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HomeMy WebLinkAbout2012-11-27; City Council; 21058; MASTER AGREEMENTS PEMCITY OF CARLSBAD/ CARLSBAD MUNICIPAL WATER DISTRICT - AGENDA BILL 21.058 AWARD OF MASTER AGREEMENTS FOR PROFESSIONAL ENGINEERING, GEOTECHNICAL, SURVEYING, POTHOLING, INSPECTION, REAL PROPERTY, ENVIRONMENTAL, PLANNING AND FINANCIAL SERVICES DEPT. HEAD /' MTG. 11/27/12 AWARD OF MASTER AGREEMENTS FOR PROFESSIONAL ENGINEERING, GEOTECHNICAL, SURVEYING, POTHOLING, INSPECTION, REAL PROPERTY, ENVIRONMENTAL, PLANNING AND FINANCIAL SERVICES CITY ATTY. '^J:^ DEPT. TRANS AWARD OF MASTER AGREEMENTS FOR PROFESSIONAL ENGINEERING, GEOTECHNICAL, SURVEYING, POTHOLING, INSPECTION, REAL PROPERTY, ENVIRONMENTAL, PLANNING AND FINANCIAL SERVICES CITY MGR. ^ RECOMMENDED ACTION: Adopt City of Carlsbad Resolution No. 2012-262 approving master agreements with Kimley Horn & Associates, Mark Thomas & Company, RBF Consulting, Fehr & Peers, KTU+A, Linscott Law & Greenspan, LSA, Harris and Associates, Chang Consultants, Dudek, Kennedy Jenks, Moffat and Nichol, Simon Wong Engineering, Ninyo & Moore, Kleinfelder, Right of Way Engineering Services, Melchior Land Surveying, AirX Utility Surveyors, Affordable Pipeline Services, Anderson & Brabant Inc., Epic Land Solutions Inc., Hendrickson Appraisal Company, Planning Systems, Atkins and NBS to provide professional services. Adopt Carlsbad Municipal Water District Resolution No. approving master agreements with RBF Consulting, Infrastructure Engineering Corporation, GHD, Dudek, Moffat and Nichol, Kleinfelder, Right of Way Engineering Services, Melchior Land Surveying Services, AirX Utility Surveyors, Anderson and Brabant Inc., Epic Land Solutions Inc., Planning Systems, Atkins and NBS to provide professional services. ITEM EXPLANATION: The Transportation and Utilities Departments contract with consulting firms to obtain professional services to facilitate the timely completion of Capital Improvement Program projects. To reduce the time and costs associated with entering into with professional services agreements, staff is recommending approval of a new set of Master Agreements for a variety of professional services that will be needed to complete projects over the next three years. To accommodate the completion of projects funded by the City as well as those funded by the Carlsbad Municipal Water District (District) this set of Master Agreements includes agreements with both entities in accordance with the anticipated need for services over the next three years. These new Master Agreements will replace the last set of Master Agreements which are set to expire on December 6, 2012. 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 projects over the term of the agreement. As project-specific work tasks are identified, individual Project Task Description and Fee Allotments are negotiated with the appropriate Master DEPARTMENT CONTACT: Marshall Plantz, 760-602-2766 Marshall.PlantzaCarlsbadca.aov FOR CtTY CLERKS USE ONLY • COUNCIUBOARD ACTION: APPROVED • CONTINUED TO DATE SPECIFIC • DENIED • CONTINUED TO DATE UNKNOWN • CONTINUED • RETURNED TO STAFF • WITHDRAWN • OTHER-SEE MINUTES • AMENDED • Page 2 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) Civil and Traffic Engineering, 2) Innovative Transportation Engineering, 3) Transportation Planning, 4) Storm Water Engineering, 5) Water/Recycled Water Engineering, 6) Waste Water Engineering, 7) Structural Engineering, 8) Geotechnical Services, 9) Surveying Services, 10) Potholing Services, 11) CCTV Inspection Services, 12) Real Property Services, 13) Environmental/Planning Study Services and 14) Financial Services. 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 one hundred and forty (140) consultants. To avoid concentrating the workload with too few consultants, the maximum number of disciplines a consultant could be considered for was set at three. The SOQ's were evaluated based on Firm Experience, Project Team, and Project Approach relative to the master agreement format and the consultant's discipline of expertise. The following table summarizes the number of SOQ's submitted for each discipline. SOQ's DISCIPLINE # OF SOQ'S RECEIVED 1. Civil and Traffic Engineering 18 2. Innovative Transportation Engineering 12 3. Transportation Planning 9 4. Storm Water Engineering 19 5. Water/ Recycled Water Engineering 8 6. Waste Water Engineering 10 7. Structural Engineering 6 8. Geotechnical Services 10 9. Surveying Services 14 10. Potholing Services 4 11. CCTV Inspection Services 3 12. Real Property Services 3 13. Environmental/Planning Study Services 13 14. Financial Services 4 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 table. Page 3 MASTER AGREEMENTS DISCIPLINE CONSULTANT CITY AGREEMENT LIMIT DISTRICT AGREEMENT LIMIT 1) Civil and Traffic Engineering Kimley Horn and Associates $300,000 1) Civil and Traffic Engineering Mark Thomas & Company $300,000 1) Civil and Traffic Engineering RBF Consulting $200,000 $100,000 2) Innovative Transportation Engineering Fehr & Peers $300,000 2) Innovative Transportation Engineering KTU+A $300,000 3) Transportation Planning Linscott, Law and Greenspan $100,000 3) Transportation Planning LSA $100,000 4) Storm Water Engineering Harris & Associates $300,000 4) Storm Water Engineering RBF Consulting $200,000 $100,000 4) Storm Water Engineering Chang Consultants $100,000 5) Water/Recycled Water Engineering Infrastructure Engineering Corp $300,000 5) Water/Recycled Water Engineering GHD $300,000 6) Waste Water Engineering Dudek 300,000 $100,000 6) Waste Water Engineering Kennedy Jenks 300,000 7) Structural Engineering Moffat and Nichol $150,000 $100,000 7) Structural Engineering Simon Wong Engineering $150,000 8) Geotechnical Services Ninyo & Moore $200,000 8) Geotechnical Services Kleinfelder $100,000 $100,000 9) Surveying Services Right of Way Engineering Services $200,000 $100,000 9) Surveying Services Melchior Land Surveying Inc. $200,000 $100,000 10) Potholing AirX Utility Surveyors, Inc. $150,000 $50,000 11) CCTV Inspections Affordable Pipeline Services $150,000 12) Real Property Services Anderson & Brabant, Inc. $50,000 $50,000 12) Real Property Services Epic Land Solutions, Inc. $75,000 $25,000 12) Real Property Services Hendrickson Appraisal Company, Inc. $100,000 13) Environmental/Planning Study Services Planning Systems $200,000 $100,000 13) Environmental/Planning Study Services Atkins $200,000 $100,000 14) Financial Services Harris & Associates $150,000 14) Financial Services NBS $75,000 $75,000 TOTAL $4,950,000 $1,700,000 The proposed Master Agreements are for a three year term which will end in December, 2015. As noted above Project Task Description and Fee Allotments will be executed based upon City and District needs and the availability of appropriated funds. ENVIRONMENTAL IMPACT: Pursuant to Section 15061 (b)(3) of the California Environmental Quality Act (CEQA) approval of the Master Agreements is an activity covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Future projects will be subject to review pursuant to CEQA. 3 Page 4 FISCAL IMPACT: During the three year contract term, the total potential value of consulting services that could be contracted for utilizing the twenty seven City Master Agreements is $4,950,000 and the total potential value of the fifteen District Master Agreements is $1,700,000. 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. 2012-262 approving master agreements with Kimley Horn & Associates, Mark Thomas & Company, RBF Consulting, Fehr & Peers, KTU+A, Linscott Law & Greenspan, LSA, Harris and Associates, Chang Consultants, Dudek, Kennedy Jenks, Moffat and Nichol, Simon Wong Engineering, Ninyo & Moore, Kleinfelder, Right of Way Engineering Services, Melchior Land Surveying, AirX Utility Surveyors, Affordable Pipeline Services, Anderson & Brabant Inc., Epic Land Solutions Inc., Hendrickson Appraisal Company, Planning Systems, Atkins and NBS to provide professional services. NOTE: Exhibits 2 through 28 on file in the City Clerk's Office. 2. Agreement between the City of Carlsbad and Kimley Horn and Associates for Civil and Traffic Engineering services. 3. Agreement between the City of Carlsbad and Mark Thomas & Company for Civil and Traffic Engineering services. 4. Agreement between the City of Carlsbad and RBF Consulting for Civil and Traffic Engineering services. 5. Agreement between the City of Carlsbad and Fehr & Peers for Innovative Transportation Engineering services. 6. Agreement between the City of Carlsbad and KTU+A Innovative Transportation Engineering services. 7. Agreement between the City of Carlsbad and Linscott, Law and Greenspan for Transportation Planning services. 8. Agreement between the City of Carlsbad and LSA for Transportation Planning services. 9. Agreement between the City of Cartsbad and Harris & Associates for Storm Water Engineering services. 10. Agreement between the City of Carisbad and RBF Consulting for Storm Water Engineering services. 11. Agreement between the City of Carisbad and Chang Consultants for Storm Water Engineering services. Page 6 29. Board of Directors of the Carisbad Municipal Water District, Resolution No. 1453 approving master agreements with RBF Consulting, Infrastructure Engineering Corporation, GHD, Dudek, Moffat and Nichol, Kleinfelder, Right of Way Engineering Services, Melchior Land Surveying Services, AirX Utility Surveyors, Anderson and Brabant Inc., Epic Land Solutions Inc., Planning Systems, Atkins and NBS to provide professional services. NOTE: Exhibits 30 through 44 on file in the City Clerk's Office. 30. Agreement between the Carisbad Municipal Water District and RBF Consultants for Civil and Traffic Engineering services. 31. Agreement between the Carisbad Municipal Water District and RBF Consulting for Storm Water Engineering services. 32. Agreement between the Carisbad Municipal Water District and Infrastructure Engineering Corporation for Water/Recycled Water Engineering services. 33. Agreement between the Carisbad Municipal Water District and GHD for Water/Recycled Water Engineering services. 34. Agreement between the Carisbad Municipal Water District and Dudek for Waste Water Engineering services. 35. Agreement between the Carisbad Municipal Water District and Moffat and Nichol for Structural Engineering services. 36. Agreement between the Carisbad Municipal Water District and Kleinfelder for Geotechnical services. 37. Agreement between the Carisbad Municipal Water District and Right of Way Engineering Services for Surveying services. 38. Agreement between the Carisbad Municipal Water District and Melchior Land Surveying for Surveying services. 39. Agreement between the Carisbad Municipal Water District and AirX Utility Surveyors for Potholing services. 40. Agreement between the Carisbad Municipal Water District and Anderson & Brabant for Real Property services. 41. Agreement between the Carisbad Municipal Water District and Epic Land Solutions for Real Property services. 42. Agreement between the Carisbad Municipal Water District and Planning Systems for Environmental/Planning Study services. Page 7 43. Agreement between the Carisbad Municipal Water District and Atkins for Environmental/Planning Study services. 44. Agreement between the Carisbad Municipal Water District and NBS for Financial services. 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 RESOLUTION NO. 2Q12-262 1 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF 3 CARLSBAD, CALIFORNIA, APPROVING MASTER AGREEMENTS WITH KIMLEY HORN & ASSOCIATES, MARK THOMAS & COMPANY, 4 RBF CONSULTING, FEHR & PEERS, KTU+A, LINSCOTT LAW AND GREENSPAN, LSA, HARRIS AND ASSOCIATES, CHANG 5 CONSULTANTS, DUDEK, KENNEDY JENKS, MOFFAT AND NICHOL, SIMON WONG ENGINEERING, NINYO AND MOORE, KLEINFELDER, 6 RIGHT OF WAY ENGINEERING SERVICES, MELCHIOR LAND SURVEYING, AIRX UTILITY SURVEYORS, AFFORDABLE PIPELINE 7 SERVICES, ANDERSON & BRABANT, EPIC LAND SOLUTIONS, HENDRICKSON APPRAISAL COMPANY, PLANNING SYSTEMS, 8 ATKINS. AND NBS TO PROVIDE PROFESSIONAL SERVICES. WHEREAS, the City Council of the City of Carisbad, California, has reviewed the need for the utilization of consultant services on an ongoing, as-needed basis in order to maintain service levels; and WHEREAS, the Transportation Department solicited, received, and reviewed Statements of Qualifications for professional services consistent with Carisbad Municipal Code section 3.28.070; and WHEREAS, subsequent to a review of the Statements of Qualifications, staff recommends Kimley Horn & Associates, Mark Thomas & Company, RBF Consulting, Fehr & Peers, KTU+A, Linscott Law & Greenspan, LSA, Harris and Associates, Chang Consultants, Dudek, Kennedy Jenks, Moffat and Nichol, Simon Wong Engineering, Ninyo & Moore, Kleinfelder, Right of Way Engineering Services, Melchior Land Surveying, AirX Utility Surveyors, Affordable Pipeline Services, Anderson & Brabant Inc., Epic Land Solutions Inc., Hendrickson Appraisal Company, Planning Systems, Atkins and NBS as the most qualified consultants for the disciplines listed above; and WHEREAS, expenditures for these professional services are subject to availability of 2g capital project funding; 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 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carisbad, California, as follows: 1. That the above recitations are true and correct. 2. That agreements with Kimley Horn & Associates, Mark Thomas & Company, RBF Consulting, Fehr & Peers, KTU+A, Linscott Law & Greenspan, LSA, Harris and Associates, Chang Consultants, Dudek, Kennedy Jenks, Moffat and Nichol, Simon Wong Engineering, Ninyo & Moore, Kleinfelder, Right of Way Engineering Services, Melchior Land Surveying, AirX Utility Surveyors, Affordable Pipeline Services, Anderson & Brabant Inc., Epic Land Solutions Inc., Hendrickson Appraisal Company, Planning Systems, Atkins and NBS copies of which are attached as Exhibits 2 thru 28 are hereby approved. 3. That the Mayor of the City of Carisbad is hereby authorized and directed to execute the agreements with Kimley Horn & Associates, Mark Thomas & Company, RBF Consulting, Fehr & Peers, KTU+A, Linscott Law & Greenspan, LSA, Harris and Associates, Chang Consultants, Dudek, Kennedy Jenks, Moffat and Nichol, Simon Wong Engineering, Ninyo & Moore, Kleinfelder, Right of Way Engineering Services, Melchior Land Surveying, AirX Utility Surveyors, Affordable Pipeline Services, Anderson & Brabant Inc., Epic Land Solutions Inc., Hendrickson Appraisal Company, Planning Systems, Atkins and NBS, and on behalf of, the City of Carlsbad. /// /// /// /// /// /// /// /// /// 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 Joint Special Meeting of the Carisbad City Council and Carisbad Municipal Water District Board of Directors, held on the 27th day of November, 2012, by the following vote: AYES: Council Members Hall, Kulchin, Blackburn, Douglas, Packard NOES: None ABSENT: None LORRAIMB^I. \/QaOS2f, City^rk (SEAL) Karen R. Kundtz, Assistant City Clerk CA896 MASTER AGREEMENT FOR CIVIL AND TRAFFIC ENGINEERING SERVICES (KIMLEY-HORN AND ASSOCIATES, INC.) THIS AGREEMENT is made and entered into as of the ^ day of y^tiu^yyu^iUtJ . 20/°^ by and between the CITY OF CARLSBAD, a municipal corpToration, hereinafter referred to as "City", and KIMLEY-HORN AND ASSOCIATES, INC., a North Carolina corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in civil and 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 civil and traffic engineering. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 6. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed three hundred thousand dollars ($300,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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. 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 City Attorney Approved Version 2/17/12 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation 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 ofthe work. lAAf"^ I I If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carisbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Matt Capuzzi Title Transportation Director Title Program Director Dept Transportation Address 401 B Street, Suite 600 CITY OF CARLSBAD San Diego, CA 92101 Address 1635 Faraday Avenue Phone (619) 744-0122 Carisbad CA, 92008 Email Matt.Capuzzi@Kimley-Horn.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe 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 whose services are 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 othen/vise 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 fon^/arded 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 fonA/arded 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 ofthe 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 ofthe 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 2/17/12 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 2/17/12 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 day of , 20 1' KIMLEY-HORN AND ASSOCIATES, INC., a North Carolin^jCQrporat/9|n By: CITY OF CARLSBAD, a municipal corporation of the State of California (sign here) (print name/title) Mayor (sign here) l^awi^ -^o^fi/iSoA ( As's^' speech (print name/title) ATTEST: LORRAINE City Clerk Proper notarial acknowledgment of execution by Contractor must be attached. lr>a.isorj^rsrti9.ft. Agreement must be signed by one corporate officer from each ofthe following two gr^ol/pQ**^^ Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney Assistant City Atto City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of 3?/1 hip.fi^o On Oehb&ir^,^/! before me, PlltA m.^^qS^^. k)(yhYu) M\C . (Here insert name and titie of the officer) personally appeared DCTVlU \L^_V\^ f^Y^.mm m fk fOllMUUAJ ^- (1(XY[M) . who proved to me on the basis of satisfactory evidence^ to be the person(s) whose name(s) j;8r/are subscribed to the within instrument and a^owledged to me that j>e/s>^/they executed the same in l^/yr/their authorized capacity(ies), and that by l>fs/l)^r/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws ofthe State of Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public (Notary Seal) ^ERIKAM.CSASZf " [ COMM. #1841978 2 Notary Public • California § San Diego County My Comm. Expires Mar. 26^2013 [ ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description ofattached documertt cpntinued) I Document Date / 0 / ? Number of Pages "7 (AdditionaHfiformation) CAPACITY CLAIMED BY THE SIGNER • Individual (s) (Title) • Partner(s) • Attorney-in-Fact • Trustee(s) • Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any altemative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. be/she/theyr is /we) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. • Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. • Indicate title or type of attached document, number of pages and date. • Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 2008 Version CAPA vl2.10.07 800-873-9865 www.NotaryClasses.com Statement ofQumUjieatims h Provide Master Afftement Consulting Services Engineering 5. Rate Schedule EXHIBIT A Classification Principal Senior Professional Professional Analyst/Designer Support Staff Billing Rate $ 205.00 $185.00 $155.00 $120.00 $ 80.00 Expenses AUTHORIZED SPECIALIST TRAVEL (per day) (Includes flight, hotel, meals forfirmwide ITS specialist resource, to be utilized only as preapproved by the City) $ 300.00 OFFICE EXPENSES (% of Billing Rate) (Covers direct expenses, such as in-house duplicating and blueprinting, local mileage, telephone calls, electronic messaging, postage, computer time for tech analysis + CADD and word processing) 5.1% SUBCONSULTANT MARK-UP DIRECT EXPENSE MARK-UP 10.0% 5.0% KTU+A 2012 Hourly Rates Alternate Street Design 2012 Hourly Rates Principal $165.00 Principal $170.00 Senior Associate $135.00 Associate $115.00 Senior Designer/Senior Planner/GIS Analyst $105.00 Designer/Planner $95.00 Administration $75.00 City of Carlsbad 21 I OY800007.12 SIT'MSF^ KInnley-Horn and Associates, Inc. CA897 MASTER AGREEMENT FOR CIVIL AND TRAFFIC ENGINEERING SERVICES (MARK THOMAS & COMPANY, INC.) C THIS AGREEMENT is made and entered into as of the ^<f^ day of y^'^^t^^n^ J 20j^ by and between the CITY OF CARLSBAD, a municipal cor|:foration, hereinafter referred to as "City", and MARK THOMAS & COMPANY, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in civil and 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 civil and traffic engineering. D. 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: I- 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 forthe 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5- COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed three hundred thousand dollars ($300,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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 houriy 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 contribufions 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 elecfion, City may deduct the indemnification amount from any balance owing to Contractor. 7- SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of 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 relafionship 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 City Attorney Approved Version 2/17/12 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 eariy terminafion 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-:VII" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coveraaes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitafions or cap on Contractor's indemnificafion obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfacfion, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Q If box is checked, Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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 execufion of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coveraoe. 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 exisfing 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carisbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy 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 inspecfion 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Rob Himes Title Transportation Director Title Project Manager Dept Transportation Address 7300 Folsom Blvd., Suite 203 CITY OF CARLSBAD Sacramento, CA 95826 Address 1635 Faraday Avenue Phone (916)381-9100 Carisbad CA, 92008 Email rhimes@markthomas.com Phone (760) 602-2751 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. CONFLICT OF INTEREST Contractor shall file a Confiict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 regulafions and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulafions. Contractor will be aware ofthe requirements ofthe 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 whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discriminafion 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 othenA/ise 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 fon^/arded 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 resolufion within ten (10) business days. If the resolufion thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be fon^/arded 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 ofthe 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 considerafion 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 othenA/ise recover, the full amount ofthe 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 secfions 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 informafion. If City seeks to recover penalfies 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 2/17/12 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 confiict, 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 2/17/12 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 condifions of this Agreement. Executed by Contractor this day of 0 cA-6h-€-20j_a. CONTRACTOR MARK THOMAS & COMPANY, INC., a California corporation^,,^ (sign herep CITY OF CARLSBAD, a municipal corporation of the State of California (print name/title] By: rtfVlA'^/ ime/titls) (^n here) (print name/fftle) ATTEST: LO City Clerk Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each ofthe following two groups: Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney Assistant City Attorriey City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of 5s c^^vVgy QA.OMr^ On Oo\-. Q^O\QL before me, V^C-XM . No^/M '^)p\.'>C. Date I Here Insert Name and Title of the olfficer personally appeared VA\C.V\^1 3f^s^p>V\ L-OV\W>A^\ cit/vol Name(s) of Signer(s) who proved to me on the basis of satisfactorv evidence to be the person(s) whose name(s) -is^aE^ subscribed to the within instrument and acknowledged to me th|[t J^©/ehe^(Giy> executed the same in hls/MCT/t^e^authorized capacity(ies), and that by mep signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Santa Clwa County Place Notary Seal and/or Stamp Above Signature: OPTIONAL — ignature 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 Title or Type of Document: \/^o^^^ Agr^^/M^'V S^r CIAV oiinc\^T^p-^>C- 6/v\^^AU8^t/^ St^r\i\tx.!i CA8^ \ Document Date: Number of Pages: \ 0 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: . Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Corporate Officer — Title(s): ' • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUIVIBPRINT OF SIGNER Top of thumb here ©2008 National Notary Association » 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 5 , A^aster Agreement Consu/f/ng Serv^ices - GV//and Traffic Engineering m EXHIBIT A I Section 5: Rate Schedyle Mark Thomas & Company, Inc. Principal/Project Manager $290.00 per liour Structural Manager 255.00 per hour Engineering Manager lli 215.00 per liour Engineering Manager il 205.00 per hour Engineering Manager I 178.00 per hour Engineer X 170.00 per hour Engineer IX 162.00 per hour Engineer VIII 150.00 per hour Engineer VII 145.00 per hour Engineer Vi 133.00 per hour Engineer V 122.00 per hour Engineer IV 108.00 per hour Engineer ill 100.00 per hour Engineer II 90.00 per hour Engineer I..... 84.00 per hour Engineer Technician/Inspector IV 105.00 per hour Engineer Technician/Inspector ill 90.00 per hour Engineer Technician/Inspector II 84.00 per hour Engineer Technician/Inspector I 70.00 per hour Engineer Technician Assistant 55.00 per hour Land Surveyor il 150.00 per hour Land Surveyor I 125.00 per hour Project Surveyor II 120.00 per hour Project Surveyor 1 110.00 per hour Survey Technician 85.00 per hour Construction Inspector 98.00 per hour Technical Writer 90.00 per hour Clerical/Typist ii 70.00 per hour Clerical/Typist I 56.00 per hour I* Messenger 42.00 per hour Environmental IVIanager $146.00 per hour PR/Communications Manager 132.00 per hour ^ Environmental Planner IV - 124.00 per hour Environmental Planner Iii 116.00 per hour Environmental Planner II 100.00 per hour ^ Environmental Planner I 85.00 per hour Single Chief $ 96.14 per hour Single Chainman 77.57 per hour ^ 2 Person Field Party and Vehicle 215.00 per hour ^ 3 Person Field Party and Vehicle 298.00 per hour " ilAl .^?H\ If f S 5 Expert Witness $350.00 per hour Strategic Consulting (Principal) $350.00 per hour ^ OTHER DIRECT COSTS Reimbursables including, but not limited to: !? Printing and Materials, Filing Fees, and Field Expenses Cost plus 5% m Outside Consultant Fees Cost plus 5% 22 mmm&ms&commm - n • H ^' ^ Master Agreement Consulting Services - Civii and Traffic Engineering % " " - - - - • '^^ " KB* * \/ * Fehr & Peers / Principal $200.00 - $295.00 . Senior Associate $185.00 - $200.00 Associate $165.00 - $185.00 p? Senior Engineer/Planner $135.00 - $165.00 V Engineer/Planner $110.00 - $135.00 * Senior Technical Support $120.00 - $155.00 Administrative Support $100.00 - $120.00 H Technician $115.00 - $120.00 Intern $90.00 5 Pat Noyes CSS/Traffic Calming/Public Outreach..... $180.00 KTU+A Principal $165.00 Senior Associate $135.(X) Associate $115.00 Senior Designer/Senior Planner/GIS Analyst $105.00 Designer/Planner $95.00 Administration $75.00 Bicycle Solutions Planning and Design $120 Safety evaluations $120 Bicycle storage facility design $100 PERT wfiraess' Research $120 Deposition and Courtroom $225 ^ Bicycle $0.07/mile in addition to transit fares (if any) , San Francisco Bay Area * (Within 5 miles of BART, Caltrain, SF Muni, VTA Ijght Rail, and buses) Actual expenses ^ Out-of-area (Rental car, inter-city transit, airfare, lodging) Actual expenses including meals, unless otherwise agreed mUM THOKASI COmFAMY ^ 23 CA898 MASTER AGREEMENT FOR CIVIL AND TRAFFIC ENGINEERING SERVICES (RBF CONSULTING) IS AGREEMENT is made and entered into as of the ^P'^ ^lay of 20J:^ 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 civil and traffic engineering. B. The professional services are required on a non-exclusive, proiect-by-proiect basis. C. Contractor has the necessary experience in providing professional services and advice related to civil and traffic engineering. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed two hundred thousand dollars ($200,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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 sen/ices. The Task Description will also include a description of the method of payment and will be based upon an houriy 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. 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 City Attorney Approved Version 2/17/12 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1.000.000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. If box is checked. Professional Liability City's initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carisbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Tim Thiele Title Transportation Director Title Project Manager Dept Transportation Address 5050 Avenida Encinas, Suite 260 CITY OF CARLSBAD Carisbad, CA 92008-4386 Address 1635 Faraday Avenue Phone (760) 603-6243 Carisbad CA. 92008 Email tthiele(^rbf.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe 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 whose services are 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 othenA/ise 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 fon^/arded 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 fonA/arded 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 othenA/ise recover, the full amount ofthe 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 2/17/12 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, modifled, waived or discharged except in a writing signed by both parties. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// City Attorney Approved Version 2/17/12 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 27 day of ^j^.p-jr 20 I'Z . CONTRACTOR RBF CONSULTING, a California corporation (sign here) (pifnt name/title) By: gn here) (print name/title) / CITY OF CARLSBAD, a municipal corporation of the State of California ATTEST: LORRAINE City Clerk Mayor Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each ofthe following two groups: Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certifled by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. CITY OF CARLSBAD, a municipal corporation ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of On Date* personally appeared before me, Here Insert Name and Title of the Officer ame(s) of Signer(s) ANDREA SANDERS Commission # 1947527 Notary Pubiic - California f San DieQO County g who proved to me on the basis of satisfactory evidence to be the person(s) whose name(9) is/afe- subscribed to the within instrument and acknowledged to me that he/she/thoy executed the same in his/hor/thoif authorized capacity (ies), and that by his/hor/thoif signature(e) on the instrument the person(-s), or the entity upon behalf of which the person(e) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Place Notary Seal Above WITNESS my/iknd and official seal. Signature: OPTIONAL — Signature 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 . Title or Type of Document: rtsfiCTBg. P^/^QF/mQUT 'EM6-.,SQ2M IC^S - Cj:T\j oF (y\/213ff^ Document Date: (Vlor ftPrreO^Ttmg of SlCN.i^^<c» Number of Pages: & Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: "SoQ-nr TA^ UpfL^ Signer's Name: ^Corporate Officer - Title(s): \i tC6 Q^iPEX^r • Corporate Officer - Title(s) • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER TOD of thumb here • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Orange } On September 28, 20^2^Q^^^^ Kim Hartsfield, Notary Public Date personally appeared Michael V. Valenza Here Insert Name and Title of the Officer Name(s) of Signer(s) KIM HARTSFIELD Commission # 1824540 Notary PuWic - California Orange County Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(^whose name|^is/sr)>6.^ubscribed to the within instrument and acknowledged to me that he/stiMb6y executed the same in his/b^/1j5neir authorized capacity(i^ and that by his/b^tlJau: signature(«)Lon the instrument the person(34T or the entity upon behalf of which the person(st5.acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal Signature. OPTIONAL Signature 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 ™e or Type of Document: Master Agreement - City of Carlsbad Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Individual IVIichael V. Valenza Signer's Name:. • Individual •X^orporate Officer — Title(s): Vice President • Corporate Officer — Title(s) • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:. RBF consulting n Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here © 2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Chatsworth, CA 91313-2402 • www.NatlonalNotary.org Item #5907 Reorder; Call Toil-Free 1 -800-876-6827 il, »' fc fc fc fc fc. fc I*- fc fc tt. k. ». »' ft. fc. fc. »' ilk c (TV or CARLSBAD Master Agreement Consulting Services Civil and Traffic Engineering EXHIBIT A RATE SCHEDULE RBF CONSUIJIMG The rate schedule below indicates houriy billing rates for each member of the project team. These rates will be valid from the date of delivery of this SOQ (May 23, 2012) through December 31, 2015. OFFICE PERSONNEL $ / hour Principal / Vice President 225.00 Project Manager 195.00 Task Manager 180.00 Project Engineer 145.00 Landscape Architect 145,00 Transportation Planner 135.00 Design Engineer ,...135.00 Designer/Planner 118.00 FIELD PERSONNEL S / hour 2-Person Survey Crew 250.00 Licensed Surveyor 175.00 Reid Supervisor 170.00 OTHER SERViCES AND FEES S/hour Clerical/Word Processing 63.00 Vehicle Mileage 0.60/Mlle Blueprinting, reproduction, messenger service and other direct expenses will be charged as an additional cost plus 10%. A subconsultant management fee of 10% will be added to the direct cost of all subconsultant services to provide for the cost of administration, subconsultant consultation and insurance. DIGITAL PREVIEW The rate schedule below indicates hourly billing rates for each member of the project team. These rates will be valid from the date of delivery of this SOQ (May 23, 2012) through December 31, 2015. PERSONNEL S / hour Project Manager 110.00 OTHER SERVICES AND FEES S / hour Vehicle Mileage 0.60/Mile Blueprinting, reproduction, messenger service and other direct expenses will be charged as an additional cost plus 10%. m CONSUt-TING 16 WAIVER REQUEST FORM FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement wil! be accepting a lower limit of coverage or waiving the requirement(s). Requested by: Marshall Plantz/Transportation, Bill Plummcr/Utilities October 16,2012 (Name and Department) Date Proposed modification(s) to the Prof Liability requirement(s) for Master /Civil & Traffic Engr Svcs-CA898-City; RBF CA899-CMWD Master/Storm Water Engr Svcs - CA905-City; CA907-CMWD (Type of insurance) (Name of contract) O Reduce coverage lo the amount of: __________ n Waive coverage 13 Other: Waive requirement of surplus lines carrier on the LASLI (formerly LESLI) FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) riSignificance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope of work and the quality of the work-product. [explain] r~lSignificance of Contractor: Contractor has unique skills and there are few if any altematives. [explain: include number of candidates RFP sent to and number responded if applicable] •Contract Amount/Term of Contract: $ . Work will be completed over a period of •Professional Liability coverage is not available to this contractor or would increase the cost of the contract by I [explain]. ' (Mother (e.g. explain whv exposures are minimal, how exposures are covered in another policv, exposure control mechanisms, and any other information pertinent to votir request): Under the Nonadmitted and Reinsurance Reform Act (NRRA). as part of the Dodd-Frank Act and implemented in Insurance Code Section 1765.1. ''alien" nonadmitted insurers listed on the NAIC's (National Association of Insurance Commissioners) Ouarterly List of Alien Insurers are eligible to accept placements of Califomia risks from surplus lines brokers. The federal action provides for the national listing, thereby allo^^ing alien carriers to avoid individual filing requirements in each state such as those to be included on the LASLI (formerly LESLI). As of January 30.2012 Lloyds of London/Beazlev syndicate voluntarily removed itself from the LASLL electing to rely on inclusion on the Quarterly List of Alien Insurers to provide insurance for Califomia risks from surplus lines brokers. Lloyds has made a filing in Califomia that permits the Department of Insurance to "recognize" Lloyd's syndicates in the event of an inquiry from a broker or a member of the public. However, the extent to which standards for a surplus lines carrier on the LASLI (List of Approved Surplus Lines Insurers) versus those on the Quarterly List of Alien Insurers is unclear as ofthe writing of this mi ver and in recent articles appearing in the Insurance Joumal it appears that the state's implementing legislation has resulted in issues that mav need to be resolved in court. In anv case, there is conftision among brokers and clients because there are now 2 lists in the state, one with "approved" surplus lines carriers and the other, the national list of "eligible" surplus lines carriers. Apparently Lloyds is trying to work with the state to sort out some ofthe confusion ad it can be anticipated that there will be more to come on this matter. In the meantime. Llovds of London/Beazlev syndicate has and continues to be the carrier for RBF for its professional liabilitv insurance, it was on the LASLI until it requested removal, and it is the carrier for the contractor with significant ongoing proiects in the Citv. It is requested Llovds of London/Beazlev syndicate be accepted as the carrier for professional liabilitv insurance for RBF. Approved by Risk Manager for these 4 contracts onlv: (Signature) (Date) H:\WORD\lnsurance\Admin Order #68 waiver modify insurance retjuirements.doc 06/15/2006 CA900 MASTER AGREEMENT FOR INNOVATIVE TRANSPORTATION ENGINEERING SERVICES (FEHR & PEERS) LATHIS AGREEMENT is made and entered into as of the ^<^^ day of y^^t^^W^^ 20 by and between the GITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and FEHR & PEERS, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in innovative transportation 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 innovative transportation engineering. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed three hundred thousand dollars ($300,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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. 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 2 City Attorney Approved Version 2/17/12 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1.000.000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Q If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11- BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Contractor: For Citv: Name Skip Hammann Title Transportation Director Dept Transportation CITY OF CARLSBAD Address 1635 Faraday Avenue Carlsbad CA, 92008 Phone (760) 602-2751 Name Jason Pack Title Senior Associate Address 101 W. Broadway, Suite 1970 San Diego, CA 92101 Phone (619) 234-3190 Email j.pack(^fehrandpeers.com 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 fon/varded 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 etseq., 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 2/17/12 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 2/17/12 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this_ 1. CONTRACTOR FEHR,^ PEBRi By: rnia corporation day of 20. CITY OF CARLSBAD, a municipal corporation of the State of California By: (print namb/title) By (sign here) (print nameJtitl^ ATTEST: LOFtRAiN City Clerk Proper notarial acknowledgment of execution by Contractor must be attache'(3(^jfi atO^Vporation. Agreement must be signed by one corporate officer from each ofthe following two groups: Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant City Attorriey City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT } ^ On efore me, (Wl, Kit State of Californi County of Date personally appeared Here Insert Name and Title ofthe Officer Name(s) of Pigner(s) USA M. CURL Commission # 1880833 Notary Public - California Contra Costa County who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature: OPTIONAL — Signature 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 Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2009 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) statement of OuMifnpvorn u.-. i'<ji'-:- - J EXHIBIT A CARLSBAD section five billing rate for each team member Rate Schedule Fehr & Peers will utilize the following rate schedule for the duration ofthe project: Fehr & Peers Hourly Billing Rates Classification Hourly Rate Principal (Steve Brown, Jeremy Klop) $185.00-$295.00 Senior Associate (Jason Pacl<) $165.00 $225.00 Associate (Matt Benjamin) $115.00-$185.00 Senior Engineer/Planner (Support Staff) $120.00-$1/5.00 Engineer/Planner (Support Staff) $90.00-$130.00 Senior Technical Support (Graphics Staff) $110.00-$155.00 Administrative Support $65.00-$120.00 Technician $110.00-$120.00 Intern $50.00-$90.00 • Other Direct Costs / Reimbursable expenses are invoiced at cost plus 10% for handling. . Personal auto mileage is reimbursed at the then current IRS approved rate (0.555 cents per mile as of July 2011), . Voice & Data Communications (Telephone, fax, computer, e-mail, etc.) are invoiced at cost as a percentage of project labor. schedMle, billing rate for each team member CA901 MASTER AGREEMENT FOR INNOVATIVE TRANSPORTATION ENGINEERING SERVICES (KTU&A) ^ "HIS AGREEMENT is made and entered into as of the <=^P'^ day of J/irK£nLA44^ 20^ by and between the CITY OF CARLSBAD, a municipal corp6ration, hereinafter referred to as "City", and KTU&A, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in innovative transportation 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 innovative transportation engineering. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 6- COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed three hundred thousand dollars ($300,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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. 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 City Attorney Approved Version 2/17/12 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-:VII" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation 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. Q If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Mike Singleton Title Transportation Director Title Principal Dept Transportation Address 3916 Normal Street CITY OF CARLSBAD San Diego, CA 92103 Address 1635 Faraday Avenue Phone (619) 294-4477 Carisbad CA, 92008 Email mike(^ktua.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 othenA/ise recover, the full amount ofthe 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 2/17/12 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. 26. 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 2/17/12 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 KTU&A, a California porporation A (srgn here) CITY OF CARLSBAD, a municipal corporation of the State of California By: irrte (print name/title) ATTEST: (sign here) ^ LO (print name/title) Proper notarial acknowledgment of execution by Contractor must be attache)! # g^^oofeoration. Agreement must be signed by one corporate officer from each ofthe following two groups: Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney Assistant City Attoriiey City Attorney Approved Version 2/17/12 CALIFORNIA CERTIFICATE OF ACKNOWLEDGEMENT State of Califomia County of San Diego before me, Robert E. Anderson, a Notary Public personally appeared ^S^AMAJ Jf.cJ^A)Q^^-<^^f< , and ^<>7>Mi CA^-V^ , who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws ofthe State of Califomia that the foregoing paragraph is tme and correct. WITNESS my hand and official seal. Signature ROBERT E. ANDERSON \ COI^I^. #1823044 o NOTARY PUBLIC-CALIFORNJA g SAN DIEGO COUNTV 2 My Commission Expires • DECEiyiBER I4T2OI2 I This Certificate is attached to /"^j^y^k ^^/u^^^^M^/ Project Approach and Rate Schedule EXHIBIT A KTU+A Rate Schedule 2013-2015 Principal $175.00 Senior Associate $145.00 Associate $125.00 Senior Designer/Senior Planner/GIS Analyst $115.00 Designer/Planner $105.00 Administration $85.00 LLG Rate Sdiedule 2013-2015 Principal Engineer $200.00 Associate Principal Engineer $190.00 Senior Transportation Engineer $178.00 Transportation Engineer III $158.00 Transportation Planner II $114.00 Transportation Planner I $102.00 Engineering Associate II $113.00 Engineering Computer Analyst I $85.00 Senior CADD Drafter $109.00 CADD Drafter I $77.00 Engineering Technician II $102.00 Engineering Technician I $77.00 Clerical $72,00 Engineering Aide I $55.00 City of Carlsbad Innovative Transportation Engineering Services Page 24 CA902 MASTER AGREEMENT FOR TRANSPORTATION PLANNING SERVICES (LINSCOTT LAW & GREENSPAN, ENGINEERS) /THIS AGREEMENT is made and entered into as of the day of /jqju^^^ 20 by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and LINCOTT LAW AND GREENSPAN, ENGINEERS, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in transportation 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 transportation planning. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($100,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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. 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 City Attorney Approved Version 2/17/12 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Q If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11- BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name John Keating Title Transportation Director Title Principal Dept Transportation Address 4542 Ruffner Street, Suite 100 CITY OF CARLSBAD San Diego, CA 92111 Address 1635 Faraday Avenue Phone (858) 300-8800 Carlsbad CA, 92008 Email keating(^llgengineers.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 othen^^ise 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 fonA/arded 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 fon^^arded 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 othenA/ise recover, the full amount ofthe 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 2/17/12 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. 26. 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 2/17/12 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 S^^Tj/M^J^ , 20 . CONTRACTOR LINCOTT LAW AND GREENSPAN, ENGINEERS, a California corporation By: CITY OF CARLSBAD, a municipal corporation of the State of California ,ere) (print name/title) By: L/ /oi/^n \na.ro\ (sign here) (print name/title) f ATTEST: LORRAfNE M. City Clerk Proper notarial acknowledgment of execution by Contractor must be attached^if/j^Gorft^ration. Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant City Attori REGINARUZaNI R COMM. #1853486 n NOTARY PUBUC-CALIFORNIA «» SAN DIEQO COUNTy 2 My Comminion Expirts • JUNE 9.2013 I City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of Q^ange On September 26, 2012 before me, Lori M. Clark, Notary Public (Here insert name and title of the officer) personally appeared Richard E. Barretto who proved to me on the basis of satisfactory evidence to be the person(s) whose namef^®'^ subscribed to the within instrument and acknowledged to me that @^he/they executed the same in ^sjfher/their authorized capacity(ies)7 and that by@)her/thoir signature's) on the instrument the person's), or the entity upon behalf of which the person's) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws ofthe State of Califomia that the foregoing paragraph is true and correct. WITNESS my fflcial seal. Signal (Notary Seal) LORI M. CLARK Committion # 1818508 Notary Public ^ Cattfomia I "Trir" Orange County ^ I ^^BSy^ My Comm Expires Oct 9. 20121 1 ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT Master Agreement for Transportation Planning (Title or description of attached document) Services (Title or description of attached document continued) Number of Pages ^ Document Date 9/27/2012 (Additional information) CAPACITY CLAIMED BY THE SIGNER • Individual (s) • Corporate Officer (Title) • Partner(s) • Attorney-in-Fact • Trustee(s) • Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in Califomia must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any altemative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in Califomia (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/she/^ieyr is ) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. • Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. • Indicate title or type of attached document, number of pages and date. • Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 2008 Version CAPA vl2.10.07 800-873-9865 www.NotaryClasses.com CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California Countv of Aw "P^C^O } On before me, Date I Tjj X Here Insert Name and Title of the Officer ^ personally appeared ^Of^ ( . iXprrff^^ Name(s) of Signer(s) REQINA RUZZINI | COMM. #1853486 n NOTARY PUBUC-CALIFORNIA » SAN DIEGO COUNTY 2 My Commi^n Expires • JUNE 9.2013 I who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Place Notary Seal Above WITNESS my Signature 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) Otiier Tlian Named Above: Number of Pages: Capacity(ies) Claimed by Signer(s) Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO.Box 2402* Chatsworth, CA 91313-2402* www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1-800-876-6827 EXHIBIT A 5. RATE SCHEPULE Value to our clients is paramoimt. LLG embraces the philosophy of anticipating issues before they arise to ensure budget and costs are controlled. LLG is also offering a discounted fee schedule, rolled back to our 2006 rates. These rates include the typical expenses of mileage and reproductions. Costs for traffic counting subconsultants will be passed tlu'ough at cost. CITY OF CARLSBAD - FEE SCHEDULE Effective November 1, 2006 TITLE PER HOUR Principals Principal Engineer $ 200.00 Associate Principal Engineer $ 190.00 Transportation Engineers Senior Transportation Engineer $ 178.00 Transportation Etigineer HI • $ 158.00 Transportation Planners Transportation Planner II $ ' ^ 4.00 Transportation Planner I $ 102.00 Technical Support Engineering Associate II $ 113.00 Engineering Computer Analyst I $ 85.00 Senior CADD Drafter $ 109.00 CADD Drafter I $ 77.00 Engineering Technician II $ 102.00 Engineering Technician I $ 77.00 Word Processor/Secretaiy $ '72-00 Engineering Aide I $ 55.00 LINSCOTT, LAW & GREENSPAN, engineers 19~ CA903 MASTER AGREEMENT FOR TRANSPORTATION PLANNING SERVICES (LSA ASSOCIATES, INC.) C THIS AGREEMENT is made and entered into as of the day of y^M<^K^^L^ 20_>^by and between the CITY OF CARLSBAD, a municipal corp<5ration, hereinafter referred to as "City", and LSA ASSOCIATES, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in transportation 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 transportation planning. D. 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: I- 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($100,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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. 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 City Attorney Approved Version 2/17/12 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-:VII" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the subhiitted 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 Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. n If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Sandipan Bhattacharjee Title Transportation Director Title Project Manager Dept Transportation Address 703 Palomar Airport Rd., Ste 260 CITY OF CARLSBAD Carlsbad, CA 92011 Address 1635 Faraday Avenue Phone (760) 931-5471 Carlsbad CA, 92008 Email Sandipan.Bhattacharjee@lsa- assoc.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 fon^/arded 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 fon/varded 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. 5 City Attorney Approved Version 2/17/12 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 at the 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. 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 2/17/12 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 2/17/12 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 LSA ASSOCIATES, INC., a California corporation By: day of 20/^ . CITY OF CARLSBAD, a municipal corporation of the State of California (sign here) Ley CMb 0?:L,rm^n (print name/title) (sign here) (print name/title) ATTEST: LORRAlfJE M City Clerk Proper notarial acknowledgment of execution by Contractor must be attached. lf^'^"(d6Vporation. Agreement must be signed by one corporate officer from each ofthe following two groups: Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant City Attorney City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County Of rxa(w. } On before me, D^ts , ^ . i-iere insert Name pnd ntlaot thi personally appeared OOmCS VCAim AACl LCS CO^f A-- I Here insert Namepnd Titlaof the OfficerkJ Name(s) of Signer(s) 1 j^S^ CHRISTINE BRADY Si^^SM Commission # 1949054 <^S^^ra Notary Public - California Orange County Mv Comm. Expires Aug 21. 20151 who proved to me on the basis of satisfactory evidence to be the personjs) whose name© ^are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in •his/l-iei/their authorized capacity^, and that by hia/her/their signatur^ on the instrument the persoi©, or the entity upon behalf of which the persorljs) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS\m\/||?iand Place Notary Seal Above Signatur 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 AttachediDocument Title or Type of Document Document Date: d.Document WOi)^r f\o^uv(\tc\\- -fer-Trqaspo/tatioa Pldnrtiiij ^\ic.& Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: • Individual A, -/A ^Corporate Officer — Title(s): V3TYUI Hflfl/^ • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: Signer's Name • Individual RIGHTTHUMBPRINT OF SIGNER Top of thumb here XlX^orporate Officer — Title(s): V>T j/ • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here I Notary LSA ASSOCIATES, INC. HOURLY BILLING RATES EFFECTIVE AUGUST 2011 Job Classification Hourly Rate Range'-^ Planning Environmental Transportation Air/NtHse Cuitaral Resources Biology GIS Hourly Rate Range'-^ Principal Principal Principal Principal Principal Principal Principal $140-305 Associate Associate Associate Associate Associate Associate J-—, Associate $100-200 Senior Planner Senior Environmental Planner Senior Transportation Planner/Engineer Senior Air Quality/ Noise Specialist Senior Cultural Resources Manager Senior Biologist/Botanist/ Wildlife Biologist/ Ecologist/Soil Scientist/ Herpetologist/Arborist Senior GIS Specialist $75-175 Planner Environmental Planner Transportation Planner/ Engineer Air Quality/Noise Specialist Cultural Resources Manager Biologist/Botanist/Wildlife Biologist/Ecologist/Soil Scientist/Herpetologist/ Arborist GIS Specialist $80-120 Assistant Planner Assistant Environmental Planner Assistant Transportation Planner/Engineer Air Quality/Noise Analyst Cultural Resources Analyst Assistant Biologist/ Botanist/Wildlife Biologist/ Ecologist/Soil Scientist/ Herpetologist/Arborist Assistant GIS Specialist $55-105 Field Services senior Meld Crew/Field Crew | i | | 1 1 $55-90 Office Services Kcscarch AssistMtAl echnician $35-60 Graphics $100-120 Office Assistant $60-100 Word Processin^echnical Editing $80-100 X DO Hourly rates are subject to review at least annually, on or about August 1 of each year, and may be adjusted to reflect changing labor costs at LSA's discretion at that time. LSA ASSOCIATES, INC. LSA IN-HOUSE DIRECT EXPENSES AUGUST 2011 Unit Cost Reproduction (8.5x11) B/W $.07 per page Reproduction (8.5x11) Color $.40 per page Reproduction (11 x 17) B/W $.10 per page Reproduction (11x17) Color $.75 per page CD Production $5.00 per CD Plotting $3.75 persf Mileage On Road $.555 per mile Mileage Off-Road $.705 per mile GPS Unit $75.00 per day Total Station Surveying Instrument $50.00 per day Level (Laser or Optical) $25.00 per day Laser Rangefinder $25.00 per day Sound Meter $75.00 per day Aerial Photo Cost Boat Rental $50.00/day Water Quality Meter $25.00/day CA904 MASTER AGREEMENT FOR STORM WATER ENGINEERING SERVICES (HARRIS & ASSOCIATES, INC.) ^IS AGREEMENT is made and entered into as of the <=^<P'^ day of "^l^tKj^^ - 20^:^ by and between the CITY OF CARLSBAD, a municipal corpcjfation, hereinafter referred to as "City", and HARRIS & ASSOCIATES, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in storm water 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 storm water engineering. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed three hundred thousand dollars ($300,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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. 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 2 City Attorney Approved Version 2/17/12 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-:VII" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". lO-l Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10-1-2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation 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 offive years following the date of completion ofthe work. I I If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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 Providina 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 Coveraoe. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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. City Attorney Approved Version 2/17/12 16. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For City: For Contractor: Name Skip Hammann Name Ehab Gerges Title Transportation Director Title Contract Manager Dept Transportation Address 750 B Street, Suite 1800 CITY OF CARLSBAD San Diego, CA 92101 Address 1635 Faraday Avenue Phone (619) 236-1778 Carlsbad CA, 92008 Email egerges@harris-assoc.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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. "^S- 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 othenA/ise 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 fon^/arded 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 othenA/ise recover, the full amount ofthe 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 2/17/12 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. 26. 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 2/17/12 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 oTl^ day of Se^pj^rrheY^ , 20 )Z . CONTRACTOI HARRIS,.^^;9MCIATES, INC., a Califorr^flaOTra^ation CITY OF CARLSBAD, a municipal corporation of the State of California By: (sign here) (print Q^me/title) Mayor By: (sign here) (print name/title) LORRAINE City Clerk Proper notarial acknowledgment of execution by Contractor must be atta6t?ve/jiMf ^vCbrporation. Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group 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 Assistant City Attornev\ City Attorney Approved Version 2/17/12 ACKNOWLEDGMENT State of California County of_QmYl^ Onr'VpV^Vw r:t] eio\Si before me, 7^nr>7-dr Sc<\dv\/cA\r (insert name and title of the officer) personally appeared £\ncAh (S^rptP^?. isf^Dt who proved to me on the basis of satisffeifctory 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), orthe entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws ofthe State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) JCNWreR L. SALOIVAR ComnMuion # 1971570 Notary PuMic - California Orange County ^ 1 EXHIBIT A CITYOF CABLSBAD Master Agreement Consulting Services - 4. Storm Water Engineering PAGE 23 RATE SCHEDULE Harris & Associates RANGE OF HOURLY RATES: ALL EMPLOYEES Effective January 1 - December 31. 2012 ENGINEERING DESIGN AND MUNICIPAL SERVICES GROUPS HOURLY RATE Project Director $220 Project Managers 180-205 Project Engineers 150-180 Technical Support 75-140 Administration 65-85 Notes: Rates are subject to adjustment due to promotions during the effective period of this schedule. The above rates are to be used for the duration of the three year term of the Agreement. Unless otherwise indicated in the cost proposal, hourly rates include most direct costs such as travel, equipment, computers, communications and reproduction (except large quantities such as construction documents for bidding purposes). All subconsultant charges are subject to a 10% markup. Harris & Assodates. CA905 MASTER AGREEMENT FOR STORM WATER ENGINEERING SERVICES (RBF CONSULTING) (THIS AGREEMENT is made and entered into as of the day of , 20j2r^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 storm water 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 storm water engineering. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 6. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed two hundred thousand dollars ($200,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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. 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 2 City Attorney Approved Version 2/17/12 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-:VII" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period offive years following the date of completion ofthe work. I I If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For City: For Contractor: Name Skip Hammann Name Richard Lucera Title Transportation Director Title Senior Project Manager Dept Transportation Address 9755 Clairemont Mesa CITY OF CARLSBAD San Diego, CA 92124 Address 1635 Faraday Avenue Phone (858) 810-1448 Carlsbad CA, 92008 Email rlucera@rbf.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 whose services are 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 othenA/ise 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 fonA/arded 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 fonA/arded 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 othenA/ise recover, the full amount ofthe 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 2/17/12 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. 26. 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 2/17/12 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 O/yf^L-t^ ., 20/2L CONTRACTOR RBF CONSULTING, a California corporation ^ (sign here) CITY OF CARLSBAD, a municipal corporation of the State of California (sign here) (print name/title) By: ATTEST: >^n here) (print name/title) 7^ LORRAINE City Clerk Proper notarial acknowledgment of execution by Contractor must be attacheadly a»obVporation. Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant City Attorney City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of. } On Oc^ \|7.Q\2, before me, Date Here Insert Name and Title of thff Officer \J personally appeared Name(s) of Signer(s) MEUSSAC. KESSLER Commission No . 1830381 n NOTARY PUBUC-CAUFORNIA » SAN DIEGO COUNTY My Comm. Expires January 11,2013 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the personjj^ whose namd^)(j§55K| subscribed to the within instrument and acknowledged to me that l©s^/\^ executed the same in^fijSl'bi^^r/t^^ir authorized capacity^ife^, and that by ^jijPi^r/tX[r signaturej^) on the instrument the personj^, or the entity upon behalf of which the personfS^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ' I Signature of Notary Public OPTIONAL Though the information below Is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: - 1 | 2^\'2-. Number of Pages: ^ P "ZO\S* Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Individual • • • • • • Corporate Officer — Title(s): Partner — • Limited • General Attorney in Fact Trustee Guardian or Conservator Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer Is Representing: Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Cfiatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Orange ^ October 4, 2012 On Date personally appeared } before me. Kim Hartsfield, Notary Public Here Insert Name and Title of the Officer IVIichael V. Valenza Name(s) of Signer(s) KIM HARTSFiELO Commission # 1824540 Notary Pubiic - California Orange County ^ My Comm. ^^^j^^^^^J^^J^ who proved to me on the basis of satisfactory evidence to be the person^ whose name(j4-is/aje»subscribed to the within instrument and acknowledged to me that he/si3e/th6y executed the same in his/h»»^th)eftr authorized capacity(i0(S)-, and that by his/hjw/tbeir signature(si^n the instrument the person(j^ or the entity upon behalf of which the person(5^cted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Place Notary Seal Above WITNESS my hand and official seal. Signature. Signature of Notar/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 ^ , IVIaster Agreement - City of Carlsbad Title or Type of Document: r 1 Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Individual Michael V. Valenza ^ Corporate Officer — Title(s): Vice President • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here RBF Consulting Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 1^ J 5 ? 5 5 ? 5 5 5 D 5 5 5 5 5 5 D 5 CARLSBAD Master Agreement Consulting Services Storm Water Engineering RATE SCHEDULE ""'^^^ * The rate schedule below indicates hourly billing rates for each member of the project team. These rates will be valid from the date of delivery of this SOQ (May 23, 2012) through December 31, 2015. OFFICE PERSONNEL $ / hour Principal 225.00 Project IVIanager • 192.00 Task IVIanager 179.00 Project Engineer 153.00 Design Engineer. 134.00 Designer/Planner 118.00 FIELD PERSONNEL —$ / hour 2-Person Survey Crew • 250.00 Licensed Surveyor ..177.00 Field Supervisor 172.00 OTHER SERViCES AND FEES $ / hour Clerical/Word Processing • 63.00 Vehicle Mileage 0.60/IVIile Blueprinting, reproduction, messenger service and other direct expenses will be charged as an additional cost plus 10%. A subconsultant management fee of 10% will be added to the direct cost of all subconsultant services to provide for the cost of administration, subconsultant consultation and insurance. CONSUtTINB A ^^^^H Conpanv 18 WAIVER REQUEST FORM FACTORS IN SUPPORT OF REQUEST TO MOBIFY INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(s). Requested by: Marshall Plantz/Transportation, Bill Plummcr/Utilities October 16,2012 (Name and Department) Date Proposed modification(s) to the Prof. Liability requirement(s) for Master /Civil & Traffic Engr Svcs-CA898-City; I^BP CA899-CMWD Master/Stomi Water Engr Svcs - CA905-City; CA907-CMWD (Type of insurance) (Name of contract) 0 Reduce coverage to the amount of: 1 I Waive coverage 13 Other: Waive requirement of surplus lines carrier on the LASLI (formerly LESLI) FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) riSignificance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope of work and the quality of the work-product, [explain] nSignificance of Contractor: Contractor has unique skills and there are few if any altematives. [explain: include number of candidates RFP sent to and number responded if applicable] QContract Amount/Term of Contract: $ . Work will be completed over a period of •Professional Liability coverage is not available to this contractor or would increase the cost of the contract by I [explain]. ' I^Other (e.g. explain whv exposures are minimal, how exposures are covered in another policv, exposure control mechanisms, and any other information pertinent to vour request): Under the Nonadmitted and Reinsurance Reform Act (NRRA), as part of the Dodd-Frank Act and implemented in Insurance Code Section 1765.L "alien" nonadmitted insurers listed on tfie NAIC's (National Association of Insurance Commissioners) Quarterly List of Alien Insurers are eligible to accept placements of Califomia risks from surplus lines brokers. The federal action provides for the national listing, thereby allowing alien carriers to avoid individual filing requirements in each state such as those to be included on the LASLI (formerly LESLD. As of January 30. 2012 Llovds of London/Beazlev syndicate voluntarily removed itself from the LASLL electing to rely on inclusion on the Quarterly List of Alien Insurers to provide insurance for Califomia risks from surplus lines brokers. Lloyds has made a filing in California that permits the Department of Insurance to "recognize" Lloyd's syndicates in the event of an inquiry from a broker or a member of the public. However, the extent to which standards for a surplus lines carrier on the LASLI (List of Approved Surplus Lines Insurers) versus those on the Ouarterly List of Alien Insurers is unclear as ofthe writing of this waiver and in recent articles appearing in the Insurance Joumal it appears that the state's implementing legislation has resulted in issues that mav need to be resolved in court. In any case, there is confusion among brokers and clients because there are now 2 lists in the state, one with "approved" surplus lines carriers and the other, the national list of''eligible" surplus lines carriers. Apparently Llovds is trying to work with the state to sort out some ofthe confasion ad it can be anticipated that there will be more to come on this matter. In the meantime. Llovds of London/Beazlev syndicate has and continues to be the carrier for RBF for its professional liabilitv insurance, it was on the LASLI until it requested removal, and it is the carrier for the contractor with significant ongoing proiects in the Citv. It is requested Llovds of London/Beazlev syndicate be accepted as the carrier for professional liabilitv insurance for RBF. Approved bv Risk Manager for these 4 contracts onlv: (Signature) (Date) H:\WORD\lnsuranccUdmin Order #68 waiver modify insurance requiremaits.doc 06/15/2006 CA906 MASTER AGREEMENT FOR STORM WATER ENGINEERING SERVICES (CHANG CONSULTANTS) /THIS AGREEMENT is made and entered into as of the cX/^ J . 20 /oV by and between the CITY OF CARLSBAD, a municipal corpof^ation, hereinafter referred to as "City", and CHANG CONSULTANTS, a Sole Proprietorship, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in storm water 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 storm water engineering. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5- COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($100,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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. 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 City Attorney Approved Version 2/17/12 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-:VII" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Q If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. Il- BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Wayne Chang Title Transportation Director Title Principal Dept Transportation Address PO Box 9496 CITY OF CARLSBAD Rancho Santa Fe, CA 92067 Address 1635 Faraday Avenue Phone (858) 692-0760 Carlsbad CA, 92008 Email wayne@changconsultants.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Cartsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 othen/vise 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 ef 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 2/17/12 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 2/17/12 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 7y(/^ day of j^JfHlOfl20 CONTRACTOR CHANG CONSULTANTS, a Sole Proprietorship By; »ign here) Wayne Chang, Sole Proprietor-Riftficipal CITY OF CARLSBAD, a municipal corporation of the State of California By: Mayor (print name/title) ATTEST: By: (sign here) LORRAINE City Clerk www (print name/title) ::0 = 'ofe^ration. Proper notarial acknowledgment of execution by Contractor must be att^^' Agreement must be signed by one corporate officer from each ofthe follovfi4p^t\Ajjp*'gf(^ Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant City Attorney City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of vW^ Di^^jO On Q[3a?|30ia beforeme,'^r^S^S•\^]\l\laMS,Y^64araH^^ , (Here insert name and titli ofthe officer) j personally appeared who 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. I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is true and correct. SS my hand and official seal., Signature of Notary Public (Notary Seal) ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or descriptioo of attached document) (Title or description ofattached document continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER • Individual (s) • Corporate Officer (Title) • Partner(s) • Attomey-in-Fact • Trustee(s) • Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in Califomia must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of Califomia. In such instances, any altemative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in Califomia (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/she/they, is /af») or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. • Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. • Indicate title or type of attached document, number of pages and date. • Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 2008 Version CAPA vl2.10.07 800-873-9865 www.NotaryClasses.com EXHIBIT A RATE SCHEDULE Wayne W. Chang, $138.00 per hour Howard H. Chang, $180.00 per hour In-house Plotting, $5.00 per sheet Outside Reproductions, Printing, and Plotting, at cost Deliveries, at cost Additional Direct Costs, at cost Mileage, N/A Project Design Consultants detailed Rate Schedule is provided in Attachment A and the staff anticipated for this project bill as follows: Debby Reece, $165.00 per hour Cheiisa Pack, $129.00 per hour PDC's Reimbursable costs ai'e billed at cost plus 10 percent. Project Design Consultants SAN DIEGO LABOR RATE SCHEDULE Effective January 1, 2012 Principal/Senior VP $200 Senior Project Manager/VP $175 Project Manager $165 Planning & Landscape Architecture benior Planner $125 Senior Landscape Architect $115 GIS Specialist, CAD/GIS Coordinator, Associate Planner $110 Landscape Architect, Project Planner $105 Landscape Designer, Assistant Planner $100 Urban Designer, Electronics Visualization Specialist $100 Junior Planner $95 GIS Technician $90 Graphics Artist $85 Landscape Drafter, Asst. Landscape Designer $75 Planning Intern, Clerical $70 Engineering Senior Project Engineer, Design Manager $149 Project Engineer, Design Supervisor. Water Quality Engineer $129 Senior Civil Designer, Design Engineer $118 Civil Engineer, CADD Manager $108 QC Specialist $103 Civil Designer $93 Asst. Civil Engineer $88 Design Drafter $82 Drafter $72 Clerical $70 Permit Processor $67 Junior Technician, Intern $57 Surveying, Photogrammetry Site Manager, Crew Manager, Mapping Manager, Sr. Surveyor $140 Sr. Right-of-Way Agent $135 Surveyor $120 Survey Crew/Mapping Coordinator, Photogrammetric Mapping Mgr. $115 Survey/Map Tech II $100 Photogrammetrist/Photogrammetric Map Editor $100 Right-of-Way Agent $95 Survey/Map Tech I $90 Right-of-Way Speciai Projects Engineer $85 Clerical $70 1- Man Crew $145 2- Man Crew $200 3- Man Crew $245 Reimbursable charges for blueprinting, photographic mylar reproduction, photocopying, travel and mileage, delivery services, telephone charges, computerized plotting, special graphic supplies, facsimiles, and other direct project charges incurred on behalf of Client will be billed to Client at cost plus 10%. RAWP/CONTRACT/GEN/LABORRATE-IOFiNALSD.DOC CERTIFICATE OF EXEMPTION WORKERS' COMPENSATION/EMPLOYERS' LIABILITY INSURANCE I, WAYNE W. CHANG, am the Sole Proprietor of CHANG CONSULTANTS. I hereby certify that CHANG CONSULTANTS has no employees and is not required by law to maintain workers' compensation or employers' liability insurance. Should CHANG CONSULTANTS employ any person during the term of the Agreement with the City of Cartsbad for the STORM WATER ENGINEERING SERVICES MASTER AGREEMENT, then workers' compensation and employers' liability insurance will be obtained. Executed on this ^^^dav of ffjfkwllfr- . 2012 at C/^lf^l^l^d^ California WAYNE W. CHANG Name Signature SOLE PROPRIETOR - CHANG CONSULTANTS Title CA910 MASTER AGREEMENT FOR WASTEWATER ENGINEERING SERVICES (DUDEK) tJHIS AGREEMENT is made and entered into as of the day of Y^VJTKJLU^ 20 by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and DUDEK, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in wastewater 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 wastewater engineering. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed three hundred thousand dollars ($300,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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 houriy 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. 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 City Attorney Approved Version 2/17/12 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Q If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11- BUSINESS LICENSE Contractor will obtain and maintain a City of Carisbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy 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. City Attorney Approved Version 2/17/12 16. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Contractor: For Citv: Name William Plummer Title Engineering Manager Dept Utilities Department CITY OF CARLSBAD Address 1635 Faraday Avenue Carisbad CA, 92008 Phone (760) 602-2768 Name Russ Bergholz Title Senior Project Manager Address 605 Third Street Encinitas, CA 92024 Phone (760) 479-4107 Email rbergholz@dudek.com 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 fon/varded 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 fonA/arded 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 ef 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 2/17/12 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 2/17/12 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 ^^RT .20/2-. CONTRACTOR DUDEK^yflTCalifornia corporation CITY OF CARLSBAD, a municipal corporation of the State of California Frank Dudek (print name/title) President By: SU9IAI 9>|ilAI >|9pna ATTEST: LORRAINE M City Clerk (print name/title) Proper notarial acknowledgment of execution by Contractor must be attacf^6d,..lff. aTcSrporation. Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant City Attorr^py City Attorney Approved Version 2/17/12 CALIFORNIA JURAT WITH AFFIANT STATEMENT GOVERNMENT CODE § 8202 "^See Attached Document (Notary to cross out lines 1-6 below) • See Statement Below (Lines 1-6 to be completed only by document signer[s], not Notary) Signature of Document Signer No. 1 Signature of Document Signer No. 2 (if any) State of California County of 5^'<:i^ Oiter^r^ z I PAMELA J. BRISTOW Commission # 1953564 Notary Public - Califomia San Oiego County = ^ My Comm. Expires Oct 21,201 st Subscribed and sworn to (or affirmed) before me on this 3-4"^day of S^~(-. 20 IX . Date TVIonth Year by (1) ^rav^\^ OuAe[<^ , Name of Signer proved to me on the basis of satisfactory evidence to be the person who appeared before me (.) (,) (and Name of Signer proved to me on the basis of satisfactory evidence to be the person Ivho appeared before me.) Place Notary Seal Above Signature Signature dfNotary Public OPTIONAL Though the informa^olThl jTot required by law, it may prove valuable to persons relying on the docurnentsfKU^d prevent fraudulent removal and reattachment of this formto'WTother document. Further Description of Any Attaclied Document Title or Type of Document: Document Date: Number of Pages: RIGHT THUIVIBPRINT • RIGHT THUMBPRINT OF SIGNER #1 • OF SIGNER #2 Top of thumb here Top ot here Sign£t(»)-t5tiier Than Named Above: » 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5910 EXHIBIT A 5 RATE SCHEDULE Dudek has reviewed the City's standard professional services agreement and agrees to all the terms including fixed rates for the three (3) year term and subconsultants markup not greater than 10%. DUDEK 2012 STANDARD SCHEDULE OF CHARGES ENGfNEERING SERVICES Project Director S235.00/hr Principal Engineer III ....S220.00/hr Principal Engineer 11 S205.00/hr Principal Engineer I S195.00/hr Program Manager S200.00/hr Senior Project Manager S185.00/hr Project Manager S175.00/hr Senior Engineer ii! S165.00/tir Senior Engineer II $160.00/hr Senior Engineer I $150.00/hr Project Engineer IV/Technician IV $140.00/hr Project Bfigineer Hi/Technician til S130.00/hr Project Engineer il/Technidan II $120.00/hr Project Engineer i/Technician I $105.00/hr Project Coordinator $85.00/hr Engineering Assistant $75.00/hr ENVIRONMENTAL SERVICES Principal S225.00/hr Senior Project Manager/Specialist II S210.00/hr Senior Project Manager/^cialist I $200.00/hr Environmental SpecialistfRanner VI S180.0Q/hr Environmental Spedaiist/Planner V $160.00/hr Environmental ^ecialist/Pianner IV $150.00/hr Environmental Specialist/Planner HI $140.00/hr Environmental ^ecialist/Planner If..., 5130.00/hr Environmental Specialist/Planner I ,.S120.00/hr Analyst S100.00/hr Planning Research Assistant. $80.00/hr COASTAL PLANNING/POLICY SERVICES Senior Project Manager/Coastal Planner I S200.00/hr Environmental Specialist/Coastal Planner VI ..$190.00/hr Environmental Specialist/Coastal Planner V ...S170.00/hr Environmental SpeciafetTCoastal Planner IV ..S160.00/hr Environmental Specialist/Coastal Planner 111.. S150.00/hr environmental Speclaltel/Goastal Planner II....S140.00/hr Environmental SpeciaHst/Coastal Banner I S13D.00/hr ARCHAEOLOGICAL SERVICES Senior Project ManagerfArchaeologist II S210.00/hr Senior Project Manager/Archaeologist 1 %2O0.Q0lhr Environmental Speciaiist/Archaeok^i^ VI S180.(M3/hr Environmental Specialist/Archaeologist V...S160.00/hr Environmental Specialist/Z^chaeologist lV..S150.0Q/hr Environmental Specialist/Archaeologi^ III ..S140.00/hr Environmental Specialist/Archaeologist 11 ...S130.00/hr Environmental Specialist/Archaeolc^ist 1 ....S120.00/hr Ardiaeologist Technician 11 S70.0Q/hr Archaeologist Technician 1 $50.00/hr CONSTRUCTION MANAGEMENT SERVICES Principal/Manager S195.00/hr Senior Construction Manager S180.00/hr Senior Project Manager S160.00/hr Construction Manager $150,00/hr Project Manager ....S140.00/hr Resident Engineer S140.00/hr Construction Engineer S135.00/hr On-site Owner's Representative S130.00/hr Construction Inspector 111 $125.00/hr Construction Inspector II S115.00/hr Construction Inspector I S105.00/hr Prevailing VNfege Inspector S135.00/hr HYDROGEOLOGICAL SERVICES Principal $22Q.00/hr Sr. Environmental Engineer $190.00/hr Sr. Hydrogeologist/Sr. Proj Mgr $170.00/hr Project Manager , $155.Q0/hr Associate Hydrogeologist/Engineer $140.00/hr Hydrogeologist IV/Engineer iV $125.00/hr Hydrogeologist Ill/Engineer III $115.00/hr Hydrogeologist ll/Engineer II $1 OS.OOflir Hydrogeologist 1/Engineer I $95.00/hr Technician .' $95,00/hr DISTRICT MANAGEMENT & OPERATIONS District General Manager $175.ao/hr District Engineer $160.00/hr Operations Manager $150.00/hr District Secretary/Accountant $85.00/hr Collections System Manager. $95.00/hr Grade V Operator $100.00/hr Grade IV Operator S85.00/hr Grade III Operator S80.00/hr Grade li Operator $63.00/hr Grade I Operator S55.00/hr Operator in Training S40.Q0/hr CoHection Maintenance Wbrker 11 S55.00/hr Collection Maintenance Vtorker I $40.00/hr OFFICE SERVicKS Technical/Drafting/CADD Services 3D Graphic Artist $150.00/hr Senior Designer $135.00/hr Designer $125.00/hr Assistant Designer $120.00/hr GIS Specialist IV $150.00/hr GIS Specialist lil $140.00/hr GIS Specialist 11 $130.00/hr GIS Specialist I $120.00/hr CADD Operator III $115.00/hr CADD Operator II $110.00/hr CADD Operator 1 S95.00/hr CADD Drafter $85.00/hr CADD Tedinician S75.00/hr SUPPORT SERVICES Technfcal Editor III $140.00/hr Technfcal Editor li $125.00/hr Technical Editor 1 $110.00/hr Publicatksns Assistant 111 $100.00/hr PuWicattons /tesi^nt II $90.00/hr Publicatwns Assistant 1 S80.00/hr Clerical /^ministration II S80.00/hr Clerical Adminisfrsrtion I $75.00/hr Forensic Engineering - Court appeamicas, deposHians, and interragatories as axpert vrilnass wM be billed at ZOO Denes normal rates. Emergency and Holidays - Minimum charge of two hours wUI be billed at 1.75 times the normal rate. Material and Outside Services - Subcontractors, rental of special equipment, special reproducHons and blueprinting, outtida data processing and computer seivlcesi etc., are charged at 1.15 times tha direct cost. Travel Expenses - Mileage at current IRS alowabte rales. Per diem where overnight ^ay is involved is charged at cost lnvolces,Late Charges. • AH fees wiH be billed to Client monthly and shaM be due and payable upon receipt. Invoices are delinquent ifnot paid wilhin thirty (30) days liom Ihe dale ofthe Invoice. Client agrees to pay a monthly late charge equal lo one percent (1%) per month ofthe outstandkig balance unlH paid in fad. DUDEK Effective January 1,2012 DUDEK Master Agreement Consulting Services - Waste Water Engineering CA911 MASTER AGREEMENT FOR WASTEWATER ENGINEERING SERVICES (KENNEDY/JENKS CONSULTANTS, INC.) CmiS AGREEMENT is made and entered into as of the '^^^ day of /y/jt^^^K^^^ 20_^ by and between the CITY OF CARLSBAD, a municipal corpolition, hereinafter referred to as "City", and KENNEDY/JENKS CONSULTANTS, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in waste water 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 waste water engineering. D. 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: I- 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed three hundred thousand dollars ($300,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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. 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 2 City Attorney Approved Version 2/17/12 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Q If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name William Plummer Name Corey Young Title Engineering Manager Title Lead Project Manager Dept Utilities Department Address 10920 Via Frontera, Suite 110 Address CITY OF CARLSBAD 1635 Faraday Avenue San Diego, CA 92127 Phone (858) 676-3620 Carlsbad CA, 92008 Email coreyyoung@KennedyJenks.com Phone (760) 602-2768 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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. City Attomey Approved Version 2/17/12 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 at the 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. 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 othenA/ise 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 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 2/17/12 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 2/17/12 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 '2.5' day of S^-pi*^^^ ,20 17^. CONTRACTOR KENNEDY/JENKS CONSULTANTS, INC., a California corporation % (sign here) CITY OF CARLSBAD, a municipal corporation of the State of California By: yor By. (print name/title) \i:c^ pr«3;ol«A"t-. ATTEST: LORRAINE City Clerk (sign here) DONALD a WElPai SECRETARY (print name/title) Proper notarial acknowledgment of execution by Contractor must be attached!Mf'^ corporation. Agreement must be signed by one corporate officer from each ofthe following two groups: Group A Chairman, President, or Vice-President Group 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: QP.XCV. Assistant City Attorrtey City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of Scc^ ^A£U^CUyU> On ^l^n /iZ before me Date personally appeared 1 Here insert Name and Title of the Officer (\ Name(s) of Signer(s) KIMBERLY R. CARAKER I Coimnitsiofi # 1843189 t i|^BB Notary Pubiic - California | J X^m^/ San Francisco County | ^"^^^ MyComm.ExpiragMav2.20131 who proved to me on the basis of satisfactory evidence to be the personwhose name(s) is/atQ subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/h^r/theic^authorized capacity(ies), and that by his/hef/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(Sf)-acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature: OPTIONAL — Signature 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 Title or Type of Document: Document Date: ^IZsltX Number of Pages: _^ Signer(s) Other Than Named Above: ^r\ck. i4u&W>^ Lorra)At^l\)t>cAj ^riexU R. fegt i I Capacity(ies) Claimed by Signer(s) Signer's Name: Donccldt ^. U^eidec/^ Corporate Officer - Titlefs): ^gCYxIrtycj RIGHT THUMBPRINT OF SIGNER Top of thumb here • Individual • Partner — • Limited • General • Attorney in Fact • Trustee n Guardian or Conservator • Other: Signer Is Representing: ^tV\A€iii^ 1^\cu/\^<^ iner's Name: • Coilaqrate Officer — Title(s): • Individui • Partner — •"bkjiited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUMBPRINT OF SIGNER Signer Is Representing: Top of thumb here © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 State or California County 01' _ ICi \ i On ^(j^Z-J^. 20J>^ before me, y^- X Dale J " ^ Her#^inserl Neme ailB Tille ol the Officer/ personally appeared NEme(s) of Signer(s) 1 JEFF B. LANGFORD Commission # 1959089 Notary Public • California j ' San Oiego County s Mw niimm Expires Nov 29.2016 \ Vi'ho proved to me on the basis of satisfacioi-^/ evidence to be the person^^ vi'hose name(jr) is/^e subscribed to the vv'ithin instrument and acknovi'iedged to me thai he/s^K^/the^/ executed the same in his/I^^Ahigfr aull-ioi'ized capacity(i^^, and that by his/hen-Ai^- signature(^) on the instrument the person^, or ihe entity/ upon behalf of vi'hich the person(^ acted, executed the instrument. i certify under PENALTY OF PERJURY under the lavi's of the State of California that the foregoing paragraph is true and correct. V/ITf\iESS my hand and Place Nolary Seal Above Signature OPTIONAL Though the information below is not required by law, ii may prove valuable to persons relying on the document end could prevent fraudulent removal and reattachment of ihis form to another document. Description of Attached Document Titie or Type of Document: Document Date: Number ot Pages: Signer(s) Other Than Named Above: C£p&cft)'(le£) Claimed by Signer(E} Signer's iNlame: • Individual Signer's Name: • Individual U individual ^ y • Individual Corporate Officer — Title(s); l/fCf'"/r{rU>f>^ • Corporate Officer — Title(£): • Partner — • Limited • General • Attorney In Faci • Trustee • Guardian or Conservator • Other: Signer Is Representing: Top of Ihumb here • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: top of thumb here ©2007 Nalional Nolary Association* S350 Dc Soto Ave., P.O. Box 2402«Chatsworih, CA S1S13-2402* www.NationalNolary.ors ttem *5907 ReoiTier;CatlToll-FrBe 1-800^76-6827 Client/Address: City of Carlsbad 1635 Faraday Avenue EXHIBIT Carlsbad, CA 92008 Contract/Proposal: May 23, 2012 PERSONNEL COMPENSATION Classification Hourly Rate CAD-Technician $105 Designer-Senior Technician $135 Engineer-Scientist-Specialist 1 $125 Engineer-Scientist-Specialist 2 $130 Engineer-Scientist-Specialist 3 $150 Engineer-Scientist-Specialist 4 $165 Engineer-Scientist-Specialist 5 $180 Engineer-Scientist-Specialist 6 $200 Engineer-Scientist-Specialist 7 $225 Engineer-Scientist-Specialist 8 $235 Engineer-Scientist-Specialist 9 $240 Project Administrator $95 Administrative Assistant $80 Aide $60 In addition to the above Hourly Rates, a four percent Communications Surcharge will be added to Personnel Compensation for normal and incidental copies, communications and postage. DIRECT EXPENSES Reimbursement for direct expenses, as listed below, incurred in connection with the work, will be at cost plus ten percent for items such as: a. Maps, photographs, 3rd party reproductions, 3rd party 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. Project specific telecommunications and delivery charges. e. Speciai fees, insurance, permits, and licenses applicable to the work. f. Outside computer processing, computation, and proprietary programs purchased for the work. Reimbursement for vehicles used in connection with the work will be at the federally approved mileage rates or at a negotiated monthly rate.. Reimbursement for use of computerized drafting systems (CAD), geographical information systems (GIS), and other specialized software and hardware will be at the rate of $12 per hour. Rates for professional staff for legal proceedings or as expert witnesses will be at rates one and one-half times the Hourly Rates specified above. Excise and gross receipts taxes, if any, will be added as a direct expense. Kennedy/Jenks Consultants CA913 MASTER AGREEMENT FOR STRUCTURAL ENGINEERING SERVICES (MOFFATT & NICHOL) (j>IIS AGREEMENT is made and entered into as of the day of ^^^*^^f«^r^iKy . 20M^ by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and MOFFATT & NICHOL, 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. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred and fifty thousand dollars ($150,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior wntten 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 2 City Attorney Approved Version 2/17/12 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Q If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Perry Schacht Title Transportation Director Title Project Manager Dept Transportation Address 1660 Hotel Circle North, Ste. 500 CITY OF CARLSBAD San Diego, CA 92108 Address 1635 Faraday Avenue Phone (619) 220-6050 Carlsbad CA, 92008 Email pschacht@moffattnichol.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 whose services are 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 fon/varded 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 fon/varded 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 othenA/ise 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 cnminal prosecution. Contractor acknowledges that California Government Code sections 12650 ef 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 nght 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 2/17/12 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 2/17/12 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 , 20 . CONTRACTOR MOFFATT & NICHOL, a California corporation By: CITY OF CARLSBAD, a municipal corporation of the State of California (sign here) /^(fm/^>^f' By; (print name/title) ATTEST: (print name/title) tie) / LORRAINE M City Clerk Proper notarial acknowledgment of execution by Contractor must be attached. If 'si'tf6il58ration. Agreement must be signed by one corporate officer from each ofthe following two groups: Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant Cit\ City Attorne City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California 0, Us /W^fes County } on tOb>l/^ before me, ^^/^^^^ A^M/^^Z /U/^ ^^/^.^ / Datef i 7 Here Insert Name and Title of the Officer >^ 7 personally appeared _ y Name(s) of Signelts) [CMHR. Place Notary Seal Above who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal Signature. OPTIONAL Signature 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 Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Individual • • • • • • Corporate Officer — Title(s): Partner — • Limited • General Attorney in Fact Trustee Guardian or Conservator Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer Is Representing: Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OFSIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 CALIFORNIA JURAT WITH AFFIANT STATEMENT See Attached Document (Notary to cross out lines 1-6 below) • See Statement Below (Lines 1-5 to be completed only by document signer[s], nof Notary) Signature of Document Signer No. 1 Signature of Document Signer No. 2 (if any) State of California County of \ 1^5 )Wyl/^^ J 6ABRIELA HERNANDEZ is^^Sk Coiwnittiofi # 1972561 isSSSS/ Angtltt County g 1 My Comm. EMpifttApf 15.20161 Place Notary Seal Above Subscribed and sworn to (or affirmed) before me on this ^ day Of ^)CWhir 20:m^y ] ' Month ^ 7 r Year A V^me of signer proved to me on the basis of satisfactory evidence to be the person who appeared before me (.) (,) (2). proved to to be the pe Signature Name of Signer the basis of satisfactory evidence ho appeaKed befors-fflej] r\ Signature of Notary Public fX OPTIONAL Though the information beiow 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. Further Description of Any Attaclied Document Title or Type of Document:_ RIGHTTHUMBPRINT OF SIGNER #1 Top of thumb here Document Date: . Number of Pages: Slgner(s) Other Than Named Above: RIGHTTHUMBPRINT OF SIGNER #2 Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5910 Reorder: Call Toll-Free 1 -800-876-6827 STRUCTURAL ENGINEERING 5. RATE SCHEDULE EXHIBIT A The following rate schedule in Table 1 below indicates Moffatt & Nichol's standard hourly billing rates for all labor categories and rates for other direct and indirect costs, such as mileage and materials. The use of subconsultants and other expenses are shown at cost plus a 10% markup, in accordance with the RFQ. Table 2 provides the billing rates for each member and category ofthe project team. It is understood that these rates are to be used for the duration of the three year term of the Agreement moffatt & nichol Structural Engineering Services Table 1 Rate Schedule for Professional Services Effective June 27, 2009 Until Revised Classification Hourly Rates Professionals Project IVIanager $ 215.00 Senior Engineer/Scientist $ 197.00 Engineer/Scientist III $ 185.00 Engineer/Scientist II $ 164.00 Engineer/Scientist 1 $ 143.00 Staff Engineer/Scientist $ 114.00 Technicians Senior Technician $ 158.00 Designer $ 147.00 CADD II $ 121.00 CADDI $ 92.00 Administrative Word Processing $ 92.00 Staff/Clerical General Clerical $ 74.00 Reimbursable Subcontracts Cost + 10% Expenses or Outside Services Reproductions (In House) Unless Mylar Plots (B/W) $2.00/SF otherwise Color Plots $4.00/SF provided in Vellum Plots (B/W) $1.00/SF written Bond Plots (B/W) $0.50/SF agreement. Drawing Reproduction Cost +10% Document Reproduction $0.10/ sheet Outside Reproduction Cost +10% Travel Company Auto Prevailing IRS Rental Vehicle Cost Airfare Cost Meals and Lodging Cost Table 2 Individual Bill Rates for This Contract Team iVIember Classification Perry Schacht, SE Project Manager $215.00 Tony Sanchez, PhD, PE Senior Engineer $197.00 Gemot Komar, PE Senior Engineer $197.00 Eric Kjolsing, PE Engineer 1 $143.00 Mike O'Donnell, PE, Engineer III $185.00 Ron Butler, PE, Senior Engineer $197.00 MM 12 I P a g e moffatt & nichol CA914 MASTER AGREEMENT FOR STRUCTURAL ENGINEERING SERVICES (SIMON WONG ENGINEERING) "HIS AGREEMENT is made and entered into as of the ^^p^^^—, 20^:^ by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and SIMON WONG ENGINEERING 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. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred and fifty thousand dollars ($150,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Descnption") which, upon signature by Contractor and for City, the City Manager or Director, 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. 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 2 City Attorney Approved Version 2/17/12 directly or indirectly employed by any of them or anyone for whose acts any of them mav 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". I^-I Coveraaes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement orthe general aggregate will be twice the required per occurrence limit. ^0.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. ^0.^.3 Workers' Compensation and Employer's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. ^0.^.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. Submission of Insurance Policies. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For City: For Contractor: Name Skip Hammann Name Mark Creveling Title Transportation Director Title Vice President/Project Manager Dept Transportation Address 9968 Hibert Street, 2"^ Floor CITY OF CARLSBAD San Diego, CA 92131 Address 1635 Faraday Avenue Phone (858) 566-3113 Carlsbad CA, 92008 Email mcreveling@simonwongeng.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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. 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 othen^^ise 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 fon^/arded 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 fon/varded 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 ofthe 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. City Attorney Approved Version 2/17/12 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 rriail 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 at the 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. 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 othenA/ise recover, the full amount ofthe 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 persori 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 2/17/12 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. /// /// /// /// /// /// /// III III III III III III III III III III III III City Attorney Approved Version 2/17/12 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 3 day of DtAfXy^r- , 20 12 . CONTRACTOR SIMON WONG ENGINEERING, a California corporation By: CITY OF CARLSBAD, a municipal corporation of the State of California (print name/fitle)^ ATTEST: (print name/title) ^ LORR/ME M City Clerk •:0 = Proper notarial acknowledgment of execution by Contractor must be attache^.'^ff a'boVporation. Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BV: Assistant City Attorfiey City Attorney Approved Version 2/17/12 ACKNOWLEDGMENT state of California Q County of __vJi2rt;iJiL£ ^ > On DcJ^h^ 'h,di>a^ before me, Lcy-cks^^ ^ KigWy fLl^L:: ^insert,name and title ofthe officer) personally appeared Wch/ Cy^a/eLg^ 4 0^4^^ Vrcyc^ ^!l?crZHV°*ir® basis of satisfactory eviiertGe to be the pereon(s) whose name(s) is/are hkShi IK '"stmment and acknowledged to me that he/she/they executed the same In his/herAheir authonzed capacrty(ies). and that by his/her/their signature(s) on the instmment thT person(s). orthe entity upon behalf of which the person(s) acted, executed the instrument L™"h^^* PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is true and correct. ^ ^ WITNESS my hand and official seal. Signature (Seal) LONDONi TERRI LYNN C0MM.# 1894536 hi NOTARY PUBLIC-CALIFORNiA SA* Dtno COUNTY MY COMM. EXP. JULY 3,2014 f ) } } ) } I I > 5 Rate Schedule Rate Schedule EXHIBIT A January 2012 HOURLY CHARGES PRINCIPAL ENGINEER $250.00 PROJECT MANAGER $190.00 SENIOR STRUCTURAL/BRIDGE ENGINEER $185.00 SENIOR ENGINEER 1 $175.00 SENIOR ENGINEER ll/PROJECT ENGINEER $150.00 ASSOCIATE ENGINEER 1 $135.00 ASSOCIATE ENGINEER II $125.00 ASSISTANT ENGINEER $105.00 ENGINEERING INTERN $72.00 SENIOR TECHNICIAN $155.00 SENIOR CADD TECHNICIAN $110.00 CADD TECHNICIAN $90.00 CLERICAL $75.00 CONSTRUCTION MANAGER $190.00 RESIDENT ENGINEER $170.00 INSPECTOR 1 $150.00 INSPECTOR II $135.00 INSPECTOR III $130.00 VE CONSULTING $250.00 Hourly charges include provisions for normal overhead costs such as fringe benefits, office rental, utilities, insurance, clerical services, equipment, normal supplies and materials, and in-house reproduction services. Mileage shall be reimbursed at a rate of 51 cents per mile or as agreed to with the client on a monthly basis. All other costs shall be reimbursed at a rate of cost plus 10%. Rates shown are valid through December 31, 2012. Rates for inspectors are not based on Prevailing Wage projects. City of Carlsbad , Master Agreement Consulting Services CA916 MASTER AGREEMENT FOR GEOTECHNICAL ENGINEERING SERVICES (NINYO & MOORE) (THIS AGREEMENT is made and entered into as of the <^<^^ ^jgy of ^^^i<^iH^ J . 20j^ by and between the CITY OF CARLSBAD, a municipal corporaftion, 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 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 geotechnical engineering. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed two hundred thousand dollars ($200,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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. 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 City Attorney Approved Version 2/17/12 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-:VII" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. n If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Jeffery Kent Title Transportation Director Title Project Manager Dept Transportation Address 5710 Ruff in Road CITY OF CARLSBAD San Diego, CA 92123 Address 1635 Faraday Avenue Phone (858) 576-1000 Carlsbad CA, 92008 Email jkent@ninyoandmoore.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe 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 whose services are 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 othen/vise 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 fonA/arded 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 fonA/arded 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. City Attorney Approved Version 2/17/12 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 at the 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 ofthe 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 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 othenA/ise recover, the full amount ofthe 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 2/17/12 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 2/17/12 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 5*^^ Wvyvber- CONTRACTOR NINYO & MOORE, a California corporation By;. CITY OF CARLSBAD, a municipal corporation of the State of California By: (print name/title) ATTEST: By: (sign here) (print name/title) LORRAINE City Clerk Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each ofthe following two groups: Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: ML Assistant City Attorriey City Attorney Approved Version 2/17/12 I I I EXHIBIT A t I T * Of May 23,2012 Proposal No. P-20702 Cily of Carlsbad CARLSBAD Qualifications to Provide Master Agreement Consulting Services Geotechnical Sen/ices Discipline 5. RATE SCHEDULE I I I I I I I I I I HOURLY CHARGES FOR PERSONNEL Principal Engineer/Geologist/Environmental Scientist Senior Engineer/Geologist/Environmental Scientist Senior Project Engineer/Geologist/Environmental Scientist. Project Engineer/Geologist/Environmental Scientist Senior Staff Engineer/Geologist/Environmental Scientist Staff Engineer/Geologist/Environmental Scientist Certified Asbestos Consultant. GIS Analyst CSSTVLIA2/LPM3 Nondestructive Examination Technician, UT, MT, LP* Field Operations Manager Supen/isory Technician* Pull Test Technician and Equipment* Senior Field/Laboratory Technician* Field/Laboratory Technician* ACI Concrete Technician* Concrete/Asphalt Batch Plant inspector* Special Inspector, Reinforced Concrete* Special Inspector, Pre-stressed Concrete* Special Inspector, Reinforced Masonry* Special Inspector, Structural Steel* Special Inspector, Welding, AWS* Special Inspector, Fireproofing* Technical lllustrator/CAD Operator Geotechnical/Environmental/Laboratory Assistant Information Specialist Data Processing, Technical Editing, or Reproduction $ 148 $ 141 $ 137 $ 133 $ 118 $ 109 $ 120 $ 109 $ 100 $ 98 $ 95 $ ! $ 85 $ 85 $ 85 $ $ $ $ $ $ $ $ $ $ 85 85 85 85 85 85 85 85 75 60 55 50 ENVIRONMENTAL RELD EQUIPMENT/CONSUMABLES XRF Lead Analysis PID/FID Usage Air Sampling Cassettes Level C Personal Protective Equipment (person/day [p/d]). Air Sampling Pump Usage $ 250/day $ 120/day $ 100/case $ 55/day $ 45/dav 19 CARLSBAD May 23,2012 Proposal No. P-20702 City of Carlsbad Qualifications to Provide Master Agreement Consulting Services Geotechnical Sen/ices Discipline SCHEDULE OF FEES FOR LABORATORY TESTING Laboratory Test, Test Designation, and Price Per Test Soils Attert)erg Limits, D 4318, CT 204 $ 145 Califomia Bearing Ratio (CBR), D 1883 $ 440 Chloride and Sulfate Content, CT 417 & CT 422 $ 135 Consolidation, D 2435, CT 219 $ 275 Consolidation - Time Rate, D 2435, CT 219 $ 70 Direct Shear - Remolded, 0 3080 $ 290 Direct Shear - Undisturbed, D 3080 $ 250 Durability Index, CT 229 $ 150 Expansion Index, D 4829, UBC 18-2 $ 165 Expansion Potential (Mettiod A), D 4546 $ 145 Expansive Pressure (Method C), D 4546 $ 145 Geofabric Tensile and Elongation Test, D 4632 $ 165 Hydraulic Conductivity, D 5084 $ 300 Hydrometer Analysis, D 422, CT 203 $ 190 Moisture, Ash, & Organic Matter of Peat/Organic Soils $ 110 Moisture Only, D 2216, CT 226 $ 30 Moisture and Density, D 2937 $ 39 Permeability, CH, D 2434, CT 220 $ 230 pH and Resistivity, CT 643 $ 140 Proctor Density D 1557, D 698, CT 216, & $ 180 AASHTO T-180 (Rock corrections add $80) R-value, D 2844, CT 301 $ 250 Sand Equivalent, D 2419, CT 217 $ 90 Sieve Analysis, D 422, CT 202 $ 110 Sieve Analysis, 200 Wash, D1140, CT 202 $ 90 Specific Gravity, D 854 $ 90 Triaxial Shear, CD, D 4767, T 297 $ 390 Triaxial Shear, CU., w/pore pressure, D 4767, T 2297 per pt. .$ 330 Triaxial Shear, C.U., w/o pore pressure, D 4767, T 2297 per pt. ..$ 190 Triaxial Shear, U.U., D 2850 $ 140 Unconfined Compression, D 2166, T 208 $ 100 Wax Density, D1188 $ 90 Roofing Built-i¥> Roofing, cut-out samples, D 2829 $ 165 Roofing Materials Analysis, D 2829 $ 500 Roofing Tile Absorption, (set of 5), UBC 15-5 $ 190 Roofing Tite Strength Test, (set of 5), UBC 15-5 $ 190 Masonry Brick Absorption, 24-hour submersion, C 67 $ 45 Brick Absorption, 5-hour boiling, C 67 $ 55 60 45 45 40 35 50 60 Brick Absoiption, 7-day, C 67 $ Brick Compression Test, C 67 $ Brick Efflorescence, C 67 $ Brick Modulus of Rupture, C 67 $ Brick Mdsture as received, C 67 $ Brick Saturation Coefficient, C 67 $ Concrete Block Compression Test, 8x8x16, C140 $ Concrete Block Conformance Package, C 90 $ 440 Concrete Bkx;k Linear Shrinkage, C 426 $ 120 Concrete Block Unit Weight and Absoiption, C 140 $ 55 Cores, Compression or Shear Bond, CA Code $ 55 Masonry Grout, 3x3x6 prism compression, UBC 21-18 $ 30 Masonry Mortar, 2x4 cylinder compression, UBC 21-16 $ 30 Masonry Prism, half size, compression, UBC 21 -17 $ 110 Concrete Cement Analysis Chemical and Physical, C109 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 Lightv\ffiight Concrete Fill, Compression, C 495 Petrographic Analysis, C 856 Splitting Tensile Strength, C 496 ..$ 1,650 ..$ 22 ..$ 140 ..$ 750 ..$ 55 ..$ 250 ..$ 50 ..$ 55 ..$ 60 ,.$ 250 . Quote .$ 40 .$ 1,100 .$ 80 Reinforcing and Structural Steel Fireproofing Density Test, UBC 7-6 Hardness Test, Rockwell, A-370 High Strength Bolt, Nut & Washer Conformance, set, A-32. Mechanteally 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, A 615 & A 706... Structural Steel Tensile Test: Up to 200,000 lbs. (machining extra), A 370 Welded Reinforcing Tensile Test: Up to No. 11 bars, ACI.... 55 50 120 95 140 120 50 70 55 Asphalt Concrete Asphalt Mix Design, Caltrans 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 .$ 2,200 .$ 150 .$ 215 .$ 100 .$ 195 .$ 215 .$ 120 .$ 165 .$ 90 Aggregates Absorption, Coarse, C 127 Absoiption, Fine, C128 Clay Lumps and Friable Particles, C 142 Cleanness Value, CT 227 Crushed Particles, CT205 "."Z Durability, Coarse, CT 229 Durability, Fine, CT 229 Los Angeles Alarasfon, C131 or C 535 Mortar making prc^jerties 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 Socfium Sulfate Soundness (per size fraction), C 88 Specific Gravity, Coarse, C127 Specific Gravity, Fine, C 128 ..$ 35 ..$ 35 ..$ 100 ..$ 120 ..$ 140 ,.$ 130 ..$ 130 ..$ 180 .$ 275 .$ 55 .$ 390 .$ 90 .$ 105 .$ 105 .$ 160 .$ 75 .$ 85 Special preparation of standard test specimens will be charged at the technician's houriy rate. Ninyo & Moore is accredited to perform the AASHTO equivalent of many ASTM test procedures. 21 I I I I I I I I I I I I I I I I CITY Of CARLSBAD OTHER CHARGES May 23,2012 Proposal No. P-20702 City of Carlsbad Qualifications to Provide Master Agreement Consulting Sen/ices Geotechnical Sen/ices Discipline Expert Witness Testimony Concrete Coring Equipment (includes one technician) Special Preparation of Standard Test Specimens Inclinometer Usage Vapor Emission Kits Rebar Locator (Pachometer) Nuclear Density Gauge Usage Field Vehicle Usage Asbestos Point Count Analysis (24-Hour TAT) Asbestos Point Count Analysis (72-Hour TAT) Asbestos Air Sample (TEM - 24-Hour TAT) Asbestos Air Sample (TEM - 72-Hour TAT) Asbestos Air Sample (PCM - 24-Hour TAT) Asbestos Air Sample (PCM - 72-Hour TAT) PLM Bulk/Soil Analysis (24-Hour TAT) PLM Bulk/Soil Analysis (72-Hour TAT) TEM Bulk Analysis (24-Hour TAT) TEM Bulk Analysis (72-Hour TAT) Lead Air, Dust Wipe, and Paint Chip Analysis (24-Hour TAT) Direct Project Expenses Laboratory testing, geophysical equipment, and other special equipment provided upon request. Overtime rates will be charged at 1.5 times the normal hourly rate. $ 400/hr $ 160/hr 85/hr 32/hr 30/kit 10/hr 9/hr 8/hr 65/ea 45/ea 65/ea 60/ea 12/ea 10/ea 12/ea 7.50/ea 85/ea 71/ea . $ 12ea Cost plus 10% . $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ NOTES (Field Sen/ices) 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 construction hours and all day on Satur- days. 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 sen/ice is 24 hours. Field Technician and 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. *lndicates rates that are based on the 2011-2D Prevailing Wage Detemiination made by the State of Califomia, Director of Industrial Rela- tions on a semiannual basis. Our rates will be adjusted in conjunction with the increase in the Prevailing Wage Determination during the life of the project. INVOICES Invoices will be submitted monthly and are due upon receipt. A sen/ice charge of 1.0 percent per month may be charged on accounts not paid within 30 days. 1. CSST = Certified Site Sun/eillance Technician 2. LPM = Lead Project Monitor 3. LIA = Lead Inspector/Assessor 20 CA917 MASTER AGREEMENT FOR GEOTECHNICAL ENGINEERING SERVICES (KLEINFELDER WEST, INC.) g^HIS AGREEMENT is made and entered into as of the day of 20j^by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and KLEINFELDER WEST, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in geotechnical 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 geotechnical engineering. D. 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 forthe 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($100,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD and the City of Carlsbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carlsbad and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein 2 General Counsel Approved Version 2/17/12 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 CMWD or the City of Carlsbad incurs or makes to or on behalf of an injured employee under CMWD'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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. I I If box is checked, Professional Liability CMWD's Initials Contractor's Initials Insurance requirement is waived. 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: 3 General Counsel Approved Version 2/17/12 10.2.1 CMWD will be named as an additional insured on General Liability which shall provide primary coverage to the City. 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of CMWD 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 CMWD. 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 CMWD. 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 CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. General Counsel Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD: For Contractor: Name Glenn Pruim Name Ronald Thomson Title Utilities Director Title Project Manager Dept Utilities Address 5015 Shoreham Place Carlsbad Municipal Water District San Diego, CA 92122 Address 1635 Faraday Avenue Phone (858) 320-2000 Carlsbad CA, 92008 Email rthomson@kleinfelder.com Phone (760) 602-2768 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 Contractor shall file a Conflict of Interest Statement with the Clerk for the City of Cartsbad in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrtmination 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 othenA/ise settled by agreement between the parties. Representatives of Contractor or CMWD will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fonA/arded 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 fonA/arded 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 General Counsel Approved Version 2/17/12 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, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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, CMWD will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or othenA/ise recover, the full amount ofthe 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 CMWD 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 CMWD, 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 CMWD 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. General Counsel Approved Version 2/17/12 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 CMWD 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 CMWD, 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. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 7 General Counsel Approved Version 2/17/12 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 September .. 20 12 . CONTRACTOR KLEINFELDER WEST, INC., a Califomia corporation By; CITY OF CARLSBAD, a municipal corporation of the State of California Mayor John Moossazadeh, Vice President (print name/title) (sign Johrf M. Pilkington, CF LQBRAINE City Clerk (print name/title) Proper notarial acknowledgment of execution by Contractor must be attached. If a c'6rporation. Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group 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: Assistant City Attorney City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of On^ Date / personally appeared } 1 \ \ I Insert Name an( I Title of the Officer Name(s) of Slgner(s) RHEAPRENWr Commission # 19339S6 Notary PuWic - CaHtomii San Oiago County , Comm. EMirw May 24J0! 1 who proved to me on the basis of satisfactory, evidence to be the person(s) whose name(s) '\sl^? subscribed to the within instrument and acknowledged to me that he/she/^K§) executed the same in his/her/toeif^ authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Place Notary Seal Above WITNESS. Signature: OPTIONAL — id official Signature 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 Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: ) 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT A CITY OF CARLSRAn KLEINFELDER FEE SCHEDULE FOR ENVIRONMENTAL, CONSTRUCTION MANAGEIVIENT AND GEOTECHNICAL/MATERIALS TESTING SERVICES Construction Inspector I . Professional ' $105/hour Staff Professional I $110/ hour Staff Professional If / Project Manager I'H^^i l^^^^ Construction Manager *$ 145 / hour Senior Construction Manager ' l^^^l Project Professional / Project Manager if.".'? Itt /u°"'' Senior Professional / Senior Project Manager'11^1, Project Manager III '' $175/hour Principal / Principal Professional Program/Client Manager ' * ^5 / hour Senior Principal / Senior Prindpal ProfessionaT.".''! ^nn \ 11°'"' Expert Witness... $200/hour -.. $340/hour Administrative I Matenals Tester / Special inspector "1!.'" "" ! 1?//'°"'' Soils Tfichnlclan 'f ff Supen/isory Technician '' f ^8 / hour Draftsperson * 90/hour CADD Operator $115/ hour Designer $ 140 / hour $150/hour Minimum Charges for Office Time Per Dav ,, ^ One Hour at Applicable Rate All services will be charged portal-to-portal when applicable. a^e=S^ap^;?1fp»^eS^fpt« ™^ ^« '° "-^"^"3 Wage laws. Tha 1. 4. iASiS OF CHARGES Listed on the attached page are typical prices for services most frequently oerformed bv Kleinfe der Pnces for other services, including special quotes for volume work wHI beS Ln request, but will be subject to the terms set forth below. ^ ^ The client agrees to limit the Kleinfelder's liability to the client and to all agents of the client Tct rn~*°'' '"^ subcontractors on the project due to Kleinfelder's prSona ne L&ih!/f """^fTV consultant's fee. whichever is greater. Kle"nfeS TJZ^Z^^^^^^^^ ^-^'"^ P-i-^^ «-'ted to the^ greater of $r50ror Invoices will be Issued on a monthly basis, or upon completion of a project, whichever Is sooner Ifter thi dTn th t T P^«^«"tation of the invoice If not paid within 30 days after the date of the invoice, the unpaid balance shall be subject to a FINANCE CHARGE of 15% per month, which is an ANNUAL PERCENTAGE RATE of 18%. '^"^'"^'^^ ^MAKt^h ot 1.5 /o fhereafte'?"'' "''"'^^ """" '^''^^ ^'^'^ ^^^^^ ^^^ked 5. A one-hour minimum charge per day will be made for any office service. ^' SrhnuH''''^1 T'^''^^^ °? 5°"'^ P®"" "^^y weekend\holiday work will be charged at 1 5 times the^houriy rate. Time worked in excess of 12 hours per day will be charged at 2 Les the hollriy ^' qLteT Ifil^ dtem'S t' T ^^^^"^^^ P'"^ ^Qo/o. whichever is Selder office ^" °^ "^"^^ ^^"^ "^^'•^^t 8. Outside services willinclude a 20% markup, unless othenvise noted. ^' Im?Tbf r^^mp^^^^^^ '^^"'^''K 'T'"'"? ^'^^ ^""^^^'y- Additional administrative LlVaL^tq^^^^^^^^ '"'"^ (^'""' ^^"y ^'^'^ -P-*^' - work S®'!!^!®*^ '^Tu" P';®^^"'"9 wage projects will be provided only if requested and will be subiect to additional charges for administrative time for each pay period. ^ 11. Kleinfelder carries Worker's Compensation Insurance (including Emplover's Liabilitv^ ^^^^ss^.^™^ "^'"^^- et;:k'rs;ii Its expense, after submission of our final report. ^^nipie lo ciieni. ai "^'^^f^^ ^^""^''"9 ''^""S ^"*^'"9S' well development and purge waters fesootS^^^^^ sote, and other contaminated/potentially contaminated materials^' the responsibility of the client Upon request. Kleinfelder can provide containers for onsite containment and can advise the client regarding proper handling procedures. 14. The proposed rates will be in effect for 90 days from the proposal date. nl^l^lf'^^^^^^^'^f^ I''®. "^^^ *° ^"^'^""^^ ^^^®dule on projects not completed within 180 SOIL TESTS SOIL DENSITY TESTS Test Standard Proctor, 4" Mold Standard Proctor, 6" Mold Modified Proctor. 4" Mold Modified Proctor. 6" Mold Proctor Check Point Proctor Oversize Correction Treated Soil Proctor Minimum/Maximum Relative Density Moisture/Density, TEX 113-E Moisture/Density. TEX 114-E California Impact. CTM 216. Dry Method California Impact, CTM 216. Wet Method SOIL CLASSIFICATION AND INDEX Test Visual Classification Sieve Analysis, % Finer than 200 Sieve Sieve Analysis. Fine Sieve Analysis. Coarse Sieve Analysis, Coarse and Fine Hydrometer Analysis Water Content Water Content and Dry Unit Welgtit Atterberg Limits, Single Point Atterberg Limits. Multiple Point Atterberg Limits. Liquid Limit Only Soil Specific Gravity Soil Organic Content Pinhole Dispersion Classification SoilpH Soil Resistivity Chloride Content Sulfate Content SOIL BEARING PRESSURE TESTS Test California Bearing Ratio. Single Point" Califomia Bearing Ratio. 3 Points * Resistance R-Value Resistance R-Value of Treated Material Rock Correction for R-Value Stabilized Soil UC Strength. 1 Point Stabilized Soil UC Strength. Set of 3 *Noie: Does not include Proctor Values Invoice Name STANDARD PROCTOR. 4" STANDARD PROCTOR. 6" MODIFIED PROCTOR, 4" MODIFIED PROCTOR, 6" PROCTOR CHECK POINT PROCTOR CORR OVRSZ TREATED SOIL PROCTOR MIN-MAX REL DENS MOIST DENS TEX 113-E MOIST DENS TEX 114-E CTM 216, DRY CTM216,WET TESTS Invoice Name CLASSIFICATN, VISUAL SIEVE ANALYSIS, -200 SIEVE ANALYSIS. F SIEVE ANALYSIS, C SIEVE ANALYSIS, C&F HYDROMETER WATER CONTENT WATER/DENSITY, SOIL ATTERBERG, SINGLE PT. ATTERBERG, MULTI PT. UQUID LIMIT ONLY SOIL SPEC. GRAV SOIL ORGANIC CONTENT PINHOLE DISPERSION SOIL PH SOIL RESISTIVITY CHLORIDE CONTENT SULFATE CONTENT Invoice Name CBR, 1 POINT CBR, 3 POINTS R-VALUE R-VALUE, TREATED R-VALUE. ROCK CORR. STABIL. SOIL UCPT. STABIL. SOIL UC SET Test Method^ D698. T99 D698, T99 D1557, T180 D1557, T180 T272 D4718 D558 D4352. D4253 TEX113-E TEX114-E CTM216 CTM216 Test Method^ D2488 C117. D1140 C136. D422. D6913 C136. D422. D6913 C136, D422. D6913 D422 D2216, D4643 D2216.D2937.D7263 D4318-Method B D4318-MethodA D4318 D854 D2974-Method C D4647 D4972, G51 G187 Test Method^ D1883 D1883 D2844 D2844 D2844 D1633, D5102 D1633, D5102 Price $210.00 each $235.00 each $215.00 each $240.00 each $115.00 each $65.00 each $280.00 each $360.00 each $260.00 each $260.00 each $215.00 each $185.00 each Price $10.00 each $80.00 each $120.00 each $100.00 each $150.00 each $165.00 each $25.00 each $45.00 each $110.00 each $170.00 each $110.00 each $140.00 each $115.00 each $300.00 each $55.00 each $160.00 each $50.00 each $100.00 each Price $350.00 each $650.00 each $300.00 each $350.00 each $80.00 each $150.00 each $900.00 each SOIL BEARING PRESSURE TESTS Test CTM 373.1 Ume Content, W/O Opt. Moist. CTM 373.1 Lime Content CTM 373, 3 Ume Contents Eades and Grim Test (Opt. Lime Content) Resilient Modulus Invoice Name CTM 373. CHECK POINT CTM 373, 1 UME % CTM 373, 3 UME %'S EADES AND GRIM TEST RESIUENT MODULUS Test Method* CTM373 CTM373 CTM373 C977 T307 Price $150.00 each $350.00 each $950.00 each $135.00 each $450.00 each SOIL TESTS Icontirtuadl SOIL STRENGTH AND PERMEABILITY TESTS Test Unconfined Compressive Strength Direct Shear, 1 Point Direct Shear, 3 Points Consolidation without Time Rate Plots Consolidation with 2 Time Rate Plots Consolidation, All Loads with Time Rates Consolidation, Additional Rebound Collapse Potential One Dimensional Free Swell One Dimensional Swell, Percent Heave One Dimensional Swell with Consolidation Expansion Index Denver Swell Test Permeability, Rigid Wall Permeability, Flexible Wall Triaxial Shear. CU. 1 Point Triaxial Shear, CU. 3 Points Triaxial Shear, UU, 1 Point Triaxial Shear. UU. 3 Points Triaxial Shear, UU Saturated. 1 Point Triaxial Shear. UU Saturated, 3 Points Triaxial Test. TEX117E, Part I Triaxial Test, TEX117E, Part 11 Resonant Column Torsional Shear Test Acid Solubility Air Degradation ASR Reactivity, Long Method ASR Reactivity, Short method Clay Lumps and Friable Particles, per sz Cleanness Value Coarse Durability Fine Durability Coarse Specific Gravity & Absorption Fine Specific Gravity & Absorption Flat and Elongated Particles, per size * Fractured Faces, per size * Lightweight Pieces ** Los Angeles Abrasion, Large Aggregate Los Angeles Abrasion, Small Aggregate Mortar Sand Strength Organic Impurities Potential Reactivity (Chem. Method) Sand Equivalent, 1 point Sand Equivalent, 3 points Sieve Analysis, % Finer than 200 Sieve Invoice Name UNCONFINED COMP STR. DIRECT SHEAR. 1PT. DIRECT SHEAR. 3 PTS. CONSOL. W/OTR CONSOL. W/2 TR CONSOL ALLTR CONSOL ADD. REBOUND COLLAPSE POTENTIAL ONEDIM FREE SWELL ONEDIM SWELL % HEAVE ONEDIMSWELL W/CONSOL EXPANSION INDEX DENVER SWELL TEST PERMEABILITY. RIGID PERMEABILITY, FLEX TRIAX. CU, 1 POINT TRIAX, CU, 3 POINTS TRIAX, UU. 1 POINT TRIAX, UU. 3 POINTS TRIAX. UU SAT, 1 POINT TRIAX. UU SAT, 3 POINTS TRIAX.TEX117E-PARTI TR1AX,TEX117E-PART1I RCTS Af^ 5*^ f*^ A 2"'f-- *T' r*" Invoice Name SOLUBILITY, ACID AG AIR DEGRADATION AG ASR REACT.,. LONG AG ASR REACT., SHORT AG CLAY LUMP/FRIABLE AG CLEANNESS VALUE AG COARSE DURABIUTY AG FINE DUI^BILITY AG COARSE SPG/ABSORP AG FINE SPG/ABSORP AG FLAT&ELONG/SIZE AG FRACT. FACES/SIZE AG LIGHTWT. PIECES AG LA ABRASION. LG AG LA ABRASION. SM AG MORTAR SAND STR. AG ORGANIC IMPURITIES AG POT. REACT. CHEM. AG SAND EQUIV, 1PT. AG SAND EQUIV, 3PT. SIEVE ANALYSIS,-200 Test Method^ D2166 D3080 D3080 D2435 D2435 D2435 D2435 D5333 D4546 D4546 D4546 D4829 D2434 D5084-Method C D4767 D4767 D2850 Price $135.00 each $125.00 each $350.00 each $330.00 each $425.00 each $600.00 each $75.00 each $175.00 each $150.00 each $240.00 each $450.00 each $175.00 each $65.00 each $225.00 each $300.00 each $450.00 each $1,200.00 each $200.00 each D2850 $550.00 each D2850-Modified $270.00 each D2850-Modified $750.00 each TEX117E $2,200.00 each TEX117E $2,200.00 each $4,000.00 each Test Method^ Price AWWA B100 $100.00 each ITD T15 $200.00 each C227, C1293 $2,100.00 each C1260, C1567 $1,050.00 each C142 $100.00 each CTM227 $150.00 each D3744 $150.00 each D3744 $110.00 each C127 $60.00 each C128 $100.00 each D4791 $75.00 each D5821 $100.00 each C123 $330.00 each C535 $200.00 each C131 $175.00 each C87, CTM515 $550.00 each C40 $60.00 each C289 $700.00 each D2419 $70.00 each D2419 $130.00 each C117, D1140 $80.00 each Test Sieve Analysis. Fine Sieve Analysis. Coarse Sieve Analysis. Coarse and Fine Soundness of Aggregate, per size * Unit Weight Water Content Texas Wet Ball Mill *yVofe; resfs are billed by each size fraction tested, speciric test mettiod. "^Note: Invoice Name SIEVE ANALYSIS. F SIEVE ANALYSIS, C SIEVE ANALYSIS. C&F AG SULFATE SOUND/SZ. AG UNIT WEIGHT WATER CONTENT TX WET BALL MILL Test Method^ C136, D422. D6913 C136. D422, D6913 C136, D422. D6913 C88 C29 D2216 TEX116E The quantity of fractions tested is dependent on the sample gradation and Price $120.00 each $100.00 each $150.00 each $140.00 each $60.00 each $25.00 each $250.00 each Test Dimension Stone, Absorption/Spec. Grav. Dimension Stone, Compressive Strength Dimension Stone, Flexural Strength Dimension Stone. Modulus Of Rupture Direct Shear, 1 Point Direct Shear. 3 Points Direct Shear, 5 Points Mohs Hardness Point Load Index Point Load, Set of 10 Slake Durability Splitting Tensile Strength Triaxial Shear. Hard Rock Triaxial Shear, Weak Rock Triaxial Shear. Weak w Mod. of Rup. Triaxial Shear. Weathered Rock Unconfined Compression Test Unconfined Compression W/Mod of Rup Compression Core Compression Creep Cylinder Unit Weight Drying Shrinkage, set of 3 Flexural Strength Modulus of Elasticity Splitting Tensile Strength Concrete Core Thickness Laboratory Trial Batch RCC Compression Shotcrete Compression ROCK TESTS Invoice Name DIM STONE-ABS/SPG DIM STONE-COMPRESS DIM STONE-FLEX STR DIM STONE-MD OF RUP ROCK DIR. SHEAR. 1PT ROCK DIR. SHEAR. 3PT ROCK DIR. SHEAR, 5PT ROCK MOHS HARDNESS ROCK PT LOAD INDEX ROCK PT LOAD SET/10 ROCK SLAKE DURABIL. ROCK SPLIT. TENSILE ROCK TRIAX. HARD ROCK TRIAX. WEAK ROCK TRIAX, WEAK/MOD ROCK TRIAX. WEATHERD ROCK UNCON. COMP. CQMCRETE TESTS Invoice Name ROCK UC/MOD OF RUP CONCRETE COMPRESSION CONCRETE CORE COMP. CONCRETE CREEP CONC. CYL UNITWT. CONC. DRY SHRINKAGE CONC. FLEX STRENGTH CONC. MOD OF ELAST CONC. SPLIT. TENSILE CONC. CORE THICKNESS CONCRETE TRIAL BATCH RCC COMPRESSION SHOTCRETE COMPRESS. Test Method^ C97 C170 C880 C99 D5607 D5607 D5607 D5731 D5731 D4644 D3967 D7012 D7012 D7012 D7012 D7012 Price $210.00 set/5 $210.00 set/5 $210.00 set/5 $210.00 set/5 $140.00 each $350.00 each $600.00 each $25.00 each $20.00 each $126,00 each $185.00 each $125.00 each $225.00 each $350.00 each $450.00 each $225.00 each $125.00 each Test Method^ Price D7012 $250.00 each C39 $30.00 each C42 $65.00 each C512 $2,000.00 each C567 $100.00 each C157 $440.00 each C78 $100.00 each C469 $250.00 each C496 $80.00 each C174 $10.00 each C192 $1,000.00 each C39 $60.00 each C1140 $80.00 each lASONRY TESTS Test Grout Compression Mortar Compression Core Compression Core Shear Prism Compression CMU Absorption and Received Moisture CMU Compression CMU Dimension Verification CMU Lineal Shrinkage Invoice Name GROUT COMPRESSION MORTAR COMPRESSION MASONRY CORE COMP. MASONRY CORE SHEAR MASONRY PRISM COMP. CMU ABSORP/MOIST. CMU COMPRESSION CMU DIMENSION VERIF. CMU UNEAL SHRINKAGE Test Method^ C1019 C942 CADSA CADSA C1314 C140 C140 C140 C426 Price $30.00 each $30.00 each $60.00 each $50.00 each $110.00 each $75.00 each $100.00 each $25.00 each $175.00 each ASPHALT TESTS BINDER TESTS Test Absolute Viscosity Bitumen Penetration Kinematic Viscosity Recovery by Roto-Vapor Softening Point, Ring & Ball MIX PROPERTY TESTS Test Gradation of Extracted Aggregate Core Thickness AC Content by Extraction Hveem Stability AC Content by Ignition Oven Ignition Oven Calibration Moisture Content AC Content by Nuclear Gauge Marshall Stability and Flow Swell Core Unit Weight & Thickness DESIGN AND DENSITY TESTS Test Centrifuge Kerosene Equivalent Film Stripping Index of Retained Strength Unit Weight, Gryratory Method Unit Weight, Hveem Method Unit Weight, Marshall Method Maximum Theoretical Specific Gravity Moisture Induced Damage Caltrans Tensile Strength Ratio Moisture Vapor Susceptibility Mix Design, Hveem Method W/RAP Mix Design. Hveem Method Mix Design, Marshall Method Mix Design. Superpave Method Invoice Name AC ABSOLUTE VIS. AC BIT. PENETRATION AC KINEMATIC VISC. AC RECOVERY ROTOVAP AC SOFTPT..R&B Test Method^ D2171 D2170 D5404 D36 Invoice Name AC CKE AC FILM STRIPPING AC INDEX RET. STRGTH AC UNIT WT.. GYRA. AC UNIT WT.. HVEEM AC UNIT WT., MARSH. AC MAX THEO. SPG AC MOIST. IND. DAM. AC CALTRANS TS AC MOIST. VAPOR SUS. HVEEM DESIGN W/RAP HVEEM MIX DESIGN MARSHALL MIX DESIGN SUPERPAVE MIX DSGN Test Method^ CTM303 T312 D1561 D6926 D2041 T283 CTM371 Price $210.00 each $75.00 each $190.00 each $365.00 each $100.00 each invoice Name Test Method* Price AC AGGREGATE GRADATION D5444 $100.00 each AC CORE THICKNESS D3549 $10.00 each AC EXTRACTION D2172 $200.00 each AC HVEEM STABILITY D1560 $100.00 each AC IGNITION OVEN D6307, T308 $140.00 each AC IGNT. OVEN CALIB. D6307 $300.00 each AC MOISTURE CONTENT $50.00 each AC NUC. CONT. GAUGE D4125 $200.00 each AC STABILITY & FLOW D6927 $150.00 each AC SWELL CTM307 $100.00 each AC CORE WT./THICK. D1188, D2726 $50.00 each Price $240.00 each $120.00 each $1,000.00 each $350.00 each $285.00 each $210.00 each $145.00 each $1,500.00 each $250.00 each $7,600.00 each $5,400.00 each $3,000.00 each $6,000.00 each lETAL TESTS BOLT TESTS Test Bolt Assembly Suite (Bolt. Nut. Washer) Bolt Hardness Bolt Proof Load Bolt Wedge Tensile Nut Hardness Nut Proof Load Washer Hardness *Note Invoice Name BOLT ASSEMBLY SUITE BOLT HARDNESS BOLT PROOF LOAD BOLT WEDGE TENSILE NUT HARDNESS NUT PROOF LOAD WASHER HARDNESS Test Method* F606 E18 F606 F606 El 8 F606 E18 Price $210.00 each $25.00 each $35.00 each $35.00 each $25.00 each $35.00 each $25.00 each An 'assembly'is one bolt, one nut and one washer. The suite consists of a bolt wedge tensile test, bolt and nut proof load tests, and hardness tests on each piece. METAL TESTS (conlinued) STRUCTURAL METAL TESTS Test Bend Charpy Impact, Set of 3 * Rebar Coupler Slippage Rebar Coupler Tensile CTM 670 Strain (Elongation) PT Strand Tensile Spliced Specimen Tensile Tensile <2.0 Sq. In. Cross-Sect. Tensile >2.0 Sq. In. Cross-Sect. Rockwell Hardness *Note: Price does not Included cost of machining test specimens. Price is for testing at 40 F; other test temperatures will result in additional fees. SAMPLE PREPARATION AND MISCELLANEOUS TESTS Invoice Name Test Method* Price METAL. BEND A370 $40.00 each METAL, CHARPY, SET/3 A370, A673 $300.00 set METAL, COUPLER SUP A370 $130.00 each METAL, COUPLER TENS. A370 $80.00 each METAL. CTM670 STIRAIN CTM670 $15.00 each METAL, PT TENSILE A370 $145.00 each METAL. SPUCE TENS. A370 $80.00 each METAL, TENSILE <2" A370 $85.00 each METAL, TENSILE >2" A370 $140.00 each ROCKWELL HARDNESS E18 $30.00 each SAMPLE PREPARATION Test Rock Sample Preparation Sample Crushing Sample Cutting and Trimming Sample Mixing and Processing Sample Preparation Sample Preparation, per hour Sample Remolding Contamination Fee Sample Disposal Fee MISCELLANEOUS TESTS Test Fireproofing Density Hydraulic Ram Calibration Non-Masonry Grout Compression Pocket Penetration Value Roof Tile Absorption Roofing, Unit Weight of Surfacing Invoice Name ROCK SAMPLE PREP. SAMPLE CRUSHING SAMPLE CUT & TRIM SAMPLE MIX&PROCESS SAMPLE PREPARATION SAMPLE PREP./HR. SAMPLE REMOLDING CONTAMINATION FEE SAMPLE DISPOSAL FEE invoice Name FIREPROOFING DENSITY HYDRAULIC RAM CALIB. NON-MAS. GROUT COMP. POCKET PENETRATION ROOF TILE ABSORPTION ROOF UNIT WT. SURF. Test Method* Test Method* E605 C579 D2829 Price $80.00 each $100.00 each $30.00 each $40.00 each $25.00 each $90.00 hour $75.00 each $250.00 each $10.00 each Price $50.00 each $200.00 each $30.00 each $10.00 each $100.00 each $100.00 each OTHER EQUIPMENT CHARGES MATERIALS TESTING EQUIPMENT Equipment Anchor Bolt Testing Device Asphaft Sampling Box Invoice Name ANCHOR BOLTTST/DAY ASPHLT SAMPLE BOXES Test Method* OTHER EQUIPMENT CHARGES MATERIALS TESTING EQUIPMENT Equipment Brinell Hardness Tester Concrete Rebound (Schmidt) Hammer Concrete Vapor Emission Test Kit Coring Machine Coring Machine with Generator Cylinder Mold Diamond Bit Core Barrel Charge 2" Diameter 3" Diameter 4" Diameter 6" Diameter Digital Thickness Gauge FerroScan Equipment Floor Flatness Testing Device Floor Flatness Testing Device Hand Auger and Soil Sampler Magnetic Particle Testing Device Rebar Locator (R Meter, Pachometer Skidmore Bolt Tension Calibrator Torque Wrench, up to 1,000 foot-pounds Ultrasonic Testing Device VEHICLES Description Mileage. 2 Wheel Drive (Per Mile) Vehicle w/Nuclear Dens Equip (Per Hour) Invoice Name BRINELL HARDNESS/DAY SCHMIDT HAMMER/DAY MOIST FLOOR/SALBTST CORING MACHINE /DAY CORING MCH W/GEN DAY CYLINDER MOLDS CORING, 2" DIAM./IN CORING, 3" DIAM./iN CORING, 4" DIAM./IN CORING. 6" DIAM./1N THICKNESS GAUGE /DAY FERROSCAN EQUIPMENT FLOOR FLATNESS/SF FLOOR FLATNESS TST HAND AUGER/DAY MAGNETIC PARTICLE REBAR LOCATOR/DAY SKID WILH BOLT/DAY TORQUE WRENCH/DAY UT TESTING EQUIP/DAY Test Method* E10 C805 F1869 E1155 E1155 ASNT.AWSBH A325, A490 A325, A490 ASNT, AWS B1.1 "HER EQUIPMENT CHARGES Invoice Name MILEAGE. 2 WH/MILE VEH W/ND EQUIP/HR ENVIRONMENTAL SAMPLING AND TESTING Description Disposable Bailer Conductivity, pH, and Temperature Monitor Distilled Water Hand Auger and Soil Sampler Interface Probe (Oil/Water) Portable Generator Measuring Wheel Turbidity Meter Dissolved Oxygen Meter Price $150.00/day $1.15 each Price $20.00/day $55.00/day $30.00/ kit $85.00 /day $165.00/day $3.00 each $2.20 / inch $3.30 / inch $4.40 / inch $6.60 / inch $50.00 /day $275.00/day $0.10/sqft $150.00/day $77.00 /day $45.00/day $75.00/day $55.00 / day $50.00 / day $75.00/day Price $0.55/ mile $2.00/ hour Price $18.15 each $60/day $3/gallon $77/day $166/day $151/day $18.15/day $66/day $59/day ENVIRONMENTAL SAMPLING i km TESTING Icontimiedl Description Price Water Level Indicator $60/day Vacuum Pump $38.12/day Horiba Water Quality Meter $105/day Groundwater Pump (4") $157.50/day Groundwater Pump (2") $130.20/day HEALTH AMD SAFETY Description Price Calibration Gas $9.65/day Calibration Gas Regulator $8.76/day Camera and Film or Digital Camera $36.30/day Combustible Gas Analyzer $71.50/day Draeger Tube $16.48 each Personal Air Sampling Pump $98/day Level B Protection $298/day Level C Protection $190/day Level D Protection $54/day Limited Level D Protection $42.90/day Oxygen Analyzer $54/day Photoionization Detector $190/day Flame Ionization Detector $220/day Lock $8.35 each PeristatIc Pump $89/day LEL/O2/H2S/CO Monitor $155/day WAIVER REQUEST FORM FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(s). Requested by: Bill Piummer/Utilities, Marshall Plantz/^rransportation October 15> 2012 (Name and Department) Date Proposed modification(s) to the Prof. Liability requirement(s) for Master Agreements for 2012-2015 for Kleinfelder West, Geotechnical Services CA917-City;CA918-CMWD (Type of insurance) (Name of contract) n Reduce coverage to the amount of: r~l Waive coverage Kl Other: Waive requirement of surplus lines carrier on the LASLI (formerly LESLI) FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) riSignificance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope of work and the quality of the work-product, [explain] riSignificance of Contractor: Contractor has unique skills and there are few if any altematives. [explain: include number of candidates RFP sent to and number responded if applicable] •Contract Amount/Term of Contract: $ Work will be completed over a period of OProfessional Liability coverage is not available to this contractor or would increase the cost of the contract by $ [explain]. ^ [pother (e.g. explain why exposures are minimaL how exposures are covered in another policy, exposure control mechanisms, and anv other infbrmation pertinent to your request): Under the Nonadmitted and Reinsurance Reform Act (NRRA). as part of the Dodd-Frank Act and implemented in Insurance Code Section 1765.L "alien" nonadmitted insurers listed on the NAIC's (National Association of Insurance Commissioners) Quarterly List of Alien Insurers are eligible to accept placements of Califomia risks from surplus lines brokers. The federal action provides for the national listing, thereby allowing alien carriers to avoid individual filing requirements in each state such as those to be included on the LASLI (formerly LESLI). As of January 30. 2012 Lloyds of London/Syndicate 2001 (Amlin Undrwr Ltd) voluntarily removed itself from the LASLL electing to rely on inclusion on the Quarterly List of Alien Insurers to provide insurance for Califomia risks from surplus lines brokers. Llovds has made a filing in Califomia that permits the Department of Insurance to ''recognize'' Lloyd's syndicates in the event of an inquiry from a broker or a member ofthe public. However, the extent to which standards for a surplus lines carrier on the LASLI (List of Approved Surplus Lines Insurers) versus those on the Quarterly List of Alien Insurers is unclear as of the writing of this waiver and in recent articles appearing in the Insurance Joumal it appears that the state's implementing legislation has resulted in issues that may need to be resolved in court. In anv case, there is confusion among brokers and clients because there are now 2 lists in the state, one with "approved'* surplus lines carriers and the other, the national list of "eligible" surplus lines carriers. Apparently Lloyds is trying to work with the state to sort out some ofthe confusion and it can be anticipated that there will be more to come on this matter. In the meantime. Llovds of London/Syndicate 2001 (Amlin Undrwr Ltd) has and continues to be the carrier for Kleinfelder West Inc. for its pollution liability insurance, it was on the LASLI until it requested removal, and it is the carrier for the contractor with significant ongoing proiects in the Citv. It is requested Llovds of London/Syndicate 2001 (Amlin Unckwr Ltd) be accepted as the carrier for professional liabilitv insurance for Kleinfelder West. Inc. Approved by Risk Manager for these 2 contracts onlv: (Signature) (Date) } l:\WORD\lnsunjnce\Admin Order #68 waiver modify insurimce requiremenls.doc 06/15/2006 CA920 MASTER AGREEMENT FOR SURVEYING SERVICES (RIGHT-OF-WAY ENGINEERING SERVICES, INC.) (THIS AGREEMENT is made and entered into as of the day of ^tja^htAcc^ 20 >V by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and RIGHT-OF-WAY ENGINEERING SERVICES, 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. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5- COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed two hundred thousand dollars ($200,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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 houriy 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. 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 City Attorney Approved Version 2/17/12 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Q If box is checked, Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. i 0.3 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carisbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy 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. City Attorney Approved Version 2/17/12 16- NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Michael Schlumpberger Title Transportation Director Title President Dept Transportation Address 615 South Tremont Street CITY OF CARLSBAD Oceanside, CA 92054 Address 1635 Faraday Avenue Phone (760) 637-2700 Carisbad CA, 92008 Email row@roweng.net Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe 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 whose services are 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 fonA/arded 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 fon/varded 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 ofthe 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 othen^/ise recover, the full amount ofthe 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 ef 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 2/17/12 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 2/17/12 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^ day of ^tftr^^it^ ^ , 20 i"^. CONTRACTOR RIGHT-OF-WAY ENGINEERING SERVICES, INC., a California, corporation (sign here) (print name/title) ATTEST: By: CITY OF CARLSBAD, a municipal corporation of the State of California Mayor (sign here) LORRfAINE City Clerk (print name/title) Proper notarial acknowledgment of execution by Contractor must be attache'd'.'l^a corporation. Agreement must be signed by one corporate officer from each ofthe following two groups: Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant City Attorney City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of ^^)e^^ -es. OnSc^a^>^'>befQre me, "TX^ ^^CV^ /{\<^r-^Vo\JlXi * "^3*® . Here Insert Name and Title of the OfficerX Name(s) of Slgner(s) ' personally appeared 1 ELiSE CARTER Commission # 1971799 Notary Pubiic - Califomia Nggm/- San Oieyo County 2 IIII .**f ^°y"i-^xpiresMaf 11 2016^ who proved to me on the basis of satisfactory evidence to be the person(^ whose name(^) '\sld/e subscribed to the within instrument and acknowledged to me that he/sfiife/thefy executed the same in his/h^r/th«flr authorized capacity(ie€), and that by his/l)dr/th^ir signature(3) on the instrument the person(jO, or the entity upon behalf of which the person(a;) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature OPTIONAL ^Signature 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. Descnpbon of Attached Document Title or Typ^f Document: Document Date: Number of Pages: Signer(s) Other Than Nfenqed Above: Capaclty(ies) Claimed b^^^gner(s) Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUMbr'RINT OF SIGNER Top of thumb here Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General •"Attorney in Fact • Trust( • Guardian oNConservator • Other: RIGHT THUIVIBPRINT OF SIGNER Top of thumb here ) 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 Right-of-Way Engineering Services, Inc. SOQ City ofCarlsbad Master Agreement - Surveying Services EXHIBIT A RATE SCHEDULE Field Survey Crew (2 man) prevailing wage $170.00 Robert Gates, Dave De La Torre, and other Intemational Operating Engineers Local 12 surveyors Office calculations, map drafting, legal description and plat $85.00 preparation, boundary calculation, note reduction Michael Schlumpberger, Emie Vasquez, Josh Tatman, Staff AutoCAD Drafting, base map preparation $80.00 Ernie Vasquez, Josh Tatman, Staff Office Supervisor $90.00 Michael Schlumpberger, Emie Vasquez Supervising Land Surveyor $95.00 Michael Schlumpberger Title reports, aerial photogrammetry, potholing, utility tracing Cost+5% 10 CA919 MASTER AGREEMENT FOR SURVEYING SERVICES (MELCHIOR LAND SURVEYING, INC.) IIS AGREEMENT is made and entered into as of the ^jgy of f^lu^fhJ^ 20/^, by and between the CITY OF CARLSBAD, a municipal corpofation, hereinafter referred to as "City", and MELCHIOR LAND SURVEYING, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of 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. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed two hundred thousand dollars ($200,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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 houriy 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. 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 City Attorney Approved Version 2/17/12 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 eariy 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement orthe general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Q If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carisbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Contractor: For Citv: Name Skip Hammann Title Transportation Director Dept Transportation CITY OF CARLSBAD Address 1635 Faraday Avenue Carisbad CA, 92008 Phone (760) 602-2751 Name Douglas Melchior Title CEO/Project Manager Address 5731 Palmer Way, Suite G Carisbad, CA 92010 Phone (760) 438-1726 Email mlsi@pacbell.net 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 othenA/ise 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 fon^^arded 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 fon^/arded 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 othenA/ise recover, the full amount ofthe 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 2/17/12 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 2/17/12 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 25th day of September 2012 CONTRACTOR MELCHIOR LAND SURVEYING, INC., a California corporation CITY OF CARLSBAD, a municipal corporation of the State of California uon / ign here) 1 (sign here) Susan 6. Melchior, President (print name/title) Mayor Douglas R. Melchior, CEO, Vice President (print name/title) ATTEST: LORRAfNE City Clerk Proper notarial acknowledgment of execution by Contractor must be attacfVedf^ff, ^To^Tporation. Agreement must be signed by one corporate officer from each ofthe following two groups: Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: •Assistant City Attorney'^ City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of r^^^^^ . y%^^^ c) } On Dat^ before me. Here Insert Name and Title of tfie Officer personally appeared K5V^ ^ ^^^^^ /^&^^z^.y7j Name(s) of Signer(s) Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ie/are subscribed to the within instrument and acknowledged to me that -he/sho/they executed the same in Wste/their authorized capacity (ies), and that by bis/bef/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certity under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Sianature V^xu^^^^ ^. >cr^ Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Tvoe of Document: Document Date: 9~;2^-^/r) /S. .^^7^^ / y) Number of Pages: ? Signer(s) Other Than Named Abojfe: Capaclty(les) Claimed by Signer(s) Signer's Name: Su^^^e^^fTt^^s^ Cs^- P\e...^Jk //\ Signer's Name: ^ ^ j CL S ^ '"^i^"^"-' • Individual ^ Corporate Officer — Title(^: iLAe^ ^A£,AMSLL^P C B<^ • Individual ^ , Corporate Officer — Title{^: ry^jiA Jj • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing:. RIGHTTHUMBPRINT OF SIGNER Top of thumb here National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Chatsworth, CA 91313-2402• www.NatiMote^^ 800-876-6827 EXHIBIT A Melchior Land Surveying Inc. Fees For Professional Land Surveying Services One Man Crew-Si 37.00 Two Man Crew-$205.00 Three Man Crew-$295.00 Principal Professional Land Surveyor-$160.00 * Expert Witness - Court Testimony $270.00 Associate Professional Land Surveyor-$138.00 Draftsman-$112.00 Computer Operator $112.00 Travel Time - Two Man Crew-$134.00 Travel Time - Three Man Crew-$215.00 Specialized Equipment: TopCon Green-Beam Vertical High-rise Building Laser $67.00 Trimble 5800/R8-Static Fast & RTK GPS System $225.00 Secretarial Services-$42.00 Direct Delivery-$40.00 Over Time Fee - After 8 Hours and Reg. Saturday Time and a Half - After 8 Hours Saturday and Sunday Double Time Bluelines - Standard (D Sheet )~ $8.00 Oversized $10.00 Sepias - Standard (D Sheet)- or Xerox Vellum $22.00 Oversized-$26.00 Ovemight UPS (Drop Box Letter) 1 lb. (Letter ) 2 lb.. — $32.00 $35.00 CA923 MASTER AGREEMENT FOR UTILITY LOCATION AND POTHOLING SERVICES (AIRX UTILITY SURVEYORS, INC.) (THIS AGREEMENT is made and entered into as of the ^jgy of j^/^^nL^t^ 20^ by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and AIRX UTILITY SURVEYORS, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in utility location and 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 utility location and potholing. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred and fifty thousand dollars ($150,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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 houriy 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. 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 City Attorney Approved Version 2/17/12 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 eariy 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, generai 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 Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period offive years following the date of completion ofthe work. Q If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carisbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Gail McMorran Title Transportation Director Title President Dept Transportation Address 2534 E. EI Norte Parkway, Ste. C CITY OF CARLSBAD Escondido, CA 92027 Address 1635 Faraday Avenue Phone (760) 480-2347 Carisbad CA, 92008 Email gmcmorran(gairxus.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 fonA/arded 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 othenA/ise 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 2/17/12 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 2/17/12 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 (^'^^ clay of v ^^C/p^-20A CONTRACTOR AIRX UTILITY SURVEYORS, INC., a Caltfornia corporation (sign here) CITY OF CARLSBAD, a municipal corporation of the State of California (print name/title) ATTEST: (/ (sign here) / le/jiti LOR City Clerk (print name/title) Proper notarial acknowledgment of execution by Contractor must be attach^d.^f.a^torporation. Agreement must be signed by one corporate officer from each ofthe following two groups: Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant City Attorney OFFICIAL SEAL I MICHAEL PAUL GJEFLE I NOTARY PUBUC-GALITORNIA ^ COMM. NO. 1931661 - SANDtEGOCGUlNrrY t MY COMM. EXP. APRILS. 2015 I City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of San Diego On per I :>oi:>^ before me, Mary F. McGraw, Notary Public (Here insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory'evidence to be the personjX) whose name(^^s7^e. subscribed to . the within instrument and acknowledged to me that htJ^j^ty executed the same in hi^^heir authorized capacity(i«f), and that by hi^^er^eir signature^on'the instalment the personi^^ or the entity upon behalf of which the personjl^acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws ofthe State of Califomia that the foregoing paragraph is true and correct. MMMMMMlifiH(h WITNESS my hand^and official sea) MARY F. MCQRAVr Comfnit8loiv# 19145(^ Notary Pubtie-California San Diago Counts ^ My Cowm. Expiraa Nov 26.20141 (Notajy Seal) ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Jjtle or description of attached document) (Title or description of attached document continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE^GNER • Individual (s) • Corporate Officer (Title) • Partner(s) • Attomey-i/-Fact • Trustee( • Other iNSTOUcrnoNS FOR COMPLETING THIS FORM Any acknowledgment completed in Cahfomia musl contain verbiage exactly as appears above in the notary section or a separate acknowledgment form musl be properly completed attd attached lo that document. The only exception is if a document is to be recorded outside of Califomia. In such instances, any altemative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of ihe signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signcr(s) personaiiy appeared before the notary public for acknowledgment. • Date of notarization must be the date thai the signcr(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural fonns by crossing off incorrect forms (i.e. Wshc/theyr is /are) or circling the correct forms. Failure to correctly indicate this infonnation may lead to rejection of document recording. The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, rc-seal if a sufficient area pcnmits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the olTice of the county clerk. V Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. <' Indicate title or type ofattached document, number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO. Secretary). • Securely attach this document to the signed document 2008 Version CAPA v 12.10.07 800-873-9865 www.NotaryClasscs.com CALIFORNIA ALL-PUHPOSE ACKNOV/LEDGMENT CIVIL CODE § ii89 state of Califomia County of } On before me, Date Here Insert Name and Title of the Officer f personally appeared l?7Q / ( Orrq/J Name(s) of Signer(s) OFFICIAL SEAL MICHAEL PAUL GJEFLE^ NOTARY PUBLIC-CALIFORNIA E COMM. NO. 1931861 ^ SAN DIEGO COUNTY MY COMM. EXP. APRIL 8,2015 who proved to me on the basfs 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/iheir authorized capacity (ies), and that by his/her/their signaturefs) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of-California that the foregoing paragraph is true and correct. WITNESS my ha tjffiutars^ Place Notary Seal Above OPTIC ' Though the information balow 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 Docj^ent ^ Title or Type of Document: C ^ ^/ Cc^/s^^ Cotjrrc ^<g^/V Document Date: Number of Pages: Signer(s) Other Than Named Above:. Capac!ty(ies) Claimed by Signer(s) Signer's Name: n • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: Top of thumb here Signer's Name: \ • Corporate Officer — Tiile(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing:. Top of thumb here _ © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 AIRX Utility Surveyors, Inc. Fee Estimate Summary Local Date: 00-00-12 Pricing on this document is valid for 90 days from the date above. Project: CITY OF CARLSBAD - SAMPLE PRICING (REVISED 10/17/2012) Total Number of estimated potholes: 0 Proiect Manaaement & Reoort Preoaration Project Management No.: 0 hours at $125 perhour= SO On sight Research/Report Drafting No.: 0 hours at $75 per hour= $0 Project Management & Report: $0 Potholing'* Potholes less than 5' deep No.: 0 at $600/700 Prevail* per hole= SO Potholes 5'to 8'deep No.: 0 at $800/900 Prevail* per hole= SO Potholes 8'to 11'deep No.: 0 at $1,000/1.100 Prevail* per hole= •-••••?S0 Potholes 11' to 14' deep No.: 0 at $1,200/1.300 Prevail* per hole= $0 Potholes greater than 14' deep No. hrs: 0 at $250/300 Prevail* per hour= $0 Wet & Drv Utilitv Locatina Pothole estimate total: $0 Wet & Drv Utilitv Locatina Locating - Electric, Magnetic .Sonic, GPR (1 Man) No. hrs: 0 at $175 per hour 0 (2 Man Crew) No. hrs: 0 at $225 per hour 0 CCTV crew with Locator No. hrs: 0 at $300 per hour 0 CCTV crew without Locator No. hrs: 0 at $175 per hour 0 Locating estimate total: $0 Traffic Control Traffic control plans No.: 0 at $250 each = $0 Traffic control equipment No.: 0 days at $150 per day= $0 Arrow board No.: 0 days at $100 per day= Flagman No. Flagmen: 0 $50 per hr for 0 hours = $0 Traffic control estimate total: $0 Survevina Field Work 0 at $200 per hour $0 Office Calculation 0 at $140 per hour so Travel (including mark-out) 0 at $95 per hour $0 Surveying estimate total: $0 Concrete and Asohalt Patchina Concrete Patch or Cold Patch No.: 0 at $75 each = $0 Asphalt Hot Patch No.: 0 Call for quote so Coring -14" Diameter No.: 0 at $100 each = $0 Travel Time Travel time to and from site (billed one-way) No.: 0 hours at $175 Patching estimate total: each = Travel time total: Estimate Total $0 $0 $0 $0 Additional Fees 1) This estimate includes the provision for Prevailing Wage if applicable to all field work, (see secondary figure where applicable)* 2) ALL permit or traffic control review, deposits and fees are in addition to the estimate Total 3) Payment terms are 30 days from date of invoice, 1.5% per month thereafter. Authorization: XBD2012 Fee Schedule CA925 MASTER AGREEMENT FOR CCTV INSPECTION SERVICES (AFFORDABLE DRAIN SERVICES, INC. DBA AFFORDABLE PIPELINE SERVICES) >IIS AGREEMENT is made and entered into as of the day of /^TU^tkJu^ 20/X; by and between the CITY OF CARLSBAD, a municipal corpop§tion, hereinafter referred to as "City", and AFFORDABLE DRAIN SERVICES, 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 Inspection. 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 Inspection. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred and fifty thousand dollars ($150,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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. 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 2 City Attorney Approved Version 2/17/12 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 0^ C f J/^ fxl If box is checked. Professional Liability City's Initials Contrador's Initials Insurance requirement is waived. 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 Commercial General Liability which shall provide primary coverage to the City. 3 City Attorney Approved Version 2/17/12 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Duane Johnson Title Transportation Director Title Vice President Dept Transportation Address 8340 Juniper Creek Lane CITY OF CARLSBAD San Diego, CA 92126 Address 1635 Faraday Avenue Phone (858) 689-4000 Carlsbad CA, 92008 Email djohnson@affordabledrain.com Phone (760) 602-2768 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 ofthe 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. City Attorney Approved Version 2/17/12 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 at the 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 ofthe 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 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 ofthe 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 ef 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 2/17/12 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 2/17/12 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 <. ^^^L^ . day of /^/^2^^^€yfJ , 2(k?^ ^2 CONTRACTOR AFFORDABLE DRAIN SERVICES, INC. DBA AFFORDABLE PIPELINE SERVlGjES, a California cc^oration / (sign here) CITY OF CARLSBAD, a municipal corporation of the State of California Mayor f (print name/title) ATTEST: By: ^gfTh^eJ^ LORRAmE M City Clerk (print name/title) Proper notarial acknowledgment of execution by Contractor must be attacheclf-^4f:;a a6)rcffl>;a!ion. Agreement must be signed by one corporate officer from each of the following two y Wilips: Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BV: MX Assistant City Attorney City Attorney Approved Version 2/17/12 Acknowledgement State of California County of San Diego ) On before me, A. O'Loughlin, a notary, personally appeared ChplLc^ ^ fi)V^ ^(Aj S who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws ofthe laws ofthe State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature A. O'Loughlin (NOTARY) I (NOTARY) 1 OFFICIAL SEAL A. O'LOUGHLIN NOTARY PUBLIC-CALIFORNIA g COMM. NO. 1904837 ^ SAN DIEGO COUNTY MY COMM. EXP. OCT. 12,2014 J ( SEAL) Additional (Optional) Information: Title of Document: |VVlAir f\^Vgam2t^^'' Number of pages ^ Other Signer(s) They # m m m m m m m • EXHIBIT A Affordable Drain Service, Inc. DBA: Affordable Pipeline Services Rates Schedule (All wages are non-prevailing wage) Rates for Contract CCTV Inspection Truck 12 man crew) CCTV Inspections: $185.00 per hour (4 hour minimum) Push Camera Inspection/Line Locatina M man crew) Push Camera: $165.00 per hour (3 hour minimum) Combination Jet/Vac Cleanina Truck (1 man crew) Cleaning Truck (10-yard): $205.00 per hour (4 hour minimum) Emerqencv Response CCTV or Cleaning (less than 24-hour notice) Emergency Callout Hourly Rate Trailer Jetter M man crew) Trailer Jetter: Drain Cleanina Service (1 man crew) Monday through Friday 8:00 AM to 4:00 PM Nights and Weekends: Supervisor Shop Truck f1-man crew) Additional Laborer $250.00 $250.00 per hour (4 hour minimum) $165.00 per hour (3 hour minimum) $115.00 per hour $165.00 per hour $125.00 per hour $115.00 per hour $45.00 per hour City of Carlsbad - Request for Qmliffcations Master Ameement Consultim Services CA928 MASTER AGREEMENT FOR REAL PROPERTY SERVICES (ANDERSON & BRABANT, INC.) 'HIS AGREEMENT is made and entered into as of the day of '^'jUryuM^ 20/c^ by and between the CITY OF CARLSBAD, a municipal corpcfration, hereinafter referred to as "City", and ANDERSON & BRABANT, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in real property 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 real property services. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5- COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed fifty thousand dollars ($50,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed fifty thousand dollars ($50,000). 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 Director, 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. 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 City Attorney Approved Version 2/17/12 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Q If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 ^ The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11- BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Gilbert Kunkel Title Transportation Director Title Project Manager Dept Transportation Address 353 West Ninth Avenue CITY OF CARLSBAD Escondido, CA 92025 Address 1635 Faraday Avenue Phone (760) 741-4146 Carlsbad CA, 92008 Email gil(^abvaluation.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 ofthe 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 othenA/ise recover, the full amount ofthe 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 ef 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 2/17/12 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. 26. 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 2/17/12 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 3<^^^^€vv\^r , 20J2-_. CONTRACTOR ANDERSON & BRABANT, INC., a California corporation CITY OF CARLSBAD, a municipal corporation of the State of California (sign here) (print name/title) ATTEST: (sign here) (^i ILer] f kinii I'lr^^Skr^r ^ity Clerk (print name/title) ^ n /} flhok.i'J^ ltd- ^ Proper notarial acknowledgment of execution by Contractor must be attached^.Mf'a'6orporation. Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group 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: Assistant City Attorney City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County o[_\^^ efore m ^ Date IZ!^^-r-^ personally appeared yJ^^/Zl^j/) Here Insertjvla'me and Title bf the OfJjCfer i \ who proved to me on thg basis of sati§|actor evidence to be the persopifS/Whose nan^^S/s/^re subscribed to the withinjn^jtfi^ent and acknowledge to me that, he/she^he^executejlJhe same in authorize9^^pacit|jj(ies)/and that by signatur^^y'on theinstrument the the entity upon behalf of which the ted, executed the instrument. perso person I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS Place Notary Seal Above Signat OPTIONAL icial S' ature of Notary Public Though the information below is not required by law, it ma/prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description Title or Type Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: J^^'i^ h^^.b^^l^ • Corporate Officer — Title(s): ^^^"Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name • Corporate Officer M4adividual Title(s):. • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) EXHIBIT A RATE SCHEDULE RATE SCHEDULE Appraiser Title Hourly Billing Rates Rate Term Appraiser Title Straight OT (1.5X) OT (2x) From To William Anderson Leader $225.00 NA NA 4/23/2012 Contract Term James Brabant Leader $225.00 NA NA 4/23/2012 Contract Term Gilbert Kunkel Leader $225.00 NA NA 4/23/2012 Contract Term David Ottley Sr. Appr $200.00 NA NA 4/23/2012 Contract Term Patricia M. Cypher Staff Appr $150.00 NA NA 4/23/2012 Contract Term Patricia B. Haskins Staff Appr $150.00 NA NA 4/23/2012 Contract Term Brian Flannery Staff Appr $150.00 NA NA 4/23/2012 Contract Term Benjamin Kunkel Staff Appr $150.00 NA NA 4/23/2012 Contract Term CA927 MASTER AGREEMENT FOR REAL PROPERTY SERVICES (EPIC LAND SOLUTIONS, INC.) Cjp\S AGREEMENT is made and entered into as of the '^^P^ day of ^-/^7i^/?LJL J . 20yj-J by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and EPIC LAND SOLUTIONS, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in real property 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 real property services. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed seventy five thousand dollars ($75,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed seventy five thousand dollars ($75,000). 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 Director, 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. 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 City Attorney Approved Version 2/17/12 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Q If box is checked, Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Contractor: For Citv: Name Skip Hammann Title Transportation Director Dept Transportation CITY OF CARLSBAD Address 1635 Faraday Avenue Carlsbad CA 92008 Phone (760) 602-2751 Name Lynette Overcamp Title Vice President Address 2601 Airport Drive, Suite #115 Torrance CA 90505 Phone (310) 626-4848 Email lovercamp(^epicland.com 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 ef 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 2/17/12 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. 26. 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 2/17/12 c 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 CONTRACTOR EPIC LAND SOLUTIONS. INC., a California corporation (sign here) \^\y^ flocksi\ p^-^.ja (print name/title) I (sign here) o (print name/tme) I 20 12^. CITY OF CARLSBAD, a municipal corporation of the State of California Mayor ATTEST: LORRAfNE City Clerk Proper notarial acknowledgment of execution by Contractor must be att^eljed^^a^cQR^ration. Agreement must be signed by one corporate officer from each ofthe following two ig^^bups: Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President 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 GARLSBAD, a municipa! corporation ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney Assistant City Attorfcey City Attorney Approved Version 2/17/12 ACKNOWLEDGMENT State of California County of U)S kw! On Prig ^D\^ before me. (insert name and title of the officer) M\\ ^or.t\xp\.\ isis of satisfactorv evidence to be personally appeared . ^ .. ^. . w . w^^. v.. who proved to me on the basis of satisfactory evidence to be the person(s)^hose name(s)i(s)are subscribed to the within instrument and acknowledged-to me that he/^B^/they executed the same in his;(fi^/their authorized capacity(ieS), and that by his/(6^their slgnatur§(&)^n the instrument the person(s% or the entity upon behalf of which the persori.(sr) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature tVAPOUZZI COMM. #1848210 m LOS ANQEIES COUNTY = >Y Cowjw. Exp. MAY 8^2013^ ^ (Seal) CALIFORNIA ALL PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF Los Angeles On Septennber 27. 2012 _before me. Jesus Ortiz. Notary Public (here insert name and title of the officer) , notary public, personally appeared Jannes L. Overcamp. Jr. who proved to me on the basis of satisfactory evidence to be the person^ whose ngme^ is/^j^ subscribed to the vvphin instrument and acknowledged to me that (^^he/they executed the same in^^^er/their authorized capacit^pe^, and that by ^^^er/their signature^ on the instrument the personj^sf, or the entity upon behalf of which the personpif acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the state of California that the foregoing paragraph is true and correct WITNESS my hand anj^ official seal Signature JESUS ORTIZ COMM. #1969100 m NotMyf>ijMo.Calitomia SC L06ANQai8 COUNTV (This area for ofTiclal notarial 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: Service Agreement Contract Document Date: Number of Pages: Signer(s) Other Than Named Above: (Not including this page) Holly Rockwell 5. Rate Schedules EXHIBIT A Key Personnel Name Classification / Title Hourly Rate Lynette Overcamp, SR/WA Principal $260 Walt Evans, SR/WA, R-W/NAQ R-W/RAC Regional & Project Manager $150 Gary Peck, SR/WA Review Appraiser & Appraisal Manager $200 Jacqueline Franks Acquisition Agent $110 Rosie Metsker Acquisition Agent $100 Mike Harris Acquisition Agent $85 Administrator Administrator $65 Title & Escrow .„___— Preliminary Title Reports $450 - $850 Litigation Guarantee (up to $1,000,000) . — $375-$3,000 CLTA Policy of Title Insurance (up to $1,000,000) $396 - $2,800 Escrow Fee —— $630-$2,300 The Catling Company Jean Catling Job Function Appraiser Hourly Rate $160 Trial preparation and expert testinr)ony | $250 - $300 *i5 Hour Minimum for Appraisal Services. Litigation support, deposition and court testimony fees ore additionai 4 tiour minimum for deposition and court testimony fees. Other Direct Costs At Cost Appraisal dassiflcdtlon liiiiiiiiiiiiiia^^^^^^^ HounyB^te Richard Crockett Appraiser $175 Senior Appraiser Appraiser $150 Staff Appraiser Appraiser $125 Research Researcher $75 Clerical Administrative $50 * Litigation support, deposition and court testimony fees are additional. 4 hour minimum j court testimony fees. —— br deposition and Other Direct Costs — — At Cost Name/Clsssification Houi^lyHate Principal Appraiser $275 Donna Desmond Trial oreparation and expert testimony $375 * Litigation support, deposition and court testimony fees are additionai 4 hour minimum for deposition and court testimony fees. Other Direct Costs At Cost CREATING LAND SOLUTIONS FOR THE PUBLIC GOOD www.EpicLand.com 16 CA926 MASTER AGREEMENT FOR REAL PROPERTY SERVICES (HENDRICKSON APPRAISAL COMPANY, INC.) IIS AGREEMENT is made and entered into as of the <:^(f^ day of ffjt^rhM<J 20 by and between the CITY OF CARLSBAD, a municipal corporiftion, hereinafter referred to as "City", and HENDRICKSON APPRAISAL COMPANY, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in real property 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 real property services. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($100,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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. 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 City Attorney Approved Version 2/17/12 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Q If box is checked, Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Ted Hendrickson Title Transportation Director Title President/Project Manager Dept Transportation Address 3530 Camino del Rio North Suite 205 CITY OF CARLSBAD San Diego, CA 92108 Address 1635 Faraday Avenue Phone (619) 282-0800 Carlsbad CA, 92008 Email ted(ghendricksonappraisal.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe 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 whose services are 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 fon/varded 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. 5 City Attorney Approved Version 2/17/12 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 at the 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 flnding City 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 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 violafion 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 ofthe 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 alt provisions of law providing for a change of venue in these proceedings to any other county. City Attorney Approved Version 2/17/12 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 confiict, 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 2/17/12 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 0^i^]p , 201 CONTRACTOR HENDRICKSON APPRAISAL COMPANY, INC., a California corf CITY OF CARLSBAD, a municipal corporation of the State of California (sign here) (print name/title/ Mayor ATTEST: // (sign here) ^ (print name/title)^ ^ 4^f^^ LORRAINE City Clerk roD Proper notarial acknowledgment of execution by Contractor must be'^^J^PI^^<5rporation. Agreement must be signed by one corporate officer from each ofthe foUtzj^n'gi^two^gfoups: Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant City Attorney City Attorney Approved Version 2/17/12 California All-Puroose Acknowledgment State of California County of San Diego On jO - Of-qOI'^, before me, Joao Bosco F. Veloso,Notary Public, personally appearedr^/) ^.7/^^/3/tfc^/ov i-i^O M/^/i;yf{H'-L. f^/)/./cfe^ ^ ^ J-JT . Name(s) of Signer(s) ^ who proved to me on the basis of satisfactory evidence to be the person(s) vvhose name(s) «/are subscribed to the within instrument and acknowledged to me that-he/rfie/they executed the same in fe*»te/their authorized capacity (ies) and that by feisA^their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws ofthe State of Califomia that the foregoing paragraph is true and correct WITNESS my hand and official seal. f] 1 OFFICIAL SEAL JOAO BOSCO F VELOSO ^ HOim PUBUp-CAUFORNIA g COMf ,MM. NO. 1980351 „ .N DIEGO COUNTY^ ^ | MY COMM. EXPTJUNE 28.2016 \ OPTIONAL Description of Attached Document ^ A ^ ^ ^ Title or Type of Document Document Date: [U-d7'- fl. Number of Pages (including this one) / Additional Information - — Capacity(ies) Claimed by Signer • Individual ', ^ ^ ^T-J-A , U Partner: Limited General • Attorney-in-Fact • Tmstee • Guardian or Conservator • Other . t J / Signer is Representing: r-r p /t>^/ , ^ Right Thumbprint of Signer 1 Right Thumbprint of Signer 2 EXHIBIT A (?>^ RATE SCHEDULE; As requested, foilowing is a summary of liourly rates for professional services rendered, including services for preparation of appraisal reports, appraisal reviews, pre-trial preparation and conferences, and expert testimony. Appraisal Preparation: Senior/Staff Appraisers (appraisers noted on Org. Chart) $ 110 per hour Principal Appraiser/Project Mgr. - appraisal and review (Ted Hendriclcson) $150 per hour Expert Testimony (Principal Appraiser/Ted Hendrickson) Trial Preparation and Consulting $ 175 per hour Expert Testimony $300 per hour These are fully loaded rates and include clerical support, materials, travel, etc. 14 CifyCarlsbadS 12RFP wpd * ^ HENDRICKSON APPRAISAL COMPANY, INC. Rea! Estate Appraisers • Consultants CA931 MASTER AGREEMENT FOR ENVIRONMENTAL AND PLANNING STUDY SERVICES (PLANNING SYSTEMS) HIS AGREEMENT is made and entered into as of the day of ''iJ, , 20/^, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and PLANNING SYSTEMS, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in environmental and planning studies. 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 and planning studies. D. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in considerafion 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 Descripfion forthe 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director will give allowance for documented and substanfiated 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed two hundred thousand dollars ($200,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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 elecfion. City may deduct the indemnificafion amount from any balance owing to Contractor. 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 subconti-actor 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 City Attorney Approved Version 2/17/12 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 secfion will survive the expiration or early terminafion 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-:VII" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligafions under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement orthe general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. n If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement All records will be clearty 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Paul Klukas Title Transportation Director Title Director of Planning Dept Transportation Address 1530 Faraday Ave., Suite 100 CITY OF CARLSBAD Carlsbad, CA 92008 Address 1635 Faraday Avenue Phone (760) 931-0780 Carisbad CA, 92008 Email pklukas@planningsystems.net Phone (760) 602-2751 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 Contractor shall file a Confiict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carisbad Confiict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 fon^/arded 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 acfion ofthe 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 confingent 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 ef 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 2/17/12 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, modifled, waived or discharged except in a writing signed by both parties. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// City Attorney Approved Version 2/17/12 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 PLANNING SYSTEMS, a Califomia corporation By: day of Uf^'^t^^ 20J!2^. CITY OF CARLSBAD, a municipal corporation of the State of California (print name/title) ^' By: (UAA (sign here) (print name/title) ATTEST: LORRAINE City Clerk Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups: Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant City Attorney City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ^cMr\ ^Su-e ^yT^ } On ^^\^^\\-~^ before me, Bv\^ ^ . Date Here Insert Nam^ personally appeared \ Here Insert Name and Title of the Officer Name(s) of Slgner(s) BRIHA M. BEECHER CofwniMioii # 1855293 Notary PubUe • CaHfomia yr San Oiago County ^ > who proved to me on the basis of satisfactory evidence to be the personj^ whose narc}fi({s) is/afe-subscribed to the within instrument and acknowledged to me that •he/st=te/they executed the same in his/her/their authorized capacity(i^^), and that by his/hefi^ieir signaturej(8^ on the instrument the persorjj(^, or the entity upon behalf of which the person(^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Place Notary Seal Above WITNESS my hand and official seal. Signature OPTIONAL - Signature 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 Title or Type of Document: Docunnent Date: Signer(s) Other Than Named Above: Number of Pages: Capacity(ies) Claimed by Slgner(s) Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Cfiatswortfi, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of il^c^'r\ Dafb } personally appeared before me, Here Insert Name and Title of tne Officer \ Name(s) of Signer(s) li M a a a • ^ BRFTTAM. BEECHER Commission # 18SS293 | Notary PuMc - Califoniia z Saa Oiago County ^ »Camm. bairn Jun 22.20131 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(^whose name(^ is/afe subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/hentheir authorized capacity(i^), and that by his/her/Mr signature(^ on the instrument the personj(^, or the entity upon behalf of which the person(^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature OPTIONAL - Signature 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 Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer Is Representing: Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Cfiatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 EXHIBIT A RATE SCHEDULE PLANNING SYSTEMS rate schedule is as follows: PRINCIPAL: ...... PLANNERS/CEQA: Director of Planning/CEQA Specialist Environmental Planner .... Environmental Analyst .... Land Planner ..... LANDSCAPE ARCHITECT/HABITAT RESTORATION SPECIALIST: Senior Restoration Ecologist Senior Landscape Architect Landscape Designer/Habitat Restoration Specialist Biologist/Construction Monitor 11 Construction Monitor 1 . $150.00/hr $135.00/hr $ 95.00/hr $ 75.00/hr $ 75.00/hr $110.00/hr $110.00/hr $ 90.00/hr $ 90.00/hr $ 75.00/hr OTHER: Graphic/CAD Operator . Visual Simulations Operator $ 65.00/hr $ 65.00/hr REIMBURSABLE EXPENSES/BILUNG POUCY: Supplies and other direct costs such as printing, reproduction, graphic aids, travel (air fare & meals), photography, postage, fax & delivery will be billed at cost plus, 15%. Invoices will be issued on a monthly basis unless otherwise agreed. Accounts are due and payable within 30 days ofthe date of invoice. Past due accounts will have a finance charge of 1.25% compounded. Planning Systems Statement of Qualifications - 5/23/12 12 CA932 MASTER AGREEMENT FOR ENVIRONMENTAL AND PLANNING STUDY SERVICES (ATKINS NORTH AMERICA, INC.) CTH\S AGREEMENT is made and entered into as of the <^f^ ^ay of /y^^tf.-^^ 20by and between the CITY OF CARLSBAD, a municipal corpopition, hereinafter referred to as "City", and ATKINS NORTH AMERICA, INC., a Florida corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in environmental and planning studies. 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 and planning studies. D. 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 deflned 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 specifled 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 years starting from the date flrst 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 notiflcation to proceed by City and be completed within the time specifled in the Task Description for the project (see paragraph 5 below). Extensions of time for a speciflc Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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 speciflc Task Description exceed the term of this Agreement. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed two hundred thousand dollars ($200,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specifled 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 Director, 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 specifled scope of services. The Task Description will also include a description of the method of payment and will be based upon an houriy rate, percentage of project complete, completion of speciflc 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' compensafion 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 elecfion, City may deduct the indemnificafion amount from any balance owing to Contractor. 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 City Attorney Approved Version 2/17/12 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 eariy termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the durafion 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager 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 specifled to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a periodNof flve years following the date of completion of the work. I I If box is checked, Professional Liability City's Initials ^on^ctor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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 certifled mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certiflcates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certiflcates 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 exisfing 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. Citv reserves the right to require, at any time, complete and certifled copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carisbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy identiflable. 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 flnal 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Kim Hewlett Title Transportation Director Title Assoc. Vice President Dept Transportation Address 3570 Carmel Mountain Road, Suite 300 CITY OF CARLSBAD San Diego, CA 92130 Address 1635 Faraday Avenue Phone (858) 514-1018 Carisbad CA, 92008 Email Kim.howlett@atkinsglobal.com Phone (760) 602-2751 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 Contractor shall flie a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 whose services are 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 othen/vise 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 outiining 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. 5 City Attorney Approved Version 2/17/12 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 certifled mail of the termination. If City decides to abandon or indeflnitely 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 at the 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 flnding City will determine the flnal 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 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 flnal determinafion 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 flde 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 flde employee, any fee, commission, percentage, brokerage fee, gift, or any other considerafion 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 fliing 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 2/17/12 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, modifled, waived or discharged except in a writing signed by both parties. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// City Attorney Approved Version 2/17/12 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 27th day of .qf^pt-P>mhpr 20jL2_ CONTRACTOR ATKINS NORTH AMERICA, INC., a Florida corporation CITY OF CARLSBAD, a municipal corporation of the State of California I (sigfi here) ayor )avid J. Carter ^^^H AM^\ Senior Vice Pr(^igftgAy^:'X^/>X (print nam^M^ip^"^ V«.V\ ^ l^^X 19.60 •• S (sign Rene de los Rios Assistant- Sptnrp.tary he\ '•-..Close--' / ATTEST: LORRAINE City Clerk (print name/title) Proper notarial acknowledgment of execution by Contractor must be attached. lf^'a^<3orsi)tfration. Agreement must be signed by one corporate ofl'icer from each ofthe following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certifled by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. CITY OF CARLSBAD, a municipal corporation ofthe State of California APPROVED AS TO FORM: RONAL BY: Assistant City Attorn City Attorney Approved Version 2/17/12 NOTARY ACKNOWLEDGEMENT STATE OF FLORIDA } COUNTY OF ML\MI-DADE} PERSONALLY APPEARED David J. Carter and Rene de los Rios by me to be the Senior Vice President and Assistant Secretary before me, the undersigned authority, , well known to me or who has produced as identification and known of the corporation named above, and acknowledged before me that they executed the foregoing instrument on behalf of said corporation as its true act and deed, and that they were duly authorized to do so. WITNESS my hand and official seal this 27th day of September, 2012. DEBORAH LYNN SHIMEL MY COMMISSION #DD 924543 EXPIRES: November 13,2013 Bonded Thru Notary Public Undeiwriters NOTARY PUBLJ Print Name: DEBORAH LYNN SHIMEL My Commission Expires: Nov. 13, 2013 Environmental/Planning Study Sen/ices I 18 5. Rate Schedule ATKINS EXHIBIT A Atkins North America, Inc. 3570 Carmel Mountain Road, Suite 300 San Diego, California 92130 Telephone: +1.858.874.1810 Fax:+1.858.259.0741 www.atkinsglobal.com/northamerica DESIGN & GRAPHIC SERVICES Senior Designer 111 $140.00 Senior Designer II 135.00 Senior Designer 1 120.00 Designer II 110.00 Designer 1 100.00 CAD Technician 111 95.00 CAD Technician 11 85.00 CAD Technician 1 70.00 Graphics Designer 11 100.00 Graphics Designer 1 95.00 ADMINISTRATIVE SERVICES Senior Administrator $110.00 Senior Administrative Assistant 111 95.00 Senior Administrative Assistant II 85.00 Senior Administrative Assistant I 80.00 Administrative Assistant III 75.00 Administrative Assistant II 65.00 Administrative Assistant I / Clerk 60.00 ATKINS STANDARD RATE SCHEDULE FOR THE CITY OF CARLSBAD EFFECTIVE JANUARY 1, 2012 ENVIRONMENTAL SCIENCE SERVICES Supen/ising Scientist $198.00 Senior Scientist III 180.00 Senior Scientist 11 170.00 Senior Scientist I 140.00 Scientist 111 130.00 Scientist 11 110.00 Scientist 1 92.00 Assistant Scientist 80.00 Research Assistant 65.00 PUBLIC AFFAIRS/COMMUNITY RELATIONS Project Manager $170.00 Community Relations Specialist 140.00 Assistant Project Manager 125.00 Account Coordinator 80.00 OTHER PROFESSIONAL SERVICES Principal Professional $196.00 Supervising Professional 170.00 Sr. Professional 111 / Sr. GIS Analyst III 150.00 Senior Professional ll/Sr. GIS Analyst II 135.00 Senior Professional I / Sr. GIS Analyst I 122.00 Professional II / GIS Analyst II 101.00 Professional I / GIS Analyst I 88.00 EXPENSES AND OUTSIDE SERVICES Identifiable non-salary costs that are directly attributable to the project, such as reproduction costs, telephone charges, mileage, postage, etc.. are billed at actual cost plus 10 percent to cover overhead and administration costs. Mileage will be billed at the current IRS rate at the time of vehicle use. Fees for subconsultant services provided are billed at actual cost plus 10 percent to cover overhead and administration costs. Fees for litigation and expert witness services will be charged at $450.00 per hour with a 4-hour minimum per day. Computer Aided Drafting, hydrologic water, sewer and stormwater modeling, GIS, automated mapping, database and web programming, etc., is charged at $5 per labor hour. If applicable, a vehicle allowance of $8.00 per hour will be charged for the use of a company vehicle assigned to an inspector. * Non-Prevailing Wage ** Prevailing Wage Rate - Overtime will be charged at 1.25 times and Sundays and holidays will be charged at 1.70 times the above rates. PAYMENT TERMS A late payment finance charge at a rate of 18 percent per annum will be applied to any unpaid balance commencing 30 days after the date of original invoice. This rate schedule will remain in effect for three years beginning on the date of the fully executed contract. 0414 028650 0512 Atkins 1 SOQ for City of Carisbad V^AIVER REQUEST FORM FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(s). Requested by: Bill Plummer/Utilities, Marshall Plantz/Transportation October 12, 2012 (Name and Department) Date Proposed modification(s) to the Prof. Liability requirement(s) for Master Agreements for 2012-2015 for Atkins North Environmental/Planning Services . CA932-City; CA934-CMWD Amenca (Type of insurance) (Name of coniract) r~| Reduce coverage to the amount of: r~| Waive coverage Kl Other: Waive requirement of surplus lines carrier on the LASLI (formerly LESLI) FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) riSignificance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope of work and the quality of the work-product, [explain] . r~lSignificance of Contractor: Contractor has unique skills and there are few if any altematives. [explain: include number of candidates RFP sent to and number responded if applicable] •Contract Amount/Term of Contract: $ . Work will be completed over a period of QProfessional Liability coverage is not available to this contractor or would increase the cost ofthe contract by $ [explain]. I^Other (e.t;. explain whv exposures are minimaL how exposures are covered in another policy, exposure control mechanisms, and anv other information pertinent to vour request): Under the Nonadmitted and Reinsurance Reform Act rNRRA). as part of the Dodd-Frank Act and implemented in Insurance Code Section 1765.1. "alien" nonadmitted insurers listed on the NAlC's (National Association of Insurance Commissioners) Quarterly List of Alien insurers are eligible to accept placements of Califomia risks from surplus lines brokers. The federal action provides for the national listing, thereby allowing alien carriers to avoid individual fliing requirements in each state such as those to be included on the LASLI (formerly LESLI). As of January 30,2012 Llovds of London/Beazlev syndicate voluntarily removed itself from the LASLL electing to rely on inclusion on the Quarterly List of Alien Insurers to provide insurance for Califomia risks from surplus lines brokers. Llovds has made a filing in Califomia that permits the Department of Insurance to ''recognize" Lloyd's syndicates in the event of an inquiry from a broker or a member of the public. However, the extent to which standards for a surplus lines carrier on the LASLI (List of Approved Surplus Lines Insurers) versus those on the Quarterly List of Alien Insurers is unclear as ofthe writing of this waiver and in recent articles appearing in the Insurance Joumal it appears that the state's implementing legislation has resulted in issues that mav need to be resolved in court. In any case, there is confusion among brokers and clients because there arc now 2 lists in the state, one with '^approved" surplus lines carriers and the other, the national list of "eligible" surplus lines carriers. Apparently Lloyds is trying to work with the state to sort out some ofthe confusion ad il can be anticipated that there will be more to come on this matter. In the meantime. Lloyds of London/Beazlev syndicate has and continues to be the carrier for Atkins North America for its professional liability insurance, it was on the LASLI until it requested removal, and it is the carrier for the contractor with significant ongoing proiects in the City. It is requested Lloyds of London/Beazlev syndicate be accepted as the carrier for professional liabilitv insurance for Atkins North America. Approved by Risk Manager for these 2 contracts onlv: 6^ (Signature) (Date) H:\WORD\lnsurance\Adniin Order #68 waiver modity in.suriince requiremcnts.doc 06/15/2006 CA935 MASTER AGREEMENT FOR FINANCIAL SERVICES (HARRIS & ASSOCIATES, INC.) (THIS AGREEMENT is made and entered into as of the day of ^/7^^^7u^dc<^ 20 M, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and HARRIS & ASSOCIATES, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in flnancial 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 flnancial services. D. 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 deflned 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 specifled 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 years starting from the date flrst 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 notiflcation to proceed by City and be completed within the time specifled in the Task Description for the project (see paragraph 5 below). Extensions of time for a speciflc Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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 speciflc Task Description exceed the term of this Agreement. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred and fifty thousand dollars ($150,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specifled 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 Director, 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 specifled 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 speciflc 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 indemniflcation amount from any balance owing to Contractor. 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 speciflcally 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 2 City Attorney Approved Version 2/17/12 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 eariy 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemniflcation obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Q If box is checked, Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carisbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Dennis Klingelhofer Title Transportation Director Title Contract Manager Dept Transportation Address 34 Executive Park, Suite 150 CITY OF CARLSBAD Irvine, CA 92614 Address 1635 Faraday Avenue Phone (949) 655-3900 Carisbad CA, 92008 Email kklingelhofer(^harris-assoc.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 othen/vise 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 fonA/arded 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 othenA/ise recover, the full amount ofthe 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 ef 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 2/17/12 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 confiict, 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 2/17/12 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 IH? day of (^cs^loc^ , 20 1^ CONTRACTOR HARRIS & ASSOCIATES, INC., a California^ corporation By: CITY OF CARLSBAD, a municipal corporation of the State of California (print name/title) ATTEST: By: (sign here) LO City Clerk (print name/title) :0 = Proper notarial acknowledgment of execution by Contractor must be attached. If'a'Corporation. Agreement must be signed by one corporate officer from each ofthe following two groups: Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President 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 Assistant City Attorney City Attorney Approved Version 2/17/12 ACKNOWLEDGMENT State of California County of Ov^gin^(> ) On CfM<jejr \fZO]T before me, ^\pr^^,Xl.c Sc^\d\\^C\/" (insert name and title of the officer) personally appeared )^/| ^ i^vP.! WA-Pe/" , who proved to me on the basis of satisfactory evii/ence 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(les), and that by his/her/their signature(s) on the instrument the person(s), orthe entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws ofthe State of California that the foregoing paragraph Is true and correct. WITNESS my hand and official seal. 1 JENNIFER L. SALDIVAR 1 Commission # 1971570 Signatur^yy>(^>^^A^y^/ / a>cJc (Seal) I Notary Public • California I N^fi^/ Oranga County g My Comm. Expires Mtf 9.20161 CA936 MASTER AGREEMENT FOR FINANCIAL SERVICES (NBS) THIS AGREEMENT is made and entered into as of the day of 'ytjOf/Lyd^iy . 20 by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and NBS, a California corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering consultant that is experienced in financial 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 financial services. D. 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 years starting 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 City and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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. City Attorney Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed seventy five thousand dollars ($75,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed seventy five thousand dollars ($75,000). 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 Director, 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 houriy 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. 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 City Attorney Approved Version 2/17/12 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 eariy 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labdr Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period offive years following the date of completion ofthe work. Q If box is checked, Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carisbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Danielle Wood Title Transportation Director Title Associate Director Dept Transportation Address 32605 Temecula Parkway, SuitelOO CITY OF CARLSBAD Temecula, CA 92592 Address 1635 Faraday Avenue Phone (951) 296-1997 Carisbad CA, 92008 Email dwood(^nbsgov.com Phone (760) 602-2751 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 Contractor shall file a Confiict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 fonA/arded 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. 5 City Attorney Approved Version 2/17/12 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 certifled mail of the termination. If City decides to abandon or indeflnitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notiflcation of termination. Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City at the 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 flnding City will determine the flnal 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 City, Contractor will assemble the work product and put it in order for proper fliing 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 flnal 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 flde 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 flde 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 othenA/ise recover, the full amount ofthe 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 fliing 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 2/17/12 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 2/17/12 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__Oablj££_ , 20 la . CONTRACTOR NBS, a California corporation By: CITY OF CARLSBAD, a municipal corporation of the State of California By: (sign here) (print name/title) (sign here) —^ (print name/titie) By: ATTEST: LOR City Clerk Proper notarial acknowledgment of execution by Contractor must be attaclVedntf^^^ corporation. Agreement must be signed by one corporate officer from each ofthe following two groups: Group A Chairman, President, or Vice-President Group 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 ofthe State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant City AttorTiey City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of _ On } Date before me, Here Insert l*lame and Title of the Officer personally appeared _ Name(s) of Signer(s) SfiovV-TAVlOR CMMiMiM #1117337 imvyMie-Ctfionila •iMnUa CoHllhf is 1 who proved to me on the basis of satisfactory evidence to be the person^ whose name(^ js/afe subscribed to the within instrument and acknowledged to me that he/shp/they executed the same in his/hef^thetr authorized capacity(j^), and that by Ns/hor/theif signature(^) on the instrument the person(jg), or the entity upon behalf of which the person(jg^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Place Notary Seal Above WITNESS mv^hand and/6fficial Sign^oT^ OPTIONAL / Signature of 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: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Individual » 0" Corporate Officer — Title(s): \CCt> • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 EXHIBIT A SECTION 4. RATE SCHEDULE Hourly Rate Schedule Title Hourly Rate Director $190 Senior Consultant/Programmer 150 Engineer 140 Consultant 130 Analyst 100 Clerical/Support 55 Expenses Customary out-of-pocket expenses will be billed to the City at actual cost to NBS. Out-of- pocket expenses may include, but not be limited to travel, mailing fulfillment, printing, postage, telephone, reproduction, meals, data, maps, and recording fees. Terms Sen/ices will be invoiced quarterly at the beginning of each quarter. Expenses will be itemized and included in the next regular invoice. Fees for all other sen/ices will be invoiced upon completion of the task. If the project is prematurely terminated by either party, NBS shall receive payment for work completed. Payment shall be made within 30 days of submittal of an invoice. If payment is not received within 90 days simple interest will begin to accrue at the rate of 1.5% per month. Either party can cancel administration contracts with 30 days written notice. Statement ofQtiaUficationsfor Master Agreement - Financial Consulting Sen/ices for the City of Carisbad Prepared by NBS - May 23. 2012 4-1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 RESOLUTION NO. 1453 A RESOLUTION OF THE BOARD OF DIRECTORS OF CARLSBAD MUNICIPAL WATER DISTRICT (CMWD) APPROVING MASTER AGREEMENTS WITH RBF CONSULTING, INFRASTRUCTURE ENGINEERING CORPORATION, GHD, DUDEK, MOFFAT AND NICHOL, KLEINFELDER, RIGHT OF WAY ENGINEERING SERVICES, MELCHIOR LAND SURVEYING SERVICES, AIRX UTILITY SURVEYORS, ANDERSON AND BRABANT, EPIC LAND SOLUTIONS, PLANNING SYSTEMS, ATKINS AND NBS TO PROVIDE PROFESSIONAL SERVICES. WHEREAS, the Board of Directors of Carisbad Municipal Water District has reviewed the need for the utilization of consultant services on an ongoing, as-needed basis in order to maintain service levels; and WHEREAS, the Utilities Department solicited, received, and reviewed Statements of Qualifications for professional services consistent with Carisbad Municipal Code section 3.28.070; and WHEREAS, subsequent to a review of the Statements of Qualifications, staff recommends RBF Consulting, Infrastructure Engineering Corporation, GHD, Dudek, Moffat and Nichol, Kleinfelder, Right of Way Engineering Services, Melchior Land Surveying Services, AirX Utility Surveyors, Anderson and Brabant Inc., Epic Land Solutions Inc., Planning Systems, Atkins and NBS as the most qualified consultants forthe disciplines listed above; and WHEREAS, expenditures for these professional services are subject to availability of capital project funding; NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of Carisbad Municipal Water District (CMWD) of the City of Carisbad, California, as follows: 1. That the above recitations are true and correct. 25 2. That the agreements with RBF Consulting, Infrastructure Engineering 2Q Corporation, GHD, Dudek, Moffat and Nichol, Kleinfelder, Right of Way Engineering Services, 2y Melchior Land Surveying Services, AirX Utility Surveyors, Anderson and Brabant Inc., Epic Land 28 /( 1 Solutions Inc., Planning Systems, Atkins and NBS copies of which are attached as Exhibits 30 2 thru 44, are hereby approved. 2 3. That the President of the Carisbad Municipal Water District is hereby authorized 4 and directed to execute the agreements with RBF Consulting, Infrastructure Engineering 5 Corporation, GHD, Dudek, Moffat and Nichol, Kleinfelder, Right of Way Engineering Services, 6 Melchior Land Surveying Services, AirX Utility Surveyors, Anderson and Brabant Inc., Epic Land 7 Solutions Inc., Planning Systems, Atkins and NBS for, and on behalf of, the Carlsbad Municipal 8 Water District. 9 10 11 12 13 14 /// /// /// /// /// 15 16 17 18 19 20 /// /// /// /// /// 21 22 23 24 25 26 /// 27 /// /// /// /// /// 28 IZ 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 Joint Special Meeting of the Cartsbad Municipal Water District Board of Directors and the Cartsbad City Council, held on the 27th day of November, 2012, by the following vote: AYES: Board Members Hall, Kulchin, Blackburn, Douglas, Packard NOES: None ABSENT: None MATT HALL, President ATTEST: (SEAL) Karen R. Kundtz, Assistant Secretai V CA899 MASTER AGREEMENT FOR CIVIL AND TRAFFIC ENGINEERING SERVICES (RBF CONSULTING) AGREEMENT is made and entered into as of the c4f^ 20/^ by and between the CARLSBAD MUNICIPAL WATER DIST^riCT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carisbad, hereinafter referred to as "CMWD", and RBF CONSULTING, a California corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of an engineering consultant that is experienced in civil and 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 civil and traffic engineering. D. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1. SCOPE OF WORK CMWD retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are deflned 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 specifled 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 years starting 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 1 General Counsel Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($100,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 houriy 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD and the City of Carisbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carisbad 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 2 General Counsel Approved Version 2/17/12 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 CMWD or the City of Carisbad incurs or makes to or on behalf of an injured employee under CMWD'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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. I I If box is checked. Professional Liability CMWD's Initials Contractor's Initials Insurance requirement is waived. 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: 3 General Counsel Approved Version 2/17/12 10.2.1 CMWD will be named as an additional insured on General Liability which shall provide primary coverage to the City. 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carisbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy identifiable. Contractor will allow a representative of CMWD 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 CMWD. 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 CMWD. 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 CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. General Counsel Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD: For Contractor: Name Glenn Pruim Name Tim Thiele Title Utilities Director Title Project Manager Dept. Utilities Address 5050 Avenida Encinas, Suite 260 Cartsbad Municipal Water District Carisbad, CA 92008-4386 Address 1635 Faraday Avenue Phone (760) 603-6243 Carisbad CA, 92008 Email tthiele@rbtcom Phone (760) 602-2768 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 Contractor shall file a Confiict of Interest Statement with the Clerk for the City of Carisbad in accordance with the requirements of the City of Carisbad Confiict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 whose services are 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 othenA/ise settled by agreement between the parties. Representatives of Contractor or CMWD will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fonA/arded 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 fonA/arded 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 General Counsel Approved Version 2/17/12 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, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indeflnitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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, CMWD will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or othenA/ise recover, the full amount ofthe 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 CMWD 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 CMWD, 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 CMWD 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. General Counsel Approved Version 2/17/12 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 CMWD 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 CMWD, which shall not be unreasonably withheld. 26. 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, modifled, waived or discharged except in a writing signed by both parties. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 7 General Counsel Approved Version 2/17/12 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 27th CONTRACTOR RBF CONSULTING, a California corporation •A day of September 20 12 CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Cartsbad By: (sign here) ^ «(print name/title) ATTEST: (print name/titie) ^ LORRAINE Secretary t/i: — — ^^y ••' • V If required by CMWD, proper notarial acknowledgment of execution by cdrttnaottoV must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certifled by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, General Counsel Assistant General Counsel General Counsel Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of before me, ' Dati personally appeared Here Insert Name and Title of the Officer Name(s) of Signer(s) 1 1^ ANDREA SANDERS Commission # 1947527 Notary Pubiic - Caiifornia i San Diego County ^ My Comm. Expires Aug 11.20151 who proved to me on the basis of satisfactory evidence to be the person(e) whose name(9) is/are subscribed to the within instrument and acknowledged to me that he/cho/thoy executed the same in his/hor/thoir authorized capacity(4e9)-, and that by his/hor/thetf signature(e) on the instrument the person(-©), or the entity upon behalf of which the person(8) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my h^d and official seal. Place Notary Seal Above Signature: OPTIONAL — Signature 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 LOATS>2, p>i^TafQjr Title or Type of Document: i^Nft^STm PK^/^mOaT. SMCV.SE^ t6gS - CjIX/eiSiaP^ POUMi^ipAq 8 Document Date: Nk<T ^fVnEo€Ttmg o^Su^J^iKiC^ Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: S COTT LO^ Number of Pages: Signer's Name: ^Corporate Officer - Titlefs^: ^jlC6 ^h&>i6ewr- • Corporate Officer - Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here I 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California Orange County of September 28, 2012^ , before me, } On Date personally appeared Kim Hartsfield, Notary Public Here Insert Name and Title of the Officer Michael V. Valenza Name(s) of Signer(s) KIM HARTSFiELO Commission # 1824540 Notary Public Orange County g »Comm. Expires Nov 25.20121 California i who proved to me on the basis of satisfactory evidence to be the person^whose name(j4 is/^j^subscribed to the within instrument and acknowledged to me that he/^|afe/th6y executed the same in his/hfi«/tlsi4ir authorized capacity(i^, and that by his/hfli/tJ^ir signature(i^on the instrument the personj^ or the entity upon behalf of which the person^acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature. OPTIONAL - Signature of Netaiy 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 T ,n * Master Agreement - City of Carlsbad Title or Type of Document: ? 1 Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Michael V. Valenza Corporate Officer — Title(s): Vice President • Corporate Officer — Title(s): Signer's Name • Individual • • • • Signer's Name: • Individual Partner — • Limited • General Attorney in Fact Trustee Guardian or Conservator RIGHTTHUMBPRINT OF SIGNER Top of thumb here • Other:. Signer Is Representing: RBF Cunsulliiiy • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 ll. ¥f fe fe fe fe fe, fe fe fe fe it, ». #' IK *>' ft. «^ i* •I' Ik) «»' CARLSBAD Master Agreement Consulting Services Civil and Traffic Engineering EXHIBIT A RATE SCHEDULE RBF CO'NSULTIIMG The rate schedule below indicates hourly billing rates for each member of the project team. These rates will be valid from the date of delivery of this SOQ (May 23, 2012) through December 31, 2015. OFFICE PERSONNEL $ / hour Principal / Vice President 225.00 Project IVIanager 195.00 Task IVIanager 180.00 Project Engineer 145.00 Landscape Architect 145.00 Transportation Planner 135.00 Design Engineer 135.00 Designer/Planner 118.00 FIELD PERSONNEL $/hour 2-Person Survey Crew 250.00 Licensed Surveyor • 175.00 Field Supervisor 170.00 OTHER SERVICES AND FEES $/hour Clerical/Word Processing 63.00 Vehicle Mileage 0.60/Mlle Blueprinting, reproduction, messenger service and other direct expenses will be charged as an additional cost plus 10%. A subconsultant management fee of 10% will be added to the direct cost of ali subconsultant services to provide for the cost of administration, subconsultant consultation and insurance. DIGITAL pREviEm/ The rate schedule below indicates hourly billing rates for each member of the project team. These rates will be valid from the date of delivery of this SOQ (May 23, 2012) through December 31, 2015. PERSONNEL $/hour Project Manager 110.00 OTHER SERVICES AND FEES S/hour Vehicle Mileage 0.60/Mile Blueprinting, reproduction, messenger service and other direct expenses will be charged as an additional cost plus 10%. 16 WAIVER REQUEST FORM FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(s). Requested by: Marshall Plantz/Transportation, Bill Plummcr/Utilities October 16,2012 (Name and Department) Date Proposed modirication(s) to the Prof. Liability requirement(s) for Master /Civil & Traffic Eirgr Svcs-CA898-City; ^ j.gp CA899-CMWD Master/Storm Water Engr Svcs - CA905-Cit>- CA907-CMWD (Type of insurance) (Name of contract) Q Reduce coverage to the amount of: n Waive coverage 13 Other: Waive requirement of surplus lines carrier on the LASLI (formerly LESLI) FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those thai apply) riSignificance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope of work and the quality of the work-product, [explain] Significance of Contractor: Contractor has unique skills and there are few if any altematives. [explain: include number of candidates RFP sent to and number responded if applicable] _ •Contract Amount/1 erm of Contract: $ . Work will be completed over a period of •Professional Liability coverage is not available to this contractor or would increase the cost ofthe contract by I [explain]. ' (Mother (e.g. explain whv exposures are minimal, how exposures are covered in another policv, exposure control mechanisms, and anv other information pertinent to vour request): Under the Nonadmitted and Reinsurance Reform Act (NRRA). as part ofthe Dodd-Frank Act and implemented in Insurance Code Section 1765.1. ^^ahen" nonadmitted insurers listed on the NAIC^s (National Association of Insurance Commissioners) Quarterly List of Alien Insurers are eligible to accept placements of Califomia risks from surplus lines brokers. The federal action provides for the national listing, thereby allowing ahen carriers to avoid individual filing requirements in each state such as those to be included on the LASLI (formerly LESLI). As of January 30, 2012 Llovds of London/Beazlev syndicate voluntarily removed itself from the LASLL electing to rely on inclusion on the Quarterly List of Alien Insurers to provide insurance for Califomia risks from surplus lines brokers. Lloyds has made a filing in Califomia that permits the Department of Insurance to "recognize" Lloyd's syndicates in the event of an inquiry from a broker or a member of the public. However, the extent to which standards tbr a surplus lines carrier on the LASLI (List of Approved Surplus Lines Insurers) versus those on the Ouarterly List of Alien Insurers is unclear as ofthe writing of this waiver and in recent articles appearing in the Insurance Joumal it appears that the state's implementing legislation has resulted in issues that mav need to be resolved in court. In any case, there is confiision among brokers and clients because there are now 2 lists in the state, one with ''approved" surplus lines carriers and the other, the national list of "eligible" surplus lines carriers. Apparently Llovds is trying to work with the state to sort out some of the confusion ad it can be anticipated that there will be more to come on this matter. In the meantime. Llovds of London/Beazlev syndicate has and continues to be the carrier for RBF for its professional liabilitv insurance, it was on the LASLI until it requested removal, and it is the carrier for the contractor with significant ongoing proiects in the City. It is requested Llovds of London/Beazlev syndicate be accepted as the carrier for professional liability insurance for RBF. Approved bv Risk Manager for these 4 contracts only: (Signature) (Date) H:\WORD\lnsurance\Admin Order #68 waiver modily insurance requirements.doc 06/15/2006 CA907 MASTER AGREEMENT FOR STORM WATER ENGINEERING SERVICES (RBF CONSULTING) (.THIS AGREEMENT is made and entered into as of the <#^^ day of yy^n.JccU 20 by and between the CARLSBAD MUNICIPAL WATER DIS/RICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, hereinafter referred to as "CMWD", and RBF CONSULTING, a California corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of a engineering consultant that is experienced in water/recycled water engineering. B. The professional services are required on a non-exclusive, project-by-project basis. C. Contractor has the necessary experience in providing professional services and advice related to water/recycled water engineering. D. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1- SCOPE OF WORK CMWD 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 years starting 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 1 General Counsel Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($100,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD and the City of Carlsbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. 8- OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carlsbad and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein 2 General Counsel Approved Version 2/17/12 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 CMWD or the City of Carlsbad incurs or makes to or on behalf of an injured employee under CMWD's self- administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. IO- INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. I I If box is checked. Professional Liability CMWD's Initials Contractor's Initials Insurance requirement is waived. 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: 3 General Counsel Approved Version 2/17/12 10.2.1 CMWD will be named as an additional insured on General Liability which shall provide primary coverage to the City. 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of CMWD 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 CMWD. 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 CMWD. 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 CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. General Counsel Approved Version 2/17/12 16. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD: For Contractor: Name Glenn Pruim Name Richard Lucera Title Utilities Director Title Senior Project Manager Dept Utilities Address 9755 Clairemont Mesa Carlsbad Municipal Water District San Diego, CA 92124 Address 1635 Faraday Avenue Phone (858) 810-1448 Carlsbad CA, 92008 Email rlucera@rbf.com Phone (760) 602-2768 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 Contractor shall file a Conflict of Interest Statement with the Clerk for the City of Carlsbad in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 othenA/ise settled by agreement between the parties. Representatives of Contractor or CMWD 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 General Counsel Approved Version 2/17/12 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, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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, CMWD 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 ofthe 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 CMWD 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 CMWD, 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 CMWD 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. General Counsel Approved Version 2/17/12 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 CMWD 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 CMWD, 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. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 7 General Counsel Approved Version 2/17/12 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 , 20^. CONTRACTOR RBF CONSULTING, a California corporation CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of Jhe City of Carlsbad By: (sign here) (print name/title) ATTEST: By: Tgn here) (print name/title) LO Secretary CO - If required by CMWD, proper notarial acknowledgment of execution by contracl?6F^must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group 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. APPROVED AS TO FORM: RONALD R. BALL, General Counsel By: ounsel General Counsel Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of. } On OcA-' li Z. before me, Dale Here Insert Name andTitle of trie Officer ] Namefs) of Signer(s) personally appeared MEUSSAC KESSLER \ Commission No . 1830381 o NOTARY PUBUC-CAUFORNIA f SAN DIEGO COUNTY < ^ My Comm. Expires Januaiy 11,2013 \ who proved to me on the basis of satisfactory evidence to be the persorj^ whose nam^f^jCjjs)^ subscribed to the within instrument and acknowledged to me that i^^l\\>«i^ executed the same in<2§S&fiQ'/lJ^r authorized capacity^(j8i|), and that byCS^Zh^r/th^r signatur^) on the instrument the person(j^, or the entity upon behalf of which the person^j?^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal Place Notary Seal Above Signature. OPTIONAL - my nana and otticiai seal. I Signature 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 Title or Type of Document: Document Date: OcA . Xj 2.0 V2- Number of Pages: S p <^ S . Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Cfiatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of October 4, 2012 Date personally appeared Orange } before me, Kim Hartsfield, Notary Public Michael V. Valenza Here Insert Name and Title of the Officer Name(s) of Signer(s) KIM HARTSFIELO Commission # 1824540 Notary Public - Caiifornia Orange County i M|f ComCTi. Expires Nov ^5.2012 ^ VIP who proved to me on the basis of satisfactory evidence to be the person^ii.whose name(i8) is/a#e. subscribed to the within instrument and acknowledged to me that he/ai«e/tbdy executed the same in his/h»t/tb©ir authorized capacity(156), and that by his/h»/tt>«ir signature^ on the instrument the person(^ or the entity upon behalf of which the person(i«).acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature. OPTIONAL - Signature of Noferl 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 Title or Type of Document: Master Agreement - City of Carlsbad Document Date: Number of Pages: Signer(s) Other Than Named Above: Capaclty(les) Claimed by Signer(s) Michael V. Valenza Signer's Name: _ • Individual M Corporate Officer —Title(s): Vlce President • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here RBF Consulting Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007National Notary Association.9350 Desoto Ave., RaBox2402.Chatsworth,CA 91313-2402.www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827 «/ % it 5 5 5 5 5 5 5 5 5 D 5 5 CARLSBAD Master Agreement Consulting Services Storm Water Engineering RATE SCHEDULE ""^^'^ ^ The rate schedule below indicates hourly billing rates for each member of the project team. These rates will be valid from the date of delivery of this SOQ (May 23, 2012) through December 31, 2015. OFFICE PERSONNEL S / hour Principal 225.00 Project IVIanager 192.00 Task Manager 179.00 Project Engineer 153.00 Design Engineer 134.00 Designer/Planner 118.00 FIELD PERSONNEL S / hour 2-Person Survey Crew 250.00 Licensed Surveyor 177.00 Field Supervisor 172.00 OTHER SERVICES AND FEES $ / hour Clerical/Word Processing 63.00 Vehicle Mileage 0.60/Mile Blueprinting, reproduction, messenger service and other direct expenses will be charged as an additional cost plus 10%. A subconsultant management fee of 10% will be added to the direct cost of all subconsultant services to provide for the cost of administration, subconsultant consultation and insurance. 5 5 CONBULTINB 18 WAIVER REQUEST FORM FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(s). Requested by: Marshall Plantz/Transportation, Bill Plummcr/Utilities October 16,2012 (Name and Department) Date Proposed modification(s) to the Prof. Liability requirement(s) for Master /Civil & Traffic Engr Svcs-CA898-City; RBF CA899-CMWD Master/Storm Water Engr Svcs - CA905-City; CA907-CMWD (Type of insurance) (Name of contract) • Reduce coverage to the amount of: __________ n Waive coverage H Other: Waive requirement of surplus lines carrier on the LASLI (formerly LESLI) FACTQR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) riSignificance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope of work and the quality ofthe work-product, [explain] nsignificance of Contractor: Contractor has unique skills and there are few if any altematives. [explain: include number of candidates RPT sent to and number responded if applicable] •Contract Amount/Term of Contract: $ . Work will be completed over a period of •Professional Liability coverage is not available to this contractor or would increase the cost ofthe contract by I [explain]. ' {XlOther (e.g. explain whv exposures are minimal, how exposures are covered in another policv, exposure control mechanisms, and anv other information pertinent to vour requesf>: Under the Nonadmitted and Reinsurance Reform Act (NRRA), as part of the Dodd-Frank Act and implemented in Insurance Code Section 1765.1. ''ahen" nonadmitted insurers Hsted on the NAIC^s (National Association of Insurance Commissioners) Quarterly List of Alien Insurers are eligible to accept placements of Califomia risks from surplus lines brokers. The federal action provides for the national listing, thereby allowing alien carriers to avoid individual fliing requirements in each state such as those to be included on the LASLI (formerly LESLI). As of January 30. 2012 Llovds of London/Beazlev syndicate voluntarily removed itself from the LASLI electing to rely on inclusion on the Quarterly List of Alien Insurers to provide insurance for Califomia risks from surplus lines brokers. Llovds has made a filing in Califomia that permits the Department of Insurance to "recognize" Lloyd's syndicates in the event of an inquiry trom a broker or a member ofthe public. However, the extent to which standards tbr a surplus lines carrier on the LASLI (List of Approved Surplus Lines Insurers) versus those on the Ouarterly List of Alien Insurers is unclear as ofthe writing of this mi ver and in recent articles appearing in the Insurance Joumal it appears that the staters implementing legislation has resulted in issues that mav need to be resolved in court. In any case, there is confusion among brokers and clients because there are now 2 lists in the state, one with ''approved" surplus lines carriers and the other, the national list of "eligible'^ sumlus lines carriers. Apparently Lloyds is tr>dng to work with the state to sort out some ofthe confiision ad it can be anticipated that there will be more to come on this matter. In the meantime. Llovds of London/Beazlev syndicate has and continues to be the carrier for RBF for its professional liabilitv insurance, it was on the LASLI until it requested removal, and it is the carrier for the contractor with significant ongoing proiects in the City. It is requested Lloyds of London/Beazlev syndicate be accepted as the carrier for professional liabilitv insurance for RBF. Approved by Risk Manager for these 4 contracts onlv: (Signature) (Date) H;\WORD\lnsurance\Adniin Order #68 waiver modify insurance requirements doc 06/15/2006 CA909 MASTER AGREEMENT FOR WATER/RECYCLED WATER ENGINEERING SERVICES (INFRASTRUCTURE ENGINEERING CORPORATION) LTHIS AGREEMENT is made and entered into as of the day of ^i,^Mc ^ . 20_My by and between the CARLSBAD MUNICIPAL WATER DISTRfCT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, hereinafter referred to as "CMWD", and INFRASTRUCTURE ENGINEERING CORPORATION, a California corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of a engineering consultant that is experienced in water/recycled water engineering. B. The professional services are required on a non-exclusive, project-by-project basis. C. Contractor has the necessary experience in providing professional services and advice related to water/recycled water engineering. D. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1- SCOPE OF WORK CMWD 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 forthe 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 years starting 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 1 General Counsel Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed three hundred thousand dollars ($300,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD and the City of Carlsbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carlsbad and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein 2 General Counsel Approved Version 2/17/12 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 CMWD or the City of Carlsbad incurs or makes to or on behalf of an injured employee under CMWD'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-:VII" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. [• If box is checked, Professional Liability CMWD's Initials Contractor's Initials Insurance requirement is waived. 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: 3 General Counsel Approved Version 2/17/12 10.2.1 CMWD will be named as an additional insured on General Liability which shall provide primary coverage to the City. 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providina Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coveraoe. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. Il- BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of CMWD 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. ''3. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of CMWD. 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 CMWD. 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 CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. General Counsel Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD: For Contractor: Name Glenn Pruim Name Anders Egense Title Utilities Director Title Senior Project Manager Dept Utilities Address 14271 Danielson Street Carlsbad Municipal Water District Poway, CA 92064 Address 1635 Faraday Avenue Phone (858) 413-2400 Carlsbad CA, 92008 Email aegense@iecorporation.com Phone (760) 602-2768 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. ''6. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the Clerk for the City of Carlsbad in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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. IS- 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 othenA/ise settled by agreement between the parties. Representatives of Contractor or CMWD will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fonA/arded 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 fonA/arded 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 General Counsel Approved Version 2/17/12 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, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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, CMWD will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or othenA/ise recover, the full amount ofthe 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 CMWD 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 CMWD, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 ef 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 CMWD 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. General Counsel Approved Version 2/17/12 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 CMWD 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 CMWD, 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. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 7 General Counsel Approved Version 2/17/12 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 ^^^/^^^.^^i^^ ,20 / CONTRACTOR INFRASTRUCTURE ENGINEERING CORPORATION, a California corporation CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of tl^e City of Carlsbad By: (sfgn here) (print name/title) ATTEST: By: (sign here) (print name/title) LORRAINE Secretary If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group 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. APPROVED AS TO FORM: RONALD R. BALL, General Counsel Assistant General Counsel General Counsel Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of 5/W Dl^CytO } On seer, .^^r^/i^f before me, N/k^A//\A.eAf^ikl f K/T>rAfi.\/ I^Uf^lr Date / Here Insert Ndme and Title of the 9micer personally appeared ?(\^^TOt\f A/. L^V^l)^ Name(s) of Signer{s) who proved to me on the basis of satisfactory evidence to be the person(-e> whose name(s) is/afe subscribed to the within instrument and acknowledged to me that he/sho/thoy executed the same in his/befi4he+r authorized capacity(jes), and that by his/bef/their signaturefs) on the instrument the person(^, or the entity upon behalf of which the person^e) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signatur OPTIONAL Signature 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 Title or Type of Document: Document Date: Number of 9^es: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservatc • Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here jigner's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of } OnS'm. ^^^I3L before me, k/fl^OAj 1^. CAKLl^Jr /^//iT/h/^i/ PU/jUC Date I Here Insert Name andfTitle of the Officer / ' personally appeared £. ^HM[/ Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(€) whose name(s) is/afe subscribed to the within instrument and acknowledged to me that •he/she/they executed the same in-+M9/her/th©ir authorized capacity(+e9), and that by +^ts/her/their signature(s)- on the instrument the person(^, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature 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: Number of Pac Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Individual • • • • • • Corporate Officer — Title(s): Partner — • Limited • General Attorney in Fact Trustee Guardian or Conservator^ Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here liner's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 EXHIBIT A CITY OF CARLSBAD MASTER AGREEMENT CONSULTING SERVICES RATES FOR 2013-2015 HOURLY CHARGE RATE AND EXPENSE REIMBURSEMENT SCHEDULE Ptofessional lingineering Intcm/Tcchnician | 75 CADD Designer l/l^ngineer I | 115 Graphic Designer $ 115 CADD Designer Il/lingmeer II $ 120 CADD Designer IIl/I^:iigineer III | 130 Designer/Project I Engineer |; 140 Senior Project Engineer $ 165 Senior Project Engineer Planning & IS..$ 190 Project Manager $ 190 Senior Project Manager $ 200 Principal $ 205 Principal Planning & IS |; 215 Surveying Principal Sun-eyor $ 165 Project SunTyor | 140 Held - 2 Man Crew $ 195 Office-Smvey Drafting $ 130 Administrative Adininistrative Clerk % 70 Word Processor/Admin Support $ 80 Environmental Intern/Technician $ 70 linv Specialist I/Project Coord I % 100 Technical Editor |; 95 Lead Technical l^ditor % 115 Cn-aphic Artist $ 115 Env Specialist Il/Project Coord II $ 110 Env Specialist Ill/Project Coord III % 120 Project Manager I | 130 Project Manager II % 140 Senior Technical Staff. $ 170 Senior Project Manager $ 195 Principal | 200 Construction * Cooi^truction Inspector $ 115 Senior Construction Inspector % 130 Resident lingineer | 145 Construction Manager $ 170 Sr. Construction Manager % 185 CM Coordinator $ 100 Asst CM Coordinator S 80 Sub-consultants will be billed at cost plus 10" o unless specified otherwise in the agreement. Reimbursable Costs Reproduction, special photography, postage, deliveiy seivices, express mail, printing, U'avel, parking, and any other specialty semces performed by subcontractor wiU be billed at cost plus 15° o. Mileage wUl be billed at the current IRS allowed rate. ^ Meld personnel rates are inclusive of veliicle, mileage, phone, computer, etc. Inspection rates shown are for prevailing wage projects. Inspection rates for non-prevailing wage contracts are $15 doUars an hour less than the listed rate. Inspection rates for overtime are S30 dollars an horn- more than the Hsted rate. 14271 Danielson Sfreet, Poway, California 92064 T 858.413.2400 F 858.413.2440 www.iecorporation.com CA908 MASTER AGREEMENT FOR WATER/RECYCLED WATER ENGINEERING SERVICES (GHD INC.) THIS AGREEMENT is made and entered into as of the ^^f^ day of ^/7<^^nJ^ 20^. by and between the CARLSBAD MUNICIPAL WATER DIST2RICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, hereinafter referred to as "CMWD", and GHD INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of a engineering consultant that is experienced in water/recycled water engineering. B. The professional services are required on a non-exclusive, project-by-project basis. C. Contractor has the necessary experience in providing professional services and advice related to water/recycled water engineering. D. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1. SCOPE OF WORK CMWD 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 forthe 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 years starting 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 1 General Counsel Approved Version 2/17/12 5- COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed three hundred thousand dollars ($300,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD will not be required to pay any workers' compensation insurance or uniemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify CMWD and the City of Carlsbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carlsbad and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein 2 General Counsel Approved Version 2/17/12 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 CMWD or the City of Carlsbad incurs or makes to or on behalf of an injured employee under CMWD'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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. I I If box is checked. Professional Liability CMWD's Initials Contractor's Initials Insurance requirement is waived. 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: 3 General Counsel Approved Version 2/17/12 10.2.1 CMWD will be named as an additional insured on General Liability which shall provide primary coverage to the City. 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of CMWD 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 CMWD. 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 CMWD. 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 CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. General Counsel Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD: For Contractor: Name Glenn Pruim Name Elmer Alex Title Utilities Director Title Project Manager Dept Utilities Address 3750 Convoy Street, Suite 220 Carlsbad Municipal Water District San Diego, CA 92111 Address 1635 Faraday Avenue Phone (858) 244-0440 Carlsbad CA, 92008 Email elmer.alex@ghd.com Phone (760) 602-2768 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 Contractor shall file a Conflict of Interest Statement with the Clerk for the City of Carlsbad in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe 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 whose services are 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 othen^^ise settled by agreement between the parties. Representatives of Contractor or CMWD will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fon/varded 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 fonA/arded 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 General Counsel Approved Version 2/17/12 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, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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, CMWD will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or othenA/ise recover, the full amount ofthe 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 CMWD 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 CMWD, 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 CMWD 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. General Counsel Approved Version 2/17/12 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 CMWD 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 CMWD, which shall not be unreasonably withheld. 26. 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. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// General Counsel Approved Version 2/17/12 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 €(4^f(\\^^ 20 |2s CONTRACTOR GHD INC., a California corporation CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of th§ City of Carlsbad By: (sign here) Pre Vice President "Th^tpAfcJ^^ijiAtlv^ (print name/title) ATTEST: (sign here) r—. ^ Secretary i.Dv^JCA^i ^T^'^^^H (print name/title) LORRAIN Secretary -^^^ '•- •• V If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group 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. APPROVED AS TO FORM: RONALD R. BALL, General Counsel Assistant General General Counsel Approved Version 2/17/12 state of Arizona ) ss County of Maricopa ) On th'isryl^ day oli^/j^rp/j^/". 1011, before me, Virginia S. Lazzaro, Notary Public in and for the State of Arizona, County of Maricopa, personally appeared J. Duncan Findlay, who acknowledged himself to be the Secretary of GHD Inc., a California corporation, and that in such capacity, being authorized to do so, executed the foregoing instrument for the purposes therein contained as his voluntary act and deed. In witness whereof, I hereunto set my hand and official seal. VIRGINIA S LAZZARO Notary Public - Arizona Maricopa County My Commission Expires Virgini^. Lazzaro Notary Public CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Vqt) } before me, \ Date[ ,^.+-r fcO^ Here Inse* Name 5nd Title of the OffiCer State of Calit0f«ia County o; On C I I Mere insef Name and personally appeared \V\fJOdf^ lAlMrP/l Name(s) of Siqner(s) Commitsion # 1887323 Notary Public-CaHfomia SMI Diago County > Comm. Expires Apr 26.20141 who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS rand official Place Notary Seal and/or Stamp Above Signature: OPTIONAL — Signature of hfbtary /ubiic 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: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here ©2008 National Notary Association • 9350 De Soto Ave., P.O. Box 2402«Chatsworth, CA 91313-2402'www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 statement of Qualifications for Master Agreement Consulting Services - Category 5: Water/Recycled Water Engineering EXHIBIT A Section 5 Rate Schedule FEE SCHEDULE - CENTRAL-SOUTHWEST CALIFORNIA (Effective August 2011) Hourly Rates o Principal-ln-Charge (Tim Monroe) $ 210 QA/QC (Mark Soldati) 210 Project Manager (Elmer Alex) 175 Task IVIanagers Senior Project Engineer (Michael Marquis, Greg Watanabe) 170 Project Engineer (Michael Wykosky, Jon Arenz) 145 Support Services Corrosion Engineer (Jeff Knauer) 165 Senior Project Engineer (Dawn Guendert) 170 Senior Structural Engineer (Craig Lewis) 195 Transient Analysis (Peter Chan) 255 Project Engineer (Raymond Wong) 145 Senior CADD Designer 130 Designer/CADD 105 Project Administrator 85 Word Processor & Clerical Support 75 Employee time will be billed in accordance with the fees listed above. Professional employees will not be charged out at premium charge rates for overtime work. Expenses and other similar project related costs are billed out at cost plus 10%. Mileage will charged at the rate determined by the IRS plus 10%. Subconsultants shall be billed out at cost plus 10%. The cost of using equipment and specialized supplies is billed on the basis of employee hours dedicated to projects. Our rates are: A. Office consumables $6.00/hr Payment for work and expenses is due and payable upon receipt of our invoice. (*) These rates do not apply to forensic-related services, or to work for which Prevailing Wage obligations exist. It is the responsibility ofthe client to notify GHD Inc in writing if Prevailing Wage obligations are applicable, in which case the fees will be adjusted proportionate to the increase in labor cost. 23 I GHD for City of Carlsbad & Carlsbad Municipal Water District CA912 MASTER AGREEMENT FOR WATER/RECYCLED WATER ENGINEERING SERVICES (DUDEK) THIS AGREEMENT is made and entered into as of the day of ^^AJiuy 20^ bv 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 "CMWD", and DUDEK, a California corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of an engineering consultant that is experienced in water/recycled water engineering. B. The professional services are required on a non-exclusive, project-by-project basis. C. Contractor has the necessary experience in providing professional services and advice related to water/recycled water engineering. D. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1. SCOPE OF WORK CMWD 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 years starting 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 1 General Counsel Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($100,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD and the City of Carlsbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carlsbad and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein 2 General Counsel Approved Version 2/17/12 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 CMWD or the City of Carlsbad incurs or makes to or on behalf of an injured employee under CMWD'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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. I I If box is checked. Professional Liability CMWD's Initials Contractor's Initials Insurance requirement is waived. 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: 3 General Counsel Approved Version 2/17/12 10.2.1 CMWD will be named as an additional insured on General Liability which shall provide primary coverage to the City. 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of CMWD 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 CMWD. 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 CMWD. 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 CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. General Counsel Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD: For Contractor: Name Glenn Pruim Name Russ Bergholz Title Utilities Director Title Senior Project Manager Dept Utilities Address 605 Third Street Carlsbad Municipal Water District Encinitas, CA 92024 Address 1635 Faraday Avenue Phone (760) 479-4107 Carlsbad CA, 92008 Email rbergholz(^dudek.com Phone (760) 602-2768 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 Contractor shall file a Conflict of Interest Statement with the Clerk for the City of Carlsbad in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 othenA/ise settled by agreement between the parties. Representatives of Contractor or CMWD will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fonA/arded 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 fonA/arded 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 General Counsel Approved Version 2/17/12 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, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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, CMWD will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or othenA/ise recover, the full amount ofthe 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 CMWD 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 CMWD, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 ef seqf., 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 CMWD 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. General Counsel Approved Version 2/17/12 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 CMWD 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 CMWD, 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. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// General Counsel Approved Version 2/17/12 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_ ^"jU^ day of ^^^^ 20/^ CONTRACTOR DUDEK, a California 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 By: Xsign hereDudek Frank Dudek -r-^-i Prpsldent (pnnt name/titiej ATTEST: LO Secretary (sign |!^k Mike Metts (pA^ffliiMfa^y If required by CMWD, proper notarial acknowledgment of execution By/^pntr^^6r must be attached. If a corporation. Agreement must be signed by one corporate officer'from each of the following two groups. Group A Chairman, President, or Vice-President Group 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. APPROVED AS TO FORM: RONALD R. BALL, General Counsel By Assistant General Coimsel General Counsel Approved Version 2/17/12 CALIFORNIA JURAT WITH AFFIANT STATEMENT GOVERNMENT CODE § 8202 I 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5910 EXHIBIT A 5 RATE SCHEDULE Dudek has reviewed the City's standard professional services agreement and agrees to all the terms including fixed rates for the three (3) year term and subconsultants markup not greater than 10%. PUPEK 2012 STANOARO SCHEOULE OF CHARGES ENGINEERING SERVICES Project Director S235.00/hr Principal Bigineer IH ....S220.00/hr Principal Engineer ii S205.00/hr Principal Engineer I $195.(K)/hr Program Manager S200.00/hr Senior Project Manager S185.00/hr Project Manager S175.00/hr Senior Engineer III S165.00/hr Senior Engineer II $160.00/hr Senior Engineer I $150.00/hr Project Engineer IV/Tedinician IV $140.00/hr Project Engineer Ill/Technician ill $13Q.00/hr Project Engineer il/Technician II $120.00/hr Project Engineer (/Technician I $105.(K)/hr Project Coordinator $85.00/hr Engineering Assistant ..$75.(X)/hr ENVIRONMENTAL SERVICES Principal S225.00/hr Senior Project Manager/^ecialist II S210.00/hr Senior Project Manager/Specialist I S200.00/hr Environmental SpecialistfRanner VI S180.00/hr Environmental Specialise/Planner V $160.00/hr Environmental SpeciaiistfPlanner IV SI50.00/hr Environmental Specialist/Planner ill $140.00/hr Environmental Specialist/Planner II.... S130.00/hr Environmental Specialist/Planner\..... .........$'\20.Q0lh{ Analyst S100.00/hr Planning Research Assistant $80.00/hr COASTAL PLANNING/POLICY SERVICES Senior Project Manager/Coastal Planner I S200.00/hr Environmental Speclalist/Coastal Planner VI ..$190.00/hr Environmental Speclalist/Coastal Planner V 70.00/hr Environmental SpecialtstCoastal Planner IV ..S160.00/hr Environmental SpeciaHst/Coastal Planner III.. S150.00/hr Environmental SpeciaHstCoastal Planner II....S140.00/hr Environmental SpeciaHst/Coastal Ranner I S130.00/hr ARCHAEOLOGICAL SERVICES Senior Projed: Manager/Archaeologist II S210.00/hr Senior Project Manager/Archaeologist I S200.CKD/hr Environmental Specialist/Archaeotogist VI S180.00/hr Environmental ^eciatist/Archaeologist V...$160.00/hr Environmental ^ecialist//Vrchaeologist IV..5150.00/hr Environmental Specialist/Archaeologist III ..S140.00/hr Environmental Specialist/Archaeologist II ...S130.00/hr Environmental Specialist/Archaeologist I ....S120.00/hr Archaeologist Technician II S70.00/hr Archaeologi^ Technician I $50.00/lw CONSTRUCTION MANAGSWENT SERVICES Principal/Manager S195.00/hr Senior Construction Manager S180.(K)/hr Senior Project Manager S160.00/hr Construction Manager S150.00/hr Project Manager S140.00/hr Resident Engineer S140.00/hr Constriction Engineer S135.00/hr On-site Owner's Representative SI30.00/hr Construction Injector III $125.00/hr Construction Inspector II S115.00/hr Construction Inspector I S105.00/hr Prevailing V\fege Inspector S135.00/hr HYDROGEOLOGICAL SERVICES Principal $220.00/hr Sr. Environmental Engineer $190.00/hr Sr. Hydrogeologist/Sr. Proj Mgr $170.00/hr Project Manager $155.00/hr Associate Hydrogeologist/Engineer $140.00/hr Hydrogeologist IV/Engineer IV $125.00/hr Hydrogeologist Ill/Engineer III $115.00/hr Hydrogeologist ll/Engineer II $105.00/hr Hydrogeologist I/Engineer I $95.00/hr Technician $95.00/hr DISTRICT MANAGEMENT & OPERATIONS District General Manager $175.00/hr District Engineer $160.00/hr Operations Manager $150.00/hr District Secretary/Accountant $85.00/hr Collections System Manager S95.00/hr Grade V Operator $100.00/hr Grade IV Operator $85.00/hr Grade III Operator S80.00/hr Grade II Operator S63.00/hr Grade I Operator S55.00/hr Operator in Training $40.00/hr Collecfion Maintenance Wbrker II S55.00/hr Collection Maintenance Worker I $40.00/hr OFFICE SERVicis Technical/Drafting/CADD Services 3D Graphic Artist $150.00/hr Senior Designer $135.00/hr Designer $125.00/hr Assistant Designer $120.00/hr GIS Specialist IV $150.00/hr GIS Specialist III $140.00/hr GIS Specialist II $130.00/hr GIS Specialist I $120.00/hr CADD Operator III $115.00/hr CADD Operator II $110.00/hr CADD Operator I $95.00/hr CADD Drafter S85.00/hr CADD Technician S75.00/hr SUPPORT SERWCES Technical Editor III $140.00/hr Technical Editor II $125.00/hr Technical Editor I $110.00/hr Publications Assistant III $100.00/hr Publicatrons Assistant II S90.00/hr PuWications /\sastant I S80.00/hr Clerical Adrrsnistration H $80.00/hr Clerical Administration I $75.00/hr Forensic Engineering - Court appearances, depositions, and interrogatories as expert witness wifl be billed at 2.00 times normal rales. Emergency and Holidays - Minimum charge or two hours wiil be billed at 1.75 times the normal rate. Material and Outside Services - Subcontractors, rental of speciai equipment, special reproduelioas and blueprinting outside data processhg and computer sennces, etc., are charged at 1.15 tvnes the drect cost. Travel Expenses - Mileage at currant IRS aRowri)la rates. Per diem where ovem^t stay is involved is charged at cost lnvolces,Late Cluirges. • AU fees wiH be bHIad to Client monthly and shaH be due and payable upon receipt. Invoices are definquent if not paid within thirty (30) days Irom the dais of Ihe invoice. CKent agrees to pay a monthly late charge equal to one percent (1%) per month of Ihe outstancfing balance until paid ki ftiH. DUDEK Effective January 1, 2012 DUDEK Master Agreement Consulting Services - Waste Water Engineering CA915 MASTER AGREEMENT FOR STRUCTURAL ENGINEERING SERVICES (MOFFATT & NICHOL) (TH\S AGREEMENT is made and entered into as of the day of ^/IrK^^mJ^ . 20^. by and between the CARLSBAD MUNICIPAL WATER DISTRTCT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District ofthe City of Carlsbad, hereinafter referred to as "CMWD", and MOFFATT & NICHOL, a California porporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of a 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 sen/ices and advice related to structural engineering. D. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1. SCOPE OF WORK CMWD 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 years starting 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 1 General Counsel Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($100,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD and the City of Carlsbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carlsbad and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein 2 General Counsel Approved Version 2/17/12 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 CMWD or the City of Carlsbad incurs or makes to or on behalf of an injured employee under CMWD'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-:VII" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. I I If box is checked, Professional Liability CMWD's Initials Contractor's Initials Insurance requirement is waived 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: 3 General Counsel Approved Version 2/17/12 10.2.1 CMWD will be named as an additional insured on General Liability which shall provide primary coverage to the City. 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of CMWD 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 CMWD. 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 CMWD. 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 CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. General Counsel Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD: For Contractor: Name Glenn Pruim Name Perry Schacht Title Utilities Director Title Project Manager Dept Utilities Address 1660 Hotel Circle North, Ste. 500 Carlsbad Municipal Water District San Diego, CA 92108 Address 1635 Faraday Avenue Phone (619) 220-6050 Carlsbad CA, 92008 Email pschacht(^moffattnichol.com Phone (760) 602-2768 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 Contractor shall file a Conflict of Interest Statement with the Clerk for the City of Carlsbad in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe 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 whose services are 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 othenA/ise settled by agreement between the parties. Representatives of Contractor or CMWD will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fonA/arded 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 fonA/arded 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 General Counsel Approved Version 2/17/12 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, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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, CMWD will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or othenA/ise recover, the full amount ofthe 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 CMWD 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 CMWD, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 ef seqf., 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 CMWD 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. General Counsel Approved Version 2/17/12 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 CMWD 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 CMWD, 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. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 7 General Counsel Approved Version 2/17/12 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 c^ditions of this Agreement. Executed by Contractor this, . day of CONTRACTOR MOFFATT & NICHOL, a California corporation (sign here) (print name/title) (sign here) (print name/title) CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad By: ATTEST: LORRAINE Secretary If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group 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. APPROVED AS TO FORM: RONALD R. BALL, General Counsel General Counsel Approved Version 2/17/12 CALIFORNIA JURAT WITH AFFIANT STATEMENT ffi^See Attached Document (Notary to cross out lines 1-6 below) • See Statement Below (Lines 1-5 to be completed only by document signer[s], nof Notary) Signature of Document Signer No. 1 Signature of Document Signer No. 2 (if any) State of California County v-'ciiiiurnia ********** eMMUaANOIIIMOEI ciiwiiiiiiw # ityiwi 1 Place Notary Seal Above Subscribed and sworn to (or affirmed) before me on this day of 5q)\(mhr(y , • 2oi2r'by (1)- proved to me on the basis of satisfactory evidence to be the person who appeared before me (.) (,) (2). Name of Signer proved to me on the basis of satisfactory evidence to be the jzJjerson who^ appeared before Signature OPTIONAL Signature of Notary Public Though the information beiow 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. Further Description of Any Attached Document Title or Type of Document: RIGHTTHUMBPRINT OF SIGNER #1 Top of thumb here Document Date: Number of Pages: Signer(s) Other Than Named Above: RIGHTTHUMBPRINT OF SIGNER #2 Top of thumb here ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Chatsworth, CA 91313-2402• www.NationalNotary.org Item #5910 Reorder. Call Toll-Free 1 -800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California county of L-'^S Po^ikS } / B"'^ before me, . 7 Here Insert Name and Title of the Officer 7 ' personally appeared %mv^^^ C). M krgV^4 . tbfpC^'fi^ Se/^'P'^ / Name(s) of Signers) ~ ~~ "Ly / Dat jAABHIEUHEIwiSoE? Place Notary Seal Above who 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/sheAhey executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal A I Signature- Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. 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(s) Signer's Name: • Individual • • • • • • Other: Corporate Officer — Title(s): Partner — • Limited • General Attorney in Fact Trustee Guardian or Conservator RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:. Signer's Name:_ • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 STRUCTURAL ENGiNEERiNG 5. RATE SCHEDULE EXHIBIT A The following rate schedule In Table 1 below indicates Moffatt & Nichol's standard hourly billing rates for all labor categories and rates for other direct and indirect costs, such as mileage and materials. The use of subconsultants and other expenses are shown at cost plus a 10% markup, in accordance with the RFQ. Table 2 provides the billing rates for each member and category ofthe project team. It Is understood that these rates are to be used for the duration of the three year term of the Agreement Ulk% moffatt & nichoi Structural Engineering Services Table 1 Rate Schedule for Professional Services Effective June 27, 2009 Until Revised Classification Houriy Rates Professionals Project Manager $ 215.00 Senior Engineer/Scientist $ 197.00 Engineer/Scientist 111 $ 185.00 Engineer/Scientist II $ 164.00 Engineer/Scientist 1 $ 143.00 Staff Engineer/Scientist $ 114.00 Technicians Senior Technician $ 158.00 Designer $ 147.00 CADD 11 $ 121.00 CADDI $ 92.00 Administrative Word Processing $ 92.00 Staff/Clerical General Clerical $ 74.00 Reimbursable Subcontracts Cost +10% Expenses or Outside Services Reproductions (In House) Unless Mylar Plots (B/W) $2.00/SF otherwise Color Plots $4.00/SF provided in Vellum Plots (B/W) $1.00/SF written Bond Plots (B/W) $0.50/SF agreement. Drawing Reproduction Cost +10% Document Reproduction $0.10/ sheet Outside Reproduction Cost +10% Travel Company Auto Prevailing IRS Rental Vehicle Cost Airfare Cost Meals and Lodging Cost Table 2 Individual Bill Rates for This Contract Team Member Classification Perry Schacht, SE Project Manager $215.00 Tony Sanchez, PhD, PE Senior Engineer $197.00 Gemot Komar, PE Senior Engineer $197.00 Eric Kjolsing, PE Engineer 1 $143.00 Mike O'Donnell, PE, Engineer 111 $185.00 Ron Butler, PE, Senior Engineer $197.00 12 I P a g e moffatt & nichol CA918 MASTER AGREEMENT FOR GEOTECHNICAL ENGINEERING SERVICES (KLEINFELDER WEST, INC.) IIS AGREEMENT is made and entered into as of the day of 20J^, by and between the CARLSBAD MUNICIPAL WATER DISTF^ICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, hereinafter referred to as "CMWD", and KLEINFELDER WEST, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of a engineering consultant that is experienced in geotechnical 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 geotechnical engineering. D. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1- SCOPE OF WORK CMWD 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 forthe 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 years starting 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 1 General Counsel Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($100,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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 Director, 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. 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 2 City Attorney Approved Version 2/17/12 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. Q If box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 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: City Attorney Approved Version 2/17/12 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 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. Citv reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11- BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of 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. City Attorney Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For Citv: For Contractor: Name Skip Hammann Name Ronald Thomson Title Transportation Director Title Project Manager Dept Transportation Address 5015 Shoreham Place CITY OF CARLSBAD San Diego, CA 92122 Address 1635 Faraday Avenue Phone (858) 320-2000 Carlsbad CA, 92008 Email rthomson@kleinfelder.com Phone (760) 602-2751 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 Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 whose services are 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 fon^/arded 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 ofthe 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. City Attorney Approved Version 2/17/12 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 at the 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. 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 othenA/ise recover, the full amount ofthe 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 2/17/12 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 2/17/12 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 KLEINFELDER WEST, INC., a California corporation John Moossazadeh, Vice President (print name/title) (sign he JohnM. Pilkington, CFO (print name/title) September 20 12 . CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District ofthe City ofCarlsbad ATTEST: LORRAIN Secretary \%-^/ifO^€WS If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group 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. APPROVED AS TO FORM: RONALD R. BALL, General Counsel By:. Assistant General CAunsel General Counsel Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of^3MA.lXy On before me, ' Date ' : * . 1 •> Hpro Insert Nan ' Date ' r-*,,.* \ \ ^ / ^^'^^ Insert Narng^aod Title of the Officer personally appeared * Name(s) of Siqner(s) RHEA PRENATT Commission # 1933956 Notary Pubiic - California San Diego County efy 9811 uic||o uouniy ^ who proved to me on the basis of satisfactor evidence to be the person(s) whose name(s) is/^re^ subscribed to the withinjostrument and acknowledged to me thai he/sh^^hpy executed the same in his/her/tW^jv^authorized capacity(ies), and that by his/her/tnel?) signature(s) on the instrument the person(s)ror the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS ipy^hand and official seal Place Notary Seal Above Signature: OPTIONAL — Signature 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 Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here 12010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT A CITY OF CARLSBAD KLEINFELDER FEE SCHEDULE FOR ENVIRONMENTAL, CONSTRUCTION MANAGEMENT AND GEOTECHNICAL/MATERIALS TESTING SERVICES PROFESSIONAL STAFF F^TES* Construction Inspector I $ 105 / hour Professional $110/hour Staff Professional I $ 125 / hour Staff Professional II / Project Manager I $ 145 / hour Construction Manager $ 155 / hour Senior Construction Manager $165/ hour Project Professional / Project Manager II $ 166 / hour Senior Professional / Senior Project Manager $ 175 / hour Project Manager 111 $ 185 / hour Principal / Principal Professional $ 195 / hour Program/Client Manager $ 200 / hour Senior Principal / Senior Principal Professional $ 200 / hour Expert Witness $ 340 / hour AOfVtlNISTRATIVE/TECHNICAL STAFF RATES Administrative I $ 75 / hour Materials Tester / Special inspector $ 88 / hour Soils Tichnlclan $ 88 / hour Supervisory Technician $ 90 / hour Draftsperson $115 / hour CADD Operator $ 140 / hour Designer $ 150 / hour Minimum Charges for Office Time Per Day One Hour at Applicable Rate All services will be charged portal-to-portal when applicable. Public works projects or projects receiving public funds may be subject to Prevailing Wage laws. The above rates apply to projects subject to prevailing wages. Applies to all professional rates including but not limited to civil, mechanical, chemical, electrical, geotechnical and environmental engineers; industrial hygienists; geologists; hydrogeologists; hydrologists; and computer specialists. BASIS OF CHARGES 1. Listed on the attached page are typical prices for services most frequently performed by Kleinfelder. Prices for other services, including special quotes for volume work, will be given upon request, but will be subject to the terms set forth below. 2. The client agrees to limit the Kleinfelder's liability to the client and to all agents of the client, including contractors and subcontractors on the project due to Kleinfelder's professional negligent acts, errors or omissions to $50,000 or the consultant's fee, whichever is greater. Kleinfelder's liability (as defined above) on Materials Testing projects will be limited to the greater of $2,500 or the amount of the Kleinfelder's fee. 3. Invoices will be issued on a monthly basis, or upon completion of a project, whichever is sooner. The net amount of invoices is payable on presentation of the invoice. If not paid within 30 days after the date of the invoice, the unpaid balance shall be subject to a FINANCE CHARGE of 1.5% per month, which is an ANNUAL PERCENTAGE RATE of 18%. 4. A two-hour minimum charge will be made for all field services then actual hours worked thereafter. 5. A one-hour minimum charge per day will be made for any office service. 6. Time worked in excess of 8 hours per day and weekend\holiday work will be charged at 1.5 times the houriy rate. Time worked in excess of 12 hours per day will be charged at 2 times the houriy rate. 7. Per diem will be charged at a rate of $140 per day per person or expenses plus 20%, whichever is greater. Per diem will be charged for all projects in excess of 50 miles from the nearest Kleinfelder office. 8. Outside services will include a 20% markup, unless otherwise noted. 9. The proposed fee Includes standard invoicing with time detal! summary. Additional administrative time will be charged if invoice backup information (timesheets, daily field reports, or work summaries) is requested. 10. Certified payroll for prevailing wage projects will be provided only if requested and will be subject to additional charges for administrative time for each pay period. 11. Kleinfelder carries Worker's Compensation Insurance (including Employer's Liability), Comprehensive General Liability and property damage insurance for its own equipment, and will furnish certificates upon request. 12. Kleinfelder routinely disposes of non-environmental and uncontaminated samples after submission of our final report and reserves the right to return environmental sample to client, at its expense, after submission of our final report. 13. Proper disposal or handling of soil boring cuttings, well development and purge waters, decontamination solutions, and other contaminated/potentially contaminated materials is the responsibility of the client. Upon request, Kleinfelder can provide containers for onsite containment and can advise the client regarding proper handling procedures. 14. The proposed rates will be in effect for 90 days from the proposal date. 15. Kleinfelder reserves the right to adjust the fee schedule on projects not completed within 180 days from the contract signature date. For time and materials projects, any not to exceed amount will be similariy adjusted. SOIL TESTS SOIL DENSITY TESTS Test Standard Proctor, 4" Mold Standard Proctor, 6" Mold Modified Proctor, 4" Mold Modified Proctor, 6" Mold Proctor Check Point Proctor Oversize Correction Treated Soil Proctor Minimum/Maximum Relative Density Moisture/Density, TEX 113-E Moisture/Density, TEX 114-E California Impact, CTM 216, Dry Method California Impact, CTM 216, Wet Method invoice Name STANDARD PROCTOR, 4" STANDARD PROCTOR, 6" MODIFIED PROCTOR, 4" MODIFIED PROCTOR, 6" PROCTOR CHECK POINT PROCTOR CORR OVRSZ TREATED SOIL PROCTOR MIN-MAX REL DENS MOIST DENS TEX 113-E MOIST DENS TEX 114-E CTM 216. DRY CTM216,WET Test iVIethod^ D698. T99 D698, T99 D1557, T180 D1557,T180 T272 D4718 D558 D4352, D4253 TEX113-E TEX114-E CTM216 CTM216 Price $210.00 each $235.00 each $215.00 each $240.00 each $115.00 each $65.00 each $280.00 each $360.00 each $260.00 each $260.00 each $215.00 each $185.00 each SOIL CLASSIFICATION AND INDEX TESTS Test Visual Classification Sieve Analysis, % Finer than 200 Sieve Sieve Analysis, Fine Sieve Analysis, Coarse Sieve Analysis, Coarse and Fine Hydrometer Analysis Water Content Water Content and Dry Unit Weight Atterberg Limits, Single Point Atterberg Limits, Multiple Point Atterberg Limits, Liquid Limit Only Soil Specific Gravity Soil Organic Content Pinhole Dispersion Classification Soil pH Soil Resistivity Chloride Content Sulfate Content SOIL BEARING PRESSURE TESTS Test California Bearing Ratio, Single Point" Califomia Bearing Ratio, 3 Points * Resistance R-Value Resistance R-Value of Treated Material Rock Correction for R-Value Stabilized Soil UC Strength, 1 Point Stabilized Soil UC Strength, Set of 3 Wofe; Does nof include Proctor Values SOIL BEARING PRESSURE TESTS Test CTM 373,1 Lime Content, W/O Opt. Moist CTM 373,1 Lime Content CTM 373, 3 Lime Contents Eades and Grim Test (Opt. Lime Content) Resilient Modulus Invoice Name Test IVIethod* Price CLASSIFICATN, VISUAL D2488 $10.00 each SIEVE ANALYSIS, -200 C117, D1140 $80.00 each SIEVE ANALYSIS, F C136, D422, D6913 $120.00 each SIEVE ANALYSIS, C C136. D422, D6913 $100.00 each SIEVE ANALYSIS. C&F C136, D422, D6913 $150.00 each HYDROMETER D422 $165.00 each WATER CONTENT D2216, D4643 $25.00 each WATER/DENSITY, SOIL D2216, D2937, D7263 $45.00 each ATTERBERG, SINGLE PT. D4318-MethodB $110.00 each ATTERBERG, MULTI PT. D4318-Method A $170.00 each LIQUID LIMIT ONLY D4318 $110.00 each SOIL SPEC. GRAV D854 $140.00 each SOIL ORGANIC CONTENT D2974-Method C $115.00 each PINHOLE DISPERSION D4647 $300.00 each SOIL PH D4972, G51 $55.00 each SOIL RESISTIVITY G187 $160.00 each CHLORIDE CONTENT $50.00 each SULFATE CONTENT $100.00 each Invoice Name Test iVIethod* Price CBR, 1 POINT D1883 $350.00 each CBR, 3 POINTS D1883 $650.00 each R-VALUE D2844 $300.00 each R-VALUE, TREATED D2844 $350.00 each R-VALUE. ROCK CORR. D2844 $80.00 each STABIL. SOIL UC PT. D1633. D5102 $150.00 each STABIL. SOILUC SET D1633, D5102 $900.00 each invoice Name Test Method* Price CTM 373. CHECK POINT CTM373 $150.00 each CTM 373,1 LIME % CTM373 $350.00 each CTM 373, 3 LIME %'S CTM373 $950.00 each EADES AND GRIM TEST C977 $135.00 each RESILIENT MODULUS T307 $450.00 each SOIL TESTS Icontinoed) SOIL STRENGTH AND PERMEABILITY Test Unconfined Compressive Strength Direct Shear, 1 Point Direct Shear, 3 Points Consolidation without Time Rate Plots Consolidation with 2 Time Rate Plots Consolidation, All Loads with Time Rates Consolidation, Additional Rebound Collapse Potential One Dimensional Free Swell One Dimensional Swell, Percent Heave One Dimensional Swell with Consolidation Expansion Index Denver Swell Test Permeability, Rigid Wall Permeability, Flexible Wall Triaxial Shear, CU, 1 Point Triaxial Shear, CU, 3 Points Triaxial Shear, UU, 1 Point Triaxial Shear, UU. 3 Points Triaxial Shear, UU Saturated, 1 Point Triaxial Shear, UU Saturated, 3 Points Triaxial Test, TEX117E, Part I Triaxial Test. TEX117E, Part 11 Resonant Column Torsional Shear Test Acid Solubility Air Degradation ASR Reactivity, Long Method ASR Reactivity, Short method Clay Lumps and Friable Particles, per sz Cleanness Value Coarse Durability Fine Durability Coarse Specific Gravity & Absorption Fine Specific Gravity & Absorption Flat and Elongated Particles, per size * Fractured Faces, per size * Lightweight Pieces ** Los Angeles Abrasion, Large Aggregate Los Angeles Abrasion, Small Aggregate Mortar Sand Strength Organic Impurities Potential Reacfivity (Chem. Method) Sand Equivalent, 1 point Sand Equivalent, 3 points Sieve Analysis, % Finer than 200 Sieve TESTS invoice Name UNCONFINED COMP STR. DIRECT SHEAR, 1 PT. DIRECT SHEAR, 3 PTS. CONSOL W/OTR CONSOL. W/2 TR CONSOL ALLTR CONSOL ADD. REBOUND COLLAPSE POTENTIAL ONEDIM FREE SWELL ONEDIM SWELL % HEAVE ONEDIMSWELL W/CONSOL EXPANSION INDEX DENVER SWELL TEST PERMEABILITY, RIGID PERMEABILITY, FLEX TRIAX, CU, 1 POINT TRIAX. CU. 3 POINTS TRIAX, UU, 1 POINT TRIAX, UU, 3 POINTS TRIAX, UU SAT, 1 POINT TRIAX. UU SAT. 3 POINTS TR1AX,TEX117E-PARTI TR1AX,TEX117E-PART1I RCTS AGGREGATE TESTS Invoice Name SOLUBILITY, ACID AG AIR DEGRADATION AG ASR REACT.., LONG AG ASR REACT., SHORT AG CLAY LUMP/FRIABLE AG CLEANNESS VALUE AG COARSE DURABILITY AG FINE DURABILITY AG COARSE SPG/ABSORP AG FINE SPG/ABSORP AG FLAT&ELONG/SIZE AG FRACT. FACES/SIZE AG LIGHTWT. PIECES AG LA ABRASION, LG AG LA ABRASION, SM AG MORTAR SAND STR. AG ORGANIC IMPURITIES AG POT. REACT. CHEM. AG SAND EQUIV., 1PT. AG SAND EQUIV., SPT. SIEVE ANALYSIS,-200 Test iWethod* Price D2166 $135.00 each D3080 $125.00 each D3080 $350.00 each D2435 $330.00 each D2435 $425.00 each D2435 $600.00 each D2435 $75.00 each D5333 $175.00 each D4546 $150.00 each D4546 $240.00 each D4546 $450.00 each D4829 $175.00 each $65.00 each D2434 $225.00 each D5084-Method C $300.00 each D4767 $450.00 each D4767 $1,200.00 each D2850 $200.00 each D2850 $550.00 each D2850-Modified $270.00 each D2850-Modified $750.00 each TEX117E $2,200.00 each TEX117E $2,200.00 each $4,000.00 each Test Method^ Price AWWA B100 $100.00 each ITD T15 $200.00 each C227, C1293 $2,100.00 each C1260, C1567 $1,050.00 each C142 $100.00 each CTM227 $150.00 each D3744 $150.00 each D3744 $110.00 each C127 $60.00 each C128 $100.00 each D4791 $75.00 each D5821 $100.00 each C123 $330.00 each C535 $200.00 each C131 $175.00 each C87, CTM515 $550.00 each C40 $60.00 each C289 $700.00 each D2419 $70.00 each D2419 $130.00 each C117, D1140 $80.00 each AGGREGATE TESTS (continoecij Test invoice Name Test i\/lethod^ Price Sieve Analysis, Fine SIEVE ANALYSIS, F C136, D422, D6913 $120.00 each Sieve Analysis, Coarse SIEVE ANALYSIS, C C136, D422, D6913 $100.00 each Sieve Analysis, Coarse and Fine SIEVE ANALYSIS, C&F C136. D422, D6913 $150.00 each Soundness of Aggregate, per size * AG SULFATE SOUND/SZ. C88 $140.00 each Unit Weight AG UNIT WEIGHT C29 $60.00 each Water Content WATER CONTENT D2216 $25.00 each Texas Wet Ball Mill TX WET BALL MILL TEX116E $250.00 each *Note: Tests are billed by each size fraction tested. The quantity of fractions tested is dependent on the sample gradation and specific test method. **Note: Tests are billed by each size fraction tested, and the specific gravity of the test solution used (2,0 and/or 2.4). The quantity of fractions tested is dependent on the sample gradation. ROCK TESTS Test invoice Name Test i\/lethod-^ Price Dimension Stone, Absorption/Spec. Grav. DIM STONE-ABS/SPG C97 $210.00 set/5 Dimension Stone, Compressive Strength DIM STONE-COMPRESS C170 $210.00 set/5 Dimension Stone, Flexural Strength DIM STONE-FLEX STR C880 $210.00 set/5 Dimension Stone, Modulus Of Rupture DIM STONE-MD OF RUP C99 $210.00 set/5 Direct Shear, 1 Point ROCK DIR. SHEAR, 1PT D5607 $140.00 each Direct Shear, 3 Points ROCK DIR. SHEAR, 3PT D5607 $350.00 each Direct Shear, 5 Points ROCK DIR. SHEAR, SPT D5607 $600.00 each Mohs Hardness ROCK MOHS HARDNESS $25.00 each Point Load Index ROCK PT LOAD INDEX D5731 $20.00 each Point Load, S©t of 10 ROCK PT LOAD SET/10 D5731 $125,00 each Slake Durability ROCK SLAKE DURABIL. D4644 $185.00 each Splitting Tensile Strength ROCK SPLIT. TENSILE D3967 $125.00 each Triaxial Shear, Hard Rock ROCK TRIAX, HARD D7012 $225.00 each Triaxial Shear, Weak Rock ROCK TRIAX, WEAK D7012 $350.00 each Triaxial Shear, Weak w Mod. of Rup. ROCK TRIAX, WEAK/MOD D7012 $450.00 each Triaxial Shear, Weathered Rock ROCK TRIAX. WEATHERD D7012 $225.00 each Unconfined Compression ROCK UNCON. COMP. D7012 $125.00 each CONCRETE TESTS Test Invoice Name Test IMethod-^ Price Unconfined Compression W/Mod of Rup ROCK UC/MOD OF RUP D7012 $250.00 each Compression CONCRETE COMPRESSION C39 $30.00 each Core Compression CONCRETE CORE COMP. C42 $65.00 each Creep CONCRETE CREEP C512 $2,000.00 each Cylinder Unit Weight CONC. CYL. UNIT WT. C567 $100.00 each Drying Shrinkage, set of 3 CONC. DRY SHRINKAGE C157 $440.00 each Flexural Strength CONC. FLEX STRENGTH C78 $100.00 each Modulus of Elasticity CONC. MOD OF ELAST C469 $250.00 each Splitting Tensile Strength CONC. SPLIT. TENSILE C496 $80.00 each Concrete Core Thickness CONC. CORE THICKNESS C174 $10.00 each Laboratory Trial Batch CONCRETE TRIAL BATCH C192 $1,000.00 each RCC Compression RCC COMPRESSION C39 $60.00 each Shotcrete Compression SHOTCRETE COMPRESS. C1140 $80.00 each lASONRY TESTS Test Grout Compression Mortar Compression Core Compression Core Shear Prism Compression CMU Absorption and Received Moisture CMU Compression CMU Dimension Verification CMU Lineal Shrinkage invoice Name GROUT COMPRESSION MORTAR COMPRESSION MASONRY CORE COMP. MASONRY CORE SHEAR MASONRY PRISM COMP. CMU ABSORP/MOIST. CMU COMPRESSION CMU DIMENSION VERIF. CMU LINEAL SHRINKAGE Test Method-^ C1019 C942 CADSA CA DSA C1314 C140 C140 C140 C426 Price $30.00 each $30.00 each $60.00 each $50.00 each $110.00 each $75.00 each $100.00 each $25.00 each $175.00 each ASPHALT TESTS BINDER TESTS Test Absolute Viscosity Bitumen Penetrafion Kinematic Viscosity Recovery by Roto-Vapor Softening Point, Ring & Ball invoice Name AC ABSOLUTE VIS. AC BIT. PENETRATION AC KINEMATIC VISC. AC RECOVERY ROTOVAP AC SOFT. PT., R & B Test IVIethod^ D2171 D2170 D5404 D36 Price $210.00 each $75.00 each $190.00 each $365.00 each $100.00 each MIX PROPERTY TESTS Test Gradation of Extracted Aggregate Core Thickness AC Content by Extraction Hveem Stability AC Content by Ignifion Oven Ignifion Oven Calibration Moisture Content AC Content by Nuclear Gauge Marshall Stability and Flow Swell Core Unit Weight & Thickness invoice Name AC AGGREGATE GRADATION AC CORE THICKNESS AC EXTRACTION AC HVEEM STABILITY AC IGNITION OVEN AC IGNT. OVEN CALIB. AC MOISTURE CONTENT AC NUC. CONT. GAUGE AC STABILITY & FLOW AC SWELL AC CORE WT./THICK. Test iVIethod^ D5444 D3549 D2172 D1560 D6307, T308 D6307 D4125 D6927 CTM307 Dll88, D2726 Price $100.00 each $10.00 each $200.00 each $100.00 each $140.00 each $300.00 each $50.00 each $200.00 each $150.00 each $100.00 each $50.00 each DESIGN AND DENSITY TESTS Test Centrifuge Kerosene Equivalent Film Stripping Index of Retained Strength Unit Weight, Gryratory Method Unit Weight, Hveem Method Unit Weight, Marshall Method Maximum Theoretical Specific Gravity Moisture Induced Damage Caltrans Tensile Strength Ratio Moisture Vapor Susceptibility Mix Design, Hveem Method W/RAP Mix Design, Hveem Method Mix Design, Marshall Method Mix Design, Superpave Method invoice Name AC CKE AC FILM STRIPPING AC INDEX RET. STRGTH AC UNIT WT., GYRA. AC UNIT WT., HVEEM AC UNIT WT., MARSH. AC MAK THEO. SPG AC MOIST. IND. DAM. AC CALTRANS TS AC MOIST. VAPOR SUS. HVEEM DESIGN W/RAP HVEEM MIX DESIGN MARSHALL MIX DESIGN SUPERPAVE MIX DSGN Test iVIethod-^ CTM303 T312 D1561 D6926 D2041 T283 CTM371 Price $240.00 each $120.00 each $1,000.00 each $350.00 each $285.00 each $210.00 each $145.00 each $1,500.00 each $250.00 each $7,600.00 each $5,400.00 each $3,000.00 each $6,000.00 each BOLT TESTS Test Bolt Assembly Suite (Bolt, Nut, Washer) Bolt Hardness Bolt Proof Load Bolt Wedge Tensile Nut Hardness Nut Proof Load Washer Hardness lETAL TESTS invoice Name BOLT ASSEMBLY SUITE BOLT HARDNESS BOLT PROOF LOAD BOLT WEDGE TENSILE NUT HARDNESS NUT PROOF LOAD WASHER HARDNESS Test iVIethod^ F606 E18 F606 F606 E18 F606 E18 Price $210.00 each $25.00 each $35.00 each $35.00 each $25.00 each $35.00 each $25.00 each *Note: An 'assembly' is one bolt, one nut and one washer. The suite consists of a bolt wedge tensile test, bolt and nut proof load tests, and hardness tests on each piece. [contirTued] STRUCTURAL METAL TESTS Test Invoice Name Test l\/lethod^ Price Bend METAL. BEND A370 $40.00 each Charpy Impact, Set of 3 * METAL, CHARPY, SET/3 A370, A673 $300.00 set Rebar Coupler Slippage METAL. COUPLER SLIP A370 $130.00 each Rebar Coupler Tensile METAL, COUPLER TENS. A370 $80.00 each CTM 670 Strain (Elongation) METAL, CTM670 STRAIN CTM670 $15.00 each PT Strand Tensile METAL, PT TENSILE A370 $145.00 each Spliced Specimen Tensile METAL, SPLICE TENS. A370 $80.00 each Tensile <2.0 Sq. In. Cross-Sect. METAL, TENSILE <2" A370 $85.00 each Tensile >2.0 Sq. In. Cross-Sect. METAL, TENSILE >2" A370 $140.00 each Rockwell Hardness ROCKWELL HARDNESS E18 $30.00 each ^ote: Price does not included cost of machining test specimens. Price is for testing at 40 F; other test temperatures will result in additional fees. SAMPLE F PREPARATION AND M.ISCELLA NEOOS TESTS SAMPLE PREPARATION Test invoice Name Test Method^ Price Rock Sample Preparation ROCK SAMPLE PREP. $80.00 each Sample Crushing SAMPLE CRUSHING $100.00 each Sample Cutting and Trimming SAMPLE CUT & TRIM $30.00 each Sample Mixing and Processing SAMPLE MIX&PROCESS $40.00 each Sample Preparation SAMPLE PREPARATION $25.00 each Sample Preparation, per hour SAMPLE PREP./HR. $90.00 hour Sample Remolding SAMPLE REMOLDING $75.00 each Contamination Fee CONTAMINATION FEE $250.00 each Sample Disposal Fee SAMPLE DISPOSAL FEE $10.00 each MISCELLANEOUS TESTS Test Method^ Test Invoice Name Test Method^ Price Fireproofing Density FIREPROOFING DENSITY E605 $50.00 each Hydraulic Ram Calibration HYDRAULIC RAM CALIB. $200.00 each Non-Masonry Grout Compression NON-MAS. GROUT COMP. C579 $30.00 each Pocket Penetration Value POCKET PENETRATION $10.00 each Roof Tile Absorption ROOF TILE ABSORPTION $100.00 each Roofing, Unit Weight of Suri'acing ROOF UNIT WT. SURF. D2829 $100.00 each OTHER EQUIPMENT CHARGES MATERIALS TESTING EQUIPMENT Equipment Anchor Bolt Testing Device Asphalt Sampling Box Invoice Name ANCHOR BOLT TST/DAY ASPHLT SAMPLE BOXES Test Method^ OTHER EQUIPMENT CHARGES Price $150.00/day $1.15 each MATERIALS TESTING EQUIPMENT Equipment Brinell Hardness Tester Concrete Rebound (Schmidt) Hammer Concrete Vapor Emission Test Kit Coring Machine Coring Machine with Generator Cylinder Mold Diamond Bit Core Barrel Charge 2" Diameter 3" Diameter 4" Diameter 6" Diameter Digital Thickness Gauge FerroScan Equipment Floor Flatness Testing Device Floor Flatness Testing Device Hand Auger and Soil Sampler Magnetic Particle Testing Device Rebar Locator (R Meter, Pachometer Skidmore Bolt Tension Calibrator Torque Wrench, up to 1,000 foot-pounds Ultrasonic Testing Device invoice Name BRINELL HARDNESS/DAY SCHMIDT HAMMER/DAY MOIST FLOOR/SALB TST CORING MACHINE /DAY CORING MCH W/GEN DAY CYLINDER MOLDS CORING, 2" D1AM./IN CORING, 3" DIAM./IN CORING. 4" DIAM./IN CORING, 6" DIAM./IN THICKNESS GAUGE /DAY FERROSCAN EQUIPMENT FLOOR FLATNESS /SF FLOOR FLATNESS TST HAND AUGER/DAY MAGNETIC PARTICLE REBAR LOCATOR/DAY SKID WILH BOLT/DAY TORQUE WRENCH/DAY UT TESTING EQUIP/DAY Test i\/lethod^ E10 C805 F1869 E1155 El 155 ASNT, AWS B1.1 A325, A490 A325, A490 ASNT. AWS B1.1 Price $20.00 /day $55.00 / day $30.00/ kit $85.00 /day $165.00/day $3.00 each $2.20 / inch $3.30 / inch $4.40 / inch $6.60 / inch $50.00 /day $275.00 /day $0.10/sqft $150.00/day $77.00 /day $45.00/day $75.00 / day $55.00 / day $50.00 / day $75.00 /day OTHER EQ^UIPMENT CHARGES VEHICLES Description Mileage. 2 Wheel Drive (Per Mile) Vehicle w/Nuclear Dens Equip (Per Hour) Invoice Name MILEAGE. 2 WH/MILE VEH W/ND EQUIP/HR ENVIRONMENTAL SAMPLING AND TESTING Price $0.55/ mile $2.00/ hour Description Disposable Bailer Conductivity, pH, and Temperature Monitor Distilled Water Hand Auger and Soil Sampler Interface Probe (Oil/Water) Portable Generator Measuring Wheel Turbidity Meter Dissolved Oxygen Meter Price $18.15 each $60/day $3/gallon $77/day $166/day $151/day $18.15/day $66/day $59/day ENVIRONMENTAL SAMPLING AND TESTING (contioued) Description Water Level Indicator Vacuum Pump Horiba Water Quality Meter Groundwater Pump (4") Groundwater Pump (2") Price $60/day $38.12/day $105/day $157.50/day $130.20/day HEALTH ANO SAFETY Description Price Calibration Gas $9.65/day Calibration Gas Regulator $8.76/day Camera and Film or Digital Camera $36.30/day Combustible Gas Analyzer $71.50/day Draeger Tube $16.48 each Personal Air Sampling Pump $98/day Level B Protection $298/day Level C Protection $190/day Level D Protection $54/day Limited Level D Protection $42.90/day Oxygen Analyzer $54/day Photoionization Detector $190/day Flame Ionization Detector $220/day Lock $8.35 each Peristatic Pump $89/day LEL/O2/H2S/CO Monitor $155/day WAIVER REQUEST FORM FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S) Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(s). Requested by: Bill Plummer/Utilities, Marshall PlantzAfransportation October 15, 2012 (Name and Department) Date Proposed modification(s) to the Prof Liability requirement(s) for Master Agreements for 2012-2015 for Vlf^inMAf'T Wpcf Geotechnical Services Klemfelder^^est, cA917.City; CA918-CMWD (Type of insurance) (Name of contract) r~| Reduce coverage to the amount of: n Waive coverage 13 Other: Waive requirement of surplus lines carrier on the LASLI (formerly LESLI) FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) riSignificance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope of work and the quality of the work-product, [explain] riSignificance of Contractor: Contractor has unique skills and there are few if any altematives. [explain: include number of candidates RFP sent to and number responded if applicable] •Contract Amount/Term of Contract: $ . Work will be completed over a period of •Professional Liability coverage is not available to this contractor or would increase the cost of the contract by $ [explain]. , IXiOther (e.g. explain why exposures are minimaL how exposures are covered in another policy, exposure control mechanisms, and any other information pertinent to your request): Under the Nonadmitted and Reinsurance Reform Act (NRRA). as part of the Dodd-Frank Act and implemented in Insurance Code Section 1765.1, "alien" nonadmitted insurers listed on the NAIC's (National Association oflnsurance Commissioners) Ouarterly List of Alien Insurers are eligible to accept placements of Califomia risks from surplus lines brokers. The federal action provides for the national listing, thereby allowing alien carriers to avoid individual filing requirements in each state such as those to be included on the LASLI (formerly LESLI). As of January 30, 2012 Llovds of London/Syndicate 2001 (Amlin Undrwr Ltd) voluntarily removed itself from the LASLI, electing to relv on inclusion on the Ouarterly List of Alien Insurers to provide insurance for Califomia risks from surplus lines brokers. Lloyds has made a filing in Califomia that permits the Department oflnsurance to "recognize'" Lloyd's syndicates in the event of an inquiry from a broker or a member of the public. However, the extent to which standards for a surplus lines carrier on the LASLI (List of Approved Surplus Lines Insurers) versus those on the Quarterly List of Alien Insurers is unclear as of the writing of this waiver and in recent articles appearing in the Insurance Joumal it appears that the state's implementing legislation has resulted in issues that may need to be resolved in court. In anv case, there is confusion among brokers and clients because there are now 2 lists in the state, one with '^approved" surplus lines carriers and the other, the national list of "eligible" surplus lines carriers. Apparently Lloyds is trying to work with the state to sort out some ofthe confusion and it can be anticipated that there will be more to come on this matter. In the meantime. Llovds of London/Syndicate 2001 (Amlin Undrwr Ltd) has and continues to be the carrier for Kleinfelder West, Inc. for its pollution liability insurance, it was on the LASLI until it requested removal, and it is the carrier for the contractor with significant ongoing proiects in the Citv. It is requested Llovds of London/Syndicate 2001 (Amlin Undrwr Ltd) be accepted as the carrier for professional liabilitv insurance for Kleinfelder West, Inc. Approved bv Risk Manager for these 2 contracts onlv: (Signature) (Date) H:\WORDMnsurancc\Admin Order #68 waiver modify insurance requirements.doc 06/15/2006 CA922 IVIASTER AGREEMENT FOR SURVEYING SERVICES (RIGHT-OF-WAY ENGINEERING SERVICES, INC.) IIS AGREEMENT is made and entered into as of the '^^^ day of ^/iTc^^ 20by and between the CARLSBAD MUNICIPAL WATER DISTF^ICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, hereinafter referred to as "CMWD", and RIGHT-OF-WAY ENGINEERING SERVICES, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD 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. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1. SCOPE OF WORK CMWD 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 years starting 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 1 General Counsel Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($100,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 houriy 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD and the City of Carisbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carisbad 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 2 General Counsel Approved Version 2/17/12 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 CMWD or the City of Carisbad incurs or makes to or on behalf of an injured employee under CMWD'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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1.000.000 combined single-limit per occurrence for bodily injury, personal injury and property damage, if the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. I I If box is checked. Professional Liability CMWD's Initials Contractor's Initials Insurance requirement is waived. 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: 3 General Counsel Approved Version 2/17/12 10.2.1 CMWD will be named as an additional insured on General Liability which shall provide primary coverage to the City. 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carisbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy identifiable. Contractor will allow a representative of CMWD 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 CMWD. 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 CMWD. 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 CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. General Counsel Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD: For Contractor: Name Glen Pruim Name Michael Schlumpberger Title Utilities Director Title President Dept Utilities Address 615 South Tremont Street Carisbad Municipal Water District Oceanside, CA 92054 Address 1635 Faraday Avenue Phone (760) 637-2700 Carisbad CA, 92008 Email row@roweng.net Phone (760) 602-2768 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 Contractor shall file a Conflict of Interest Statement with the Clerk for the City of Carisbad in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 whose services are 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 othenA/ise settled by agreement between the parties. Representatives of Contractor or CMWD will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fonA/arded 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 General Counsel Approved Version 2/17/12 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, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD will determine the final payment ofthe 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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, CMWD will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or othenA/ise recover, the full amount ofthe 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 CMWD 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 CMWD, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 ef seqf., 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 CMWD 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. General Counsel Approved Version 2/17/12 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 CMWD 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 CMWD, 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. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 7 General Counsel Approved Version 2/17/12 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 Z^ day of ^ 20^. CONTRACTOR RIGHT-OF-WAY ENGiNEERiNG SERVICES, INC., a California corporation By: (sign here) CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carisbad By: (print name/tme) By: (sign here) (print name/title) LORR/<INE Secretary If required by CMWD, proper notarial acknowledgment of execution by'''OQi;^,^|qtOir''^must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group 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. APPROVED AS TO FORM: RONALD R. BALL, General Counsel By:. 4? g / ' Assistant General (jQpunsel General Counsel Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of 3ct,^^^ JL^-S^-^ On^^*^>vAcy-2^, '>^\0-before me, _ ' Date Here Insert Name and Title of the Offi^ Name(s) of Signer(s)' ' personally appeared EUSE CARTER Commission # 1971799 Notary Public - Caltfornta San Oiaoo County g My Comm. Expires Mar 11.20161 who proved to me on the basis of satisfactory evidence to be the person(?0 whose name(8)Js/ai'e subscribed to the within instrument and acknowledged to me that |Te/s)^/tl>ey executed the same in his/b»er/t|>6ir authorized capacity(jes), and that by hi^/h^r/tbfeir signature(^ on the instrument the person(aO, or the entity upon behalf of which the person(jg) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature: OPTIONAL - Signature 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. Descrfptipn of Attached Document Title or Typevf Document: Document Date: Number of Pages: Signer(s) Other Than N^H^ed Above: Capacity(ies) Claimed b}^^ner(s) Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer's Name: • Corporate Officer — Title(s):. Signer Is Representing: RIGHT THUIVIBhr»INT OF SIGNER Top of thumb here • Individual RIGHT THUMBPRINT OF SIGNER • Partner — • Limited • General Top of thumb here CJAttorney in Fact • Trusfeft • Guardian (KConservator • Other: \v Signer Is Representing: ) 2010 National Notary Association • NationalNotary.org • 1-800 US NOTARY (1-800-876-6827) Item #5907 Right-of-Way Engineering Services, Inc. SOQ City OfCarlsbad Master Agreement - Siu'veying Services EXHIBIT A RATE SCHEDULE Field Survey Crew (2 man) prevailing wage $170.00 Robert Gates, Dave De La TOITC, and other Intemational Operating Engineers Local 12 sui-yeyors Office calculations, map drafting, legal description and plat preparation, boundary calculation, note reduction $85.00 Michael Schlumpberger, Emie Vasquez, Josh Tatman, Staff AutoCAD Drafting, base map preparation $80.00 Emie Vasquez, Josh Tatman, Staff Office Supervisor Michael Schlumpberger, Emie Vasquez $90.00 jjP.g?yjs^«^g Land Surveyor Michael Schlumpberger $95.00 10 CA921 MASTER AGREEMENT FOR SURVEYING SERVICES (MELCHIOR LAND SURVEYING, INC.) IIS AGREEMENT is made and entered into as of the day of Vy^x.^^^ . 20^ by and between the CARLSBAD MUNICIPAL WATER DISTRfCT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carisbad, hereinafter referred to as "CMWD", and MELCHIOR LAND SURVEYING, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of a 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. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1. SCOPE OF WORK CMWD 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 years starting 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 1 General Counsel Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($100,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 houriy 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD and the City of Carisbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carisbad 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 2 General Counsel Approved Version 2/17/12 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 CMWD or the City of Carisbad incurs or makes to or on behalf of an injured employee under CMWD'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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. I I If box is checked. Professional Liability CMWD's Initials Contractor's Initials Insurance requirement is waived. 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: 3 General Counsel Approved Version 2/17/12 10.2.1 CMWD will be named as an additional insured on General Liability which shall provide primary coverage to the City. 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11- BUSINESS LICENSE Contractor will obtain and maintain a City of Carisbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy identifiable. Contractor will allow a representative of CMWD 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 CMWD. 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 CMWD. 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 CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. General Counsel Approved Version 2/17/12 16. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD: For Contractor: Name Glenn Pruim Name Douglas Melchior Title Utilities Director Title CEO/Project Manager Dept Utilities Address 5731 Palmer Way, Suite G Carisbad Municipal Water District Carisbad, CA 92010 Address 1635 Faraday Avenue Phone (760) 438-3991 Carisbad CA, 92008 Email mlsi@pacbell.net Phone (760) 602-2768 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 Contractor shall file a Conflict of Interest Statement with the Clerk for the City of Carisbad in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 CMWD will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fonA/arded 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 5 General Counsel Approved Version 2/17/12 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, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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, CMWD 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 ofthe 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 CMWD 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 CMWD, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 ef seqf., 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 CMWD 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. General Counsel Approved Version 2/17/12 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 CMWD 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 CMWD, 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. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 7 General Counsel Approved Version 2/17/12 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 15. day of October ., 201Z. CONTRACTOR MELCHIOR LAND SURVEYING, INC., a California corporation (sijgn here) Susan 6. Melcrnor President, Secretary CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carisbad (print name/title) By: JJ.— ign iqere) ATTEST: (sign Douglas R. Melchior Vice PrGsidontj CFO , (print name/title) LOf^NE Secretary • V If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group 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. APPROVED AS TO FORM: RONALD R. BALL, General Counsel "Assistant General Counsel General Counsel Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California } County of -^Sz^ i2x.ju^ d On ^^MJ^-d- before me, Here Insert Name and Title oftne Officer Name(s) of Signer(s) personally appeared <^A,-d-^>^ /y[jdleJ^ja.y^ ^^wc^ Qo^<^'-^>^a-^ A Name(s) of Signer(s) V who 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 hio/hor/their authorized capacity (jes), and that by -his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Place Notary Seal Above WITNESS my hand and official seal. Signature OPTIONAL Signature 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 Titie or Type of Document Document Date: J O — f — / "g., Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name • Individual Signer's Name: • Individual ^ Corporate Officer —Title(s): Utjcj^. P.AJC*^i^MAJr • Corporate Officer— Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Ctiatsworth, CA 91313-2402 • www.NationalNotaryorg Item #5907 Reorder: Call Toll-Free 1-800-876-6827 EXHIBIT A Melchior Land Surveying Inc. Fees For Professional Land Surveying Services One Man Crew-Si 37.00 Two Man Crew-$205.00 Three Man Crew-$295.00 Principal Professional Land Surveyor-$160.00 Expert Witness - Court Testimony $270.00 Associate Professional Land Surveyor-$138.00 Draftsman- Computer Operator $112.00 $112.00 Travel Time - Two Man Crew- Travel Time - Three Man Crew- $134.00 $215.00 Specialized Equipment: TopCon Green-Beam Vertical High-rise Building Laser $67.00 Trimble 5800/R8-Static Fast & RTK GPS System Secretarial Services- $225.00 $42.00 Direct Delivery-$40.00 Over Time Fee - After 8 Hours and Reg. Saturday - After 8 Hours Saturday and Sunday Time and a Half Double Time Bluelines - Standard (D Sheet )- Oversized $8.00 $10.00 Sepias - Standard (D Sheet)- or Xerox Vellum Oversized- $22.00 $26.00 Overnight UPS (Drop Box Letter) 1 Ib.- (Letter ) 2 lb.. $32.00 $35.00 CA924 MASTER AGREEMENT FOR UTILITY LOCATION AND POTHOLING SERVICES (AIRX UTILITY SURVEYORS, INC.) AGREEMENT is made and entered into as of the c^S^^ day of ^^.^^W^ . 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 Carisbad, hereinafter referred to as "CMWD", and AIRX UTILITY SURVEYORS, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of a engineering consultant that is experienced in utility location and 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 utility location and potholing. D. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1- SCOPE OF WORK CMWD 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 years starting 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 1 General Counsel Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed fifty thousand dollars ($50,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed fifty thousand dollars ($50,000). 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD and the City of Carisbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carisbad 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 2 General Counsel Approved Version 2/17/12 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 CMWD or the City of Carisbad incurs or makes to or on behalf of an injured employee under CMWD'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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' ComfDensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. I I If box is checked. Professional Liability CMWD's Initials Contractor's Initials Insurance requirement is waived. 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: 3 General Counsel Approved Version 2/17/12 10.2.1 CMWD will be named as an additional insured on General Liability which shall provide primary coverage to the City. 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11- BUSINESS LICENSE Contractor will obtain and maintain a City of Carisbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy identifiable. Contractor will allow a representative of CMWD 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 CMWD. 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 CMWD. 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 CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. General Counsel Approved Version 2/17/12 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD: For Contractor: Name Glenn Pruim Name Gail McMorran Title Utilities Director Title President Dept. Utilities Address 2534 E. El Norte Parkway Carisbad Municipal Water District Escondido, CA 92027 Address 1635 Faraday Avenue Phone (760) 480-2347 Carisbad CA, 92008 Email gmcmorran@airxus.com Phone (760) 602-2768 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 Contractor shall file a Conflict of Interest Statement with the Clerk for the City of Carisbad in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 othenA/ise settled by agreement between the parties. Representatives of Contractor or CMWD 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 fonA/arded 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 General Counsel Approved Version 2/17/12 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, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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, CMWD will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or othenA/ise recover, the full amount ofthe 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 CMWD 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 CMWD, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 ef 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 CMWD 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. General Counsel Approved Version 2/17/12 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 CMWD 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 CMWD, 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. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 7 General Counsel Approved Version 2/17/12 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_ 20j^. CONTRACTOR AIRX UTILITY SURVEYORS, INC., a California corporation CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carisbad (sign here) (print name/title) Presiden (sign nere) > (print nanTa/title) ATTEST: LO Secretary .'co - If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group 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. APPROVED AS TO FORM: RONALD R. BALL, General Counsel By: Assistant General Coi\|nsel 1 OFFICIAL SEAL MICHAEL PAUL GJEFLE NOTARY PUBUC-CAUFORNIA § COMM. NO. 1931861 ^ SAN DfEGO COUNTY MY COMM. D<P. APRIL 8,2015 J General Counsel Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of San Diego On ^TZ> I J^/S^ before me, Mary F. McGraw, Notary Public (Here insert r^amc and title of the officer) personally appeared _ who proved to me on the basis of satisfactory'evidence to be the personpf whose namej^g^ls/^e. subscribed to the within instrument and acknowledged to me that he/g^^ey executed the same in hisi^p)their authorized capacity(i^, and that by hi^j^e^eir signature^on'tfemstmment the personj;8^or the entity upon behalf of which the person^^acted, execute.d the instrument. 1 certify under PENALTY OF PERJURY under the laws ofthe State of Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT 7^ (Till^ description of attached document) (Title or description of attached document continued) Number of Pages $^^ocument Date /d/^^ (Additional infonnation) CAPACITY CLAIMED BY THE SIGNER • Individual (s) • Corporate Officer (Title) • Partner(s) • Attomey-in-Fact • Trustee(s) • Other INSTRUCnONS FOR COMPLETING THIS FORM Any acknowledgment completed in Califomia must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to lhat document. The only exception is if a document is to be recorded outside of Califomia. in such instances, any altemative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in Califomia (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information nriust be the State and County where the document signcr(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date thai the signcr(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notaiy public). • Print the namc(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural fam% by crossing off incorrect forms (i.e. JWshc/the^ is /are) or circling the conrtct forms. Failure to conrcctly indicate this information may lead to rejection of document recording. •• The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area pemnits, otherwise complete a different acknowledgment form. » Signature of the notary public must match the signature on file with the ofTlce of the county clerk. V Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. •> Indicate title or type ofattached document, number of pages and dale. <• Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO. Secretary). • Securely attach this document to the signed document 2008 Version CAPA vl2.10.07 800-873-9865 \'Avw,NotaryC!asscs.com CALIFORNIA ALL-PUHPOSE AGKNOWLEDGIVIENT CIVIL CODE § 1189 State of California County of S^^ Oi'C^C) } nnOr,-{i^o^ /^//^/t before me./li'rLdA^l [%uf Gscfld /^^l-c/i/ f^U/e . Date Hers In^rt Name and Title of the Officer personally appeared _ Name(s) of Signer(s) OFFICIAL SEAL f MICHAEL PAUL GJEFLE J NOTARY PUBLIC-CAUFORNIA g COMM. NO. 1931861 S SAN DIEGO COUNTY MY COMM. EXP. APRIL 8,2015 who proved to me on the basfs of satisfactory evidence to be tfie 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/iheir signaLure(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of-California that the foregoing paragraph is true and correct. Tnyhand and official seal Place Notary Seal Above OPTIO 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 Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: n • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Top of thumb here Signer Is Representing: Signer's Name: : • Corporate Officer — Title(s): • Individual • Partner - • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: ^_ Signer Is Representing:. Top of thumb here _ © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT A AIRX Utility Surveyors, Inc. Fee Estimate Summary Local Date: 00-00-12 Pricing on this document is valid for 90 days from the date above. Project: CITY OF CARLSBAD - SAMPLE PRICING (REVISED 10/17/2012) Total Number of estimated potholes: 0 Proiect Manaaement & Reoort Preparation Project Management No.: 0 hours at $125 perhour= $0 On sight Research/Report Drafting No.: 0 hours at $75 per hour= $0 Project Management & Report: $0 Potholina* Potholes less than 5' deep No.: 0 at $600/700 Prevail* per hole= $0 Potholes 5' to 8' deep No.: 0 at $800/900 Prevail* per hole= $0 Potholes 8' to 11' deep No.: 0 at $1,000/1.100 Prevail* per hole= SD Potholes 11' to 14' deep No.: 0 at $1,200/1.300 Prevail* per hole= $0 Potholes greater than 14' deep No. hrs: 0 at $250/300 Prevail* per hour= $0 Potholes greater than 14' deep Pothole estimate total: $0 Wet & Drv Utilitv Locatina Locating - Electric, Magnetic ,Sonic, GPR (1 Man) No. hrs: 0 at $175 per hour (2 Man Crew) No. hrs: 0 at $225 per hour CCTV crew with Locator No. hrs: 0 at $300 per hour CCTV crew without Locator No. hrs: 0 at $175 per hour 0 Locating estimate total: $0 Traffic Control Traffic control plans No.: 0 at $250 each = $0 Traffic control equipment No.: 0 days at $150 per day= $0 Arrow board No.: 0 days at $100 per day= $0 Flagman No. Flagmen: 0 $50 per hr for 0 hours = $0 Flagman No. Flagmen: Traffic control estimate total: $0 Survevina Field Work 0 at $200 per hour $0 Office Calculation 0 at $140 per hour $0 Travel (including mark-out) 0 at $95 per hour $0 Travel (including mark-out) Surveying estimate total: $0 Concrete and Asphalt Patchina Concrete Patch or Cold Patch No.: 0 at $75 each = $0 Asphalt Hot Patch No.: 0 Call for quote $0 Coring -14" Diameter No.: 0 at $100 each = $0 Coring -14" Diameter Patching estimate total: $0 Travel Time Travel time to and from site (billed one-way) No.: 0 hours at $175 each = $0 Travel time total: Estimate Total $0 $0 Additional Fees 1) This estimate includes tlie provision for Prevailing Wage applicable to all field yNork, (see secondary figure wtiere applicable)'' 2) ALL permit or traffic control review, deposits and fees are in addition to the estimate Total 3) Payment terms are 30 days from date of invoice, 1.5% per month tliereafter. Authorization: XBD2012 Fee Schedule CA930 MASTER AGREEMENT FOR REAL PROPERTY SERVICES (ANDERSON & BRABANT, INC.) ; AGREEMENT is made and entered into as of the day of 'n^^^rk^c^ . 20 bv and between the CARLSBAD MUNICIPAL WATER DISfKlCT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, hereinafter referred to as "CMWD", and ANDERSON & BRABANT, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of an engineering consultant that is experienced in real property 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 real property services. D. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1- SCOPE OF WORK CMWD 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 years starting 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 1 General Counsel Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed fifty thousand dollars ($50,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed fifty thousand dollars ($50,000). 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD and the City of Carlsbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9- INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carlsbad and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein 2 General Counsel Approved Version 2/17/12 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 CMWD or the City of Carlsbad incurs or makes to or on behalf of an injured employee under CMWD'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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. I I If box is checked. Professional Liability CMWD's Initials Contractor's Initials Insurance requirement is waived. 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: 3 General Counsel Approved Version 2/17/12 10.2.1 CMWD will be named as an additional insured on General Liability which shall provide primary coverage to the City. 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11- BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of CMWD 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 CMWD. 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 CMWD. 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 CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. General Counsel Approved Version 2/17/12 15- NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD: For Contractor: Name Glenn Pruim Name Gilbert Kunkel Title Utilities Director Title Project Manager Dept Utilities ^_ Address 353 West Ninth Avenue Carlsbad Municipal Water District Escondido, CA 92025 Address 1635 Faraday Avenue Phone (760) 741-4146 Carlsbad CA, 92008 Email gil@abvaluation.com Phone (760) 602-2768 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 Contractor shall file a Conflict of Interest Statement with the Clerk for the City of Carlsbad in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 whose services are 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 CMWD will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fonA/arded 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 General Counsel Approved Version 2/17/12 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, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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, CMWD 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 ofthe 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 CMWD 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 CMWD, 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 CMWD 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. General Counsel Approved Version 2/17/12 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 CMWD 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 CMWD, 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. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 7 General Counsel Approved Version 2/17/12 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^'^^ day of fv^pV^t^^r 20 (2-. CONTRACTOR ANDERSON & BRABANT, INC., a California corporation CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of th§,City of Carlsbad By: (sign here) (print name/title) ATTEST: (sign here) (print name/title) Secretary If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each ofthe following two groups. Group A Chairman, President, or Vice-President Group 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. APPROVED AS TO FORM: RONALD R. BALL, General Counsel By:. MA 0^ Assistant General dounsel General Counsel Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of Caiifonnia County o c mi Qryjipr 1^ ^i)/< before me, ere Insert Name-and Title of tfie Officer personally appeared who proved to me on tha-^basis of satjgfactop^ evidence to be the persori(s^hose nam^j^^iii^rey subscribed to the within jj^strument and acknowledged to me person, perso he/she/fheyyexecuted the same in uthorizeaTfiapacitvjJie^ and that by signature/l)/on the instrument the or the entity upon behalf of which the 'acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my Place Notary Seal Above Signaturj OPTIONAL ure of Notary Public Though the information below is not required by law, it ma^rove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Jr^^^ Capacity(ies) Claimed by Signjw-(s) / ^ I/, ^ L Name: Tl^J^XO nf/l^/Mn I Signer's Name:^77/<^/^ ^ A ^'"^K-Signer's n Corporate Officer — Title(s): ^^^01-Jiidividual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here • Corporate Officer — Title(s): ;;^:!lndividual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Repn RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT A RATE SCHEDULE RATE SCHEDULE Appraiser Title Hourly Billing Rates Rate Term Appraiser Title Straight OT (1.5X) OT (2x) From To William Anderson Leader $225.00 NA NA 4/23/2012 Contract Term James Brabant Leader $225.00 NA NA 4/23/2012 Contract Term Gilbert Kunkel Leader $225.00 NA NA 4/23/2012 Contract Term David Ottley Sr. Appr $200.00 NA NA 4/23/2012 Contract Term Patricia M. Cypher staff Appr $150.00 NA NA 4/23/2012 Contract Term Patricia B. Haskins Staff Appr $150.00 NA NA 4/23/2012 Contract Term Brian Flannery Staff Appr $150.00 NA NA 4/23/2012 Contract Temi Benjamin Kunkel Staff Appr $150.00 NA NA 4/23/2012 Contract Term CA929 MASTER AGREEMENT FOR REAL PROPERTY SERVICES (EPIC LAND SOLUTIONS, INC.) JIS AGREEMENT is made and entered into as of the o?<f^ day of '^^htji^ , 20J^, by and between the CARLSBAD MUNICIPAL WATER , a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, hereinafter referred to as "CMWD", and EPIC LAND SOLUTIONS, INC., a California corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of an engineering consultant that is experienced in real property 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 real property services. D. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1. SCOPE OF WORK CMWD 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 years starting 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 1 General Counsel Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed twenty five thousand dollars ($25,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed twenty five thousand dollars ($25,000). 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD and the City of Carlsbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carlsbad and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein 2 General Counsel Approved Version 2/17/12 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 CMWD or the City of Carlsbad incurs or makes to or on behalf of an injured employee under CMWD'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 injunes 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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. I I If box is checked. Professional Liability CMWD's Initials Contractor's Initials Insurance requirement is waived. 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: 3 General Counsel Approved Version 2/17/12 10.2.1 CMWD will be named as an additional insured on General Liability which shall provide phmary coverage to the City. 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11- BUSINESS LICENSE Contractor will obtain and maintain a City of Cartsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearty identifiable. Contractor will allow a representative of CMWD during normal business hours to examine, audit, and make transcnpts 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 penod 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 CMWD. 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 CMWD. Contractor will have the nght to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copynghts that anse from the services will be vested in CMWD and Contractor relinquishes all claims to the copynghts in favor of CMWD. General Counsel Approved Version 2/17/12 15. NOTICES The name of the persons who are authonzed to give written notice or to receive wntten notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD: For Contractor: Name Glenn Pruim Name Lynette Overcamp Title Utilities Director Title Vice President Dept Utilities Department Address 2601 Airport Drive, Suite 115 Cartsbad Municipal Water Distnct Torrance CA 90505 Address 1635 Faraday Avenue Phone (310) 626-4848 Cartsbad CA 92008 Email lovercamp@epicland.com Phone (760) 602-2768 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 Contractor shall file a Conflict of Interest Statement with the Clerk for the City of Cartsbad in accordance with the requirements of the City of Cartsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categones. 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 ofthe 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 whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrtmination and harassment. 19- DISPUTE RESOLUTION If a dispute should anse regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not othenA/ise settled by agreement between the parties. Representatives of Contractor or CMWD will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fon^/arded 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 fon^/arded 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 General Counsel Approved Version 2/17/12 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, CMWQ may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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, CMWD will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or othen/vise 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 CMWD 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 CMWD, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 ef 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 CMWD 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. General Counsel Approved Version 2/17/12 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 CMWD 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 CMWD, 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. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 7 General Counsel Approved Version 2/17/12 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 /OcA^jg CONTRACTOR EPIC LAND SOLUTIONS, INC., a California corporation By CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary Disjrict of/he City of Carlsbad By: (sign here) (print name/title) ATTEST: (signhere) ^ / Overcn.y^Y'^ cfn^^^^^^^^ (print name/title) .vv^^ If required by CMWD, proper notarial acknowledgment of execution by contr'd6l8f must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group 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. APPROVED AS TO FORM: RONALD R. BALL, General Counsel f)!}.I Assistant General\3ou ounsei General Counsel Approved Version 2/17/12 ACKNOWLEDGMENT State of Califomia A County of CDA W On before me, (insert name and title ofthe officer) personally appeared _ who proved to me on the basis of satisfactory evidence to be the person(s)^hose namej^s^^ subscribed to the within instrument and acknowledged to me that he^^h^they executed the same in hiSi(^their authorized capacityXies)rand that by his^/their signatur^(8)rbn the instrument the personj^sjCor the entity upon behalf of which the personj^acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws ofthe State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) EVAPOUZZI COMM. #1848210 m Notary PuMo^Mfemia SS y. LOS ANOaeS COUNTY ^MyCcxiwtBa). MAY 8^2013 J CALIFORNIA ALL PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF Los Angeles On September 27. 2012 before me. Jesus Ortiz. Notary Public (here insert name and title of the officer) , notary public, personally appeared Jannes L. Overcannp. Jr. who proved to me on the basis of satisfactory evidence to be the personj^ whose rwnep<5 \sl^ subscribed to the within instrument and acknowledged to me that [^^he/they executed the same in^^er/their authorized capacit){(iegy, and that by ^R^erAheir signatu|-§(^ on the instrument the persor]j;af^ or the entity upon behalf of which the persor^acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the state of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal JESUS ORTIZ Signature ^AgOtA^ ^^k^^l 1 COMM. #1969100 m NotityPuM»«tMomi« se . LOeANQWOOUNTY ^ ,ft»IW>SW'fg.>iWif (Tfiis area for official notarial 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: Service Agreement Contract Document Date: Number of Pages: (Not including this page) Signer(s) Other Than Named Above: ^^^^^^^^ 5. Rate Schedules EXHIBIT A • Hourly Rate Lynette Overcamp, SR/WA Principal $200 Walt Evans, SR/WA, R-W/NAC, R-W/RAC Regional & Project Manager $150 Gary Peck, SR/WA Review Appraiser & Appraisal Manager $200 Jacqueline Franks Acquisition Agent $110 Rosle Metsker Acquisition Agent $100 Mike Harris Acquisition Agent $85 Administrator Administrator $65 Title & Escrow Preliminary Title Reports $450-$850 Litigation Guarantee (up to $1,000,000) $375-$3,000 CLTA Policy of Title Insurance (up to $1,000,000) $396 - $2,800 Escrow Fee $630 - $2,300 The Catling Company Jean Catling Appraiser $160 Jean Catling Trial preparation and expert testimony $250 - $300 *15 Hour Minimun^l for Appraisal Services. Litigation support, deposition ond court testimony fees are additional. 4 hour minimum for deposition ond court testimony fees. other Direct Costs At Cost iraisal Wlm^^^B^^^^B^^Mi Richard Crockett Appraiser $175 Senior Appraiser Appraiser $150 Staff Appraiser Appraiser $125 Research Researcher $75 Clerical Administrative $50 * Litigation support, deposition and court testimony fees are odditionaL 4 hour minimum for deposition and court testimony fees. Other Direct Costs At Cost Donna Desmond Associates Donna Desmond Principal Appraiser $275 Donna Desmond Trial preparation and expert testimony $375 * Litigation support, deposition ond court testimony fees are additional 4 hour minimum for deposition and court testimony fees. Other Direct Costs At Cost CREATING LAND SOLUTIONS FOR THE PUBLIC GOOD www. EpicLand .com 16 CA933 MASTER AGREEMENT FOR ENVIRONMENTAL AND PLANNING STUDY SERVICES (PLANNING SYSTEMS) )IS AGREEMENT is made and entered into as of the ^gy of yi^/U^ 20/^. by and between the CARLSBAD MUNICIPAL WATER DISTFiftT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carisbad, hereinafter referred to as "CMWD", and PLANNING SYSTEMS, a California corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of a engineering consultant that is experienced in environmental and planning studies. 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 and planning studies. D. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1. SCOPE OF WORK CMWD 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 forthe 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 years starting 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 1 General Counsel Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($100,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 houriy 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD and the City of Carisbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carisbad 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 2 General Counsel Approved Version 2/17/12 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 CMWD or the City of Cartsbad incurs or makes to or on behalf of an injured employee under CMWD'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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period offive years following the date of completion ofthe work. I I If box is checked, Professional Liability CMWD's Initials Contractor's Initials Insurance requirement is waived. 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: 3 General Counsel Approved Version 2/17/12 10.2.1 CMWD will be named as an additional insured on General Liability which shall provide primary coverage to the City. 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD 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 Cartsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearty identifiable. Contractor will allow a representative of CMWD 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 CMWD. 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 CMWD. 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 CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. General Counsel Approved Version 2/17/12 16- NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD: For Contractor: Name Glen Pruim Name Paul Klukas Title Utilities Director . Title Director of Planning Dept utilities Address 1530 Faradav Avenue, Suite 100 Carisbad Municipal Water District Carisbad, CA 92008 Address 1635 Faraday Avenue Phone (760) 931-0780 Carisbad CA, 92008 Email pklukas@planningsystems.net Phone (760) 602-2768 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 Contractor shall file a Conflict of Interest Statement with the Clerk for the City of Cartsbad in accordance with the requirements of the City of Cartsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 whose services are 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 othenA/ise settled by agreement between the parties. Representatives of Contractor or CMWD will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fon^/arded 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 fon^/arded 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 General Counsel Approved Version 2/17/12 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, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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, CMWD will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or othenA/ise recover, the full amount ofthe 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 CMWD 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 CMWD, 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 CMWD 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. General Counsel Approved Version 2/17/12 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 CMWD 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 CMWD, 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. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 7 General Counsel Approved Version 2/17/12 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 SO^T^^^ .. 20/ - CONTRACTOR PLANNING SYSTEMS, a California corporatioi CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad By: (print name/titll) ATTEST: (sign here) (print name/title) LORRAINE Secretary If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group 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 ofricer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, General Counsel By: ^1 Assistant General Counsel General Counsel Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ^^^v^ '^ClP } Qn'^W '-^V^'^ before me, Date personally appeared "TW5>>.-NC^T^ ^3^^^"^^^:^^ ' Here Insert Name and Title at the Officer ~ \ Signer(s) BRIHAM-BEtCHkH i^T^ Cwnmltrtwi #1855293 , iK^BB Neiwy PuWic-CUKoffiia z ivfi^9y SanOi«9oCoyiity g who proved to me on the basis of satisfactory evidence to be the personj^ whose namej;^ is/afe-subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/hef^their authorized capacity(i^), and that by his/hef/their signature(S) on the instrument the personfs), or the entity upon behalf of which the personps) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature. Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. 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(s) Signer's Name: • Individual • Corporate Officer —Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: . Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thunnb here Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other:. RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:. ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of $DcMr\ "^^j^ } On Date personally appeared before me ' *——^ f \ Here Insert Name and Title-of the Officer Name(s) of Signer(s) BHIirAM.B€KHEf «>»»»n>J«tten # 1855293 •tetwyPttiHic. CaHfomia San Oiego County Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the personjtsfwhose name^) is/ai«^ubscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/hor/thoir- authorized capacity(i^, and that by his/her/their signatur^(s)^on the instrument the personj;^), or the entity upon behalf of which the person^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature • cWy Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. 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(s) Signer's Name: • Individual • Corporate Officer —Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer Is Representing: ©2007 National Notary Association • 9350 De Soto Ave., RO.Box 2402 • Chatsworth, CA 91313-2402.www.NationalNotary.org Item #5907 Reorder: Gall Toil-Free 1-800-876-6827 EXHIBIT A 5. RATESCHEDULE PLANNING SYSTEMS rate schedule is as follows: PRINCIPAL: PLANNERS/CEQA: Director of Planning/CEQA Specialist . Environmental Planner .... Environmental Analyst .... Land Planner ..... LANDSCAPE ARCHITECT/HABITAT RESTORATION SPECIALIST: Senior Restoration Ecologist Senior Landscape Architect Landscape Designer/Habitat Restoration Specialist Biologist/Construction Monitor 11 Construction Monitor 1 . OTHER: Graphlc/CAD Operator . Visual Simulations Operator $150.00/hr $135.00/hr $ 95.00/hr $ 75.00/hr $ 75.00/hr $110.00/hr $110.00/hr $ 90.00/hr $ 90.00/hr $ 75.00/hr $ 65.00/hr $ 65.00/hr REIMBURSABLE EXPENSES/BILLING POLICY: Supplies and other direct costs such as printing, reproduction, graphic aids, travel (air fare & meals), photography, postage, fax & delivery will be billed at cost plus, 15%. Invoices will be Issued on a monthly basis unless otherwise agreed. Accounts are due and payable within 30 days of the date of invoice. Past due accounts will have a finance charge of 1.25% compounded. Planning Systems Statement of Qualifications - 5/23/12 12 CA934 MASTER AGREEMENT FOR ENVIRONMENTAL AND PLANNING STUDY SERVICES (ATKINS NORTH AMERICA, INC.) (THIS AGREEMENT is made and entered into as of the day of ^/Ju^u^ 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 Cartsbad, hereinafter referred to as "CMWD", and ATKINS NORTH AMERICA, INC., a Florida corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of a engineering consultant that is experienced in environmental and planning studies. 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 and planning studies. D. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1- SCOPE OF WORK CMWD 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 years starting 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 1 General Counsel Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed one hundred thousand dollars ($100,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed one hundred thousand dollars ($100,000). 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 houriy 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD and the City of Carisbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carisbad 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 2 General Counsel Approved Version 2/17/12 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 CMWD or the City of Cartsbad incurs or makes to or on behalf of an injured employee under CMWD'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-:VH" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of ^ve years following the date of completion of the work. I I If box is checked, Professional Liability CMWD's Initials /5yntifattor's Initials Insurance requirement is waived 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: 3 General Counsel Approved Version 2/17/12 10.2.1 CMWD will be named as an additional insured on General Liability which shall provide primary coverage to the City. 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Cartsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearty identifiable. Contractor will allow a representative of CMWD 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 CMWD. 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 CMWD. 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 CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. General Counsel Approved Version 2/17/12 16. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD: For Contractor: Name Glenn Pruim Name Kim Hewlett Title Utilities Director Title Assoc. Vice President Dept. Utilities Address 3570 Carmel Mountain Road, Suite 300 Carisbad Municipal Water District San Diego, CA 92130 Address 1635 Faraday Avenue Phone (858) 514-1018 Carisbad CA, 92008 Email Kim.howlett@atkinsglobal.com Phone (760) 602-2768 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 Contractor shall file a Conflict of Interest Statement with the Clerk for the City of Cartsbad in accordance with the requirements of the City of Cartsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 whose services are 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 CMWD will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fonA/arded 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 General Counsel Approved Version 2/17/12 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, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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, CMWD will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or othenA/ise recover, the full amount ofthe 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 CMWD 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 CMWD, 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 CMWD 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. General Counsel Approved Version 2/17/12 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 CMWD 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 CMWD, 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. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 7 General Counsel Approved Version 2/17/12 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_ 27tii day of September ,2012 CONTRACTOR ATKINS NORTH AMERICA, INC., a Florida corporation By: V .OA (|ign\|T^re) )avid J. Carter ^••••••'"•?»»t4 Senior Vice Pr( CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of t(ie City of Cartsbad Preside vice Pr^^^^j^^^^ (print namdf^^^^ ll/ SEAL \|| \^\ 1960 /• i ATTEST: (sign here)^^<»,^„B„0*^ Rene de los Rios Assistant Secretary Secretary (print name/title) '^^''' ^ If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group 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. APPROVED AS TO FORM: RONALD R. BALL, General Counsel Assistant General Cdijnsel General Counsel Approved Version 2/17/12 NOTARY ACKNOWLEDGEMENT STATE OF FLORIDA } COUNTY OF MLVMI-DADE} PERSONALLY APPEARED David J. Carter and Rene de los Rios by me to be the Senior Vice President and Assistant Secretary before me, the undersigned authority, , well known to me or who has produced as identification and known ofthe corporation named above, and acknowledged before me that they executed the foregoing instrument on behalf of said corporation as its true act and deed, and that they were duly authorized to do so. WITNESS my hand and official seal this 27th day of September, 2012. 4W% DEBORAH LYNN SHIMEL A % MY COMMISSION # DD 924543 EXPIRES: November 13,2013 '%{if,'0^ Bonded Thru Notary Public Undenwriters NOTARY PUBLIC PrintName: DEB H LYNN SHIMEL My Commission Expires: Nov. 13, 2013 Envlrorwnental/Planning Study Services | 18 5. Rate Schedule ATKINS EXHIBIT A Atkins North America, Inc. 3570 Carmel Mountain Road, Suite 300 San Diego, California 92130 Telephone: +1.858.874.1810 Fax:+1.858.259.0741 www.atkinsglobal.com/northamerica DESIGN & GRAPHIC SERVICES Senior Designer 111 $140.00 Senior Designer II 135.00 Senior Designer I 120.00 Designer II.. 110.00 Designer 1 100.00 CAD Technician 111 95.00 CAD Technician 11 85.00 CAD Technician 1 70.00 Graphics Designer 11 100.00 Graphics Designer 1 95.00 ADMINISTRATIVE SERVICES Senior Administrator $110.00 Senior Administrative Assistant 111 95.00 Senior Administrative Assistant II 85.00 Senior Administrative Assistant 1 80.00 Administrative Assistant III 75.00 Administrative Assistant II 65.00 Administrative Assistant I / Clerk 60.00 ATKINS STANDARD RATE SCHEDULE FOR THE CITY OF CARLSBAD EFFECTIVE JANUARY 1, 2012 ENVIRONMENTAL SCIENCE SERVICES Supervising Scientist $198.00 Senior Scientist III 180.00 Senior Scientist II 170.00 Senior Scientist 1 140.00 Scientist 111 130.00 Scientist II 110.00 Scientist 1 92.00 Assistant Scientist 80.00 Research Assistant 65.00 PUBLIC AFFAIRS/COMMUNITY RELATIONS Project IVIanager $170.00 Community Relations Specialist 140.00 Assistant Project Manager 125.00 Account Coordinator 80.00 OTHER PROFESSIONAL SERVICES Principal Professional $196.00 Supervising Professional 170.00 Sr. Professional 111 / Sr. GIS Analyst 111 150.00 Senior Professional 11 / Sr. GIS Analyst 11 135.00 Senior Professional 1 / Sr. GIS Analyst I 122.00 Professional 11 / GIS Analyst 11 101.00 Professional l/GIS Analyst I 88.00 EXPENSES AND OUTSIDE SERVICES Identifiable non-salary costs that are directly attributable to the project, such as reproduction costs, telephone charges, mileage, postage, etc.. are billed at actual cost plus 10 percent to cover overhead and administration costs. Mileage will be billed at the current IRS rate at the time of vehicle use. Fees for subconsultant services provided are billed at actual cost plus 10 percent to cover overhead and administration costs. Fees for litigation and expert witness services will be charged at $450.00 per hour with a 4-hour minimum per day. Computer Aided Drafting, hydrologic water, sewer and stormwater modeling, GIS, automated mapping, database and web programming, etc., is charged at $5 per labor hour. If applicable, a vehicle allowance of $8.00 per hour will be charged for the use of a company vehicle assigned to an inspector. * Non-Prevailing Wage ** Prevailing Wage Rate - Overtime will be charged at 1.25 times and Sundays and holidays will be charged at 1.70 times the above rates. PAYMENT TERMS A late payment finance charge at a rate of 18 percent per annum will be applied to any unpaid balance commencing 30 days after the date of original invoice. This rate schedule will remain in effect for three years beginning on the date of the fully executed contract. 0414 028650 0512 Atkins j SOQ for City of Carlsbad WAIVER REQUEST FORM FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S) GeneraUy, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the requirement(s). Requested by: Bill Plummer/Utilities, Marshall Plantz/Transportation October 12, 2012 (Name and Department) Date Proposed modification(s) to the Prof. Liability requirement(s) for Master Agreements for 2012-2015 for Atkins North Environmental/Planning Services America CA932.Ci,y; CA934<:MWD (Type of insurance) (Name of contract) r~| Reduce coverage to the amount of: I I Waive coverage 13 Other: Waive requirement of surplus lines carrier on the LASLI (formerly LESLI) FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) niSi&nificance of Contractor: Contractor has previous experience with the City that is important to the efficiency of completing the scope of work and the quality of the work-product, [explain] Significance of Contractor: Contractor has unique skills and there are few if any altematives. [explain: include number of candidates RFP sent to and number responded if applicable]_ OContract Amount/Term of Contract: $ . Work will be completed over a period of OProfessional Liability coverage is not available to this contractor or would increase the cost of the contract by $ [explain]. P^Other (e.g. explain whv exposures are minimaL how exposures are covered in another policy, exposure control mechanisms, and any other information pertinent to vour request): Under the Nonadmitted and Reinsurance Reform Act rNRRA). as part of the Dodd-Frank Act and implemented in Insurance Code Section 1765.L "alien" nonadmitted insurers listed on the NAIC's (National Association oflnsurance Commissioners) Quarterly List of Alien Insurers are eligible to accept placements of California risks from surplus lines brokers. The federal action provides for the national listing, thereby allowing alien carriers to avoid individual filing requirements in each state such as those to be included on the LASLI (formerly LESLI). As of January 30. 2012 Llovds of London/Beazlev syndicate voluntarily removed itself from the LASLL electing to relv on inclusion on the Quarterly List of Alien Insurers to provide insurance for Califomia risks trom surplus lines brokers. Llovds has made a filing in Califomia that permits the Department oflnsurance to '"recognize" Lloyd's syndicates in the event of an inquiry from a broker or a member of the public. However, the extent to which standards for a surplus lines carrier on the LASLI (List of Approved Surplus Lines Insurers) versus those on the Ouarterly List of Alien Insurers is unclear as of the writing of this waiver and in recent articles appearing in the Insurance Joumal it appears that the state's implementing legislation has resulted in issues that mav need to be resolved in court. In any case, there is confusion among brokers and clients because there arc now 2 lists in the state, one with ''approved" surplus lines carriers and the other, the national list of "eligible" surplus lines carriers. Apparently Lloyds is trying to work with the state to sort out some ofthe confusion ad it can be anticipated that there will be more to come on this matter. In the meantime. Llovds of London/Beazlev syndicate has and continues to be the carrier for Atkins North America for its professional liability insurance, it was on the LASLI until it requested removal, and it Is the carrier for the contractor with significant ongoing proiects in the City. It is requested Llovds of London/Beazlev syndicate be accepted as the carrier for professional liabilitv insurance for Atkins North America. Approved by Risk Manager for these 2 contracts onlv: (Signature) (Date) H;\WORD\lnsurance\Admtn Order #68 waiver modify insuHBice requirements.doc 06/15/2006 CA937 MASTER AGREEMENT FOR FINANCIAL SERVICES (NBS) ,THIS AGREEMENT is made and entered into as of the day of ^^?ufnU^ 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 Cartsbad, hereinafter referred to as "CMWD", and NBS, a California corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of an engineering consultant that is experienced in financial 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 financial services. D. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, CMWD and Contractor agree as follows: 1- SCOPE OF WORK CMWD 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 years starting 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 1 General Counsel Approved Version 2/17/12 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed seventy five thousand dollars ($75,000) for the term of the agreement; the total amount allowed per Project Task Description and Fee Allotment will not exceed seventy five thousand dollars ($75,000). 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 houriy 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD and the City of Carisbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carisbad 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 2 General Counsel Approved Version 2/17/12 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 CMWD or the City of Carisbad incurs or makes to or on behalf of an injured employee under CMWD'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 insurarice carrier admitted and authorized to do business in the State of California. Jhe insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coveraaes and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, its officers, agents and employees make no representation that the limits of the insurance specified to be earned by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period offive years following the date of completion ofthe work. If box is checked, Professional Liability CMWD's Initials Contractor's Initials Insurance requirement is waived. 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: 3 General Counsel Approved Version 2/17/12 10.2.1 CMWD will be named as an additional insured on General Liability which shall provide primary coverage to the City. 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carisbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy identifiable. Contractor will allow a representative of CMWD 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 CMWD. 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 CMWD. 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 CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. General Counsel Approved Version 2/17/12 16. NOTICES The name of the persons who are authorized to give written notice or to receive wntten notice on behalf of CMWD and on behalf of Contractor under this Agreement. For CMWD: For Contractor: Name Glenn Pruim Name Danielle Wood Title Utilities Director Title Associate Director Dept utilities " Address 32605 Temecula Parkway, Suite 100 Carisbad Municipal Water District Temecula. CA 92592 Address 1635 Faraday Avenue Phone (951)296-1997 . Carisbad CA. 92008 Email Phone (760) 602-2768 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 ^.^ r ^ i u ^ Contractor shall file a Conflict of Interest Statement with the Clerk for the City of Carisbad in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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 ofthe requirements ofthe 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 whose services are 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 CMWD will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fonA/arded 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 5 General Counsel Approved Version 2/17/12 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, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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. CMWD will have the right to annul this Agreement without liability, or. in its discretion, to deduct from the Agreement price or consideration, or othenA/ise 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 CMWD 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 CMWD, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 ef 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 CMWD 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. General Counsel Approved Version 2/17/12 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a nght 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 CMWD 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 CMWD, which shall not be unreasonably withheld. 26. 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. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 7 General Counsel Approved Version 2/17/12 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 ^^^^^b^ ., 2oAa CONTRACTOR NBS, a California corporation (sign here) (print name/title) CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad By: ATTEST: (sign here) (print name/title) LOR Secretary ^^^^ cn • —- „ If required by CMWD, proper notarial acknowledgment of execution by %eM;iJt/-3g1;9»i^^niust be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group 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. APPROVED AS TO FORM: RONALD R. BALL, General Counsel By:. Assistant General General Counsel Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of hO£fcS)OJ^ On \ \a before me, y^C^S M .ll^S tdL Ob^Prf^ ^OfoUgj Here Insert Narne and Title of the Officer } Date personally appeared _ Nanrie(s) of Signer(s) STACEYM. TAYLOR CofHmiMioA # 1817337 MyComm." who proved to me on the basis of satisfactory evidence to be the person{^ whose name(^) is/afe subscribed to the within instrument and acknowledged to me that he/sbo/thoy executed the same in his/hef#ieir authorized capacity(iie!§), and that by his/hef/their signature^^) on the instrument the person(^, or the entity upon behalf of which the person(;i) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand andfofficiahseal Place Notary Seal Above Signatur 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: Number of Pages: ^ Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: \0a> • Individual Corporate Officer — Title(s) • Partner — • Limited • General • Attorney in Fact • Trustee ' • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thunnb here Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Cfiatswortfi, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 EXHIBIT A SECTION4. RATESCHEDULE Hourly Rate Schedule Title Hourly Rate Director $190 Senior Consultant/Programmer 150 Engineer 140 Consultant 130 Analyst 100 Clerical/Support 55 Expenses Customary out-of-pocket expenses will be billed to the City at actual cost to NBS. Out-of- pocket expenses may include, but not be limited to travel, mailing fulfillment, printing, postage, telephone, reproduction, meals, data, maps, and recording fees. Terms Services will be invoiced quarteriy at the beginning of each quarter. Expenses will be itemized and included in the next regular invoice. Fees for all other services will be invoiced upon completion of the task. If the project is prematurely terminated by either party, NBS shall receive payment for work completed. Payment shall be made within 30 days of submittal of an invoice. If payment is not received within 90 days simple interest will begin to accrue at the rate of 1.5% per month. Either party can cancel administration contracts with 30 days written notice. Statement of Qualificationsfor Master Agreement - Financial Consulting Sen/ices for the City of Carlsbad Prepared by NBS - May 23, 2012 4-1