Loading...
HomeMy WebLinkAbout2006-12-05; City Council; 18826; Award of Master Agreements for various services11 CITY OF CARLSBAD/CARLSBAD MUNICIPAL WATER DISTRICT AGENDA BILL AB# MTG. 18,826 12/05/06 DEPT. ENG AWARD OF MASTER AGREEMENTS FOR PROFESSIONAL ENGINEERING, ENVIRONMENTAL PLANNING, GEOTECHNICAL, SURVEYING, PROPERTY APPRAISAL SERVICES, POTHOLING, PUBLIC RELATIONS, AND CLOSED-CIRCUIT INVESTIGATIONS DEPT. HEAD CITY ATTY. CITY MGR. RECOMMENDED ACTION: CITY COUNCIL OF THE CITY OF CARLSBAD: Adopt Resolution No. 2006-353 approving master agreements with Harris & Associates, Rick Engineering Company, Katz, Okitsu & Associates, RBF Consulting, Richard Brady & Associates, Boyle Engineering Corporation, Krieger & Stewart, EDAW, LSA Associates, Bureau Veritas North America, Ninyo & Moore, Testing Engineers, Melchoir Land Surveying, Right-of-Way Engineering Services, Anderson & Brabant, Hendrickson Appraisal Company, AirX Utility Surveyors, Katz & Associates, and Affordable Drain Service dba Affordable Pipeline Services to provide professional services. BOARD OF DIRECTORS OF THE CARLSBAD MUNICIPAL WATER DISTRICT: Adopt Resolution No. 1284 approving master agreements with Boyle Engineering Corporation and Krieger & Stewart to provide professional services. ITEM EXPLANATION: With City Council and with CMWD Board approval, the Public Works Department will contract 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 approve Master Agreements for: roadway, drainage and site design; traffic engineering; structural engineering; sewer utility engineering; environmental planning studies; assessment engineering; geotechnical; surveying; property appraisal services; potholing; public relations; and closed-circuit television investigations (CCTV). In order to reduce the time and cost to obtain professional services, staff is recommending that the CMWD Board approve Master Agreements for water and recycled water engineering. 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 and in any given agreement year. As project-specific work tasks are identified, individual Project Task Description and Fee Allotments are negotiated with the appropriate Master Agreement consultant. 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 Site Design, 2) Traffic Engineering, 3) Structural Engineering, 4) Water, Recycled Water and Sewer Utility Engineering, 5) Environmental/Planning Studies, 6) Assessment Engineering, 7) Geotechnical, 8) Surveying, 9) Property Appraisal Services, 10) Potholing, 11) Public Relations, and 12) CCTV. The most recent set of Master Agreements for Professional Services have expired on September 30, 2006. FOR CITY CLERKS USE ONL Y. BOARD ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED D D D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER - SEE MINUTES D Page 2 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 District and discussing consulting firms known to staff, Statements of Qualifications (SOQ's) were solicited from over fifty 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 table on Page 2 summarizes the number of SOQ's submitted for each discipline. DISCIPLINE 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Roadway, Drainage and Site Design Traffic Engineering Structural Engineering Water, Recycled Water & Sewer Utility Engineering Environmental Planning Assessment Engineering Geotechnical Engineering Surveying Property Appraisal Potholing Public Relations CCTV # OF SOQ'S RECEIVED 10 7 3 10 5 3 3 3 3 1 •'.. . ' 2 3 Selection committees for each discipline reviewed the SOQ's and identified the most qualified consultants based on the evaluation criteria noted above. 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 District execute master agreements with the selected firms as noted in the following tables. DISCIPLINE 1 ) Roadway, Drainage and Site Design 2) Traffic Engineering 3) Structural Engineering 4) Sewer Utility Engineering 5) Environmental/Planning 6) Assessment Engineering 7) Geotechnical Engineering 8) Surveying 9) Property Appraisal 10) Potholing 11) Public Relations 12) CCTV CITY OF CARLSBAD Harris & Associates Rick Engineering Company Katz, Okitsu & Associates RBF Consulting Richard Brady & Associates Boyle Engineering Corporation Krieger & Stewart, Inc. EDAW, inc. LSA Associates, Inc. Bureau Veritas North America Harris & Associates Ninyo & Moore Testing Engineers - San Diego, Inc. Melchior Land Surveying, Inc. Right-of-Way Engineering Services, Inc. Anderson & Brabant, Inc. Hendrickson Appraisal Company, Inc. AirX Utility Surveyors, Inc. Katz & Associates Affordable Drain Service dba Affordable Pipeline Services TOTAL POTENTIAL AGREEMENT VALUE AGREEMENT YEAR VALUE $200,000 $200,000 m 50,Qoo J 11 50,000 $100,000 $200,000 $200,000 $150,000 $150,000 $150,000 $150,000 $100,000 $100,000 $75,000 $75,000 $75,000 $75,000 $100,000 $75,000 $75,000 $2,550,000 TOTAL AGREEMENT VALUE $600,000 $600,000 $450,000 $450,000 $300,000 $600,000 $600,000 $450,000 $450,000 $450,000 $450,000 $300,000 $300,000 $225,000 $225,000 $225,000 $225,000 $300,000 $225,000 $225,000 $7,650,000 Pages DISCIPLINE 1) Water & Recycled Water Engineering CARLSBAD MUNICIPAL WATER DISTRICT Boyle Engineering Corporation Krieger & Stewart TOTAL POTENTIAL AGREEMENT VALUE AGREEMENT YEAR VALUE $200,000 $200,000 $400,000 TOTAL AGREEMENT VALUE $600,000 $600,000 $1,200,000 The proposed Master Agreements are for a term which will end on September 30, 2009. Project Task Descriptions will be executed based upon City and District needs and the availability of appropriated funds. ENVIRONMENTAL REVIEW: The primary function of the master agreement is to facilitate the timely completion of Capital Improvement Program projects and are not assigned to any specific project. Environmental review will be required upon processing of each individual project. FISCAL IMPACT: The maximum amounts payable by the City or District to each consultant during the contract term will end on September 30, 2009. During the contract term, the total potential value of consulting services that could be contracted with the City in conjunction with the twenty contracts is $2,550,000 per agreement year. During the contract term, the total potential value of consulting services that could be contracted with the District in conjunction with the two contracts is $400,000. These values would also apply to each consecutive agreement year yielding a total potential value of these Master Agreements with the City to be $7,650,000 and $1,200,000 with the District over the three-year period. The actual value and maximum expenditures for these consulting services will be established by each individual Project 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. 2006-353 approving master agreements with Harris & Associates, Rick Engineering Company, Katz, Okitsu & Associates, RBF Consulting, Richard Brady & Associates, Boyle Engineering Corporation, Krieger & Stewart, EDAW, LSA Associates, Bureau Veritas North America, Ninyo & Moore, Testing Engineers, Melchoir Land Surveying, Right-of-Way Engineering Services, Anderson & Brabant, Hendrickson Appraisal Company, AirX Utility Surveyors, Katz & Associates, and Affordable Drain Service dba Affordable Pipeline Services for professional engineering, environmental planning, geotechnical, surveying, property appraisal services, potholing, public relations, and CCTV services. NOTE: Exhibits 2 through 21 on file in the City Clerk's Office. 2. Agreement between the City of Carlsbad and Harris & Associates for Roadway, Drainage and Site Engineering services. 3. Agreement between the City of Carlsbad and Rick Engineering Company for Roadway, Drainage and Site Engineering services. 4. Agreement between the City of Carlsbad and Katz, Okitsu & Associates for Traffic Engineering services. 5. Agreement between the City of Carlsbad and RBF Consulting for Traffic Engineering services. Page 4 6. Agreement between the City of Carlsbad and Richard Brady & Associates for Structural Engineering services. 7. Agreement between the City of Carlsbad and Boyle Engineering Corporation for Sewer Utility Engineering services. 8. Agreement between the City of Carlsbad and Krieger & Stewart for Sewer Utility Engineering services. 9. Agreement between the City of Carlsbad and EDAW for Environmental/Planning services. 10. Agreement between the City of Carlsbad and ISA Associates for Environmental Planning services. 11. Agreement between the City of Carlsbad and Bureau Veritas North America for Assessment Engineering services. 12. Agreement between the City of Carlsbad and Harris & Associates for Assessment Engineering services. 13. Agreement between the City of Carlsbad and Ninyo & Moore for Geotechnical services. 14. Agreement between the City of Carlsbad and Testing Engineers for Geotechnical services. 15. Agreement between the City of Carlsbad and Melchior Land Surveying for Surveying services. \ 16. Agreement between the City of Carlsbad and Right-of-Way Engineering Services for Surveying services. 17. Agreement between the City of Carlsbad and Anderson & Brabant for Property Appraisal services. 18. Agreement between the City of Carlsbad and Hendrickson Appraisal Services for Property Appraisal services. 19. Agreement between the City of Carlsbad and AirX Utility Surveyors for Potholing services. 20. Agreement between the City of Carlsbad and Katz & Associates for Public Relations services. 21. Agreement between the City of Carlsbad and Affordable Drain Service dba Affordable Pipeline Services for CCTV services. 22. Board of Directors of the Carlsbad Municipal Water District, Resolution No. 1284 approving master agreements with Boyle Engineering Corporation and Krieger & Stewart to provide professional services. 23. Agreement between the Carlsbad Municipal Water District and Boyle Engineering Corporation for Water and Recycled Water Utility Engineering services. 24. Agreement between the Carlsbad Municipal Water District and Krieger & Stewart for Water and Recycled Water Utility Engineering services. NOTE: Exhibits 23 through 24 on file in the City Clerk's Office. DEPARTMENT CONTACT: CHRISTOPHER MUEHLBACHER, (760) 602-2736, cmueh@ci.carlsbad.ca.us H 19 20 21 22 23 24 25 26 27 9ft 1 RESOLUTION NO. 2006-353 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF 3 CARLSBAD, CALIFORNIA, APPROVING MASTER AGREEMENTS WITH HARRIS & ASSOCIATES, RICK ENGINEERING COMPANY, 4 KATZ, OKITSU & ASSOCIATES, RBF CONSULTING, RICHARD BRADY & ASSOCIATES, BOYLE ENGINEERING CORPORATION, 5 KRIEGER & STEWART, EDAW, LSA ASSOCIATES, BUREAU VERITAS NORTH AMERICA, NINYO & MOORE, TESTING 6 ENGINEERS, MELCHIOR LAND SURVEYING, RIGHT-OF-WAY ENGINEERING SERVICES, ANDERSON & BRABANT, 7 HENDRICKSON APPRAISAL SERVICES AIRX UTILITY SURVEYORS, KATZ & ASSOCIATES, AND AFFORDABLE PIPELINE SERVICES 8 FOR PROFESSIONAL ENGINEERING, ENVIRONMENTAL PLANNING, GEOTECHNICAL, SURVEYING, PROPERTY APPRAISAL SERVICES, POTHOLING, PUBLIC RELATIONS AND CCTV SERVICES10 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,12 as-needed basis in order to maintain service levels; and \ O WHEREAS, the Department of Public Works solicited, received, and reviewed14 Statements of Qualifications for as-needed professional engineering, environmental planning, IO ._ geotechnical, surveying, appraisal services, potholing, public relations and CCTV services16 consistent with Carlsbad Municipal Code section 3.28.070; and „-, WHEREAS, subsequent to a review of the Statements of Qualifications, staff10 recommends Harris & Associates, Rick Engineering Company, Katz, Okitsu & Associates, RBF Consulting, Richard Brady & Associates, Boyle Engineering Corporation, Krieger & Stewart, EDAW, LSA Associates, Bureau Veritas North America, Ninyo & Moore, Testing Engineers, Melchior Land Surveying, Right-of-Way Engineering Services, Anderson & Brabant, Hendrickson Appraisal Company, AirX Utility Surveyors, Katz & Associates, and Affordable Drain Service dba Affordable Pipeline Services, 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; 1 2 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 3 California, as follows: 4 1. That the above recitations are true and correct. 5 2. That agreements with Harris & Associates, Rick Engineering Company, Katz, 6 Okitsu & Associates, RBF Consulting, Richard Brady & Associates, Boyle Engineering 7 Corporation, Krieger & Stewart, EDAW, LSA Associates, Bureau Veritas North America, Ninyo & 8 Moore, Testing Engineers, Melchior Land Surveying, Right-of-Way Engineering Services, 9 Anderson & Brabant, Hendrickson Appraisal Company, AirX Utility Surveyors, Katz & Associates, 10 and Affordable Drain Service dba Affordable Pipeline Services, copies of which are attached as 11 Exhibits 2 thru 21 to Agenda Bill No. 18,826 are hereby approved. 12 3. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute 13 the agreements with Harris & Associates, Rick Engineering Company, Katz, Okitsu & Associates, 14 RBF Consulting, Richard Brady & Associates, Boyle Engineering Corporation, Krieger & Stewart, 15 EDAW, LSA Associates, Bureau Veritas North America, Ninyo & Moore, Testing Engineers, 16 Melchior Land Surveying, Right-of-Way Engineering Services, Anderson & Brabant, Hendrickson 17 Appraisal Company, AirX Utility Surveyors, Katz & Associates, and Affordable Drain Service dba 1ft Affordable Pipeline Services, and on behalf of, the City of Carlsbad. 19 20 21 22 23 24 25 26 27 9ft 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 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 5th day of December, 2006, by the following vote: AYES: Council Members Lewis, Hall, Kulchin, Packard, Sigafoose NOES: None. ABSENT: None. I\S, Mayor ATTEST: LORRAINE M. WOOD, City Clerk (SEAL) MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN ROADWAY, DRAINAGE, AND SITE DESIGN (HARRIS & ASSOCIATES) / '4^^THIS AGREEMENT is made and entered into as of the is day of •^0 (LJLmJaV^J 20 OU by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter 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 is experienced in roadway, drainage, and site design. 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 roadway, drainage, and site design. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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 two hundred thousand dollars ($200,000) per Agreement year. The total amount of the Agreement shall not exceed six hundred thousand dollars ($600,000) for the complete Agreement term. 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Ehab Gerges, P.E. Title Deputy City Engineer Title Associate/Design Manager Dept Public Works-Engineering Design HARRIS & ASSOCIATES CITY OF CARLSBAD Address 1635 Faraday Avenue Address 750 B Street, Suite 1800 Carlsbad, CA 92008 San Diego, CA 92101 Phone No. (760) 602-2768 Phone No. (619)236-1778 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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_2=L£day of CONTRACTOR: HARRIS & ASSOCIATES, a California cq/b6ratior By: CITY OF CARLSBAD, a municipal corporatfprwrf the^State (sjgn here) (print name/title) eh&rnL- ATTEST: (e-mail address) By '(sign here) LORRAINE M. WOOD City Clerk (print name/title) (e-mail address) (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 BY: eputy City AttoY>ey City Attorney Approved Version #04/03/02 Corporate or Partnership STATE OF COUNTY OF On this Before me itC&iJ/tf (/£> r f^/^Sf/' a Notary Public, duly commissioned and qualified in above said County and State, personally appeared ^t^^r/if^ W,£&ysr OO personally known to me or J^SJf'proved to me on this basis of satisfactory evidence consisting of an identifying document or O the oath of to be the person(^ whose name(«) is/are subscribed to the within instrument and acknowledged to me that he/oho/they executed the same in his/bar/their authorized capacity(*es), as ~3?Wr£)/'l//dt?' f%*< and thatjay his/her/their signature(s) on the instrument on behalf of. a _, organized under the laws of , executed the same. WITNESS my hand i i t • — »i i 11 • " r KEVIN S. CLAIR t COMM. $1470952 m Notary PuWit-Callfomia W ORAMOtCOOWtt - My Comm. fap. t«»l^t »M I (Seal) State of California County of On ss.CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT Date personally appeared _ , before me, Printed Name of Notary Public 0" personally known to me - or - I | proved to me on the basis of satisfactory evidence: n form(s) of identification D credible witness(es) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Punflc (Seal) OPTIONAL INFORMATION Although The information in this section is not required by law, it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. Description of Attached Document The preceding Certificate of Acknowledgment is attached to a document titled/for the purpose of Cm/ OF Additional Information containing pages, and dated The signer(s) capacity or authority is/are as: d Individual(s) d] Attorney-in-Fact QZ Corporate Officer(s) dlftgp "R *X*>JOA3— Title(s) CD Guardian/Conservator EH Partner - Limited/General D Trustee(s) D Other: representing: Name(s) of Person(s) or Entity(ies) Signer is Representing Additional Signer(s) I | Signer(s)Thumbprint(s) Other O Copyright 2004 Notary Rotary, Inc. 925 29th St., Des Moines, IA 50312-3612 Form ACK02. 02/04. To re-order, call toll-free 1-877-349-6588 or visit us on the Internet at http://www.thenotaryshop.com EXHIBIT A Master Agreement Roadway Design, Drainage & Traffic Engineering Effective October 1. 2006 - September 30. 2007 Harris & Associates Fee Schedule Project Director/Vice President $192.00 Per hour Sr. Project Manager $180.00 Project Manager $165.00 Project Engineer $125.00 - $140.00 Design Engineer $ 95.00 - $105.00 Sr. CADD Designer $ 95.00 - $110.00 CADD Drafter $ 95.00 - $100.00 Technical Support $ 75.00 - $ 95.00 Administration $ 65.00 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 September 30,2007. 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 cots 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). Harris & Associates MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN ROADWAY, DRAINAGE, AND SITE DESIGN (RICK ENGINEERING) PWENG549 t "3 THIS AGREEMENT is made and entered into as of the (0 _ day of 2§0(f>. by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and RICK ENGINEERING, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in roadway, drainage, and site design. 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 roadway, drainage, and site design. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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 two hundred thousand dollars ($200,000) per Agreement year. The total amount of the Agreement shall not exceed six hundred thousand dollars ($600,000) for the complete Agreement term. 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Kai Ramer Title Deputy City Engineer Title Principal-ln-Charge Dept Public Works-Engineering Design CITY OF CARLSBAD RICK ENGINEERING Address 1635 Faraday Avenue Address 5620 Friars Road Carlsbad, CA 92008 San Diego, CA 92110-2596 Phone No. (760) 602-2768 Phone No. (619)291-0707 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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 \i_day of CONTRACTOR: RICK ENGINEERING, a California corporation ° CITY OF CARLSBAD, a mur corporation of th» State of By: S^ ~ (sign here) ayor (print name/title)ATTEST: (e-mail address) By:LORRAINE M. WOOD City Clerk (print name/title) (e-mail address) (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 BY:^> Deputy City Attorney City Attorney Approved Version #04/03/02 ACKNOWLEDGMENT State of California County of On before me, personally appeared. ixr, MoW y (here insert name and title of the officer) o (L (^personally known to mej(ef proved to me on the basio of satisfactory cvideoee) to be the persotVsVwhose name^j^/arejbubscribed to the within instrument and /~<~"\ s—"x.acknowledged to me that«he/&he/thev)executed the same in4=Ms/h«/their)authorized^^^ </ ^.—*^ s~~^*^ /^~f~~>\. /*~s /f^^capacities);)and that by4wsZhe(/their)5ignature^s)Jon the instrument the persorf(s)v or the entity upon behalf of which the persorpjjacted, executed the instrument. WITNESS my hand and official seal.KAREN ARTHURCOMM. #1538627 NOTARY PUBLIC* CALIFORNIASAN DtEGO COUNTYGoam^anbamm.M. (Seal) M 2-00 n<ainetsr-i^a -Job RICK ENGINEERING COMPANY Hourly Rates - California Offices August 28, 2006 - February 23, 2007 ENGINEERING Principal Consultant (Special Projects) $175.00 Principal 160.00 Associate Principal 150.00 Associate/Manager 140.00 Principal Project Engineer/Manager 125.00 Associate Project Engineer/Manager 120.00 Assistant Project Engineer/Manager 110.00 Principal Engineering Designer 102.00 Associate Engineering Designer 97.00 Assistant Engineering Designer 92.00 Principal Engineering Drafter 84.00 Associate Engineering Drafter 77.00 Assistant Engineering Drafter 69.00 CONSTRUCTION MANAGEMENT Principal 160.00 Associate Principal 150.00 Associate/Manager 140.00 Principal Construction Engineer/Manager 125.00 Associate Construction Engineer/Manager 120.00 Assistant Construction Engineer/Manager 110.00 Principal Construction Technician 102.00 Associate Construction Technician 97.00 Assistant Construction Technician 92.00 TRANSPORTATION Principal 160.00 Associate Principal 150.00 Principal Transportation Engineer 125.00 Associate Transportation Engineer 120.00 Assistant Transportation Engineer 110.00 Principal Transportation Designer 102.00 Associate Transportation Designer 97.00 Assistant Transportation Designer 92.00 PLANNING Principal 160.00 Associate Principal 150.00 Director of Planning 140.00 Principal Project Planner 140.00 Senior Project Planner 120.00 Assistant Project Planner 110.00 Senior Planner 102.00 Associate Planner 97.00 Assistant Planner 92.00 Senior Planning Technician 84.00 Associate Planning Technician 77.00 Assistant Planning Technician 69.00 Planning Assistant 55.00 WATER RESOURCES Principal 160.00 Associate Principal 150.00 Associate/Manager 140.00 Principal Project Engineer/Manager 125.00 Associate Project Engineer/Manager 120.00 Assistant Project Engineer/Manager 110.00 Environmental Specialist 105.00 Assistant Environmental Specialist 82.00 Principal Water Resources Designer 102.00 Associate Water Resources Designer 97.00 Assistant Water Resources Designer 92.00 LANDSCAPE ARCHITECTURE Principal $150.00 Associate Landscape Architect 135.00 Principal Project Landscape Architect/Manager 120.00 Associate Project landscape Architect/Manager 110.00 Assistant Project Landscape Architect/Manager 100.00 Principal Irrigation Designer 110.00 Principal Landscape Designer 92.00 Associate Landscape Designer 87.00 Assistant Landscape Designer 82.00 Principal Landscape Drafter 71.00 Associate Landscape Drafter 66.00 Assistant Landscape Drafter 60.00 FORENSIC SERVICES Expert Witness 300.00 Court Appearance per half day or part 1,200.00 Principal Consultant 175.00 Associate Principal 150.00 Associate/Manager 140.00 PHOTOGRAMMETRY Principal 160.00 Associate Principal 150.00 Associate/Manager 140.00 Photogrammetry Supervisor 130.00 Principal Photogrammetrist 100.00 Associate Photogrammetrist 90.00 Assistant Photogrammetrist 88.00 GIS SERVICES Principal 160.00 Associate Principal 150.00 Associate/Manager 140.00 Principal GIS Analyst 100.00 Associate GIS Analyst 95.00 Assistant GIS Analyst 88.00 Principal Computer Graphics Editor 83.00 Associate Computer Graphics Editor 78.00 Assistant Computer Graphics Editor 68.00 SURVEYING Principal 160.00 Associate Principal 150.00 Associate/Manager 140.00 Field Supervisor 125.00 One-person Survey Party 110.00 Two-person Survey Party 190.00 Three-person Survey Party 250.00 Prevailing wage rates for Survey Parties slightly higher. MAPPING/COMPUTING Principal 160.00 Associate Principal 150.00 Associate/Manager 140.00 Computing & Mapping Director 125.00 Principal Survey Analyst 115.00 Associate Survey Analyst 100.00 Assistant Survey Analyst 85.00 GPS Pre-planning/Post-processing 115.00 GPS Survey Party 80.00/person/hour ADMINISTRATIVE SERVICES Associate Project Administrator 55.00 Assistant Project Administrator 38.00 Administrative Assistant 55.00 When authorized, overtime shall be charged at the listed rates times 1.3. Unless otherwise agreed upon, we shall charge for printing, reproduction, deliveries, transportation, and other expenses. A ten (10) percent fee for administration, coordination and handling will be added to all subcontracted services. PWENG559 MASTER AGREEMENT FOR PROFESSIONAL TRAFFIC ENGINEERING SERVICES (KATZ, OKITSU & ASSOCIATES) THIS AGREEMENT is made and entered into as of the u? _ day of 2QCU, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and KATZ, OKITSU & ASSOCIATES, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in traffic 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 traffic engineering. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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) per Agreement year. The total amount of the Agreement shall not exceed four hundred fifty thousand dollars ($450,000) for the complete Agreement term. 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 withholding^ 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Joe De La Garza, P.E. Title Deputy City Engineer Title Senior Transportation Engineer Dept Public Works-Engineering Design CITY OF CARLSBAD KATZ, OKITSU & ASSOCIATES Address 1635 Faraday Avenue Address 2251 San Diego Avenue, Suite A270 Carlsbad, CA 92008 San Diego, CA 92110 Phone No. (760) 602-2768 Phone No. (619)683-2933 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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: KATZ, OKITSU & ASSOCIATES, a California corporation day of _, 20 CITY OF, corpora Bv: (sign here) (print name/title) p<w £••>-& ATTEST: (e-mail address) By: here) LORRAINE M. WOOD City Clerk tT, (print name/title) (e-mail address)*"7,(*>° (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 officers) 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: Deputy^City Attorney City Attorney Approved Version #04/03/02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of <~_2> On . personally Date appeared C7 before me, ss. Name and Title of Officer (e.g., "Jane Doe. Notary Public') Name(s) of Signer(s) JOHN ALCANTAR COMM. #155.9306 NO! ARY PUBUC-CALJFCRNIA SAN OITOO COUNTY MyConim Expires March 15, 2009 rao D personally known to me 5? proved to me on the basis of satisfactory evidence to be the person^ whose name(s) is/ate subscribed to the within instrument and acknowledged to me that he/sJie/tfiey" executed the same in his/lje^thelf authorized capacity(jee), and that by his/rjef/thelr signature^) on the instrument the person^, or the entity upon behalf of which the person^s) acted, executed the instrument. WITNESS Place Notary Seal Above and and official seal. 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: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ffi Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: RIGHT THUMBPRINT OF SIGNER Signer Is Representing: Top of thumb here Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing:. RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2004 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Item No. 5907 Reorder: Call Toll-Free 1-800-876-6827 EXHIBIT "A" SCOPE OF SERVICES Per the terms of Katz, Okitsu & Associates' master agreement with the City of Carlsbad, the firm will perform traffic signal design and modification and traffic control design on an on-call basis. All services will be billed in accordance with the firm's professional fee schedule as displayed below. FULL LABOR RATES PER HOUR Expert Witness $220.00 Principal $200.00 Senior Engineer/Planner $ 160.00 Associate Engineer/Planner $ I 10.00 Assistant Engineer/Planner $ 90.00 Planning Assistant $ 80.00 Senior Engineering Designer $ 90.00 Associate Engineering Designer $ 80.00 Assistant Engineering Designer $ 70.00 Technician $ 55.00 Administrative Aide $ 45.00 Assistant Technician $ 25.00 EXPENSES Mileage billed at $0.44 per mile Direct expenses may be marked up 10% * Note - We bill periodically for services rendered. From time-to-time, we may adjust our schedule of fees to reflect current conditions. However, any such change will not affect the contract maximum fee without prior authorization. Kilt/ OkitSU & 4SSOCiatCS A647l-CarlsbadPublic Works Master Agreement Planning and Engineering Page ' of ' PWENG563 MASTER AGREEMENT FOR PROFESSIONAL TRAFFIC ENGINEERING SERVICES (RBF CONSULTING) / t-THIS AGREEMENT is made and entered into as of the 6? _ day of . 20/9^ by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter 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 is experienced in traffic 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 traffic engineering. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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) per Agreement year. The total amount of the Agreement shall not exceed four hundred fifty thousand dollars ($450,000) for the complete Agreement term. 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 withholding^ 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Dawn Wilson, P.E. Title Deputy City Engineer Title Project Manager Dept Public Works-Engineering Design CITY OF CARLSBAD RBF CONSULTING Address 1635 Faraday Avenue Address 5050 Avenida Encinas, Suite 260 Carlsbad, CA 92008 Carlsbad, CA 92008 Phone No. (760) 602-2768 Phone No. (760)476-9193 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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: RBF CONSULTING, a California corporation day of CITY OF CARLSBAD, a municipal corporation^ the/Btate-of Catiffcirnia (sign here) (print name/title)ATTEST: (e-mail address) (printname/title) -f- (2 l (e-mail address) LORRAINE M. WOOD City Clerk ^s r c ^ % ^ "X" X 0>SS (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 BY: City Attorney Approved Version #04/03/02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Date personally appeared CINDY OKAMOTO Commteton* 1541982 Notary nttc-CaMMta Mr Comm. EiqpkwJan 15.2009 Name(s) of£igner(s) '"^•personally known to me D-proved to me on the basis of satisfactory evidence to be the person(iE>whose name^6J>«^?re5 subscribed to the within instrument and acknowledged to me that I the same in hia/hor/1(joTr3~authc capacity!?^, and that by signature£f)x>n the instrument the person(6J^or the entity upon behalf of which the person(fj} acted, executed the instrument. WITNESS myfiaYd and official seaL/ L^^h^^>^ of Nota^fublic 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 -Tl_l_l__ i Document Date: Signer(s) Other Than Named AbWe:. Capacity(ies) Claimed by Sign* Signer's Name: D Individual n Corporate Officer — Title(s): D Partner —D Limited D General D Attorney-in-Fact D Trustee D Guardian or Conservator D Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:,\ 1999 National Notary Association • 9350 De Solo Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnotary.org Reorder: Call Toil-Free 1-800-876-6827 EXHIBIT A CONSULTING HOURLY RATE SCHEDULE Effective January 2006 through December 2006 OFFICE PERSONNEL $ / Hr. Senior Principal $225.00 Principal 205.00 Project Director 184.00 Project Manager 160.00 Structural Engineer 160.00 Electrical Engineer 134.00 Senior Engineer/Senior Planner 141.00 Landscape Architect 130.00 Project Engineer/Project Planner 122.00 Environmental Specialist 118.00 Corrosion Engineer 145.00 Design Engineer/Senior Designer/Mapper 114.00 Designer/Planner 99.00 CIS Analyst 95.00 Graphic Artist 84.00 Environmental Analyst/Staff Planner 84.00 Design Technician 82.00 Assistant Engineer/Planner 78.00 Engineering Aid/Planning Aid 64.00 FIELD PERSONNEL 2-Person Survey Crew $210.00 1-Person Survey Crew 153.00 Licensed Surveyor 150.00 Field Supervisor 145.00 CONSTRUCTION MANAGEMENT PERSONNEL Construction Manager $95.00 Resident Engineer 133.00 Senior Construction Inspector 103.00 Construction Inspector 100.00 Field Office Engineer 95.00 Construction Technician 82.00 OTHER SERVICES AND FEES Permit Processor $99.00 Clerical/Word Processing 54.00 Consultation Relative to Legal Actions 350.00 Vehicle Mileage 0.60/mile Note: Blueprinting, reproduction, messenger service and other direct expenses will be charged as an additional cost plus 15%. A Sub-consultant Management Fee of fifteen-percent (15%) will be added to the direct cost of all sub-consultant services to provide for the cost of administration, sub-consultant consultation and PLANNING • DESIGN • CONSTRUCTION 5050 Avenida Encinas, Suite 260, Carlsbad, CA 92008-4386 • 760.476.9193 • Fax 760.476.9198 Offices located throughout California, Arizona & Nevada • www.RBF.com printed on recycled paper PWENG564 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN STRUCTURAL ENGINEERING (RICHARD BRADY & ASSOCIATES) / «M-THIS AGREEMENT is made and entered into as of the O> _ day of 20 OL>. by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and RICHARD BRADY & ASSOCIATES, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in structural 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 structural engineering. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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 two hundred thousand dollars ($200,000) per Agreement year. The total amount of the Agreement shall not exceed six hundred thousand dollars ($600,000) for the complete Agreement term. 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Richard Brady Title Deputy City Engineer Title President Dept Public Works-Engineering Design CITY OF CARLSBAD RICHARD BRADY & ASSOCIATES Address 1635 Faraday Avenue Address 4909 Murphy Canyon Rd., Ste. 220 Carlsbad, CA 92008 San Diego, CA 92123 Phone No. (760) 602-2768 Phone No. (858) 496-0500 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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 ll day of *> e , 20 CONTRACTOR: RICHARD BRADY & ASSOCIATES, a California corporation Bv: (print name/title) 4- CITY OF CARLSBAD, a municipal corpora^op70f th§ State (sign here) ATTEST: (e-maHaddress) By: ~7. (sign LORRAINE M. WOOD City Clerk (print name/title) (e-mail address) (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 BY: City Attorney Approved Version #04/03/02 California All-Purpose Acknowledgment State of California County of 0 ss. On before me, personally appeared pKHflfl VALERIE^BRADY^ 1 COMM. # 1602600 -I •;vi\ NOTARY PUBLIC-CALIFORNIA Q ""* SAN DIEGO COUNTY Q MY COMMISSION EXPIRES-* AUGUST 25, 2009 pfl personally known to me Q proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their autho- rized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the en- tity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Other Information This information is not required by state law, but is helpful in preventing fraud. Type of Ackowledgment: Q Individual Q Corporate Q Partnership G Attomey-in-fact Q Other: Document Identification: Name/Type: Date: Other Info: Journal Entry #: # of Pages:_ Signer Information Name: Capacity (if corporate): ©2005 Golden State Notary www.Go1denStateNotary.com (888) 263-1977 California Ail-Purpose Acknowledgment State of California . "1 County of hfW \)\£Ar> /^ On S£pfrrY>tt*rl\lM\J before me, \JQiW\t personally appeared s )S[ personally known to me n ^ •" '_" 1^ I Q proved to me on the basis of satisfactory evidenceVALERIE BRADY \ TARYPUBiJC1'CALIFORNIAQ to be the person(s) whose name(s) is/are subscribed SAN DIEGO COUNTY Q to tne w'tnin instrument and acknowledged to me thatMY COMMISSION EXPIRES-* he/she/they executed the same in his/her/their authq- AUGUST 25,2009 I rized capacity(ies), and that by his/her/their ..„. M i. j> v' u tf v 4. signature(s) on the instrument the person(s), or the en- tity upon behalf of which the person(s) acted, executed the instrument. WITNESS my<hand and official seal. Signature of Notary Other Information This information is not required by state law, but is helpful in preventing fraud. Type of Ackowledgment: Q Individual G Corporate Q Partnership D Attomey-in-fact Q Other: Document Identification: Name/Type: Date: # of Pages:_ Other Info: Journal Entry #:_ Signer Information Name: Capacity (if corporate): ©2005 Golden State Notary www.GoldenStateNotary.com (888) 263-1977 RICHARD BRADY & ASSOCIATES EXHIBIT A HOURLY LABOR RATES FOR PROFESSIONAL SERVICES Classification BillinsRate President $190.00 Vice President $180.00 Principal I&C Engineer $ 160.00 Principal Structural Engineer $160.00 Principal Civil (Chief) Engineer $160.00 Project Manager $130.00-155.00 Construction Manager $130.00-155.00 Project Engineer $130.00-145.00 Structural Engineer $130.00-145.00 Electrical Engineer $135.00-150.00 Assistant Engineer I $100.00-120.00 Assistant Engineer II $80.00-105.00 Assistant Engineer III $60.00-80.00 Construction Engineer $125.00-145.00 Construction Inspector $95.00-120.00 Senior Project Designer $120.00-130.00 Project Designer $90.00-110.00 CADD Operator $70.00-80.00 Clerical/Admin $60.00-75.00 Labor rates shown are current rates effective October 1, 2006. Labor rates billed will be based on actual direct labor rates multiplied by a factor of2.90. Mileage will be billed at the current Federal approved rate. Subconsultant costs will be billed at actual cost with a 10% markup. Rates are inclusive of all computer-aided design, and general and administrative overhead costs. A Service Center Charge of $6.00 per labor hour billed will be charged to cover all other direct costs except travel, relocation, and major document printing and reproduction. cc. -J> ^/ PWENG548 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN WATER, RECYCLED WATER, AND SEWER (BOYLE ENGINEERING CORPORATION) THIS AGREEMENT is made and entered into as of the u day of 20fl^- by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and BOYLE ENGINEERING CORPORATION, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in water, recycled water, and sewer. 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. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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 two hundred thousand dollars ($200,000) per Agreement year. The total amount of the Agreement shall not exceed six hundred thousand dollars ($600,000) for the complete Agreement term. 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Don MacFarlane Title Deputy City Engineer Title Project Manager Dept Public Works-Engineering Design CITY OF CARLSBAD BOYLE ENGINEERING CORPORATION Address 1635 Faraday Avenue Address 7807 Convoy Court, Suite 200 Carlsbad, CA 92008 San Diego, CA 92111 Phone No. (760) 602-2768 Phone No. (858) 268-8080 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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: BOYLE Ei a Calif 8th day of September .,20.06 Philip V. Petrocelli. President & CEO (print name/title) ppetrocelli@boyleengineering.com (e-mail address) By: CITY OF. corpor; By: ATTEST: 1 Wrt/i/~ S- pal ffornia ayor LORRAINE M. WOOD City Clerk(sign here) David W. Huchel, Secretary (print name/title) dhuchel@boyleengineering.com (e-mail address) (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 BY: eputy City Attorney City Attorney Approved Version #04/03/02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT i«*3©SSS&^e@?&3S>e&Se^^ pI$IIf- i I1 I III! State of California County of ss. On . before me, personally appeared e _^i . -Will/) CommUHoo »1 WI9» Nolcvy rUbte • CoMoffVQ t6f Conwrt Gxpfew Mp S. Name and Title of Officer (e.g., 'Jane Doe,Public') Name(s) of Signer(s) ' ^personally known to me tl proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal i !PIt 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:. iIIIiO • ^j l| Document Date: D r O $ I!$ Signer(s) Other Than Named Above: Ii $ Signer's Name: OPTIONAL O{~ (2 # .Number of Pages:.rp(-^ Capacity(ies) Claimed by Signer Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney-in-Fact D Trustee D Guardian or Conservator n Other: ^ ' Signer Is Representing:_ OF SIGNER Top of thumb here e 1999 National Notary Association • 9350 De Solo Ave.. P.O. Box 2402 • Chalsworth, CA 91313-2402 • www.NationalNotary.org Prod. No. 5907 Reorder: Call Toll-Free 1 -800-876-6827 Exhibit "A" - Contractor's Schedule of Rates Boyle Engineering Corporation Effective January 1,2006 Professional Staff Description Construction Administration Personnel*; Inspector Resident Project Representative Senior Inspector Senior Resident Project Representative Resident Engineer Senior Resident Engineer (Registered) Technical Support Staff: Student Engineer Drafter/Assistant CADD Operator CADD Operator Designer/Design CADD Operator Sr Designer/Sr Design CADD Operator Design CADD Supervisor Designer Supervisor Hourly Rate Engineers. Planners, and Architects: Assistant Engineer I Assistant Engineer II Associate Engineer (Registered) Senior Planner I Senior Transportation Designer Senior Engineer I (Registered) Senior Engineer II (Registered) Principal Engineer (Registered) $ 89.00 $ 103.00 $112.00 $115.00 $ 141.00 $ 141.00 $ 159.00 $ 195.00 $ 109.00 $ 112.00 $ 120.00 $ 125.00 $ 133.00 $ 146.00 $ 47.00 $ 63.00 $ 80.00 $ 92.00 $ 109.00 $ 134.00 $ 153.00 Professional Staff Description Administrative Support Staff; Administrative Secretary Accounting Specialist Administrative Specialist Information Technology Specialist Direct Project Expenses Subconsultants: Services Provided by Subconsultants Hourly Rate Surveying Staff* (Including Equipment): Survey Technician/Assistant Surveyor I Survey Technician/Assistant Surveyor II Associate Land Surveyor (Registered) Senior Land Surveyor (Registered) $81.00 $ 107.00 $ 118.00 $ 144.00 $ 63.00 $ 83.00 $ 86.00 $ 90.00 Rate Cost+10% Resource Charges** (per direct labor hour): Service Center Charge $ 4.60/hour (computers, reproduction & communication) Other; Travel - Automobile/Truck Federal Mileage Rate + 10% Travel - Other Than Automobile/Truck Cost+10% Other Direct Charges (e.g., vendors, outside Cost + 10% reprographic services, cell phones for field staff, submittal binders, courier, etc.) * Subject to adjustment based on prevailing wage rate (if applicable). ** Resource charges are in addition to the standard hourly labor rates. Service Center Charge covers the cost of computers (i.e., computers, programs, special purpose software and extra equipment such as printers and plotters), reproduction (i.e., incidental in-house copying, printing and plotting) and communication (i.e., phone, fax and internet). Outside reprographic services will be billed separately. If authorized by the client, an overtime premium multiplier of 1.5 will be applied to the billing rate of hourly personnel who work overtime in order to meet a deadline which cannot be met during normal hours. Rates are for San Diego based personnel. Special rates will be negotiated for non-San Diego based staff. Corporate officers, Managing Engineers, and Consulting Engineers will be billed at 1.2 times the stated rate for Principal. Applicable sales taxes, if any, will be added to these rates. Invoices will be rendered monthly. Payment is due upon presentation. A late payment finance charge of 1.5% per month (but not exceeding the maximum rate allowable by law) will be applied to any unpaid balance commencing 30 days after the date of the original invoice. Rates are subject to general revision on January 01, 2007. PWENG561 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN SEWER ENGINEERING (KRIEGER & STEWART) THIS AGREEMENT is made and entered into as of the U> _ day of 2QQJQ, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and KRIEGER & STEWART, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in sewer 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 sewer engineering. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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 two hundred thousand dollars ($200,000) per Agreement year. The total amount of the Agreement shall not exceed six hundred thousand dollars ($600,000) for the complete Agreement term. 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 withholding^ 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Philip E. Strom Title Deputy City Engineer Title Vice President Dept Public Works-Engineering Design CITY OF CARLSBAD KRIEGER & STEWART Address 1635 Faraday Avenue Address 3602 University Avenue Carlsbad, CA 92008 Riverside, CA 92501 Phone No. (760) 602-2768 Phone No. (951)684-6900 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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 2SJ?- day of CONTRACTOR: KRIEGER & STEWART, a California corporation By: CITY OF CARL corpop (sign here) E.Stfom- \l\c& (print name/title)ATTEST: e-mail address) Bv: (sign here) a A. V^rieoer - LORRAINE M. WOOD x>>3 City Clerk (print name/title) e. (e-mairaddress) (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 BY:> Deputy City Attorney City Attorney Approved Version #04/03/02 NOTARY ACKNOWLEDGEMENT State of California County of Riverside ss. On September 26th, 2006, before me, Kim Renee' Soto, a Notary Public, personally appeared Philip E. Strom and Charles A. Krieger, personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed same in their authorized capacities, and that by their signaturestheir on the instrument the personspersons, or the entity upon behalf of which the personspersons acted, executed the instrument. WITNESS my hand and official seal. Signature_JUJUJ . (Seal) MM RENEE SOTO Commission #1464440 Notary PuMc-CaMwnta Mwnfcte County My Comm.Expfcw Jon 20,20061 OPTIONAL INFORMATION Capacity Claimed by Signer | | Individual [~X] Corporate Officer(s): Vice President and Corporate Secretary Title(s) | | Partner(s): | | Limited Attorney-in-Fact Trustee(s) Guardian/Conservator General Other: Description of Attached Document Document Title or Type Master Agreement For Professional Engineering Services in Water, Recycled Water, and Sewer Number of Pages 9 Document Date - To be dated by City of Carlsbad (Contractor signed document 9/26/06) Other Signer(s) Signers are Representing: Name of Person(s) or Entity(ies) Krieger & Stewart, Incorporated EXHIBIT A KDIEGEQ FEE SCHEDULE INCORPORATED •> ft<\£ /-> A«T2UUO/2U07 RAXES CLASSIFICATION $/Hr. Engineering / Environmental / Geologic / Surveying Services Consultant .......................................................................................................................... . ......................... 215.00 Manager ....................................................................................................................................................... 195.00 Principal ...................................................................................................................................................... 160.00 Senior .......................................................................................................................................................... 142.00 Associate ..................................................................................................................................................... 128.00 Staff 1 ........................................................................................................................................................... 113.00 Staff II ......................................................................................................................................................... 101.00 Staff III .......................................................................................................................................................... 88.00 Technician ..................................................................................................................................................... 70.00 Forensic Services Senior Expert: Testimony ................................................................................................................ 315.00 Investigation ............................................................................................................ 220.00 Associate Expert: Testimony ................................................................................................................ 265.00 Investigation ............................................................................................................ 185.00 Computer Aided Design Services Senior Operator 1 ......................................................................................................................................... 103.00 Senior Operator II ......................................................................................................................................... 97.00 Senior Operator III ........................................................................................................................................ 91.00 Staff Operator I ............................................................................................................................................. 86.00 Staff Operator 1 1 ................................................................................................................. . .......................... 80.00 Staff Operator 111 ........................................................................................................................................... 75.00 Surveying Services (Field) 2 Man Crew with Survey Truck (including mileage) and Global Positioning System Equipment .............. 273.00 2 Man Crew with Survey Truck (including mileage) and Standard Equipment or 1 Man Crew with Global Positioning System Equipment ........................................................................... 231.00 Construction Services Construction Engineer ................................................................................................................................. 1 15.00 Construction Inspector Regular Time .......................................................................................................................................... 90.00 Overtime Weekdays (8 hours to 12 hours) .................................................................................................... 1 12.00 Weekdays (More than 12 hours) ................................................................................................... 136.00 Saturday (12 hours or less) ............................................................................................................ 1 12.00 Saturday (More than 12 hours) ..................................................................................................... 136.00 Sunday and Holiday ...................................................................................................................... 136.00 (Holidays: New Years Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day and the Day After, Christmas Day) Support Services Senior Secretary ............................................................................................................................................ 70.00 Staff Secretary 1 ............................................................................................................................................. 61.00 Staff Secretary II ........................................................................................................................................... 55.00 Utility Technician .......................................................................................................................................... 52.00 Utility Clerk ................................................................................................................................................... 49.00 Outside Services Special Consultants and Purchased Services ......................................................................................... Cost + 15% Reimbursable Expenses Vehicle Mileage (excluding survey trucks) ........................................................................................... 0.68 $/Mile Air Fare, Ground Fare, Parking, and Subsistence .............................................................................................. Cost Copies, Prints, Telephone, Delivery, and Sundry Charges ................................................................................ Cost Pagel of 2 KDIEGED -&o FEE SCHEDULE CiHCiW/Ywl INCORPORATED 2006/2007 (continued) 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 30 days of date of invoice. Any amount unpaid within said 30 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 30 days or more are subject, without notice, to credit discontinuance and mechanic's lien or stop notice. If it becomes necessary for Krieger & Stewart to initiate 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. 2007-FEES-PW (6/22/2006) Page 2 of 2 PWENG552 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN ENVIRONMENTAL PLANNING (EDAW) THIS AGREEMENT is made and entered into as of the ~ _ day of 20 fib, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and EDAW, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in environmental planning. 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 environmental planning. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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) per Agreement year. The total amount of the Agreement shall not exceed four hundred fifty thousand ($450,000) dollars for the complete Agreement term. 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Jacqueline Dompe Title Deputy City Engineer Title Principal Dept Public Works-Engineering Design CITY OF CARLSBAD EDAW Address 1635 Faraday Avenue Address 1420 Kettner Boulevard, Suite 620 Carlsbad, CA 92008 San Diego, CA 92101 Phone No. (760) 602-2768 Phone No. (619)233-1454 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. 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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: EDAW, a California corppration (print name/title) (e-mail address) By: (sign here) (print name/title) day of ., 200^ . CITY OF CARLSBAD corporation of ayor ATTEST: LORRAINE M. WOOD ^s^o "/ City Clerk /$&?£& >«*..• .-J>Mb^r. ^rt " (e-mail address)'f, •* (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 BY: A\ I vJt CityAttorrtey City Attorney Approved Version #04/03/02 ACKNOWLEDGMENT State of California County of o On personally appeared before me, (here insert name and title of the officer) A . "P6>tMjN-> ^ _ personally known to me (or proved to me on the basis of satisfactory evidence) to be the person^ whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/stte/they executed the same in his/her/their authorized capacity(ies), and that by his/herVtheif signature^ on the instrument the person(*0, or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature B.J, MOOKComm. 11471277 NOIMYPUWIC-CAIIWWIA ^ SonOHaoCounly My Comm, ixpfc«lfM. 21,2008 T (Seal) E D AW EDAW INC 1420 KETTNER BOULEVARD EXHIBIT "A" 2006 SCHEDULE OF FEES SAN DIEGO CALIFORNIA TEL 619 233 1454 FAX 619 233 0952 Environmental Services Environmental Vice President Environmental Principal Senior Environmental Engineer Environmental Senior Scientist Senior Environmental Project Manager Environmental Project Manager Environmental Engineer Environmental Specialist Environmental Analyst Biological Resource Services Senior Biologist II Senior Biologist I Biologist III Biologist II Biologist I Cultural Resource Services Cultural Resources Vice President Cultural Resources Principal Senior Cultural Resources Specialist Senior Architectural Historian Project Cultural Resources Specialist Architectural Historian Staff Cultural Resources Specialist Archaeological Crew Chief Archaeological Monitor Archaeological Technician $250 $200 $165 $160 $135 $115 $110 $105 $85 $135 $125 $115 $100 $85 $250 $150 $115 $105 $95 $80 $80 $70 $70 $65 Landscape Architecture Services Senior Landscape Architect Project Designer Landscape Designer Support Services Technical Editor GIS Specialist Graphic Artist Word Processor Administrative Clerical Intern General Terms $150 $90 $80 $90 $95 $85 $80 $85 $65 $45 EDAW 4x4 Vehicle Use (gas excluded) $75.00 daily GPS System Use Disposable Camera Film Charge Facsimile $75.00 daily $15. 00 each $5.00 per roll $0.50 per page Other reimbursable expenses and subconsultants will be billed at cost plus 10%. Invoices will be submitted on 4-week intervals for work in progress unless otherwise agreed. Invoices are due and payable within 30 days after invoice date. Fees are valid through December 31, 2006. Rates are subject to adjustment based on contract terms. UNITED STATES 2006 Standard Rates.doc AUSTRALIA DESIGN. PLANNING AND ENVIRONMENTS WORLDWIDE PWENG555 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN ENVIRONMENTAL PLANNING (LSA) THIS AGREEMENT is made and entered into as of the Le _ day of 20O/f. by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and LSA, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in environmental planning. 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 environmental planning. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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) per Agreement year. The total amount of the Agreement shall not exceed four hundred fifty thousand dollars ($450,000) for the complete Agreement term. 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Frank Haselton Title Deputy City Engineer Title Principal Dept Public Works-Engineering Design CITY OF CARLSBAD LSA Address 1635 Faraday Avenue Address 703 Palomar Airport Rd., Ste. 260 Carlsbad, CA 92008 Carlsbad, CA 92011 Phone No. (760) 602-2768 Phone No. (760)931-5471 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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. V Executed by Contractor this. CONTRACTOR: LSA, a Cajtfc^nia co/poration By: day of 20 e 4 CITY OF CARLSBAD, corpora icipal alifornia (sign here) (print name/title) ATTEST: LORRAINE M. City Clerk (print name/title) c (e-mail address) (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 BY: Deputy City Attorne City Attorney Approved Version #04/03/02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California/n Countv of ([//W'71% \L/ Q /ID 1 r/sOn 1 //*<' 1 V*f .before me / ' /)ate / personally appeared-jffi??!^? <O^ ^rTJfr CommUHon # 1 573376 BgjnR Notary PuMc-CaWomki >%^W7 OrangtCourty ^•^ MVConm.BvlwMoy20.2009 Place Notary Seal Above }SS. ^r~~* \~f0n!<iilk up I*. OT^^ 1 " NaiWarefTOIeof ofticer (e.g., "Jane Doe, Nota%Pl|Wic") kfl\. <%*d j&>£>&irk H: (¥L£,(zt^r\ ~ Name("s) of 5igner(s) X)^personally known to me f\ II 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 ho/ohe/they executed \ the same in hia/her/their authorized c capacity(ies), and that by bto/hor/their t signature(s) on the instrument the person(s), or t the entity upon behalf of which the person(s) • acted, executed the instrument. WITNES^^haniLand official seal. ^^T^^^f^Sr^Not^P^^ ^>f "*" Though the information below ;'s nof 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 Signers Name: U Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee G Guardian or Conservator D Other: Siqner Is Representing: Number of Pages: ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^H HltiH 1 I HI IMRPRIN 1 ^^^^ ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^B OF StfiNFR ^^^1 Top of thumb here X£<y&&!2vei&<zv<!S<y&3Gtve*Sc^ © 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnotary.org Reorder: Call Toll-Free 1-800-876-6827 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN ASSESSMENT ENGINEERING (BUREAU VERITAS NORTH AMERICA, INC.) THIS AGREEMENT is made and entered into as of the ? day of by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and BUREAU VERITAS NORTH AMERICA, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in assessment 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 assessment engineering. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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) per Agreement year. The total amount of the Agreement shall not exceed four hundred fifty thousand dollars ($450,000) for the complete Agreement term. 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 withholding^ 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Keith Gillfillan Title Deputy City Engineer Title Principal-ln-Charge Dept Public Works-Engineering Design CITY OF CARLSBAD BUREAU VERITAS NORTH AMERICA, INC. Address 1635 Faraday Avenue Address 11590 West Bernardo Ct., Ste. 100 Carlsbad, CA 92008 San Diego, CA 92127 Phone No. (760) 602-2768 Phone No. (858)451-6100 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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: BUREAU VERJJAS NQRThL a Californiarcopporatj INC., CITY O C corporato (print name/title) . fefat/Atl&US. W&tW^i feC, (e-mail address) By: (sign here) LSBAD, a munici the Stale of Californiaa LORRAINE M. WOOD City Clerk (print name/title) ^te-mail addMss) JOCELYK BELLE RETSCH C(HM.t1529145NOTARY PU8UC-UUFOMW My C«ML Elfins Hov.2^2008'f (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 CifyAtto)ney who appears before me, Subscribed and sworn to (or affirmed] before me t$Ts , J£ day ofQafofofc; 20f£, by , personally known to me or City Attorney Approved Version #04/03/02 Bureau Veritas North America Inc. Schedule of Charges 2006 EXHIBIT "A" Community Development Construction Management / Observation Billing Title Hourly Billing Rates Building Official II Deputy Building Official Senior Inspector Inspector Inspector/Plans Exam IV Inspector/Plans Exam III Inspector/Plans Exam II Inspector/Plans Exam I Permit Technician III Permit Technician II Permit Technician I $155 $140 $90 $85 $130 $120 $110 $105 $90 $75 $70 Program Management / Engineering Billing Title Hourly Billing Rates Sr. Engineer II Sr. Engineer I Engineer V Engineer IV Engineer III Engineer II Engineer I Engineering Asst II Engineering Asst I Specialist/Designer IV Specialist/Designer III Specialist/Designer II Specialist/Designer I $145 $140 $130 $125 $115 $105 $90 $85 $75 $140 $130 $120 $110 Billing Title Hourly Billing Rates Resident Engineer II Resident Engineer 1 Construction Manager Director Construction Manager 1 Construction Observer V Construction Observer IV Construction Observer III Construction Observer II Construction Observer 1 Construction Technician $160 $145 $160 $140 $120 $115 $90 $80 $75 $75 Special Services / Administration Billing Title Hourly Billing Rates Principal Sr. Project Manager Project Manager Technician IV Technician III Technician II Technician I Administrative Mgmt SR. Admin Assistant AA III / Contracts Splst. Admin Assistant II AA I/Clerical Il/Facilities Clerical I $230 $175 $160 $105 $90 $75 $70 $100 $90 $75 $70 $55 $45 Page 1 of 2 Bureau Veritas North America Inc. Schedule of Charges 2006 Professional Reimbursement: The hourly billing rates include the cost of salaries of the Bureau Veritas employees, plus sick leave, vacation, holiday and other fringe benefits. The percentage added to salary costs includes indirect overhead costs and fee (profit). All employees classified as "non-exempt" by the U.S. Department of Labor will be compensated at 1-1/2 times salary, as per state and Federal wage and hour laws. Billing rates will be calculated accordingly for these overtime hours. Communication Fee: Project Labor Times 3.0% which includes telecommunications, faxes, standard U.S. Mail, mobile phones, and internet access and hardware. Direct Expenses: Reimbursement for direct expenses, as listed below, incurred in connection with the work, will be at cost plus fifteen percent for items such as: a. Maps, photographs, reproductions, printing, equipment rental and special supplies related to the work. b. Consultants, soils engineers, surveyors, contractors, and other outside services. c. Rented vehicles, local public transportation and taxis, travel and subsistence. d. Specific telecommunications and delivery charges. e. Special fees, insurance, permits, and licenses applicable to the work. f. Outside computer processing, computation, and proprietary programs purchased for the work. Reimbursement for employee-owned vehicles used in connection with the work will be at the current IRS per mile rate. Other in-house charges for prints, reproductions and equipment use, etc. will be at standard company rates. The foregoing Schedule of Charges Is incorporated into the agreement for the services provided, effective January 3, 2006 through December 31, 2006, and will be adjusted thereafter. Page 2 of 2 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN ASSESSMENT ENGINEERING (HARRIS & ASSOCIATES) / <4^~THIS AGREEMENT is made and entered into as of the Lf _ day of . 20 Ok. by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter 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 is experienced in assessment 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 assessment engineering. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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) per Agreement year. The total amount of the Agreement shall not exceed four hundred fifty thousand dollars ($450,000) for the complete Agreement term. 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name EhabGerges, P.E. Title Deputy City Engineer Title Associate/Design Manager Dept Public Works-Engineering Design CITY OF CARLSBAD HARRIS & ASSOCIATES Address 1635 Faraday Avenue Address 750 B Street, Suite 1800 Carlsbad, CA 92008 San Diego, CA92101 Phone No. (760) 602-2768 Phone No. (619)236-1778 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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 corporation By: Z-U-day of (sigrrhere) (print name/title) CITY OF CARLSBAD corpor By: ATTEST: icipal lifornia (e-mail address) By: (print name/title) (e-mail address) (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 BY:•x^ I / Jr_-^V- ^^* Dep'uly City Attorney City Attorney Approved Version #04/03/02 Corporate or Partnership STATE OF COUNTY OF ss. On this X^ day of Before me in the a Notary Pubjc, duly commissioned and qualified in above said County and State, personally appeared. D personally known to me or ^STjjroved to me on this basis of satisfactory evidence consisting of an identifying document or O the oath of to be the person(t} whose name(tf) is/are-aubscribed to the within instrument and acknowledged to rne that he/oho/they executed the same in his/hcr/thoit authorized capacity(iee)t as _t_ and thatjby his/bef#heir signature^) on the instrument on behalf a of / _, executed the same. , organized under the laws of WITNESS KEVIN S. CLAIR \ COMM. #1470952 „. y »>ubllC<»!lfernl» M OAANOI COUNTY 3 (Seal) State of California County of C ss.CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT On Ol , Date personally appeared _ , before me, Printed Name of Notary Public Printed Name(s) of Signer(s) personally known to me - or - I | proved to me on the basis of satisfactory evidence: n form(s) of identification D credible witness(es) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. CNMVC (. ConrnMon * IS1M67Notary Pubic — CaMarta COMM Ca*a County Signature of Notary Public (Seal) OPTIONAL INFORMATION Although the information in this section is not required by law, it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. Description of Attached Document The preceding Certificate of Acknowledgment is attached to a document titled/for the purpose ofC-' Additional Information containing ^ pages, and dated The signer(s) capacity or authority is/are as: EH Individual(s) I I Attorney-in-Fact Ef Corporate Officer(s) Additional Signer(s) | | Signer(s)Thumbprint(s) Other I I Guardian/Conservator I I Partner-Limited/General I I Trustee(s) D Other: representing: Name(s) of Person(s) or Entity(ies) Signer is Representing © Copyright 2004 Notary Rotary, Inc. 925 29th St., Des Moines, IA 5031 2-3612 Form ACK02. 02/04. To re-order, call toll-free 1-877-349-6588 or visit us on the Internet at http://www.thenotaryshop.com Exhibit A Master Agreement for Professional Engineering Services in Assessment Engineering Effective October 1. 2006- September 30. 2007 Harris & Associates Fee Schedule Assessment Engineering Project Manager $200 / hour Assessment Engineering Deputy Project Manager $190 / hour Project Engineer $110 - $170/hour Senior Project Analyst $85 - $95 /hour Project Analyst $70 - $80 / hour Sr. Drafting Technician $90 - $105 / hour Clerical Staff $65/hour 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 September 30,2007. 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 cots such as vehicle usage and mileage, equipment usage (including computer and telephone), and printing and copying (except large quantities). Harris & Associates PWENG562 MASTER AGREEMENT FOR PROFESSIONAL GEOTECHNICAL ENGINEERING SERVICES (NINYO & MOORE) /AGREEMENT is made and entered into as of the (j? _ day of 20_££a by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and NINYO & MOORE, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in geotechnical services. 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 geotechnical services. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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 Agreement year. The total amount of the Agreement shall not exceed three hundred thousand dollars ($300,000) for the complete Agreement term. 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Mark Cuthbert, P.E. Title Deputy City Engineer Title Principal Engineer Dept Public Works-Engineering Design CITY OF CARLSBAD NINYO & MOORE Address 1635 Faraday Avenue Address 5710 Ruff in Road Carlsbad, CA 92008 San Diego, CA 92123 Phone No. (760) 602-2768 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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: NINYO & MOORE, a California corporation^ • By: /371*- day of CITY OF CARLSBAD, a corporationupf the £tate of Gt , 20 (sign here) /y Avram Ninyo/President (print name/title) aninyo@ninyoandmoore.com (e-mail address) ATTEST: LpRRAINE M. '(sign'here) ~ s- city Clerk Margot A. Graves/Assistant Secretary (print name/title) mgraves @ninyoandmoore.com (e-mail address) (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 BY: UT& Jeputy City Attorney City Attorney Approved Version #04/03/02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ^TA * — >>Countvof ^Aa ^\&-G>c> On f 1 '"? 1° b • before me, £jq S, / Dare Name and Title of Officer (e.g.. "Oane Doe, Notary Fftjblic") personally appeared /lYlZfiW N>*iwo Arf<& ///flfrted- A. 6*i2A\seX. •itc/^ s'K+QZ&SZZS^»« 1 1. rpr,**111^^ <z. Name(s) of Signer(s) BCfJersonally known to me D 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 be/sbe/they executed the same in hjeftw/their authorized capacity(ies), and that by rus/her/their siqnature(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. *=-"-" "^"""^ — ~-jr^^^x^-^~2^>>^v»^_. Place Notary Seal Above Signatu/e of Notary Public 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^ , „ ^ , A t Title or Tvpe of Document: ^T^ *>7 CftlUsbfkol ''JftfTZk- /i&2-££'n6*l'C Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: U Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Sianer Is Representina: Number of Pages: ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^B RIGHT THUMBPRINT ^^^H ^^^^^^^^^^^^^^^^^^^^^^HBHIHII^^^^^^^I DF sifnNFR ^^^H Top of thumb here © 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 •www.nationalnotary.org Reorder: Call Toil-Free 1-800-876-6827 Professional Geotechnical Engineering Services City of Carlsbad September 2006 EXHIBIT "A" SCHEDULE OF FEES HOURLY CHARGES FOR PERSONNEL Principal Engineer/Geologist/Environmental Scientist $ 148 Senior Engineer/Geologist/Environmental Scientist $ 141 Senior Project Engineer/Geologist/Environmental Scientist $ 137 Project Engineer/Geologist/Environmental Scientist $ 133 Senior Staff Engineer/Geologist/Environmental Scientist $ 118 Staff Engineer/Geologist/Environmental Scientist $ 109 GIS Analyst $ 109 Field Operations Manager $ 95 Supervisory Technician* $ 89 Nondestructive Examination Technician, UT, MT, LP* $ 88 Pull Test Technician and Equipment* $ 82 Senior Field/Laboratory Technician* $ 82 Field/Laboratory Technician* $ 82 ACI Concrete Technician* $ 82 Concrete/Asphalt Batch Plant Inspector $ 82 Special Inspector, Reinforced Concrete* $ 82 Special Inspector, Pre-stressed Concrete* $ 82 Special Inspector, Reinforced Masonry* $ 82 Special Inspector, Structural Steel* $ 82 Special Inspector, Welding, AWS* $ 82 Special Inspector, Fireproofing* $ 82 Technical I llustrator/CAD Operator $ 75 Geotechnical/Environmental/Laboratory Assistant $ 60 Information Specialist $ 55 Data Processing, Technical Editing, or Reproduction $ 50 OTHER CHARGES Expert Witness Testimony $ 300/hr Concrete Coring Equipment (includes one technician) $ 110 /hr Special Preparation of Standard Test Specimens $ 71 /hr Inclinometer Usage $ 32/hr Vapor Emission Kits $ 30/kit Rebar Locator (Pachometer) $ 10 /hr Nuclear Density Gauge Usage $ 9/hr Field Vehicle Usage $ 6/hr Direct Project Expenses Cost plus 15 % Laboratory testing, geophysical equipment, and other special equipment provided upon request. 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. Rates at twice the regular rates will be charged for all work in excess of 12 hours in one day or on Sundays and 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. 'Indicates rates that are based on Prevailing Wage Determination made by the State of California, Director of Industrial Relations on a semiannual basis. Our rates will be adjusted in conjunction with the increase in the Prevailing Wage De- termination during the life of the project. 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. Professional Geotechnical Engineering Services City of Carlsbad September 2006 SCHEDULE OF FEES FOR LABORATORY TESTING Laboratory Test, Test Designation, and Price Per Test Soils Atterberg Limits, D 4318, CT 204 $ 130 California Bearing Ratio (CBR), D1883 $ 400 Chloride and Sulfate Content, CT 417 &CT 422 $ 120 Consolidation, D 2435, CT 219 $ 250 Consolidation - Time Rate, D 2435, CT 219 $ 60 Direct Shear-Remolded, D 3080 $ 260 Direct Shear-Undisturbed, D 3080 $ 225 Durability Index, CT 229 $ 140 Expansion Index, D 4829, UBC18-2 $ 150 Expansion Potential (Method A), D 4546 $ 130 Expansive Pressure (Method C), D4546 $ 130 Geofabric Tensile and Elongation Test, D 4632 $ 150 Hydraulic Conductivity, D 5084 S 275 Hydrometer Analysis, D422, CT203 S 175 Double Hydrometer Analysis, D 422, CT 203 $ 270 Moisture, Ash, & Organic Matter of Peat/Organic Soils $ 100 Moisture Only, D 2216, CT226 $ 25 Moisture and Density, D 2937 $ 35 Permeability, CH, D 2434, CT 220 $ 210 pH and Resistivity, CT 643 $ 125 Proctor Density D 1557, D 698, CT 216, & $ 160 AASHTO T-180 (Rock corrections add $80) R-value, D 2844, CT 301 $ 225 Sand Equivalent, D 2419, CT217 $ 80 Sieve Analysis, D 422, CT 202 $ 100 Sieve Analysis, 200 Wash, D 1140, CT 202 $ 80 Specific Gravity, D 854 $ 80 Triaxial Shear, C.D, D 4767, T 297 $ 350 Triaxial Shear, C.U., w/pore pressure, D 4767, T 2297 per pt. $ 300 Triaxial Shear, C.U., w/o pore pressure, D 4767, T 2297 per pt. .$ 175 Triaxial Shear, U.U., D 2850 $ 125 Unconfined Compression, D 2166, T 208 $ 90 Wax Density, D 1188 $ 80 Roofing Built-up Roofing, cut-out samples, D 2829 $ 150 Roofing Materials Analysis, D 2829 $ 450 Roofing Tile Absorption, (set of 5), UBC 15-5 $ 175 Roofing Tile Strength Test, (set of 5), UBC 15-5 $ 175 Masonry Brick Absorption, 24-hour submersion, C 67 $ 40 Brick Absorption, 5-hour boiling, C 67 $ 50 Brick Absorption, 7-day, C 67 $ 55 Brick Compression Test, C 67 $ 40 Brick Efflorescence, C 67 $ 40 Brick Modulus of Rupture, C 67 $ 35 Brick Moisture as received, C 67 $ 30 Brick Saturation Coefficient, C 67 $ 45 Concrete Block Compression Test 8x8x16, C 140 $ 55 Concrete Block Conformance Package, C 90 $ 400 Concrete Block Linear Shrinkage, C 426 $ 110 Concrete Block UnitWeightand Absorption, C 140 $ 50 Cores, Compression or Shear Bond, CA Code $ 50 Masonry Grout, 3x3x6 prism compression, UBC 21-18 $ 25 Masonry Mortar, 2x4 cylinder compression, UBC 21-16 $ 25 Masonry Prism, half size, compression, UBC 21-17 $ 100 Concrete Cement Analysis Chemical and Physical, C 109 Compression Tests, 6x12 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 Gunite/Shotcrete, Panels, 3 cut cores per panel and test, ACI.. Jobsite Testing Laboratory Lightweight Concrete Fill, Compression, C 495 Petrographic Analysis, C 856 Splitting Tensile Strength, C 496 ..$ 1,500 ..$ 19 ..$ 125 ..$ 675 ..$ 50 ..$ 225 ..$ 45 ..$ 50 ..$ 55 ..$ 225 .. Quote ..$ 35 ..$ 1,000 ..$ 70 Reinforcing and Structural Steel Fireproofing Density Test, UBC 7-6 Hardness Test, Rockwell, A-370 High Strength Bolt, Nut & Washer Conformance, set, A-32 Mechanically Spliced Reinforcing Tensile Test, ACI Pre-Stress Strand (7 wire), A 416 Chemical Analysis, A-36, A-615 Reinforcing Tensile or Bend up to No. 11,A615& A706 Structural Steel Tensile Test: Up to 200,000 Ibs. (machining extra), A 370 Welded Reinforcing Tensile Test: Up to No. 11 bars, ACI ..$ 50 ..$ 45 ..$ 110 ..$ 85 ..$ 125 ..$ 110 ..$ 45 60 50 Asphalt Concrete Asphalt Mix Design, Cattrans 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 Marshall 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 ..$ 2,000 ..$ 135 ..$ 195 ..$ 90 ..$ 175 ..$ 195 ..$ 110 ..$ 150 ..$ 80 Aggregates Absorption, Coarse, C 127 Absorption, Fine, C128 Clay Lumps and Friable Particles, C142 Cleanness Value, CT 227 Crushed Particles, CT 205 Durability, Coarse, CT 229 Durability, Fine, CT 229 Los Angeles Abrasion, C 131 or C 535 Mortar making properties of fine aggregate, C 87 Organic Impurities, C 40 Potential Reactivity of Aggregate (Chemical Method), C 289.. Sand Equivalent, CT 217 Sieve Analysis, Coarse Aggregate, C136 Sieve Analysis, Fine Aggregate (including wash), C 136 Sodium Sulfate Soundness (per size fraction), C 88 Specific Gravity, Coarse, C127 Specific Gravity, Fine, C128 30 30 95 110 130 120 ..$ 120 ..$ 165 ..$ 250 50 350 80 95 95 ..$ 145 ..$ 65 ..$ 75 Special preparation of standard test specimens will be charged at the technician's hourly rate. Ninyo & Moore is accredited to perform the AASHTO equivalent of many ASTM test procedures. CIO MASTER AGREEMENT FOR PROFESSIONAL GEOTECHNICAL ENGINEERING SERVICES (TESTING ENGINEERS) AGREEMENT is made and entered into as of the r" _ day of . 20 Otp. by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and TESTING ENGINEERS, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in geotechnical services. 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 geotechnical services. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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 Agreement year. The total amount of the Agreement shall not exceed three hundred thousand dollars ($300,000) for the complete Agreement term. 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 withholding^ 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Van Olin, P.E., G.E. Title Deputy City Engineer Title Project Manager Dept Public Works-Engineering Design CITY OF CARLSBAD TESTING ENGINEERS Address 1635 Faraday Avenue Address 7895 Convoy Court, Suite 18 Carlsbad, CA 92008 San Diego, CA 92111 Phone No. (760) 602-2768 Phone No. (858)715-5800 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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: TESTING ENGINEERS, a California corporatfon day of.?fc-*>.20 CITY OF CARLSBAD, corporaton/ejf the sign here) (print name/title)ATTEST: (e-mail addre By:LORRAINE M. WOOD City Clerk (print name/title) County ofState of Subscribed anworn to (or affirmed of &2Q_ by (e-mail address) personally known to me OHrro'/fld to ma on the basis of satisfactory evidence to be who appears before me, (J „ r jre of Notary) '(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 BY: JOC£LYNi£LLEfiETSCHC«nm.*f5»H5 ' S» DiM! CMb •• jjiConm. fapira i Nov. ffl.ZOM f jeputy City Attorney City Attorney Approved Version #04/03/02 Exhibit 2006 UNIT KA TE FEE SCHEDULE CITY OF CARLSBAD Principal Engineer Project Engineer / Geologist / Architect Staff Engineer / Geologist / Architect $140,00 $100,00 $80.00 Independent Quality Assurance Sampler and Tester $100.00 Soil Technician includes nuclear gauge or mobile laboratory $89.75 Registered Special Inspector $89.75 (Concrete, Masonry, Welding, Post Tensfoned Concrete, Piles, Fireproofing) ACI Technician / Field Technician $89.75 Senior Construction Inspector* $95.00 Associate Construction Inspector* $92.00 Construction Inspector* $89.75 *Includes a cell or mobile phone and a laptop computer. Non-Destructive Testing Inspector (Ultrasonic, magnetic particle, dye penetrate)$89.75 Anchor Pull Tests - up to 30 tons Batch Plant Inspector Coring / Sawing Operator & Equipment Reinforcing Steel Location Pickup/Delivery (per trip within San Diego County) Processing Prevailing Wage Payroll (per week) $89.75 $89.75 $110,00 $89.75 $40,00 no charge ENGINEERS — U. 8. LABORATORIES, INC. 2006 UNIT KA TE FEE SCHEDULE CITY OP CARLS&AD California Bearing Ratio (CBR), Includes Maximum Density Curve Cement Treated Base, Laboratory Design - Soil Cement, Each Set Cement Treated Base, Sample Fabrication (Set of Three) Cement Treated Base, Compression Test Chloride Content of Soil Consolidations - Per Point Direct Shear Test Expansion Index Hydrometer Analysis with fine grading Hydrometer Analysis with coarse & fine grade Laboratory Compaction Test (Moisture Density-Each Curve) Laboratory Compaction Test Requiring Rock Correction Moisture Content Plasticity Index / Liquid Limit Fine Grained Soil Granuiar Soil R - Value (Minimum 3 pts.) Resistivity and pH of Soi( Sand Equivalent Shrinkage Limit Sodium Sulfate Soundness (Per Size Fraction) Soil Classification Sulphate Content of Soil Absorption Test, Coarse Aggregate Absorption Test, Fine Aggregate Aggregate Conformance Testing for State of California Projects (Includes: Sieve Analysis, Specific Gravity, No. 200 Wash, Organic Impurities, and Clay Lumps and Friable Particles Cleanness Value Crushed Particles, Percent Durability Index, Coarse Aggregate Durability Index, Fine Aggregate Los Angeies Rattler Mortar making properties of fine aggregates Organic Impurities in Sand Sieve Analysis (Gradation), Coarse Aggregate Sieve Analysis (Gradation), Fine Aggregate (Including Wash) Specific Gravity, Fine Aggregate Specific Gravity, Coarse Aggregate Unit Weight per Cubic Foot, Voids in Aggregate $390.00 $445.00 $430.00 $35.00 $75.00 $60.00 $235.00 $140.00 $200.00 $250.00 $165.00 $200.00 $35.00 $135.00 $220.00 $360.00 $210.00 $165.00 $80.00 $110.00 $75.00 $250.00 $75.00 $35.00 $35.00 $220.00 Unit Weight) $95.00 $105.00 $120.00 $105.00 $80.00 $160.00 $225.00 $50.00 $60.00 $70.00 $60.00 $50.00 $60.00 TESTING ENGINEERS — u, S, LABORATORIES, INC. 2006 UNIT RA TE FEE SCHEDULE CITY Of CARLSBAD Asphalt Mix Design Asphalt Mix Design Review Extraction, % Asphalt (Including gradation) Rim Stripping Hveem Stability & Unit Weight Marshall Stability, Flow & Unit Weight (Three Specimens) Maximum Theoretical Unit Weight (Rice Specific Gravity) Percent Swell Unit Weight Compacted Sample or Core (Bulk Specific Gravity) Unit Weight Sample Requiring Compaction Compression Tests, 6x12 Cylinder Compression Tests, Gunite/Shotcrete Panels, 3 Cut Cores per Panel (Set) Compression Tests, Cores (Includes Sample Preparation) Compression Tests, Lightweight Concrete Fill Concrete Flexural Test, 6x6x18 Concrete Mix Design (Includes Aggregate Testing) Concrete Mix Design (Revision or Review) Drying Shrinkage (3 Specimens-28 Days) Gunite Panel, 3 Cores Gunite Panei, 4 Cores Modulus of Elasticity, Static Splitting Strength Test Trial Batch, Includes Mix Design, Aggregate Testing & Six Compression Tests Unit Weight, Lightweight Concrete Fill Absorption Test, Brick, 7-Day Composite Prism (under 400,000 IDS,), Half Size (8 x 16 x 8) Composite Prism (under 400,000 Ibs,), Full Size (8 x 16 x 16) Compression Test, Brick Compression Test, Blocks Compression Tests, Grout or Mortar, 2x4 cylinder UBC Conformance Package Efflorescence, Block with Mortar Efflorescence, Block or Brick Only In-Place Shear Test (per test) Linear Shrinkage Modulus of Rupture, Brick Moisture as Received, Brick Shear Test, cores (excludes sample preparation) Compression Test Cores (includes sample preparation) Quote $140.00 $210,00 $75.00 $160.00 $185.00 $90.00 $90.00 $60.00 $125.00 $24.00 $300.00 $65.00 $45.00 $70.00 $400.00 $140,00 $300.00 $300.00 $350.00 $88.00 $75.00 $850.00 $55.00 $50.00 $100.00 $100.00 $30.00 $35.00 $55.00 $550.00 $50.00 $50.00 $120,00 $120.00 $45.00 $45.00 $60.00 $70.00 TESTING ENGINEERS — V. 8. LABORATORIES, INC. 2006 UNIT KA TE FEE SCHEDULE CITY Of CARLSBAD Unit Weight & Absorption, Block $50,00 High Strength Bolt, Nut & Washer Conformance $130.00 (Wedge Tensile, Proof Load, Hardness) Mechanical Tests, Hardness Test, Rockwell $55.00 Prestressed Steel, Tensile Test, Strand (7 wire) $112.00 Reinforcing Steel, Tensile Test - No. 11 Bars & Smaller $50.00 Reinforcing Steel, Tensile Test - No. 14 Bars & Larger {TO win. Requir. only) $60.00 Reinforcing Steel, Bend Test," No. 11 Bars & Smaller $50.00 Mechanically Spliced Reinforcing Steel $100.00 Spray Applied Fireproofing Density Tests Oven Dry Method $50.00 Displacement Method $50,00 Structural Steel, Tensile Test - Up to 200,000 Ibs. $50.00 Structural Steel, Pipe Flattening Test $50.00 Welded Specimens, Tensile Test - No. 11 Bars & Smaller $60.00 Welded Specimens, Tensile Test - No. 14 Bars (To Min. Require. Only) $80.00 Welded Specimens, Tensile Test - No. 18 Bars (To Mfn. Require, Only) $90.00 Welded Specimens, Tensile Testing - Mechanically Spliced Bar $90.00 American Welding Society (AWS Dl.l) Limited Thickness Plate (per position) $360.00 Unlimited Thickness Plate (per position) $310.00 Pipe (per position) $260.00 American Welding Society (AWS D1.4) Bar Sizes #3 through #9 (each) $220.00 Bar Sizes #10 through #11 (each) $250.00 Bar Sizes #14 through #18 (each) $270.00 American Society of Mechanical Engineers (ASMS) Plate or Pipe Procedure Qualification (each) $610.00 Plate or Pipe Welder Qualification (each) $610.00 American Welding Society (AWS D1.3) Light Gauge Metal (includes butt and plug weld) $210.00 Procedure Qualification per AWS, ASME or Military Standards QUOTE Fillet Weld Test (Break and Etch Test) $210.00 Fillet Weld Test Plates $50.00 Ultrasonic Testing of Weld Coupons $90.00 Witness time, if required $90.00 TESTING ENGINEERS - U, s. LABORATORIES, INC. PWENG550 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN SURVEYING (MELCHOIR LAND SURVEYING, INC.) AGREEMENT is made and entered into as of the & _ day of . 20D(f. by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and MELCHOIR LAND SURVEYING, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in surveying. 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 surveying. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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) per Agreement year. The total amount of the Agreement shall not exceed two hundred twenty five thousand dollars ($225,000) for the complete Agreement term. 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 withholding^ 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Douglas R. Melchoir, P.L.S. Title Deputy City Engineer Title President Dept Public Works-Engineering Design CITY OF CARLSBAD MELCHOIR LAND SURVEYING, INC. Address 1635 Faraday Avenue Address 5731 Palmer Way, Suite G Carlsbad, CA 92008 Carlsbad, CA 92010 Phone No. (760) 602-2768 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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: 3 day of MELCH Califorj VEYING, INC., a CITY OF CARLSBAD, a municipal corpocatipp of the State of^alifornia (sign here) Douglas R. Melchior, President (print name/title)ATTEST: ml si@pacbe11.net (e-mail address) ty&lM&£LORRAINE M. WOOD City Clerk(sign here) Susan G. Melchior, Secretary (print name/title) mlsi@pacbell.net (e-mail address) (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 BY: cl\l JP-J^^-^I Deputy City Attorn City Attorney Approved Version #04/03/02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Q ss. ff^ and Title oJ Officer (e.gV'Jarte Doe, Notary Pu/ic") personally appeared MARGARET R. FOX CofmriMton* 1560344 NoKHyPuWte-Coltofnia San Dtego County MvComm.Exp»»iF«bS,2009 Name(s) of Signerfs) D personally known to me approved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Above Signature of Notary Publii OPTIONAL Though the information below fe 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: <^2>j?< 4jMsrr)^riJr — frt fi*S>-&&U <Zc*t-4S £. Document Date:Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: D Individual EKCorporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact Trustee Guardian or Conservator Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:r © 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnotary.org Prod. No. 5907 Reorder: Call Toil-Free 1-800-876-6827 09/09/2006 22:26 Date: 7604383991 MELCHIOR LAND SURVEY Melcirior Land Surveying Inc. FEES FOR PROFESSIONAL LAND SURVEYING SERVICES PAGE 02/02 Rates Effective Through October 1,2006 One Man Crew • — Two Man Crew- Three Man Crew- Principal Professional Land Surveyor- * Expert Witness- Court Testimony Associate Professional Land Surveyor— Computer Operator- Travel Time - Two Man Crew- Travel Time - Three Man Crew- Secretarial Services— Hand Delivery Over Time Fee - After 8 Hours and Reg. Saturday - After 8 Hours Saturday and Sunday Bluelines - Standard (D Sheet) Oversized • — Sepias - Standard (D Sbeet)- or Xerox Vellum Oversized- Ovemignt UPS (Drop Box) (Letter) 1 lb.— (Letter) 2 lb.~- $114.00 per hour $ 180.00 per hour $ 248.00 per hour $ 145.00 per hour $ 250.00 per hour $ 125.00 per hour $ 100.00 per hour $ 100.00 per hour S 112.50 per hour $ 166.00 per hour $ 38.00 per hour $ 36.00 per hour Time and Half Double Time $ 6.00 per sheet $ 8.00 per sheet $ 17.00 per sheet $ 20.00 per sheet $ 25.00 $ 28.00 EXHIBIT PWENG565 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN SURVEYING (RIGHT-OF-WAY ENGINEERING) /-THIS AGREEMENT is made and entered into as of the c/ _ day of 0sv( k>L<O '. 20 Of*, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and RIGHT-OF-WAY ENGINEERING, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in surveying. 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 surveying. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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) per Agreement year. The total amount of the Agreement shall not exceed two hundred twenty five thousand dollars ($225,000) for the complete Agreement term. 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. City Attorney Approved Version #04/Q3/02 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 Contractor relinquishes 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 William Plummer Name Michael Schlumpberger, P.L.S. Title Deputy City Engineer Title Project Manager Dept Public Works-Engineering Design CITY OF CARLSBAD RIGHT-OF-WAY ENGINEERING Address 1635 Faraday Avenue Address 4167 Avenida de La Plata, Ste. 114 Carlsbad, CA 92008 Oceanside, CA 92056 Phone No. (760) 602-2768 Phone No. (760)732-1366 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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 /I day of 6e,p\-e*Jb&f CONTRACTOR: RIGHT-OF-WAY ENGINEERING, a California corporation CITY OF CARLSBAD, a corporation of tb$ State of , 20 (sign here) ity lyiananer or Mayor (print name/title)ATTEST: . jAG,"? (e-mail address) By: (sign here) LORRAINE M. WOOD City Clerk (print name/title) (e-mail address) (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 BY: V.hQL/=> CTeputy City Attorney City Attorney Approved Version #04/03/02 ALL-PURPOSE ACKNOWLEDGMENT State of California County of C~)CU^ 0 On O before me,personally appeared Irt/U L-f personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf I of which the person(s) acted, executed the instrument. BARBARA J. DANIELS ? COWL* 1565515 riNOTARY PUBIIC-CAUFORNIA J"SAN DIEGO COUHIYMY COWL Eg. Are. 27,20091 NOTARY'S SIGNATURE PLACE NOTARY SEAL IN ABOVE SPACE ••••••••-•••»»»••• OPTIONAL INFORMATION The information below is optional. However, it may prove valuable and could prevent fraudulent attachment of this form to an unauthorized document. TTTLE(S) CAPACITY CLAIMED BY SIGNER (PRINCIPAL) n INDIVIDUAL [] CORPORATE OFFICER n PARTNER(S) [3 ATTORNEY-IN-FACT n TRUSTEE(S) n GUARDIAN/CONSERVATOR PI OTHER: DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DO ENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER (PRINCIPAL) IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES)RIGHT THUMBPRINT OF SIGNER OTHER $ APA 10/05 NOTARY BONDS, SUPPLffiS AND FORMS AT HTTP://WWW. VALLEY-SffiRRA.COM © 2005 VALLEY-SIERRA INSURANCE Right-Of-Way Engineering Services, Inc. Land Surveying RESOLUTIONS ADOPTED BY UNANIMOUS WRITTEN CONSENT OF THE BOARD OF DIRECTORS OF RIGHT-OF-WAY ENGINEERING SERVICES, INC. A California corporation THE undersigned, being all the directors of RIGHT-OF-WAY ENGINEERING SERVICES, INC., A California Corporation, by this writing approve the following resolutions and consent to their adoption: WHEREAS, the Board of Directors of this corporation, desires to grant to the Officers of this Corporation, the power to execute all corporate instruments and documents, or to sign the corporate name without limitation, each acting alone and without approval of signature of any other corporate Officer. NOW, THEREFORE, BE IT RESOLVED, that MICHAEL L. SCHLUMPBERGER is hereby authorized and directed to act alone in signing any and all corporate documents of any kind or nature, and/or related instruments, for the benefit of the Corporation, on such terms and conditions as MICHAEL L. SCHLUMPBERGER, in his sole discretion, deems advisable in the best interest of the corporation. This consent is executed pursuant toe subdivision (b) of Section 307 of the California Corporations Code, and is to be filed with the Minutes of Board proceedings. Executed effective January 31, 2003. Michael L. Schlumpberger President G. Duane Nixon Shareholder 4167 Avenidade la Plata Suite 114 • Oceanside, CA 92056 • (760)732-1366 • FAX (760) 732-1367 E-Mail: roweng@cox.net Right-Of-Way Engineering Services, Inc. Land Surveying EXHIBIT "A" SCHEDULE OF HOURLY RATES 1 PERSON SURVEY CREW 2 PERSON SURVEY CREW 2 PERSON SURVEY CREW WITH GPS EQUIPMENT 3 PERSON SURVEY CREW WITH GPS EQUIPMENT, 3 VEHICLES AND RADIOS CADD TECHNICIAN SURVEY SUPERVISOR LICENSED LAND SURVEYOR CLERICAL NON-LABOR MARKUP = 10% $ 95.00/HR S160.00/HR S175.00/HR S240.00/HR $ 90.00/HR $ 90.00/HR $ 90.00/HR $ 34.00/HR SCHEDULE OF RATES.LTR 4167 Avenida de la Plata Suite 114 • Oceanside, CA 92056 • (760) 732-1366 • FAX(760) 732-1367 • Email roweng@cox..net PWENG547 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN PROPERTY APPRAISAL SERVICES (ANDERSON & BRABANT) THIS AGREEMENT is made and entered into as of the 6? _ day of . 20_£&>, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and ANDERSON & BRABANT, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in property appraisal services. 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 property appraisal services. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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) per Agreement year. The total amount of the Agreement shall not exceed two hundred twenty five thousand dollars ($225,000) for the complete Agreement term. 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Gilbert F. Kunkel, MAI Title Deputy City Engineer Title Co-Owner - Team Leader Dept Public Works-Engineering Design CITY OF CARLSBAD ANDERSON & BRABANT Address 1635 Faraday Avenue Address 353 West Ninth Avenue Carlsbad, CA 92008 Escondido, CA 92025 Phone No. (760) 602-2768 Phone No. (760)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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 26. AUTHORITY T CITY OF CARLSBAD, corporaticin/dj the/Btate 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 G? day of ^ /)-£*• CONTRACTOR: ANDERSON & BRABANT, a California corporation B ATTEST:(print name/title) (e-mail address) (sign here),«»'"i/LORRAINE M. WOOD City Clerk /^^"Q\ ^•••'"**"V£'S&.% (print name/title) (e'mail address; (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 1/1 DO Q/BY: J^LJOJL' ixw^ Deputy City Attorney City Attorney Approved Version #04/03/02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Ii I i |!g I I i State of California County of }ss. On ±&_, before Date*Name and Title of Officer (?&., "Jane boe, Notary Public") ;jy \^*ii~»\• personally appeared"So>ivxe^ Name(s) of Signer(s) D personally known to me E proved to me on the basis of satisfactory evidence SortOtego County I ^&mr^E»tatNovt&2Qg] to be the person(s) whose name(s)-is/are subscribed to the within instrument and acknowledged to me that hefehe/they executed the same in bis/her/their authorized capacity(ies), and that by bis/ber/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. Place Notary Seat Above Signature of Notary Pi '^ 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 \v\o^e.v Title or Type of Document: ^rftvv^e<v\VN& <59i2V's>.c^<. *w\.yV-. >C^.v>wei.\s«.\ Document Date:. Number of Pages: Signer(s) Other Than Named Capacity(ies) Claimed by Signer Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited C General D Attorney in Fact D Trustee D Guardian or Conservator D Other: CIVivN: . t RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer Is Representing: I !I Ii Ii II © 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnotary.org Prod. No. 5907 COGKX Reorder: Call Toll-Free 1-800-876-6827 "Exhibit A" ANDERSON & BRABANT, INC. FEE SCHEDULE Effective Year 2006 Hourly Rate for Principal Appraiser $200.00 Hourly Rate for Associate Appraiser $150.00 Hourly Rate for Research Assistant $75.00 Hourly Rate for Clerical $50.00 Hourly Rate for Appearance in Court or other Administrative Proceeding* .. $300.00 Hourly Rate for Deposition Testimony $300.00 PWENG558 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN PROPERTY APPRAISAL SERVICES (HENDRICKSON APPRAISAL CO., INC.) THIS AGREEMENT is made and entered into as of the U> _ day of . 20jQ£j by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and HENDRICKSON APPRAISAL CO., INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in property appraisal services. 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 property appraisal services. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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) per Agreement year. The total amount of the Agreement shall not exceed two hundred twenty five thousand dollars ($225,000) for the complete Agreement term. 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 withholding^ 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Ted G. Hendrickson, MAI Title Deputy City Engineer Title President Dept Public Works-Engineering Design CITY OF CARLSBAD HENDRICKSON APPRAISAL CO., INC. Address 1635 Faraday Avenue Address 10992 San Diego Mission Road, Suite 203 Carlsbad, CA 92008 San Diego, CA92108 Phone No. (760) 602-2768 Phone No. (619)282-0800 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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 Contractqr^ip the terms and conditions of this Agreement. CExecuted by Contractoriu:^-" CONTRACTOR: HENDRICKSON APPRAISAL CO., INC., a California corporate CITY OF CARLSBAD corporal) ByT^J (sign here) G, (print name/title)ATTEST: i^- (e-rjiail address)S. LORRAINE M. WOOD City Clerk ^yM rinrn L. (prinrname/title) vj>, (e%iail address) (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 Attor City Attorney Approved Version #04/03/02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ft County of «—/o ss.o On. Date personally appeared before me, Name and Title of Officer (e.g./Jane Doe, Notary P^l OFFICIAL SEALw^ifilH Name(s) of Signer(s) <_/ D personally known to me ^jj^proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. r'my han rficial sea Signature o OPTIONAL Though the information below /s 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:. Number of Pages:. Signer(s) Other Than Named Above:. Capacity(ies) Claimed by Signer Signer's Name: D Individual D Corporate Officer - Title(s): D Partner — D Limited D General D Attorney-in-Fact D Trustee D Guardian or Conservator D Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:, © 1999 National Notary Association • 9350 DeSotoAve., P.O. Box 2402 • Chatsworth. CA 91313-2402 • www.nationalnotary.org Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827 EXHIBIT "A" HENDRICKSON APPRAISAL COMPANY, INC. FEE SCHEDULE As requested, following is a summary of hourly rates for professional services rendered, including services for preparation of appraisal reports, appraisal reviews, pre-trial preparation and conferences, and expert testimony. Appraisal Preparation - Staff Appraisers $95/Hr. Appraisal Preparation and Appraisal Reviews - Ted Hendrickson $140/Hr. Pre-trial Preparation and Conferences $175/Hr. Expert Testimony at Depositions and Trial $285/Hr. Ted G. Hendrickson, MAI is the person within the company that will be called upon for Expert Witness Testimony. MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN POTHOLING (AIRX UTILITY SURVEYORS) AGREEMENT is made and entered into as of the (J _ day of . 20%. by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and AIRX UTILITY SURVEYORS, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in potholing. 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 potholing. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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 Agreement year. The total amount of the Agreement shall not exceed three hundred thousand dollars ($300,000) for the complete Agreement term. 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Ivan R. Fox Title Deputy City Engineer Title President Dept Public Works-Engineering Design CITY OF CARLSBAD AIRX UTILITY SURVEYORS Address 1635 Faraday Avenue Address 4407 Manchester Avenue, Ste. 105 Carlsbad, CA 92008 Encinitas, CA 92024 Phone No. (760) 602-2768 Phone No. (760) 436-2479 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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 £~/6 7/S day of . 20 CONTRACTOR: AIRX UTILITY SURyEYORS, a California corporation By: ?>&^7 ^. / CITY OF CARLSBAD, a munidp^l corporatjqp/of/he Staje, of 0alif0rnia (print name/title)ATTEST: LORRAINE M. WOOD City Clerk (print name/title) 3ecte77h&Y/ (e-mail address) (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 BY: Deputy City A City Attorney Approved Version #04/03/02 STATE OF CALIFORNIA COUNTY OF Vss. . before me, \\1 LMT\personally appeared _ ^ ^ .personally known to (or proved to me on the basis of satisfactory evidence) to be the^eri^i(s) whose subscribed to the within instrument and acknowledged to me that (^she/they executed the same ln<6Rher/their authorizedtgaplicjj&ies) , and that b^^/her/theii^|gn^^(s) on the instrument the or the entity upon behalf of which th^persqnjs) acted, executed the instrument. WITNESS my hand and official seal. Signature A ^- A -*- (This are? for official notarial SBH!) BROOKE TIGH COMM.t 1459018 iOTAKY PUBUC-CAUFORNIA^ SAN DIEGO COUKTY 0 COMM. EXP. DEC. 27.2007? 3008 (1/54) (General) First Ami?ficBn Title Insurance Company STATE OF CALIFORNIA COUNTY OF_ }ss. On _, before me, personally appeared v^y^^w. - __ ____ . ^rsonally known to (or proved to me on the basis of satisfactory evidence) to be the itfers^s) whose<_5im|Js)©/are subscribed to the within instrument and acknowledged to me thaCB^/she/they executed the same ln(f^^l|r/their authorizec(capacjMies), and that byCbjpher/their gjgnaturejs) on the instrument the (fJersorts) or the entity upon behalf of which the pe_ifi£}is) acted, executed the instrument. WITNESS my hand and official seal. Signature BROOKE TIGH COMM.# 1459018 S NOTARY PUBLIC-CALIFORNIA W SAN DIEGO COUNTY 0 COMM. EXP. DEC. 27.2007 •* (This &fS8 for official ntfarial seal} Title of Document Date of Document Other signatures not acknowledged 3008 Firutt American Tills Insurance Company Fax: Sep 25 2006 11:45am P002/Q03 AJRX Utility Surveyors, Inc. SCHEDULE OF CHARGES July, 2006 CLASSIFICATION HOURLY FEE PRINCIPAL ENGINEER $175.00 SENIOR ENGINEER §140.00 SENIOR ASSOCIATE ENGMEER $130.00 ASSOCIATE ENGINEER $1054)0 ASSISTANT SNGINIBR $ 90.00STAFF ENGINEER $ ao.oo SENIOR DESIGNER $ 904)0 ASSOCIATE DESIGNER $ MM ASSttTANT DESIGNER $ 70.00 STAFF DESIGNER $ 80.00 PRINCIPAL PLANNER $175.00 SENIOR PLANNER $12640 ASSOCIATE PLANNER $100.00 ASSISTANT PLANNER $ 86.00 STAFF PLANNER $70.00 SENIOR DRAFTSMAN $ 76.00 ASSOCIATE DRAFTSMAN $ 65.00 ASSISTANT DRAFTSMAN $ MUM STAFF DRAFTSMAN $55-00 OFFICE TECHNICIAN $ 5840 PRINCIPAL LAND SURVEYOR $176.00 SUPERVBMG FIELD SURVEYOR $150.00 SENIOR SURVEYOR $135.00 SENIOR ASSOCIATE SURVEYOR $110.00 ASSOCIATE SURVEYOR $ 9540 ASSISTANT SURVEYOR $854)0 STAFFSURVEYOR $ 65-00 TWO MAN FIELD CREW (CONVENTIONAL) $1864)0 THREE MAN FIELD CREW (CONVENTIONAL) $22640 GPS CREW $22640 Fax:Sep 25 2006 t1:d6am P003/003 AUTOCAD DRATFING PRE-MARKINGSTTE POTHOLING-LESS THAN 5* DEEP POmOUNG - 6> TO 8'DEEP POTHOUNG-8'T011'DEEP POTHOUNG -11' TO U' DEEP POTHOUNG - GREATER THAN 14' DEEP GEOPHYSICAL LOCATING - MOBILIZATION GEOPHYSICAL LOCATING - FIELD CREW STORM DRAIN /SEWER LATERAL LOCATING TRAFFIC CONTROL PLANS TRAFFIC CONTROL EQUIPMENT ARROW BOARD $75.00 PER HOUR $105-00 PER HOUR $500,00 EACH $700.00 EACH $900.00 EACH $1,100.00 EACH $26040 PER HOUR $950410 $200.00 PER HOUR $150.00 PER HOUR $200.00 EACH $150.00 PER PAY $100.00 PER DAY PWENG560 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN PUBLIC RELATIONS (KATZ & ASSOCIATES) THIS AGREEMENT is made and entered into as of the ^ _ day of 2Q06y. by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and KATZ & ASSOCIATES, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in public relations. 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 public relations. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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) per Agreement year. The total amount of the Agreement shall not exceed two hundred twenty five thousand dollars ($225,000) for the complete Agreement term. 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Sara M. Katz Title Deputy City Engineer Title President Dept Public Works-Engineering Design CITY OF CARLSBAD KATZ & ASSOCIATES Address 1635 Faraday Avenue Address 4250 Executive Square, Suite 670 Carlsbad, CA 92008 La Jolla, CA 92037 Phone No. (760) 602-2768 Phone No. (858) 452-0031 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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 ^^jfa* day of S&f-cwtl&K , 200(0 . CONTRACTOR: KATZ & ASSOCIATES, a California corporation By: CITY OF CARLSBAD, corpc a mi mpipal fifornia (sign here) M. (print name/title)ATTEST: (e-mail address) (sign here) pa-trie To. A- Tfc/i Hi/sort ttcg- Py/f5/Vfa LORRAINE M. WOOD City Clerk (print name/title) (e-mail address) (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 = .JDJU Deputy City Attorney City Attorney Approved Version #04/03/02 State of California County of vSctTi ^hi .Q £U) Or\Q~{4~& i*> befon= me, Lori Elizabeth Lefebyre, Notary Public, personally appeared h Lefebyre, h<gCT Z personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature, ^^Uu & ^uW^CT^^/UseaH J LORIELIZABETOLEFEBVRE ^-S " " Notary PuWic-CalHbmla San Diego County State of California County of On ^1 appeared. before me, Lojci Elizabeth Lefebvre, Notary Public, personally personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. LORI ELIZABETH LEF6BVRE Notary PuWe-Cflittomia San D*go County CotfimiWW #1668141liteflMm.fetfMAjrtklMOOI * KATZ & ASSOCIATES, INC. 2006 HOURLY RATES Assignment Hourly Rate President/Principal in Charge $200 Senior Vice President $ 195 Vice President/Facilitator $ 185 Senior Director $175 Director $170 Senior Account Supervisor $160 Account Supervisor $140 Senior Account Executive $ 13 5 Account Executive II $ 125 Account Executive I $ 115 Assistant Account Executive $85 Account Coordinator $65 Project Support $50 #### NOTE: These are Katz & Associates' published/list billing rates and are not appropriate for public sector cost based contracts/projects. Katz & Associates, Inc. 12/6/05 PWENG551 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN CCTV (AFFORDABLE DRAIN SERVICE, INC dba AFFORDABLE PIPELINE SERVICES) f-^ THIS AGREEMENT is made and entered into as of the (0 day of J J&(LfSYi jh^Aj . 2006, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and AFFORDABLE DRAIN SERVICE, INC. dba AFFORDABLE PIPELINE SERVICES, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in CCTV. 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 CCTV. D. Selection of Contractor is expected to achieve the desired results in an expedited fashion. E. Contractor has submitted a proposal to City and has affirmed its 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 for a period of three (3) years from the date first written above. 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) per Agreement year. The total amount of the Agreement shall not exceed two hundred twenty five thousand dollars ($225,000) for the complete Agreement term. 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. 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-:V". 10.1 Coverages 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. 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. 10.1.2 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. 10.1.4 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. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 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. 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. 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. 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 Contractor relinquishes 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 William Plummer Name Duane Johnson Title Deputy City Engineer Title Vice President Dept Public Works-Engineering Design AFFORDABLE DRAIN SERVICE, INC. dba CITY OF CARLSBAD AFFORDABLE PIPELINE SERVICES Address 1635 Faraday Avenue Address 8340 Juniper Creek Lane Carlsbad, CA 92008 San Diego, CA 92126 Phone No. (760) 602-2768 Phone No. (858) 689^000 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. 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 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 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. 20. TERMINATION 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. City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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. I 1Executed by Contractor this CONTRACTOR: AFFORDABLE PIPELINE SERVICES, a California^tfrporation Byi2±_ day of ., 20 0 t. CITY OF CARLSBAD, corporatiwlbf the St jcipal lifornia (sigrfhere) (prinfname/title) (e-mail address) By: ATTEST: f \—-^- - - - . _//g LORRAINE M. WOOD City Clerk (print "name/til^ ATfACHED CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT (e-mail address) (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 BY: City Attorney Approved Version #04/03/02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 2efifi5Ss£gfie<SS£e£'e£efiees£esg<5 I ^1 !» PII I I a II I 1 1 State of California County of ss. On. Date personally appeared _ before me,, l\ S Name and Title of Officer (e.g., "Jane Public") OFFICIAL SEAL A. O'LOUGHLIN NOTARY PUBLIC-CALIFORNl COMM. NO. 1696249SAN DIEGO COUNTY • MY COMM. EXP. OCT. 12,2010 \ Name(s) of Signer(s) D personally known to me H^pToved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESSmy hand and official seal. 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: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney-in-Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing:, RIGHT THUMBPRINT OF SIGNER Top of thumb here 5^e<$^^©$^g£&£&s®^G<$g£^^ © 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnotary.org Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827 Exhibit "A" Affordable Drain Service, Inc. DBA: Affordable Pipeline Services Schedule of Rates (All wages are non-prevailing wage) Rates for Year 1 of contract CCTV Inspection Truck (2 man crew) CCTV Inspections: $175.00 per hour (4 hour minimum) Push Camera Inspection/Line Locating (1 man crew) Push Camera: $150.00 per hour Combination Jet/Vac Cleaning Truck (1 man crew) Small Cleaning Truck (3-yard): $175.00 per hour (4 hour minimum) Large Cleaning Truck (10-yard): $195.00 per hour (4 hour minimum) Emergency Response CCTV or Cleaning (less than 24-hour notice) Emergency Callout $250.00 Hourly Rate $225.00 per hour (4 hour minimum) Trailer Jetter (1 man crew) Trailer Jetter: $165.00 per hour (2 hour minimum) Drain Cleaning Service (1 man crew) Monday through Friday 8:00 AM to 4:00 PM $98.00 per hour Nights and Weekends: $150.00 per hour Supervisor $95.00 per hour Professional Engineering Services $137.50 per hour Additional Laborer $45.00 per hour Rates for Year 2 of contract All year 1 pricing will increase by 3% Rates for Year 3 of contract All year 2 pricing will increase by 3% 1 RESOLUTION NO. 1284 2 A RESOLUTION OF THE BOARD OF DIRECTORS OF 3 CARLSBAD MUNICIPAL WATER DISTRICT (CMWD) APPROVING MASTER AGREEMENTS WITH BOYLE 4 ENGINEERING CORPORATION AND KRIEGER & STEWART FOR PROFESSIONAL ENGINEERING SERVICES. 5 WHEREAS, the Board of Directors of Carlsbad Municipal Water District has reviewed the 6 need for the utilization of consultant services by the Department of Public Works on an ongoing, 7 as-needed basis in order to maintain service levels; and 8 WHEREAS, the Department of Public Works solicited, received, and reviewed Statements 9 of Qualifications for as-needed professional engineering consistent with Carlsbad Municipal Code 10 section 3.28.070; and 11 WHEREAS, subsequent to a review of the Statements of Qualifications, staff12 recommends Boyle Engineering Corporation and Krieger & Stewart as the most qualified13 consultants for the disciplines listed above; and14 WHEREAS, expenditures for these professional services are subject to availability of I O capital project funding;16 NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of Carlsbad Municipal Water District (CMWD) of the City of Carlsbad, California, as follows:18 1. That the above recitations are true and correct. 19 2. That the agreements with Boyle Engineering Corporation and Krieger & Stewart 20 copies of which are attached as Exhibits 23 thru 24 to Agenda Bill No. 18,826 are hereby 21 approved. 22 3. That the President of the Carlsbad Municipal Water District is hereby authorized 23 and directed to execute the agreements with Boyle Engineering Corporation and Krieger & 24 Stewart for, and on behalf of, the City of Carlsbad.25 /// 26 ///27 ///28 /// 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 PASSED, APPROVED AND ADOPTED at a Special Meeting of the Carlsbad Municipal Water District held on the 5th day of December, 2006, by the following vote, to wit: AYES: Board Members Lewis, Hall, Kulchin, Packard, Sigafoose NOES: None. ABSENT: None. LORRAINE M. WOOD, Secretary (SEAL) V it, PWENG578 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN WATER AND RECYCLED WATER ENGINEERING SERVICES (BOYLE ENGINEERING CORPORATION) /THIS AGREEMENT is made and entered into as of the L? _ day of JKjbuJ , 20<%. by and between the CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a subsidiary District of the City of Carlsbad hereinafter referred to as "District", and BOYLE ENGINEERING CORPORATION, a California corporation, hereinafter referred to as "Contractor." RECITALS A. District requires the professional services of an engineering consultant that is experienced in water and recycled water engineering services. 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 and recycled water engineering services. 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. 3. TERM The term of this Agreement will be effective for a period of three (3) years from the date first written above. 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 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 two hundred thousand dollars ($200,000) per Agreement year. The total amount of the Agreement shall not exceed six hundred thousand dollars ($600,000) for the complete Agreement term. 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. 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. City Attorney Approved Version #04/03/02 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. 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 Coverages 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. 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. 10.1.2 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. 10.1.4 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 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. 10.4 Failure to Maintain Coverage. 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. 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 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 Contractor agrees that all copyrights that arise from the services will be vested in District and Contractor relinquishes all claims 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 William Plummer Name Don MacFarlane Title Deputy City Engineer Title Project Manager Dept Public Works-Engineering Design CARLSBAD MUNICIPAL WATER DISTRICT BOYLE ENGINEERING CORPORATION Address 1635 Faraday Avenue Address 7807 Convoy Court, Suite 200 Carlsbad, CA 92008 San Diego, CA 92111 Phone No. (760) 602-2768 Phone No. (858) 268-8080 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 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. City Attorney Approved Version #04/03/02 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 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. 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. 6 City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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: 7th day of.November ,20 06 TION, CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a $ji}ify6\ar$ District /jfjfle City of Carlst / "(sign hefre)'Philip V; Petrocelli President and CEO (print name/title) ppetrocelli@boyleengineering.com (e-mail address) ATTEST: Bv: (sign here) David W. Huchel Secretary (print name/title) dhuchel@boyleengineering.com (e-mail address) LORRAINE M. WOOD Secretary f§f^ (Proper notarial acknowledgment of execution by Contractor must be attached. If a corpbVaWon, 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 1911, and a subsidiary District of the City of Carlsbad APPROVED AS TO FORM: RONALD^R. BALL, Gene;al Counsel BY: City Attorney Approved Version #04/03/02 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT i I$ 1 II I II 1 I I 1 I 1& I I I$ I I I1 I I State of California County of ss. On Date personally appeared before me. Name and Tille of Oflicer (e.g.. 'JarCe Doe, Nolary Bubl QOJ T>it/rl lli.. CommMonfUMM* Motaty PuMc * CoMoffliQ MyConvn.1 Name(s) ol Signer(s) ^personally known to me D proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. nature oTNotary 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. Description of Attached Document Title or Type of Document\ Document Date(jj>: l&feg- . Number of Pages:. *—-9iyiim(y) Oihel Thun NaniyU Abovy. CapaeJtyXies^Claimed by Signer Signer's Name: D Individual D Corporate Officer —Title(s): D Partner — D Limited D General D Attorney-in-Fact D Trustee D Guardian or Conservator D Other: ./"^ Sigrjeffs Representing:_ % I£ I i !i^I i iiiI <<®z^m&§mm&&$<i£;&®&^^ © 1999 National Nolary Association • 9350 De Solo Ave.. P.O. Box 2402 • Chalswoith, CA 91313-2402 • www.NationalNolaTy.org Prod. No. 5907 Reorder: Call Toil-Free 1-800-876-6827 Exhibit "A" - Contractor's Schedule of Rates Boyle Engineering Corporation Effective January 1, 2006 Professional Staff Description Construction Administration Personnel*; Inspector Resident Project Representative Senior Inspector Senior Resident Project Representative Resident Engineer Senior Resident Engineer (Registered) Technical Support Staff: Student Engineer Drafter/Assistant CADD Operator CADD Operator Designer/Design CADD Operator Sr Designer/Sr Design CADD Operator Design CADD Supervisor Designer Supervisor Hourly Rate Engineers. Planners, and Architects: Assistant Engineer I Assistant Engineer II Associate Engineer (Registered) Senior Planner I Senior Transportation Designer Senior Engineer I (Registered) Senior Engineer II (Registered) Principal Engineer (Registered) S 89.00 $ 103.00. S 112.00 $ 115.00 $ 141.00 $ 141.00 $ 159.00 $ 195.00 $ 109.00 $ 112.00 $ 120.00 $ 125.00 $ 133.00 $ 146.00 $ 47.00 $ 63.00 S 80.00 $ 92.00 $ 109.00 $ 134.00 $ 153.00 Professional Staff Description Hourly Rate Surveying Staff* (Including Equipment): Survey Technician/Assistant Surveyor I Survey Technician/Assistant Surveyor II Associate Land Surveyor (Registered) Senior Land Surveyor (Registered) Administrative Support Staff: Administrative Secretary Accounting Specialist Administrative Specialist Information Technology Specialist Direct Project Expenses $81.00 S 107.00 n is.oo S 144.00 $ 63.00 $ 83.00 $ 86.00 $ 90.00 Rate Subconsultants: Services Provided by Subconsultants Cost+10% Resource Charges** (per direct labor hour): Service Center Charge $ 4.60/hour (computers, reproduction & communication) Other: Travel - Automobile/Truck Federal Mileage Rate + 10% Travel - Other Than Automobile/Truck Cost+ 10% Other Direct Charges (e.g., vendors, outside Cost + 10% reprographic services, cell phones for field staff, submittal binders, courier, etc.) * Subject to adjustment based on prevailing wage rate (if applicable). ** Resource charges are in addition to the standard hourly labor rates. Service Center Charge covers the cost of computers (i.e., computers, programs, special purpose software and extra equipment such as printers and plotters), reproduction (i.e., incidental in-house copying, printing and plotting) and communication (i.e., phone, fax and internet). Outside reprographic services will be billed separately. If authorized by the client, an overtime premium multiplier of 1.5 will be applied to the billing rate of hourly personnel who work overtime in order to meet a deadline which cannot be met during normal hours. Rates are for San Diego based personnel. Special rates will be negotiated for non-San Diego based staff. Corporate officers, Managing Engineers, and Consulting Engineers will be billed at 1.2 times the stated rate for Principal. Applicable sales taxes, if any, will be added to these rates. Invoices will be rendered monthly. Payment is due upon presentation. A late payment finance charge of 1.5% per month (but not exceeding the maximum rate allowable by law) will be applied to any unpaid balance commencing 30 days after the date of the original invoice. Rates are subject to general revision on January 01, 2007. PWENG577 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN WATER AND RECYCLED WATER ENGINEERING SERVICES (KRIEGER & STEWART) THIS AGREEMENT is made and entered into as of the U> _ day of . 20OU, by and between the CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a subsidiary District of the City of Carlsbad hereinafter referred to as "District", and KRIEGER & STEWART, a California corporation, hereinafter referred to as "Contractor." RECITALS A. District requires the professional services of an engineering consultant that is experienced in water and recycled water engineering services. 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 and recycled water engineering services. 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. City Attorney Approved Version #04/03/02 3. TERM The term of this Agreement will be effective for a period of three (3) years from the date first written above. 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 two hundred thousand dollars ($200,000) per Agreement year. The total amount of the Agreement shall not exceed six hundred thousand dollars ($600,000) for the complete Agreement term. 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. 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. 2 City Attorney Approved Version #04/03/02 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. 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 Coverages 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. 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. 10.1.2 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. 10.1.4 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 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. 10.4 Failure to Maintain Coverage. 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. 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 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 Contractor agrees that all copyrights that arise from the services will be vested in District and Contractor relinquishes all claims 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 William Plummer Name Philip E. Strom Title Deputy City Engineer Title Vice President Dept Public Works-Engineering Design CARLSBAD MUNICIPAL WATER DISTRICT KRIEGER & STEWART Address 1635 Faraday Avenue Address 3602 University Avenue Carlsbad, CA 92008 Riverside, CA 92501 Phone No. (760) 602-2768 Phone No. (951)684-6900 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 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. 5 City Attorney Approved Version #04/03/02 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 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. 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. 6 City Attorney Approved Version #04/03/02 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. 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. City Attorney Approved Version #04/03/02 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: KRIEGER & STEWART, a California corporation Bv: (sign here) \p E. Strom Alice, • President-(print name/title) day of _, 20011. CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under tha Municipal Water ApfT>f 1911, and a SiijTS^tiiary; Dis^ict o/]>e City of Carlsbs (e-mail address) Bv: ATTEST: (sign here) CJnar\es A. ^rveoer/ 6ec-reiar\| (print name/title) jrvfr?i>uL S- m'dAt^ JUqfc/< LORRAINE M. WOOD ^^&&''<U Secretary /"&'$*%'£$& (e-mairaddress) (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 1911, and a subsidiary District of the City of Carlsbad APPROVED AS TO FORM: RONALDJR. BALL, General Counsel BY: De~pufy General City Attorney Approved Version #04/03/02 NOTARY ACKNOWLEDGMENT State of County of California . ss. Riverside On October 27, 2006 before me. Kim R. Soto a Notary Public, personally appeared Philip E. Strom and Charles A. Krieger, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity(ies), and that by 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 (seal) KMRENEESOTO Commission* 1464440 Notary Public - CoHtomta RKwrald* County My Comm. Expkm Jon 20.200&I REQUIRED INFORMATION Capacity Claimed by Signer I I Individual | X| Corporate Officer(s): Vice President and Corporate Secretary Title(s) | | Partner(s): | | Limited | | General | | Attorney-in-Fact | | Trustee(s) | | Guardian/Conservator I I Other: Signers are Representing: Name of Person(s) or Entity(ies) Krieger & Stewart, Incorporated Description of Attached Document Agreement between Carlsbad Municipal Water District (CMWD) and Krieger & Stewart, Incorporated Document Title or Type Master Agreement For Professional Engineering Services In Water and Recycled Water Engineering Services Number of Pages Document Date To be dated by CMWD Other Signer(s) CMWD Representatives X I-CD Za. a: EXHIBIT A KDIEGED &TEWADT INCORPORATED FEE SCHEDULE 2006/2007 RATES CLASSIFICATION $/Hr. Engineering / Environmental / Geologic / Surveying Services Consultant 215.00 Manager 195.00 Principal 160.00 Senior 142.00 Associate 128.00 Staff 1 113.00 Staff II 101.00 Staff III 88.00 Technician 70.00 Forensic Services Senior Expert: Testimony 315.00 Investigation 220.00 Associate Expert: Testimony 265.00 Investigation 185.00 Computer Aided Design Services Senior Operator 1 103.00 Senior Operator II 97.00 Senior Operator III 91.00 Staff Operator I 86.00 Staff Operator II 80.00 Staff Operator III 75.00 Surveying Services (Field) 2 Man Crew with Survey Truck (including mileage) and Global Positioning System Equipment 273.00 2 Man Crew with Survey Truck (including mileage) and Standard Equipment or 1 Man Crew with Global Positioning System Equipment 231.00 Construction Services Construction Engineer 115.00 Construction Inspector Regular Time 90.00 Overtime Weekdays (8 hours to 12 hours) 112.00 Weekdays (More than 12 hours) 136.00 Saturday (12 hours or less) 112.00 Saturday (More than 12 hours) 136.00 Sunday and Holiday 136.00 (Holidays: New Years Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day and the Day After, Christmas Day) Support Services Senior Secretary 70.00 Staff Secretary 1 61.00 Staff Secretary II 55.00 Utility Technician 52.00 Utility Clerk 49.00 Outside Services Special Consultants and Purchased Services Cost + 15% Reimbursable Expenses Vehicle Mileage (excluding survey trucks) 0.68 $/Mile Air Fare, Ground Fare, Parking, and Subsistence Cost Copies, Prints, Telephone, Delivery, and Sundry Charges Cost Page 1 of 2 KDIEGEQ =%rn..WAnfr FEE SCHEDULE011WAW1 INCORPORATED 2006/2007 (continued) 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 30 days of date of invoice. Any amount unpaid within said 30 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 30 days or more are subject, without notice, to credit discontinuance and mechanic's lien or stop notice. If it becomes necessary for Krieger & Stewart to initiate 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. 2007-FEES-PW (6/22/2006) Page 2 of 2 Ray Patchett - Re: Master Agreements AB Page 1 From: To: Date: Subject: Ray, Chris Muehlbacher Glenn Pruim; Ray Patchett 12/05/2006 11:17:46 AM Re: Master Agreements AB All Receive-Agenda Item # \ I _ For the Information of the- CITYCQUNCJLt^rr-Asst. DateV'X-^ City Manag The only consultant included in the Master Agreements that has been involved with the golf course is Bureau Veritas (Testing Engineers). Testing Engineers is performing the construction soils testing and other related construction testing. >» Ray Patchett 12/5/2006 8:42:11 AM >» Gang, The question raised by council is "Are any of these consultants involved in the problems we are having, or have had, on the golf course?" Please be prepared to address that question tonight. Contact me if you have questions. Thanks, Ray CC:Bill Plummer; Lisa Hildabrand DEC 5 2006 CITY OF CARLSBADCITY CLERK'S OFFICE