor this 2%% day of h# ,20 03 . CONTRACTOR: CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 191 1, ATTEST: (sign here) By: ~ftm R- I sgpec I RR? (print namehitle) i LORRAINE M. Wd6D Secret a ry (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Column B Chairman, president or vice-president Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 191 1, and a subsidiary District of the City of Carlsbad APPROVED AS TO FORM: RONALD R. BALL, General Counsel eputy General Counsel Byl 9 ED4W INC 1420 KETTNER BOULEVARD SUITE 620 SAN OlEGO CALIFORNIA 92101 TEL 619 233 1454 FAX 619 233 0952 www.edaw.com March 13,2003 Mr. Marshall Plantz Senior Civil Engineer City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 RECEIVEC ENGIMEER!NG DEPARTMENT Subject: Statement of Qualifications - Master Agreement Consulting Services, EnvironmentaWlanning Studies Dear Mr. Plantz: EDAW is thrilled to have been selected by the City of Carlsbad (City) as one of two on-call consultants to support the City in the area of Environmental/ Planning Studies. As requested, our schedule of fees is attached. We look forward to completing the contracting phase so we can begin immediately worlung with you and other City staff. Please do not hesitate to call if you need anything else. Both Teresa Wilkinsori and I are eager to schedule a meeting in Carlsbad. Sincerely, Teri Fenner Principal UNITE0 STATES EUROPE AUSTRALIA ASIA DESIGN. PLANNING AND ENVIRONMENTS WORLDWIDE €DAW INC SCHEDULE OF FEES 1420 KETTNER BLVD SUITE 620 Environmental Services Sumort Services SAN DIEGO CALIFORNIA Environmental Principal $195 Technical Editor 92101 Senior Environmental Engineer $140 GIS Specialist I11 Senior Environmental Associate $135 GIS Specialist 11 Senior Environmental Project Manager $1 15 GIS Specialist I TEL 619 233 1454 Environmental Project Manager Environmental Engineer www .daw corn Environmental Specialist Environmental Analyst Environmental Monitor Environmental Technician ?AX 619 233 0952 UNITED STATES EUROPE AUSTRALIA ASIA BioioPical Resource Services Senior Biologist I1 Senior Biologist I Biologist 111 Biologist 11 Biologist 1 Cultural Resource Services Principal Archaeologist Senior Associate Archaeologist Senior Archaeologist Project Archaeologist Project Historian Architectural Historian Staff Archaeologist Archaeological Crew Chief Archaeological Monitor Archaeological Technician $90 Graphic Artist $90 Word Processor $90 Administrative $75 Clerical $70 Intern $50 $80 $95 $90 $65 $70 $65 $70 $50 $3 5 General Terms $1 15 EDAW 4x4 Vehicle Use (gas excluded) $75.00 daily $105 GPS System Use $75.00 daily $95 Digital Camera Use $15.00 daily $85 Film Charge $5.00 per roll $75 Cellular Phone $0.60 per min. Facsimile $0.50 per page $175 $1 15 $loo $80 $65 $65 $55 $55 $50 Other reimbursable expenses and subconsultants will be billed at cost plus 10%. Invoices will be submitted monthly for work in progress unless otherwise agreed. lnvoices are due and payable within 30 days after invoice date. Fees are valid through February 28,2004. Rates are subject to adjustment based on contract terms. D ESlG N, PLANNING AND ENVI RONM EN 1 S, WORLDWIDE CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of LZFO R ~ZU County of On 572s Io 3 before me, N6-d &j7# f faBU+ tS6 AI FPAhkzX 0 Name and Title of Officer (e g )Jane Doe, Notary Public") Date &k , Name@) of Signer@) 6Uadd,, dfiun personally known to me - OR - 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) idare subscribed to the within instrument and acknowledged to me that 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. OPTlONA L 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. 0 Individual 0 Corporate Officer 0 Attorney-in- Fact 71 I Signer epresenting: / fividual 17 Corporate Officer Partner - 0 Limited 0 General orney-in-Fact 71 I \\I Signer Is Representing: 0 1994 National Notary Association * 8236 Remmet Ave., P.O. Box 7184 * Canoga Park, CA91309-7184 Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827 MASTER AGREEMENT FOR GEOTECHNICAL ENGINEERING SERVICES NINYO & MOORE is made and entered into as of the 8hf-. day of organized under the Municipal Water Act of 191 1 I and a 2003, by and between the CARLSBAD MUNICIPAL WATER subsidiary District of the City of Carlsbad hereinafter referred to as "District", and NINYO & MOORE, a California Corporation, hereinafter referred to as "Contractor." RECITALS A. District requires the professional services of a Professional Engineering B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to District and has affirmed its Consultant that is experienced in Geotechnical Engineering Services. project basis. services and advice related to Geotechnical Engineering Services. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, District and Contractor agree as follows: 1. SCOPE OF WORK District retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 1 3. - TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The Executive Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not-to-exceed seventy five thousand ($75,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, District needs, and appropriation of funds by the District Board. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (IO) days after receipt of notification to proceed by District and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by District inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed seventy five thousand dollars ($75,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A'. Prior to initiation of any project work by Contractor, District shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for District, the Executive Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of District. Contractor will be under control of District only as to the result to be accomplished, but will consult with District as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of District for any purposes. 2 The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. District will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. District will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify District within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which District may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the District's election, District may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of District. If Contractor subcontracts any of the Services, Contractor will be fully responsible to District for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor, Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and District. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by District. 8. OTHER CONTRACTORS Services. The District reserves the right to employ other Contractors in connection with the 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the District 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 in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense District incurs or makes to or on behalf of an injured employee under the District's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 3 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VI'. 10.1 Coveraaes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless General Counsel or Executive Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. District, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liabilitv. (if the use of an automobile is involved for Contractor's work for District). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to District's satisfaction, a declaration stating this. Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The Carlsbad Municipal Water District will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to District sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providinq Certificates of Insurance and Endorsements. Prior to District's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to District. 10.1.2 10.1.4 4 10.4 Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then District will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by District to obtain or maintain insurance and District may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. District reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.5 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All 'records will be clearly identifiable. Contractor will allow a representative of District during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of District. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to District. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS District and Contractor relinquishes all claims to the copyrights in favor of District. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES written notice on behalf of District and on behalf of Contractor under this Agreement. The name of the persons who are authorized to give written notices or to receive For District: For Contractor: Name Mark Cuthbert Title -Principal Engineer Name Lloyd Hubbs - Address 1635 Faraday Avenue Address 5710 Ruffin Road - Carlsbad, CA 92008 San Diego, California 92123 - - Carlsbad Municipal Water District Phone No. (760) 602-2720 Phone No. _1858) 576-1000 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 5 16. CONFLICT OF INTEREST District will evaluate Contractor’s duties pursuant to this Aareement to determine whether disclosure under the Political Reform Act and City’s Con’ilict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the Secretary those schedules specified by District and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor’s agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor’s agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the District an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor’s services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED regulations prohibiting discrimination and harassment. Contractor will comply with all applicable local, state and federal laws and 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolveany questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or District will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the Executive Manager. The Executive Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the Executive Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 6 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, District may terminate this Agreement' for nonperformance by notifying Contractor by certified mail of the termination. If District decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, District may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by District and all work in progress to District address contained in this Agreement. District will make a determination of fact based upon the work product delivered to District and of the percentage of work that Contractor has performed which is usable and of worth to District in having the Agreement completed. Based upon that finding District will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of District, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to District. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. District will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, District will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to District must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to District,. it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If District seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for District to terminate this Agreement. 7 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon District and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of District, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 8 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this 2o day of May ,2003 . CONTRACTOR: CARLSBAD MUNICIPAL WATER NINYO & MOORE, Avram Ninyo, Principal Engineer ATTEST: - (print namehitle) Secretary (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Column B Chairman, president or vice-president Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer@) signing to bind the corporation.) CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 191 1, and a subsidiary District of the City of Carlsbad APPROVED AS TO FORM: RONALD R. BALL, General Counsel eputy General Counsel 9 ALL-PURPOSE ACKNOWLEDGEMENT State of California before me, 4AW .dL/ c-&/ 9 I NOTARY I m& 2-0, Z&d-?-? (OATH personally appeared /fl/A-/$&7 /U/./vfi Ad74 M2J/2PfU,7- r? c; &/ufv SIGNERIS) 0-e - OR - proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) k/are subscribed to the within instrurnentGd acknowledged to me that he&he/they executed the same in -h+br/their authorized capacity(*, and that by -&#her/their signatures(s) on the instrument the persom), or the entity upon behalf of which the person&) acted, executed the instrument. K WITNESS my hand and official seal, OPTIONAL INFORMATION The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- edgement to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT rnA-$T&k /76A%v/fd!~ m A 0 INDIVIDUAL ,~?~pflV+#Aq (. FNG/ULV&~ 0 CORPORATE OFFICER II;I;LWCEj A-J/hf v /yb@R/t’ TITLE OR TYPE OF DOCUMENT 0 PARTNER(S) 0 ATTORNEY-IN-FACT 0 TRUSTEE(S) 0 GUARDIAN/CONSERVATOR 0 OTHER: 9 NUMBER OF PAGES 20, 2OOJ DATE OF DOCUMENT OTHER I SIGNER IS REPRESENTING: RIGHT THUMBPRINT OF SIGNER NAME OF PERSON(SJ OR ENTITY([ES) APA 5/99 VALLEY-SIERRA. 800-362-3369 March 17,2003 Proposal No. P-5722 Mr. Marshall Plantz, Senior Civil Engineer City of Carlsbad, Engineering Department 1635 Faraday Avenue Carlsbad, California 92008 Subject: As-Needed Geotechnical Engineering Services For the City of Carlsbad Master Agreement Consultant Services Project Dear Mr. Plantz: Ninyo 8 Moore is pleased to submit this letter as acknowledgement of our selection by the City of Carlsbad to pro- vide services as part of the Master Agreement Consultant Services project. We appreciate this opportunity to work with the City of Carlsbad and will provide the necessary resources to efficiently complete those project tasks as- signed to us. As requested, we have attached a schedule of fees for your review and use. Thank you and we look forward to working with the City. Sincerely, NINYO & MOORE Mark Cuthbert, P.E. Principal Engineer MClebm Attachment: Schedule of Fees 57 IO Ruffin Road bn Diego. Cdifornm 92 I23 Phone 1858) 576- IO00 Fax (858) 576-9600 SanDiego IMne Ontario LosAngeles = Oakland Las Vega Salt LakeCity 9 Phoenix ___ -. __ .. __ City of Carlsbad On-Call Geotechnical Services March 17, 2003 Proposal No. P-5722 SCHEDULE OF FEES IOURLY CHARGES FOR PERSONNEL Principal EngineerlGeologisUEnvironrnental Scientist ............................................... Senior EngineerlGeologisVEnvironmental Scientist ................................................... Senior Project Engineer/Geologist/Environmental Scientist ....................................... Project Engineer/GeologistlEnvironrnental Scientist .................................................. Senior Staff Engineer/Geologist/Environmental Scientist ..................................................................................... $ Staff Engineer/Geologist/Environmental Scientist .... ................................................................... ISlGlS Specialist ............................................................................................................................... Field Operations Manager ............................................................................................ ............................. $ 85 Supervisory Technician* ....................................... ............................. $ 85 Nondestructive Examination Technician, UT, MT. LP' .......... ..................................................................... $ 85 Pull Test Technician and Equipment* ................... Senior Field/Laboratory Technician' ..................... ................................ $ 71 Concrete/Asphalt Batch Plant Inspector' ........................................................................... ............. .. $ 71 109 Field/Laboratory Technician' ................................................................................................................................. $ 71 ACI Concrete Techniaan' ...................................................................................................................................... $ 71 Special Inspector. Reinforced Concrete* ............................................................................ ....................... $ 71 Special Inspector, Pre-stressed Concrete. ............................................................................................................ $ 71 Special Inspector, Reinforced Masonry' ................................................................................................................ $ 71 Special Inspector, Structural Steel' ............................................................................................. .............. $ 71 .................................................................................................. r ........................................................................................................................ ratory Assistant ..................................................................................... OTHER CHARGES Expert Witness Testimony ............................................................................................................................. $ 250 hr Special Preparation of Standard Test Speci ............................................ $ 64hr Steel and Concrete Specimen Pickup .......................................................................................................... $ 53 /trip Vapor Emission Kits .................................. $ 30 /kit Rebar Locator (Pachometer) . Field Vehicle Usage ...................................................................................................................................... $ Direct Project Expenses .......................................................................................................................... Cost plus 15 % Laboratory testing, geophysical equipment, and other special equipment provided upon request. Coring Machine Usage (includes technician ............................................ $ 105 hr Inclinometer Usage ............... ......................................................................................... Nuclear Density Gauge Usage ... ..................................................... ......................... $ 9hr ............... 6 Ihr NOTES (Field Services) For field and laboratory technicians and special inspectors, regular hourly rates are charged during normal weekday construction hours. Overtime rates at 1.5 times the regular rates will be charged for work performed outside normal con- struction hours and all day on Saturdays and Sundays. Rates at twice the regular rates will be charged for all work in excess of 12 hours in one day or on holidays. Lead time for any requested service is 24 hours. Field Technician rates are based on a 2-hour minimum. Special inspection rates are based on a 4-hour minimum for the first 4 hours and an 8- hour minimum for hours exceeding 4 hours. Field personnel are charged portal to portal. hour minimum for hours exceeding 4 hours. Field personnel are charged portal to portal. Indicates rates that are based on Prevailing Wage Determination made by the State of California, Director of Industrial Relations and are subject to revision on 6/16/03. INVOICES Invoices will be submitted monthly and are due upon receipt. A service charge of 1.0 percent per month may be charged on accounts not paid within 30 days. City of Carlsbad On-Call Geotechnical Services March 17. 2003 Proposal No . P-5722 SCHEDULE OF FEES FOR LABORATORY TESTING Laboratory Test. Test Designation. and Price Per Test Soils . Atterberg Limits, D 4318, CT 204 ... California Bearing Ratio (CBR), D 1 .................................... s S Chloride and Sulfate Content, CT417 8 CT 422 .......................... S Consolidation, D 2435, CT 21 9 ....................................................... $ Consolidation -Time Rate, D 2435, CT 219 ................................... S Direct Shear - Undistubed, D 3080 . CT 222 ....................... s Direct Shear - Remolded, D 3080 . CT 222 ..................................... S Durability Index . CT 229 .................................................................... S Expansion Index . D 4829, UBC 1&2 ........... ........ $ Expansion Potential (Method A), D 4546 ......................................... $ Expansive Pressure (Method C), D 4546 ........................................ $ Geofabric Tensile and Elongation Test, D 4632 .............................. $ Hydraulic Condudivity, D 5084 ......................................................... S Hydrometer Analysis, D 422, CT 203 ............................................... $ Double Hydrometer Analysis, D 422, CT 203 .................................. $ Maximum Density D 1557, D 698, CT 216 . & AASHTO T-180 ...... $ Moisture, Ash, 8 Organic Matter of PeaUOrganic Soils ................... S Moisture Only, D 2216, CT 226 ........................................................ S Moisture and Dense, D 2937 .......................................................... $ Permeability, CH, D 2434, CT 220 ................................................... $ pH and Resistivity, CT 643 . R.value, D 2844, CT 301 .................................................................. S Sand Equivalent, D 2419, CT 217 ........................................ Sieve Analysis, D 422 . CT 202 ....... ..................................... $ Sieve Analysis, 200 Wash, D 1140, CT 202 .................................... $ Specific Gravity, D 854 S Triaxial Shear, C.D., three points, CT 230 ....................................... $ Triaxial Shear, C.U., three points, D 4767, CT 230 ........................ $ Triaxial Shear, U.U., one point, D 2850, CT 230 Unconfined Compression, D 2166, CT 221 ..................................... $ Wax Density, D 1188 ........................................................................ $ Roofinq Built-up Roofing, cut-out samples, D 2829 ....................................... S Roofing Materials Analysis, D 2829 .................................................. S Roofing Tile Absorption . (set of 5) . UBC 15-5 .................................. S Roofing Tile Strength Test, (set of 5) . UBC 15-5 ............................. $ Masonry Brick Absorption, 24-hour submersion, C 67 ................................... S Brick Absorption, Shour boiling, C 67 ............................................. S Brick Absorption, 7day, C 67 ........................................................... S Brick Compression Test, C 67 .......................................................... $ Brick Emorescence, C 67 ................................. ......' Brick Modulus of Rupture, C 67 ............................. Brick Moisture as received, C 67 ...................................................... $ Brick Saturation Coefficient, C 67 ...... ...................................... s Concrete Block Compression Test, 8x8~16, C 140 ......................... S Concrete Block Conformance Package, C 90 ................................. $ Concrete Block Linear Shrinkage, C 426 ......................................... $ Concrete Block Unit Weight and Absorption, C 140 ........................ $ Cores, Compression or Shear Bond, CA Code ............................... $ Masonry Grout, 3~3x6 prism compression, UBC 21-18 .................. $ Masonry Mortar . 2x4 cylinder compression, UBC 21-16 ................. S Masonry Prism . half size . compression, UBC 21-17 ....................... 5 .................................... (Rock corrections add $65) .................................. ..................... 125 350 100 200 50 200 250 140 140 130 130 150 250 140 270 150 90 18 30 200 95 21 5 80 95 75 75 350 325 125 160 75 150 450 150 150 35 53 34 34 34 44 39 350 100 50 34 19 19 90 48 28 Concrete Cement Analysis Chemical and Physical . C 109 ....................... .... $ Compression Tests. 6x1 2 Cylinder. C 39 ....................................... $ Concrete Mix Design Review. Job Spec ........................................ $ Concrete Mix Design. per Trial Batch. 6 cylinder . ACI ................... $ Concrete Cores . Compression (excludes sampling). C 42 ............ $ Drying Shrinkage. C 157 ................................................................. $ Flexural Test. C 78 .......................................................................... $ Flexural Test . C 293 .................................................. $ Flexural Test. CT 523 ...................................................................... $ GunitelshotCrete . Panels. 3 cut cores per panel and test. ACl ..... $ Jobsite Testing Laboratory .............................................................. Lightweight Concrete Fill, Compression. C 495 ............................. $ Petrographic Analysis. C 856 .......................................................... $ Splitting Tensile Strength, C 496 ..................................................... $ Reinforcins and Structural Steel Fireproofing Density Test. UBC 7-6 ................................................ 8 Hardness Test, Rockwell, A-370 ..................................................... $ High Strength Bolt. Nut 8 Washer Conformance . set. A-32 Mechanically Spliced Reinforcing Tensile Test. ACI ............ Prestress Strand (7 wire), A 416 ................................................... $ Chemical Analysis. A-26, Ab1 5 ...................................................... $ Reinforcing Tension or Bend up to No . 11, A 61 5 A 706 ........... $ Structural Steel Tensile Test: Up to 200.000 Ibs . (machining extra). A 370 ............................................................... $ Welded Reinforcing Tensile Test: Up to No . 1 1 bars, ACI ............. $ Asohalt Concrete Asphalt Mix Design, Cattrans .......................................................... $ Asphatt Mix Design Review. Job Spec ........................................... $ Extraction, % Asphalt. including Gradation, D 2172. CT 310 ........ $ Film Stripping. CT 302 ......................................................... Hveem Stability and Unit Weight CTM or ASTM . CT 366 Marshall Stability. Flow and Unit Weight . T-245 ................. Maximum Theoretical UnR Weight . 0 2041 .................................... 5 Swell. CT 305 ................................................................................... $ Unit Weight sample or core. D 2726 . CT 308 .................... Aqqreaates Absorption. Fine. C 128 .................................................................. $ Clay Lumps and Friable Partides . C 142 ....................................... S Cleanness Value. CT 227 ............................................................... $ Crushed Particles. CT 205 ................................................ Absorption. Coarse. C 127 .............................................................. $ Specific Gravity. Fine. C 128 ........................................................... $ 1. 500 19 125 650 40 200 40 45 50 190 Quote 30 1. 000 65 50 40 100 80 125 100 42 52 46 2.000 135 190 80 170 190 90 150 75 25 25 95 110 130 120 120 165 245 50 350 80 95 95 145 65 75 Ninyo 8 Moore is accredited to perform the AASHTO equivalent of many ASTM test procedures . CO MASTER AGREEMENT FOR GEOTECHNICAL ENGINEERING SERVICES GROUP DELTA CONSULTANTS THIS AGREEMENT is made and entered into as of the l3 ?d' day of HUCUST , 2003, by and between the CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 191 1 , and a subsidiary District of the City of Carlsbad hereinafter referred to as "District", and GROUP DELTA CONSULTANTS, a California Corporation, hereinafter referred to as "Contractor." RECITALS A. District requires the professional services of a Professional Engineering B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to District and has affirmed its Consultant that is experienced in Geotechnical Engineering Services. project basis. services and advice related to Geotechnical Engineering Services. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, District and Contractor agree as follows: 1. SCOPE OF WORK District retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 1 3. - TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The Executive Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not-to-exceed seventy five thousand ($75,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, District needs, and appropriation of funds by the District Board. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (IO) days after receipt of notification to proceed by District and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by District inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed seventy five thousand dollars ($75,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A'. Prior to initiation of any project work by Contractor, District shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for District, the Executive Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of District. Contractor will be under control of District only as to the result to be accomplished, but will consult with District as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of District for any purposes. 2 The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. District will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. District will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify District within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which District may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the District's election, District may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of District. If Contractor subcontracts any of the Services, Contractor will be fully responsible to District for the acts and omissions of Contractor's subcontractor andof the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and District. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by District. 8. OTHER CONTRACTORS The District reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the District 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 in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense District incurs or makes to or on behalf of an injured employee under the District's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 3 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VI'. 10.1 Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless General Counsel or Executive Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. District, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1 .l Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability. (if the use of an automobile is involved for Contractor's work for District). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to District's satisfaction, a declaration stating this. Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The Carlsbad Municipal Water District will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to District sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 ' Providincl Certificates of Insurance and Endorsements. Prior to District's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to District. 10.1.2 10.1.4 4 10.4 Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then District will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by District to obtain or maintain insurance and District may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. District reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.5 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of District during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of District. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to District. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS District and Contractor relinquishes all claims to the copyrights in favor of District. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES written notice on behalf of District and on behalf of Contractor under this Agreement. The name of the persons who are authorized to give written notices or to receive For District: For Contractor: Name Lloyd Hubbs Carlsbad Municipal Water District Address 1635 Faraday Avenue Carlsbad, CA 92008 Phone No. (760) 602-2720 7 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 5 16. CONFLICT OF INTEREST District will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor‘s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the Secretary those schedules specified by District and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor’s agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor’s agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the District an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor’s services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED regulations prohibiting discrimination and harassment. Contractor will comply with all applicable local, state and federal laws and 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or District will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the Executive Manager. The Executive Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the Executive Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 6 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, District may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If District decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, District may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by District and all work in progress to District address contained in this Agreement. District will make a determination of fact based upon the work product delivered to District and of the percentage of work that Contractor has performed which is usable and of worth to District in having the Agreement completed. Based upon that finding District will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of District, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to District. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. District will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, District will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to District must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to District, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If District seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for District to terminate this Agreement. 7 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing-a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon District and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of District, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. Ill Ill 8 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this %* dayof 3Ub 120 43. CONTRACTOR: GROUP DELTA CONSULTANTSl a California corporation By: SI?& LLhqLcv$'t crr (print nameltitle) I CARLSBAD MUNICIPAL WATER AlTEST: pecretary (Proper notarial acknowledgment of execution by Contractor must be attached. If a Corporation, document must be signed by one from each column: Column A Chairman, president or vice-president Column E3 Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 191 1, and a subsidiary District of the City of Carlsbad APPROVED AS TO FORM: RONALD R. BALL, General Counsel 9 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Qpersonally known to me - OR - 0 proved to me on the basis of satisfactory evidence to be the person0 whose namefs) is/= subscribed to the within instrument and acknowledged to me that he/st&hey executed the same in hi- 'r authorized capacity(ks), and that by hidhetfttreir signature@) on the instrument the person(+, or the entity upon behalf of which the person(@ acted, executed the instrument. WITNESS my hand and official seal. Stgnatwe d kibtaty Publle Py&-€. GbipA 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 reattachmenf of this form to another document. Description of Attached Document Title or Type of Document: /.st Document Date: Number of Pages: . Signer(@ Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: El Individual U Corporate Officer Title@): 0 Partner - El Limited 0 General 0 Attorney-in-Fact Trustee 1 0 Other: t- Top of thui 0 Guardian or Conservator Signer Is Representing: Signer's Name: 0 Individual C Corporate Officer Title@): C Partner - 0 Limited 0 General C Attorney-in-Fact C Trustee- 0 Guardian or Conservator Top of thumb here I O Other: Signer Is Representing: I I 0 1995 National Notary Association - 8236 Remmet Ave.. P.O. Box 7184 Canqa Park. CA 91309-7184 Prod. No. 5907 Reorder: Call TdkFree 18004766827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of a\*& Countyof Dale . Name and Tme of Oificer~.g.. “Jam Dae. Notary PuMiv , Name@) ol Sgner(5) personally appeared ,< hah &G Lkp5rsonally known to me - OR - Cj proved to me on the basis of satisfactory evidence to be the person@ whose name(4fidaresubscribed to the within instrument and acknowledged to me that he/s!&tky executed the same in his- ’ authorized capacity(ies), and that by hid- signature(+ on the instrument the person(s), or the entity upon behalf of which the person@) acted, executed the instrument. WITNESS my hand and official seal. OPTIONAL Though the information below is not required by law, it may prove valuable to pems relying on the document and wold prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: 2 Document Date: Number of Pages: I Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer’s Name: 0 Individual 0 Corporate Officer Title@): D Partner - LI Limited General 0 Attorney-in-Fact 0 Trustee 17 Guardian or Conservator 7 I I Signer Is Representing: Signer’s Name: 0 Individual C Corporate Officer Title(s): C Partner - 0 Limited 0 General C Attorney-in-Fact F- Top of thu C Trustee- 0 Guardian or Conservator 0 Other: mb here I I I Signer Is Representing: I I Q 1995 National No!ary Association * 8236 Remmet Ave.. P.O. Box 7184 Can+ Park, CA 91309-7184 Prod. NO. 5907 Reorder: Call Toll-Free 1800-87664327 rGR0UP' CertiFed MBE March 14,2003 Proposal No. SP02069 Mr. Marshall Plantz City of Carlsbad, Engineering Department 1635 Faraday Avenue Carlsbad, CA 92008 LElTER OF ACCEPTANCE OF MASTER AGREEMENT GEOTECHNICAL CONSULTING SERVICES CITY OF CARLSBAD CARLSBAD, CALIFORNIA Dear Mr. Plantz: Thank you for selecting Group Delta Consultants for the Master Agreement of Geotechnical Consulting Services for the City of Carlsbad. As you requested, we are providing this acknowledgement of being selected and our intent to provide geotechnical services to the City of Carlsbad. We are enclosing our 2003 Fee Schedule and Terms and.Conditions for your review. We understand that you will be preparing a contract in the near future. We look forward to assisting the City with their Capital Improvement Projects. any questions, please call us. If you have Very truly yours, GROUP DELTA CONSULTANTS, INC. Barry R. Bevier Principal Engineer 10989-A Via Frontera A San Diego, California 92127 A (858) 523-1500 voice A (858) 521-15YYfn~ www.GroupDelta.com Aliso Viejo, California A (949) 609-1020 Torrance, California A (310) 320-5100 GROUP DELTA CONSULTANTS, INC. 2003 FEE SCHEDULE HOURLY CHARGES FOR PERSONNEL SENIOR PRINCIPAL ENGINEEWGEOLOGIST PRINCIPAL ENGINEEWGEOLOGIST ASSOCIATE ENGINEEWGEOLOGIST SENIOR ENGINEEWGEOLOGIST PROJECT ENGINEEWGEOLOGIST STAFF ENGINEER/GEOLOGIST SENIOR TECHNICIAN/PREVAILING WAGE TECHNICIAN DESIGNEWILLUSTRATOWAUTOCAD TECHNICAL SUPPORT CHARGES FOR EQUIPMENT VEHICLE: Mobile Laboratory (Van) Other Vehicles Mileage INCLINOMETER NUCLEAR DENSITY GAUGE ORGANIC VAPOR ANALYZER $180 155 140 125 110 95 85 65 70 55 $7.50/hour 6.00hour 0.40/mile 30.00hour 8. OOhour 75.OO/day OTHER CHARGES Outside services will be charged at cost plus 15 percent. Technician and support personnel time for work over eight (8) hours per day will be charged at 1.25 times the regular rates. Holidays and weekends hours (all hours) will be charged 1.50 times the regular rates. LITIGATION FEES Fees for participation in deposition, arbitration, trial, etc., will be charged at an hourly rate of $300.00 per hour, 4-hour minimum, portal to portal. 10989-A Via Frontera A San Diego, California 92127 A (858) 524-1500 voice A (858) 524-1599fux wwwGroupDelta corn .4li50 Viejo, Calikornia A (949) 609-1020 Torrance, California A (310) 320-5100 MASTER AGREEMENT FOR PROFESSIONAL SURVEYING AND POTHOLE SERVICES RIGHT-OF-WAY ENGINEERING SERVICES, INC. THIS AGREEMENT is made and entered into as of the R7d day of 2003, by and between the CARLSBAD MUNICIPAL WATER DlS%&ublic Agkcy organized under the Municipal Water Act of 191 1 , and a subsidiary District of the City of Carlsbad hereinafter referred to as "District", and RIGHT-OF-WAY ENGINEERING SERVICES, INC., a California Corporation, hereinafter referred to as "Contractor." RECITALS A. District requires the professional services of a Professional Engineering B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to District and has affirmed its Consultant that is experienced in Surveying and Potholing Services. project basis. services and advice related to Surveying and Potholing Services. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, District and Contractor agree as follows: 1. SCOPE OF*WORK District retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 1 3. TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The Executive Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not-to-exceed fifty thousand dollars ($50,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, District needs, and appropriation of funds by the District Board. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (IO) days after-receipt of notification. to proceed by District and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by District inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed fifty thousand dollars ($50,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A'. Prior to initiation of any project work by Contractor, District shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for District, the Executive Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of District. Contractor will be under control of District only as 'to the result to be accomplished, but will consult with District as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of District for any purposes. 2 The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. District will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. District will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify District within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which District may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the District's election, District may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of District. If Contractor subcontracts any of the Services, Contractor will be fully responsible to District for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and District. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by District. 8. OTHER CONTRACTORS The District reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the District 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 in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense District incurs or makes to or on behalf of an injured employee under the District's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 3 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VI'. 10.1 Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless General Counsel or Executive Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. District, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liabilitv. (if the use of an automobile is involved for Contractor's work for District). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liabilitv. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to District's satisfaction, a declaration stating this. Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The Carlsbad Municipal Water District will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to District sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to District's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to District. 10.1.2 10.1.4 4 10.4 Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then District will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by District to obtain or maintain insurance and District may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. District reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business'License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All 'records will be clearly identifiable. Contractor will allow a representative of District during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of District. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to District. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS District and Contractor relinquishes all claims to the copyrights in favor of District. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of District and on behalf of Contractor under this Agreement. For District: For Contractor: Name Llovd Hubbs Carlsbad Municbal Water District Address 1635 Faraday Avenue Address 41~ 7 )4L/cI) Ida Dr_ I, .PA *&4f Carlsbad, CA 92008 KxeAe3I L ce 920s2, Phone No. (760) 602-2720 Phone No. 74~ - 731, - 1% require any notice or delivery to be directed to another address. Each party will notify the other immediately of any changes of address that would 5 16. CONFLICT OF INTEREST District will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the Secretary those schedules specified by District and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor’s agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor’s agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the District an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fullv informed of federal, state and local laws and ordinances and regulations which in‘any-manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor‘s services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED regulations prohibiting discrimination and harassment. Contractor will comply with all applicable local, state and federal laws and 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve-any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or District will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the Executive Manager. The Executive Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the Executive Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 6 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, District may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If District decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, District may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by District and all work in progress to District address contained in this Agreement. District will make a determination of fact based upon the work product delivered to District and of the percentage of work that Contractor has performed which is usable and of worth to District in having the Agreement completed. Based upon that finding District will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of District, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to District. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. District will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not emdoved or retained anv comDanv IC or person, other than a bona fide employee working for Contractor, to solicii 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, District will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to District must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to District, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If District seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for District to terminate this Agreement. 7 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of .. enforcing-a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon District and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of District, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase-order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill 8 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this 17 dayof MY ,200.3 . CONTRACT0 R: CARLSBAD MUNICIPAL WATER RIGHT-OF-WAY ENG IN E E R I NG SERVICES, INC., a California corporation By: (sign here) By: (sign here) (p ri n t n am e/t i t le) (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Column B Chairman, president or vice-president Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the off icer(s) signing to bind the corporation.) CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 191 1, and a subsidiary District of the City of Carlsbad APPROVED AS TO FORM: RONALD R. BALL, General Counsel 9 CALIFORNIA ALLPURPOSE ACKNOWLEDGMENT } ss. State of California County of personally known to me roved to me on the basis of satisfactory to be the person(g whose name($@/# subscribed to the within instrument and acknowledged to me t @sket%ey executed the same in &w,WrelT authorized capacity(W, and that by @h€MTSir signaturwon the instrument the persoMor the entity upon behalf of which the persow acted, executed the instrument. OPTlONA L Though the intotmation below IS not requrred by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment ot this tonn to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer’s Name: n Individual 0 Corporate Officer - Title(s): 0 Partner - U Limited General 0 Attorneyin-Fact C Trustee C Guardian or Conservator n Other: Signer Is Representing: 0 1999 Nalioml Notary Association 9350 De Soto We.. PO. Box 2402 - Chatswarih. CA 91313-2402 www.nationalnolalyorg Prod. No 5907 Reorder Call Toll-Free 1-800-876-6827 Right-of-way Engineering Services, Inc. Land Surveying RECEIVED MAR 17 2003 ENWEERING DEPARTMENT MARCH 13,2003 Mr. Marshall Plan@ P.E. City of Carlsbad 1635 Faraday Avenue PubIic Works - Eneeering Cdsbad, CA 92008-73 14 Subject: ON-CALL SERVICES CONTRACT FOR SURVEYING AND POTHOLING SERVICES. DearMarshall, Right-of-way Engineering Services, Inc. (R-0-W) appreciates the City of Carlsbad's choice to continue using OUT firm for its professional surveying needs. In response to our phone conversation, I acknowledge the extension of the on-call services contract for 2003 thru 2004. R-0-W will continue providing quality and timely response to requests for survey services fiom you and your staff. RIGHT-OF-WAY ENGINEERING SERVICES, INC. Michael Schlumpberger P.L.S. Enclosures: Fee Schedule Carlsbadoaz003 4167 Avenida de la Plata Suite 114 0 Oceanside, CA 92056 0 (760) 732-1366 FAX(760) 732-1367 Ernail roweng@cts.com !%XLSFf "A" Right-of-way Engineering Land Surveying Services, Inc. 2 PERSON SURVEY CREW 2 PERSON SURVEY CREW WITH GPS EQUIPMENT 3 PERSON SURVEY CREW WITH GPS EQUIPMENT, 3 VENICLES AND RADIOS SCHEDULE OF HOURLY RATES CADD TECHNICIAN SURVEY SUPERVISOR LICENSED LAND SURVEYOR CLERICAL $1 55 .oo/HR S 1 7O,OO/HR $235.00/HR SCHEDULE OF RATES.L’IR 05/20/03 ConfirmNet -> 17606021052 >NFERS NO RIGHTS UPON THE CERTIFICATE ILDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ,TER THE COVERAGE AFFORDED BY THE POLICIES BELOW. I - Pg 2/4 $ ~ $1,000,000 E.L EACHACCIOENT EL DISEASE - EAEMPLOYEE E 1 000 r 000 LL DISEASE - POUCY LMlT $1~000~0~0 Limit 1,000,000 1,000,000 kggregate ACORQ. CERTIFICATE OF LIABILITY INSURANCE PRODUCER OA99520 Cavignac P Associates 1230 Columbia Street, Suite 850 . . . . - - -. . . .. . - . ONLY AND CC HC A1 San Diego, CA 92101 Dorothy Amundson Right-Of-Wry Engineering Services Inc N8URED 1167 AVMid. De L. P1.t.. 1114 Ocaansida, CA 92056 INSURERS AFFORDING COVERAGE n Notorista Inaurance Cqry INSURER D: THE WLlClES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. MAY PERTAIN, THE INSURANCE AFFORDED BY THE mLiciEs DESCRIBED HEREIN IS SUBJECTTO ALLTHE TERMS, UCLUSIONS AND CONDITIONS OF SUCH POUCV EREm - 03/02/03 'OUCV UPYUTDN - 03/02 /04 TYPE OF INSURANCE poucr NUMBER CLAIMSMADE OCCUR BK01317604 03/02/03 03/02/04 PNY AUTO KL OWNED AUTOS SCHEWLEDAWOS NONSWNEDNJTOS BODLY IHlVRY (Pa sccidoN X ]No Company omed Autos I GARAGEUABUTV PROPERTY DAMAGE (Pa acciderl) EXCESS UIBYrry 3OCCUR UCUlMShUDf DEWCTBLE RETENTION $ woRI(ERS COlRENSAllON AWD EMPLOVERS'LUBUlY 7BGl230024400 03/12/03 03 /12 /04 QL01671000 03/02/03 03/02/04 1 I 'Profoosional Liability - Claims -de Fom, Aggregate Limit Policy. Defenae coats Included within Limit of Liability. !E: Profesaional engineering services as contracted. The City of Clrlahd, its officials, amplayeas 8nd Volunteer. are lamed aa Additional Inaured Primary as reapecta to General Liability (per attached) and Auto Liability (included in mlicy form). Waiver of Subrogation applies to General Liability per att8ched. *IO daya NOC tor non-paym.nt of pramiua )The insurer's policy papant &ligations are backed by a cut-through to National Indemity Company, an A++ rated ierkshire Hathaway subaidiary.Por this claim# mads policy,the cut-through in effective as of the policy inception date CANCELLATION snoum mi OCTIIE ABOVE DESCRIBED PWCIES BE CANCELED BEFORE THE EXPIRCITKJN DATE THEMOF, THE ISSUNG YSURER WU ENDEAVOR TO MAIL *Jo DAYS WIUFIEN mTCE TO THE CEKTFlCATE HOLDER WD TO THE LEFT, BUT FNLWIE TO DO SO SHAU MPOSE NO OBUGATION OR UABIUN OF ANY Kwo WON THE INSURER, AS AGENfs OR REPRESENTATNES. &dL- AUll4ORIZED REPRESENTATWE 0 ACORD CORPORATION 1988 City of Carlabad Engineering Department 1635 Faraday Avenue Carlabad, CA 92008 USA I I ACORD 25s ('7197) Katharine 1103001 05/20/03 ConfirmNet -> 17606021052 Pg 314 Policy Number: BK01317604 WAIVER Transfer of Rights Of Recovery Against Others THIS ENDORSEMENT CHANGESTHE POLICY. PLEASE READ ITCAREFULLY, Thii endorsement modii insurance provided under the following: I UABILIW COVERAGE PART I I BUSlMSSAUTOC(MRAGEPA#T(SECTIONII) I I COMMERCIAL UMBRELLA UABlLITY COMRAGE PART, Designated Penon Or Organization: BLAN(ET WAIVEROF RIGHTS OF RECOVERY WHWREGURED BY AWORKCX"r Th. City of Carlabad. its officials. employeam .ad volunteers CMltract Number: oescripuon dProject: Professional engineering servicoa as contracted Location of Project: We waive any right of recovery we may have against the person or organization designated in the Schedule because d payments we make for injury or damage arising out of wprk you perform under a contract with the designated person or organization. The waiver applies only to the designated person or organization and the work you perform must be under the contract, and for the project and location, designated in the Schedule. cuBF21300345 Indudes copyrighted material of Insurance Services Office. InC. wilh iis permission. c.qlyi@. 1- services onim, k., 1984 05/20/03 Confirmet -> 17606021052 Pg 4/4 Named Insured: Right -Of -Wry Engineering Sawices EPC Policy Number : BK01317604 ADDmONAL INSURED Effect~ve, 03/02/03 Owners, bsees Or Contractors (Form C) THIS ENDORSEMENT CHANGES THE PONY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following; UABlLrrY COVERAGE PART. Schedule Name d Person or Organimtin: Tha City of Culmbad; it. officialm, employeam and voluntaers RE: Profonmicmal mnginaering smrvicen am contracted 1. SECTION II -WHO IS AN INSURED is amended to include as an insured the person or organization shm in the Schedule, but only with respect to liability arising out of "your work" for that insured by or for you. 2. With respect to 1. above the following additional provision applies: SECTION IV. 5. other Insurance is replaced by the following: 5. Other Insurance. The insulilnce afforded by this Cowage patt is primary inswance and we will not seek contribution from any valid and collectible "other insurance" available to the insured unless the CUBF 22 45 09 99 valid and collectible "other insurance" is provided by a person or organization who is not sho~ll in the schedule. Then we will share with that valid and collectible "other insurance" by the method described bebw. If all of the valid and collectible "other insurance" pmits contribution by equal shares, we will follow this method also. Under this approach, each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes fitst if any of the valid and collectible "other insurance" does not permit contribution by equal shares, we will contribute by Iimiis. Under this method, each Inswets share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. CERTIFICATE OF INSURANCE This certifies that c] STATE FARM FIRE AND CASUALTY COMPANY, Bloomington, Illinois STATE FARM GENERAL INSURANCE COMPANY, Bloomington, Illinois c] STATE FARM FIRE AND CASUALTY COMPANY, Scarborough, Ontario c] STATE FARM FLORIDA INSURANCE COMPANY, Winter Haven, Florida 0 STATE FARM LLOYDS, Dallas, Texas Name of policyholder Right-of-way Engineering Services Inc. Address of policyholder 4167 Avenida De La Plata,Ste 114, Oceanside,Ca 92056 insures the following policyholder for the coverages indicated below: POLICY PERIOD POLICY NUMBER TYPE OF INSURANCE ~fictjve Dab j 90-SO-4908-2 Comprehensive 04/01/2002 ; 04/01/2003 This insurance includes: Business Liability 0 Contractual Liability 0 Underground Hazard Coverage 0 Personal Injury 0 Advertising Injury 0 Explosion Hazard Coverage 0 Collapse Hazard Coverage O n ________________________________________-----..-.---.....--.-..-----..~.------.------------------ Products - Completed Operations LIMITS OF LIABILITY (at beginning of policy period) BODILY INJURY AND PROPERTY DAMAGE $1,000,000 General Aggregate $2,000,000 Each Occurrence Products - Completed Operations Aggregate $2,000 , 0 00 [ BODILY INJURY AND PROPERTY DAMAGE /f?nmhind Cinnle I imitl POLICY PERIOD POLICY NUMBER TYPE OF INSURANCE ~ffe~ti~~ Date i I I Aggregate $ I I Part I STATUTORY LIMITS OF LIABILITY (at beginning of policy period) 90-SO-4928-4 09/28/2002 03/28/2003 02/27/2003 j 08/27/2003 Workers' Compensation and Employers Liability 1,000,000 1,000,000 Part 2 BODILY INJURY Each Accident $1,000,000 Disease Each Employee $1,000,000 Disease - Policy Limit $ 1 , 00 0 , 0 0 0 08/19/02 1 08/19/03 1 0661 024 C28-55 I1999 Acura T1 066 1022-B27-55 I 1986 Toyota PU 066 1023-'216-55 11991 Ford Bronco 09/16/2002 03/16/2003 I 1,000,000 1 I THE CERTIFICATE OF INSURANCE IS NOT A CONTRACT OF INSURANCE AND NEITHER AFFIRMATIVELY NOR NEGATIVELY AMENDS, EXTENDS OR ALTERS THE COVERAGE APPROVED BY ANY POLICY DESCRIBED HEREIN. If any of the described policies are canceled before its expiration date, State Farm will try to mail a written notice to the certificate holder 30 days before cancellation. If however, we fail to mail such notice, no obligation or liability will be imposed on State Name and Address of Certificate Holder City of Carlsbad and the Carlsbad Municipal Water District 1635 Faraday Ave Carlsbad CA 92008-7314 Sgnature of Authorized Representative Agent Title Date Agent's Code Stamp 03/03/03 558-994 8.3 04-1999 Printed in U.S.A. I AFOCode F408 CERTIFICATE OF INSURANCE, This certifies that 0 STATE FARM FIRE AND CASUALTY COMPANY, Bloomington, Illinois IxI STATE FARM GENERAL INSURANCE COMPANY, Bloomington, Illinois STATE FARM FIRE AND CASUALTY COMPANY, Scarborough, Ontario 0 STATE FARM FLORIDA INSURANCE COMPANY, Winter Haven, Florida 0 STATE FARM LLOYDS, Dallas, Texas res the following policyholder for the coverages indicated below: Name of policyholder Right-of-way Engineering Services Inc. POLICY NUMBER 90-SO-4908-2 Address of policyholder 4167 Avenida De La Plata,Ste 114, Oceanside,Ca 92056 POLICY PERIOD TYPE OF INSURANCE ~ff~ti~~ ~~b j Comprehensive 04/01/2003 j 04/01/2004 ~ -~ ~~ ~ Location of operations Carlsbad CA Description of operations Land Survey & Engineering The policies listed below have been issued to the policyholder for the policy periods shown. The insurance described in these policies is subject to all the terms exclusions, and conditions of those policies. The limits of liability shown may have been reduced by any paid claims. Workers' Compensation and Employers Liability 0 8/ 19/ 02 : 08 /19/03 1 0 Contractual Liability ' 0 Underground Hazard Coverage ' 0 Personal Injury 0 Advertising Injury 0 Explosion Hazard Coverage 0 Collapse Hazard Coverage n POLICY PERIOD POLICY NUMBER TYPE OF INSURANCE ~ffd~~ Date j ~xpiration [3e~e ~~ 1 @LICY:PERK)D EXCESS LIABILITY ~fi~ti~~ bb ; Umbrella LIMITS OF LIABILITY (at beginning of policy period) I Other I 1 - 066 1023-C16-55 90-SO-4928-4 1991 Ford Bronco 03/16/2003 09/16/2003 I LIMITS OF LIABILITY (at beginning of policy period) BODILY INJURY AND PROPERTY DAMAGE Each Occurrence $1,000,000 General Aggregate $2,000,000 Products-Completed $2,000,000 Operations Aggregate BODILY INJURY AND PROPERTY DAMAGE (Combined Single Limit) Each Occurrence $ Aggregate $ Part 1 STATUTORY Part 2 BODILY INJURY Each Accident $1,000,000 Disease Each Employee $1,000,000 Disease- Policy Limit $1,000,000 0661 024 C28-55 11999 Acura T1 I 03/28/2003 j 09/28/2003 I 1,000,000 066 1022-B27-55 I 1986 Toyota PU I 02/27/2003 i 08/27/2003 I 1,000,000 Name and Address of Certificate Holder City of Carlsbad and the Carlsbad Municipal Water District 1635 Faraday Ave Carlsbad CA 92008-7314 1,000,000 iER AFFlRMATlMLY NOR NEGATIVELY ;RIBED HEREIN. If any of the described policies are canceled before its expiration date, State Farm will try to mail a written notice to the certificate holder 30 days before cancellation. If however, we fail to mail such notice, no obligation or liability will be imposed on State Farm or its agents or repre ntatives. Sign'ature of Authorized Representative Title Date Agent's Code Stamp H/&h Acd Agent 03/03/03 AFOCode F408 558-994 a.3 04-1999 Printed in U.S.A. __.. MASTER AGREEMENT FOR PROFESSIONAL SURVEYING AND POTHOLE SERVICES MELCHIOR LAND SURVEYING, INC. THIS AGREEMENT is made and entered into as of the f#k day of , 2003, by and between the CARLSBAD MUNICIPAL WATER DISTRI&T, a Public Agency organized under the Municipal Water Act of 191 1, and a subsidiary District of the City of Carlsbad hereinafter referred to as "District", and MELCHIOR LAND SURVEYING, INC., a California Corporation, hereinafter referred to as "Contractor." - RECITALS A. District requires the professional services of a Professional Engineering B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to District and has affirmed its Consultant that is experienced in Surveying and Potholing Services. project basis. services and advice related to Surveying and Potholing Services. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, District and Contractor agree as follows: 1. SCOPE OF WORK District retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 1 3. - TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The Executive Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not-to-exceed fifty thousand dollars ($50,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, District needs, and appropriation of funds by the District Board. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (IO) days after-receipt of notification to proceed by Dktrict and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by District inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed fifty thousand dollars ($50,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A'. Prior to initiation of any project work by Contractor, District shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for District, the Executive Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of District. Contractor will be under control of District only as to the result to be accomplished, but will consult with District as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of District for any purposes. 2 The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. District will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. District will not be required to pay any workers’ compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify District within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers’ compensation payment which District may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the District’s election, District may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of District. If Contractor subcontracts any of the Services, Contractor will be fully responsible to District for the acts and omissions of Contractor’s subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and District. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor’s work unless specifically noted to the contrary,in the subcontract and approved in writing by District. 8. OTHER CONTRACTORS Services. The District reserves the right to employ other Contractors in connection with the 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the District 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 in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney’s fee, costs or expense District incurs or makes to or on behalf of an injured employee under the District’s self-administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 3 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V". 10.1 Coveraaes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless General Counsel or Executive Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. District, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability. (if the use of an automobile is involved for Contractor's work for District). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to District's satisfaction, a declaration stating this. Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 1 0.2.1 The Carlsbad Municipal Water District will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to District sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providina Certificates of Insurance and Endorsements. Prior to District's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to District. 10.1.2 10.1.4 10.2. 4 10.4 Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then District will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by District to obtain or maintain insurance and District may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. District reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.5 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of District during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its aaents, emplovees. and subcontractors pursuant to this Agreement is the property of hrict. In iheevent this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to District. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS District and Contractor relinquishes all claims to the copyrights in favor of District. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES written notice on behalf of District and on behalf of Contractor under this Agreement. The name of the persons who are authorized to give written notices or to receive For District: For Contractor: Name Lloyd Hubbs Carlsbad Municipal Water District Address 1635 Faraday Avenue Carlsbad, CA 92008 Phone No. (760) 602-2720 Name Douglas R. Melchior Title president Melchior Land Survevina. Address 5731 Palmer Wav suit; Carlsbad, CA 92008-7247 Phone No. 760-438-1726 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 5 I 16. CONFLICT OF INTEREST District will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City's Conflict of Interest Code is required of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor's affected employees, agents, or subcontractors will complete and file with the Secretary those schedules specified by District and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the District an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in'any-manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comdv with all applicable local, state and federal laws and regulations prohibiting discrjmination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or District will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the Executive Manager. The Executive Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the Executive Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 6 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, District may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If District decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, District may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by District and all work in progress to District address contained in this Agreement. District will make a determination of fact based upon the work product delivered to District and of the percentage of work that Contractor has performed which is usable and of worth to District in having the Agreement completed. Based upon that finding District will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of District, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to District. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. District will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, District will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to District must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to District, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et sea., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If District seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for District to terminate this Agreement. 7 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon District and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of District, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 8 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this day of J 20-* CONTRACTOR: CARLSBAD MUNICIPAL WATER ME SURVEYING, INC., aC By: Douglas R. Melchior, President ______ (print namehitle) ATTEST: - Susan G. Melchior, Secretary (print namehitle) Secretary (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Column B Chairman, president or vice-president Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 191 1, and a subsidiary District of the City of Carlsbad APPROVED AS TO FORM: RONALD R. BALL, General Counsel eputy General Counsel By; 9 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 1 1 State of California 1 ss. ' County of On , before me, -aL&'y personally appeared &dd? 0 p @7 proved to me on the basis of satisfactory evidence onally known to me Place Notary Seal Above to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that helshelthey executed the same in hislherltheir authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public ' - OPTlONA L 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 Document Title or Type of Document: fl&m Document Date: L - ? Number of Pages: Signer(s) Other Than Named Above: - Capacity(ies) Claimed by Signer , Signer's Name: &&zy&/ R. &?L&L,L 4.- ,j individual Corporate Officer - Title@: 1 0 Partner - 0 Limited 0 Gneral Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: d Signer Is Representing: P>. 0 1999 National Nnary Assffilalion * 939 De Solo Ava , PO Box 2402 * Chatswarth CA 913132402 * rmwmlmalnolaryorg Prod No 5907 Reorder Call Toll-Free 1-800-876-6827 MELCHIOR LAND SURVEYING INC. BE, Manhall Plantz, Senior Civil Engineer CITY OF CARLSBAD Department - Engineering 1635 Faraday Avenue Carlsbad, CA 92008 RE: City of Carlsbad Master Agreement Consulting Services Discipline: Surveying / Potholing Dear Mr. Plantz; Melchior Land Surveying Inc. is pleased to have been selected by the City of Carlsbad to provide Surveying Consulting Services. As always, we are pleased and eager to begin providing services Please find enclosed, our current fee schedule for work to be done. Thank you again, for selecting Melchior Land Surveying Inc. to be part of your professional team. Sincerely, President enclosure MAIN OFFICE: L.S. 4611 5731 PALMER WAY SUITE G CARLSBAD, CA 92008 (7601 4381 726 FAX (7601 438-3991 rnlsi@pacbell.net ExuY:&r%+ ')A'' Date: 3/25/2003 Melchior Land Surveying Inc. FEES FOR PROFESSIONAL LAND SURVEYING SERVICES principal professional Land Surveyor----------------------- * Expert Witness - Court Testimony Associate Professional Land Surveyor--------------------- Over Time Fee - After 8 Hours and Reg. Saturday - After 8 Hours Saturday and Sunday . Bluelines Standard (D Sheet )---------------------------- $100.00 per hour $ 160.00 per hour $ 220.00 perhour $ 128.00 perhour $ 225.00 perhour $ 110.00 per hour $ 90.00 perhour $ 90.00 perhour $ 97.00 perhour $143.00 per hour $ 33.00 perhour $ 31.00 perhour Time and Half Double Time $ 4.00 per sheet $ 5.50 per sheet $ 9.00 per sheet $ 13.50 per sheet $ 18.50 $ 20.00 MASTER AGREEMENT FOR PROFESSIONAL APPRAISAL SERVICES ANDERSON 8i BRABANT, INC. THIS AGREEMENT is made and entered into as of the pk day of , 2003, by and between the CARLSBAD MUNICIPAL WATER DISTRI&, a Public Agency organized under the Municipal Water Act of 191 1, and a subsidiary District of the City of Carlsbad hereinafter referred to as "District", and ANDERSON & BRABANT, INC., a California Corporation, hereinafter referred to as "Contractor. I' RECITALS A. District requires the professional services of a Professional Engineering B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to District and has affirmed its Consultant that is experienced in Appraisal Services. project basis. services and advice related to Appraisal Services. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, District and Contractor agree as follows: 1. SCOPE OF WORK District retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 1 3. - TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The Executive Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not-to-exceed fifty thousand dollars ($50,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, District needs, and appropriation of funds by the District Board. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (10) days after receipt of notification to proceed by District and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by District inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed fifty thousand dollars ($50,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "At. Prior to initiation of any project work by Contractor, District shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for District, the Executive Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of District. Contractor will be under control of District only as to the result to be accomplished, but will consult with District as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of District for any purposes. 2 The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. District will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. District will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify District within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which District may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the District's election, District may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of District. If Contractor subcontracts any of the Services, Contractor will be fully responsible to District for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and District. contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by District. 8. OTHER CONTRACTORS The District reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the District and its officers, officials, employees-and volunteers from and again4 all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense District incurs or makes to or on behalf of an injured employee under the District's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 3 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VI'. 10.1 Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless General Counsel or Executive Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. District, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability. (if the use of an automobile is involved for Contractor's work for District). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to District's satisfaction, a declaration stating this. Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The Carlsbad Municipal Water District will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to District sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providinq Certificates of Insurance and Endorsements. Prior to District's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to District. 10.1.2 10.1.4 4 10.4 Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then District will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. contractor is responsible for any payments made by District to obtain or maintain insurance and District may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. District reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. Contractor will obtain and maintain a City of Carlsbad Business License for the 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of District during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of D’istrict. In the- event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to District. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS District and Contractor relinquishes all claims to the copyrights in favor of District. Contractor agrees that all copyrights that arise from the services will be vested in 15. NOTICES The name of the Dersons who are authorized to aive written notices or to receive written notice on behalf of District and on behalf of Contractor under this Agreement. For District: For Contractor: Name Lloyd Hubbs Name Gilbert F, Kunkel, MA1 Carlsbad Municipal Water District Title cn - -,. Address Phone No. 1635 Faraday Avenue Carlsbad. CA 92008 ~~ ~ (760) 602-2720 Address 353 w. Ninth Avenue Phone No. (760) 741-4146 Escondido, CA 92025 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 5 16. CONFLICT OF INTEREST District will evaluate Contractor’s duties Dursuant to this Aareement to determine whether disclosure under the Political Reform Act and City’s Conkt of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required’ Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the Secretary those schedules specified by District and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor’s agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor’s agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the District an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in ,any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor’s services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED regulations prohibiting discrimination and harassment. Contractor will comply with all applicable local, state and federal laws and 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or District will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the Executive Manager. The Executive Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the Executive Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 6 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, District may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If District decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, District may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by District and all work in progress to District address contained in this Agreement. District will make a determination of fact based upon the work product delivered to District and of the percentage of work that Contractor has performed which is usable and of worth to District in having the Agreement completed. Based upon that finding District will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of District, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to District. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. District will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, District will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to District must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to District, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for Civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If District seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for District to terminate this Agreement. 7 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing-a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It mutually understood and agreed that this Agreement will be binding upon District and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of District, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this /o@ day of && , 2003 . CONTRACT0 R: CARLSBAD MUNICIPAL WATER ANDERSON & BRABANT, INC., ATTEST: Secretary (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Column B Chairman, president or vice-president Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 191 1, and a subsidiary District of the City of Carlsbad APPROVED AS TO FORM: RONALD R. BALL, General Counsel BY: % ‘dk uty General Counsel 9 personally known to me proved to me on the basis of satisfactory evidence to be the person# whose name$) is/& subscribed to t e within instrument and acknowledged to me the same in capacity(ies), and signaturets) on the instrument the personts), or the entity upon behalf of which the personts) acted, executed the instrument. 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 Document Title or Type of Document: - 1 L ppk~~~i Number of Pages: Document Date: Signer@) Other Than Named Above: Capacity(ies) Claimed by Signer ! I $q P Signer's Name: 0 Individual 0 Corporate Officer - Title($: 0 Partner - 0 Limited 0 General 0 Attorney-in-Fact Trustee Guardian or Conservator 0 Other: Signer Is Representing: 0 I999 National Notary Association * 9350 De Sot0 Ave , PO. Box 2402 * Chabworth. CA 91313-2402 www.na1~onalndary.org Prod No. 5907 Reorder Call Toll-Free 1-800-875-6827 ANDERSON 0 BRABANT, INC. REAL ESTATE APPRAISERS AND CONSULTANTS 353 W. NINTH AVENUE ESCONDIDO. CALIFORNIA 92029-5032 TELEPHONE 1760) 74 1-4 146 FAX (7601 74 I - IO49 March 18,2003 Marshall Plantz Senior Civil Engineer City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Re: REAL ESTATZ APPRAISAL SERVICES MASTER AGREEMENT Dear Mr. Plantz: It was a pleasure to speak with you this week and to be notified that the appraisal firm of Anderson & Brabant, hc. has been selected to provide Real Estate Appraisal Services to the City of Carlsbad under the terms of a Master Agreement. We have appreciated the opportunity to work for'the City in the past and look forward to continuing the relationship. As you requested, I have attached a fee schedule for our firm with the fees indicated applicable for one year from the date of the Master Agreement. Respectfully submitted, ANDERSON & BRABANT, INC. Gilbert F. Kunkel, MAI -. . . FEE SCHEDULE 2003 FOR ANDERSON & BRABANT, INC Site Inspection, Research and Report Writing SENIOR APPRAISER $1 5O/Hour STAFF APPRAISER $1 25/Hour RESEARCH ASSISTANT $50-75/Hour C LERl CAL $40/Hour Deposition and Court Testimony SENIOR APPRAISER $275/Hour STAFF APPRAISER $200/Hour 355 MASTER AGREEMENT FOR PROFESSIONAL APPRAISAL SERVICES HENDRICKSON APPRAISAL COMPANY INC. day of 2003, by and between the CARLSBAD MUNICIPAL WATER DlSrwPublic AgLncy organized under the Municipal Water Act of 191 1, and a subsidiary District of the City of Carlsbad hereinafter referred to as "District", and HENDRICKSON APPRAISAL COMPANY INC., a California Corporation, hereinafter referred to as "Contractor." THIS AGREEMENT is made and entered into as of the fkL RECITALS A. District requires the professional services of a Professional Engineering B. The professional services are required on a non-exclusive, project-by- C. Contractor has the necessary experience in providing professional D. Selection of Contractor is expected to achieve the desired results in an E. Contractor has submitted a proposal to District and has affirmed its Consultant that is experienced in Appraisal Services. project basis. services and advice related to Appraisal Services. expedited fashion. willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, District and Contractor agree as follows: 1. SCOPE OF WORK District retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best jtldgment while exercising its professional skill and expertise. 1 3. TERM The term of this Agreement will be effective from the date first above written to September 30, 2004. The Executive Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not-to-exceed fifty thousand dollars ($50,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, District needs, and appropriation of funds by the District Board. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (IO) days after receipt of notification to proceed by District and be completed within the time specified in the Task Description for the project (see paragraph 4 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Public Works Director or Deputy City Engineer, as his designee. The Public Works Director or Deputy City Engineer, 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 Contractor, or delays caused by District inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed fifty thousand dollars ($50,000) during the initial term or subsequent agreement years. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A". Prior to initiation of any project work by Contractor, District shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for District, the Executive Manager, or Public Works Director, as his designee, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a Combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of District. Contractor will be under control of District only as to the result to be accomplished, but will consult with District as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of District for any purposes. 2 The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. District will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. District will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify District within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which District may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the District's election, District may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of District. If Contractor subcontracts any of the Services, Contractor will be fully responsible to District for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and District. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by District. 8. OTHER CONTRACTORS Services. The District reserves the right to employ other Contractors in connection with the 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the District 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 in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense District incurs or makes to or on behalf of an injured employee under the District's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 3 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V". 10.1 Coveraqes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless General Counsel or Executive Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. District, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. Automobile Liability. (if the use of an automobile is involved for Contractor's work for District). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liabilitv. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to District's satisfaction, a declaration stating this. Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The Carlsbad Municipal Water District will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to District sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providinq Certificates of Insurance and Endorsements. Prior to District's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to District. 10.1.2 10.1.4 4 10.4 Failure to Maintain Coveraqe. If Contractor fails to maintain any of these insurance coverages, then District will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by District to obtain or maintain insurance and District may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. District reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.5 11. BUSINESS LICENSE term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of District during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. Contractor will obtain and maintain a City of Carlsbad Business License for the 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of District. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to District. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copvrights that arise from the services will be vested in District and Contrador relinquishes'all daims to the copyrights in favor of District. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of District and on behalf of Contractor under this Agreement. For District: For Contractor: Name Lloyd Hubbs Name 74 fldl&Sd& Title fJ[LS i dm Carlsbad Municipal Water District Address 1635 Faraday Avenue Address /O 7$?'2 %A Dr-ego &t~=,o~ /cp/ Carlsbad, CA 92008 6G203, 5.b. c/l %?./OK Phone No. (760) 602-2720 PhoneNo.' 6 /? 28 R - OBW Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 5 16. CONFLICT OF INTEREST District will evaluate Contractor’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor’s affected employees, agents, or subcontractors will complete and file with the Secretary those schedules specified by District and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor’s agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor’s agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the District an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keeD fullv informed of federal, state and local laws and ordinances and regulations which in’any-manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor’s services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or District will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the Executive Manager. The Executive Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the Executive Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 6 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, District may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If District decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, District may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by District and all work in progress to District address contained in this Agreement. District will make a determination of fact based upon the work product delivered to District and of the percentage of work that Contractor has performed which is usable and of worth to District in having the Agreement completed. Based upon that finding District will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of District, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to District. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. District will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, District will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to District must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to District, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If District seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for District to terminate this Agreement. 7 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon District and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of District, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along w6h the purchase-order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. Ill 8 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bindcontractor to the terms and conditions of this Agreement- Executed by Contractor this /f- day of g(M-J- , 20 d-3 . CONTRACTOR: CARLSBAD MUNICIPAL HENDRICKSON APPRAISAL & (print name/title) I ATTEST: By: Secretary (Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column: Column A Column B Chairman, president or vice-president Secretary, assistant secretary, CFO or Assistant treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 191 I, and a subsidiary District of the City of Carlsbad APPROVED AS TO FORM: RONALD R. BALL, General Counsel BY: % ‘dk eputy General Counsel 9 INC. 10992 San Diego Mission Road w SuW 203 San Diego California 92108 16191 282-0800 Fax 1619) 282-1471 hacincisworldnet all ne! March 19,2003 Marshall Plantz Senior Civil Engineer City of Carlsbad Engineering Department 163 5 Faraday Avenue Carlsbad, CA 92008 Re: Fee Schedule relating to “On Call” Appraisal Services for the City of Carlsbad Dear Marshall, Thank you for selecting our firm to continue to provide valuation services to the City of Carlsbad. As requested, following is our Fee Schedule for appraisal, consulting, and expert testimony services: Aomaisal PreParation: Senior Appraisers Principal Appraiser ExDert Testimonv (Principal Aupraiser): Trial Preparation and Consulting Expert Testimony $85.OO/hour $120.00/hour $150.OO/hour $275.OO/hour Should you have any questions, please give us a call at (619) 282-0800. Thank you again for this opportunity to be of service to Lie City of Carlsbad. Sincerely, President TGH:rm CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California D//5&* County of .>W <r L, K U~X.EJ, A*'QT..~L/Y hW i L Name &id Title of ORicer (e g , "Jane Doe, Notary Public") On 06/'keJ , before me, personally appeared 6, d,!%M)CKSdhJ&AA)B flfiRIJhrJC L, bfEfioR/&h? personally known to me 8 proved to me on the basis of satisfactory Name@) of Signer@) evidence Place Notary Seal Above 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. WITN>FEI. Signature of Notary Public 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. Document Date: a6 / d+/ 03 Number of Pages: r Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: 0 Individual U Corporate Officer - Title(s): U Partner - CI Limited L1 General 0 Attorney in Fact 0 Trustee U Guardian or Conservator LI Other: Signer Is Representing: L___J 0 1997 National Notary Association * 9350 De Solo Ave PO Box 2402 * Chatsworth. CA 91313 2402 Prod No 5907 Reorder Call Toll-Free 1-800-876-6827