HomeMy WebLinkAbout1995-06-13; City Council; Resolution 95-1471
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RESOLUTION NO. 95-147
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING THE AGREEMENT WITH NBSILOWRY, INC.,
FOR PREPARATION OF AN ENGINEER’S REPORT AND AUTHORIZING
THE FINANCE DIRECTOR TO APPROPRIATE FUNDS FROM THE
CANNON ROAD BRIDGE AND THOROUGHFARE DISTRICT FUND.
WHEREAS, the City Council of the Cty of Carlsbad, California has considered
for professional consultant services to prepare an Engineer’s Report for the establish1
Bridge and Thoroughfare District to fund Cannon Road West; and,
WHEREAS, the City Council has determined that NBS/Lowry, Inc., has the r
qualifications to prepare said Engineer’s Report; and,
WHEREAS, the City of Carlsbad has collected funds totaling $97,000 for the pl
constructing, installing, and/or financing Cannon Road from Car Country Drive to El Car
(Cannon Road West) including costs for legal and other incidental expenses necessar)
construction of Cannon Road West; and,
WHEREAS, formation of a Bridge and Thoroughfare District is a necessary rec
precedent to the construction of the Cannon Road West improvements.
NOW THEREFORE, BE IT RESOLVED by the City Council of the City of (
California, as follows:
1. That the above recitations are true and correct.
2. That the agreement between the City of Carlsbad and NBSILowry, Inc., fc
Preparation for the Establishment of a Bridge and Thoroughfare District to Fund Canr
West, a copy of which is attached as Exhibit 1 and made a part hereof, is hereby app
3. That the Mayor of the City of Carlsbad is hereby authorized and directed tc
said agreement for and on behalf of the City.
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4. That the Finance Director is authorized to appropriate !§35,00Ofrorn the Cann
West Bridge and Thoroughfare District Fund.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad Cit)
held on the 13th day of JUNE , 1995 by the following vote, to wit:
AYES: Council Members Lewis, Nygaard, Kulchin, Finnila, Hall
NOES: None
ABSENT: None
ATTEST:
ALETHA L. RAUT (SEAL)
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!.a \L. m. EXHIBIT 1
AGREEMENT FOR
REPORT PREPARATION FOR THE ESTABLISHMENT OF A
BRIDGE AND THOROUGHFARE DISTRICT TO FUND
CANNON ROAD WEST
THIS AGREEMENT, made and entered into as of the 13 th day of JUNE ,
19 95 , by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter
referred to as "City", and NBS/LOWRY INCORPORATED, hereinafter referred to as
"Contractor."
RECITALS
City requires the services of an Assessment Engineering Contractor to provide the
necessary planning services for preparation of a report to use in the establishment of a
Bridge and Thoroughfare District to fund Cannon Road West; and Contractor possesses
the necessary skills and qualifications to provide the services required by the City;
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. CONTRACTOR'S OBLIGATIONS
A. Meetings with City staff to set the schedule and establish project goals to
complete this project.
B. Engineer's report for proposed district which shall include the following:
1) Map of the exterior boundaries of the district.
2) Estimate of the cost of improvements.
3) Method of fee apportionment.
C. Meetings with property owners to discuss and review the progress in this
project.
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D. Assist the City in preparation of notices to property owners if necessitate
by legal requirements.
E.' Finalize and mail notice of public meeting/hearing as required.
F. Attend all public meetings and . hearings. Assist City staff in th
presentation of support documentation, visual aids and any other material
required to illustrate the proposed fee district. Review verbal and writte
public comments and summarize findings as required.
G. File all required documentation and reports with the City and other require
agencies,
2. CITY OBLIGATIONS
The City shall:
A. Provide a copy of the applicable City of Carlsbad standards.
B. Receive all requests from property owners to be included in the fee distric
and determine the action to be taken.
C. Set agenda and schedule for the project review committee.
D. Prepare all agenda bills for City Council.
E. Assist Contractor by placing at its disposal all available informatio
pertinent to the site of the project, including previous reports and any othc
data relative to design and construction of the project.
F. Examine all studies, reports, sketches, estimates, specifications, drawing:
proposals and other documents presented by Contractor and rendc
necessary decisions pertaining thereto within a reasonable time so as nc
to delay the work of the Contractor.
G. Provide legal, bond counsel, financial advisor, accounting and insuranc
counseling services as may be reasonably required for the project.
H. Designate, in writing, a person or persons to act as representative of th
City with respect to the work to be performed under this agreement; SUC
person shall transmit instructions, receive information, interpret and defin
policies or decisions of the City with respect to materials, equipmer
elements and systems pertinent to the work covered by this agreement.
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I, Give proper notice to the Contractor whenever, the City observes
otherwise becomes aware of any defect in the project.
J.' Obtain, with Contractor's assistance, approval of all governmeni
authorities having jurisdiction over the project and such approvals ar
consents from other individuals or bodies as may be necessary f
completion of the project.
3. PROGRESS AND COMPLETION
The work under this contract will begin immediately after receipt of notification
proceed by the City and be completed according to a schedule mutually agreed up(
between City and Contractor. Extensions of time may be granted if requested by tl
Contractor and agreed to in writing by the City Engineer. The City Engineer will gil
allowance for documented and substantiated unforeseeable and unavoidable delays n
caused by a lack of foresight on the part of the Contractor, or delays caused by Ci
inaction or other agencies' lack of timely action.
4. FEES TO BE PAID TO CONTRACTOR
The City shall pay Contractor for services described under Section 1 of tt-
Agreement on an hourly rate basis per the Contractor's current "Schedule of Hou~
Billing Rates". A copy of the present "Schedule of Hourly Billing Rates", effectil
July 1 , 1994, is marked Exhibit "A" and is attached hereto. The estimated fee for the:
services is $20,000.
5. DURATION OF CONTRACT
This agreement shall extend for a period of one (1) year from date thereof. Tt
contract may be extended by the City Manager for one (1) additional one (1) year peric
or parts thereof, based upon a review of satisfactory performance and the City's need
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The parties shall prepare extensions in writing indicating effective date and length of tl
extended contract.
6. PAYMENT OF FEES
. On the first working day of each month, Contractor shall submit his/her invoice 1
work performed during the prior month. Payment of approved items on the invoice sh
be mailed to the Contractor prior to the last day of the month the invoice was submitte
7. FINAL SUBMISSIONS
Within fourteen (14) days of completion and approval of the City, the Contraci
shall deliver to the City the following items:
A. Engineer’s Report for proposed Bridge and Thoroughfare District.
8. CHANGES IN WORK
If, in the course of the contract, changes seem merited by the Contractor or tl
City, and informal consultations with the other party indicate that a change in tl
conditions of the contract is warranted, the Contractor or the City may request a chan!
in contract. Such changes shall be processed by the City in the following manner:
letter outlining the required changes shall be forwarded to the City by Contractor
inform them of the proposed changes along with a statement of estimated changes
charges or time schedule. A supplemental agreement shall be prepared by the City at
approved by the City according to the procedures described in Carlsbad Municipal Coc
Section 3.28.172. Such supplemental agreement shall not render ineffective or invalids
unaffected portions of the agreement.
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9. COVENANTS AGAINST CONTINGENT FEES
The Contractor warrants that their firm has not employed or retained any compal
or person, other than a bona fide employee working for the Contractor, to solicit
secure this agreement, and that Contractor has not paid or agreed to pay any compai
or person, other than a bona fide employee, any fee, commission, percentage, brokera!
fee, gift, or any other consideration contingent upon, or resulting from, the award
making of this agreement. For breach or violation of this warranty, the City shall ha!
the right to annul this agreement without liability, or, in its discretion, to deduct from tl
agreement price or consideration, or otherwise recover, the full amount of such fe
commission, percentage, brokerage fees, gift, or contingent fee.
10. NONDISCRIMINATION CLAUSE
The Contractor shall comply with the state and federal laws regardir
nondiscrimination.
11. TERMINATION OF CONTRACT
In the event of the Contractor's failure to prosecute, deliver, or perform the wo
as provided for in this contract, the City may terminate this contract for nonperformanc
by notifying the Contractor by certified mail of the termination of the contractor. TI
Contractor, thereupon, has five (5) working days to deliver said documents owned by tl
City and all work in progress to the City. The City Engineer shall make a determinatic
of fact based upon the documents delivered to City of the percentage of work which tl
Contractor has performed which is usable and of worth to the City in having the contra
completed. Based upon that finding as reported to the City Manager, the Manager sh,
determine the final payment of the contract.
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12. DISPUTES
If a dispute should arise regarding the performance of work under this agreeme
the following procedure shall be used to resolve any question of fact or interpretation
otherwise settled by agreement between parties. Such questions, if they beco
identified as a part of a dispute among persons operating under the provisions of 1
contract, shall be reduced to writing by the principal of the Contractor or the (
Engineer. A copy of such documented dispute shall be forwarded to both pari
involved along with recommended methods of resolution which would be of benefi,,
both parties. The City Engineer or principal receiving the letter shall reply to the le1
along with a recommended method of resolution within ten (10) days. If the resolut~
thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute st
be forwarded to the City Council for their resolution through the Office of the C
Manager. The City Council may then opt to consider the directed solution to 1
problem. In such cases, the action of the City Council shall be binding upon the part
involved, although nothing in this procedure shall prohibit the parties seeking remed
available to them at law,
13. SUSPENSION OR TERMINATION OF SERVICES
This agreement may be terminated by either party upon tendering thirty (30) da
written notice to the other party. In the event of such suspension or termination, up
request of the City, the Contractor shall assemble the work product and put same
order for proper filing and closing and deliver said product to City. In the event
termination, the Contractor shall be paid for work performed to the termination da
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however, the total shall not exceed the lump sum fee payable under paragraph 4. Th
City shall make the final determination -as to the portions of tasks completed and th
compensation to be made.
14. STATUS OF THE CONTRACTOR
The Contractor shall perform the services provided for herein in Contractor’s ow
way as an independent contractor and in pursuit of Contractor’s independent calling, ar
not as an employee of the City. Contractor shall be under control of the City only as 1
the result to be accomplished, but shall consult with the City as provided for in tt
request for proposal. The persons used by the Contractor to provide services under th
agreement shall not be considered employees of the City for any purposes whatsoeve
The Contractor is an independent contractor of the City. The payment made i
the Contractor pursuant to the contract shall be the full and complete compensation i
which the Contractor is entitled. The City shall not make any federal or state t;
withholdings on behalf of the Contractor or his/her employees or subcontractors. Tt
City shall not be required to pay any workers’ compensation insurance or unemployme
contributions on behalf of the Contractor or his/her employees- or subcontractors. TI
Contractor agrees to indemnify the City for any tax, retirement contribution, soc;
security, overtime payment, unemployment payment or workers’ compensation payme
which the City may be required to make on behalf of the Contractor or any employee
subcontractor of the Contractor for work done under this agreement.
The Contractor shall be aware of the requirements of the Immigration Reform a
Control Act of 1986 and shall comply with those requirements, including, but not limit
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to, verifying the eligibility for employment of all agents, employees, subcontractors ar
Consultants that are included in this agreement.
15. CONFORMITY TO LEGAL REQUIREMENTS
The Contractor shall cause all drawings and specifications to conform to
appJicabJe requirements of law: federal, state and local. Contractor shall provide
necessary supporting documents, to be filed with any agencies whose approval
necessary.
The City will provide copies of the approved plans to any other agencies.
16. OWNERSHIP OF DOCUMENTS
All plans, studies, sketches, drawings, reports, and specifications as her
required are the property of the City, whether the work for which they are made
executed or not. In the event this contract is terminated, all documents, pla
specifications, drawings, reports, and studies shall be delivered forthwith to the C
Contractor shall have the right to make one (1) copy of the plans for his/her record!
17. REPRODUCTION RIGHTS
The Contractor agrees that all copyrights which arise from creation of the w
pursuant to this contract shall be vested in City and hereby agrees to relinquish all clai
to such copyrights in favor of City.
18. HOLD HARMLESS AGREEMENT
The City, its elected and appointed officers and employees shall not be liable
any claims, liabilities, penalties, fines, or any damage to goods, properties, or effect
any person whatever, nor for personal injuries or death caused by, or resulting from
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willful misconduct or’negligent acts, errors or omissions of Contractor or Contractoi
agents, employees, or representatives.
Furthermore, Contractor agrees to defend, indemnify, protect, and save free ar
harmless the City and its elected and appointed officers and employees against ai
claims for damages, liabilities, penalties or fines, costs or expenses, including liabiliti
or claims by reason of defects in any plans and specifications arising out of the negligc
acts, errors or omissions of the Contractor or any agent or employee, subcontracto
or others in connection with the execution of the work covered by this agreement, exc(
only for those claims arising from the sole negligence or sole willful conduct of the C
or its elected and appointed officers and employees.
Contractor’s indemnification shall include any and all costs, expenses, attorn6
fees and liability incurred by the City, its officers, agents, or employees in defendi
against such claims, whether the same proceed to judgment or not.
Contractor shall at its own expense, upon written request by the City, defend i
such suit or action brought against the City, its officers, agents or employe
Contractor’s indemnification of City shall not be limited by any prior or subsequ
declaration by the Contractor.
19. ASSIGNMENT OF CONTRACT
The Contractor shall not assign this contract or any part thereof or any monies (
thereunder without the prior written consent of the City.
20. SUBCONTRACTING
If the Contractor shall subcontract any of the work to be performed under
contract by the Contractor, Contractor shall be fully responsible to the City for the c
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and omissions of Contractor’s subcontractor and of the persons either directly (
indirectly employed by the subcontractor, as Contractor is for the acts and omissions
persons directly employed by Contractor. Nothing contained in this contract shall crea
any contractual relationship between any subcontractor of Contractor and the City. Tf
Contractor shall bind every subcontractor and every subcontractor of a subcontractor t
the terms of this contract applicable to Contractor’s work unless specifically noted to tl
contrary in the subcontract in question approved in writing by the City.
21. PROHIBITED INTEREST
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No official of the City who is authorized in such capacity on behalf of the City
negotiate, make, accept, or approve, or take part in negotiating, ,making, accepting,
approving of this agreement, shall become directly or indirectly interested personally
this contract or in any part thereof. No officer or employee of the City who is authorizl
in such capacity and on behalf of the City to exercise any executive, supervisory,
similar functions in connection with the performance of this contract shall become direc
or indirectly interested personally in this contract or any part thereof.
22. VERBAL AGREEMENT OR CONVERSATION
No verbal agreement or conversation with any officer, agent, or employee of 1
City, either before, during or after the execution of this contract, shall affect or modify 2
of the terms or obligations herein contained nor entitle the Contractor to any additio;
payment whatsoever under the terms of this contract.
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23. SUCCESSORS OR ASSIGNS
Subject to the provisions of Paragraph 18, "Hold Harmless Agreement," all terr
conditions, and provisions hereof shall inure to and shall bind each of the parties her€
and each of their respective heirs, executors, administrators, successors, and assigl
24. EFFECTIVE DATE
This agreement shall be effective on and from the day and year first written abc
25. CONFLICT OF INTEREST
The Contractor. shall file a conflict of interest statement with the City Clerk
accordance with the requirements of the City's conflict of interest code. The disclos
category shall be all categories.
26. INSURANCE
The Contractor shall obtain and maintain for the duration of the contract insura
claims against claims for injuries to persons or damage to property which may arisc
in connection with performance of the work hereunder by the Contractor, his age
representatives, employers or subcontractors. Said insurance shall be obtained from
insurance carrier admitted and authorized to do business in the State of California.
insurance carrier is required to have a current Best's Key Rating of not less than "A
and shall meet the City's policy for insurance as stated in Resolution No. 91-403.
A. Coveraaes and Limits
Contractor shall maintain the types of coverages and minimum
indicated herein, unless a lower amount is approved by the City Atto1
or City Manager:
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1) ’ Comprehensive General Liability Insurance. $1,000,000 combin
single-limit per occurrence for bodily injury, personal injury a1
property damage. If the submitted policies contain aggregate limi
general aggregate limits shall apply separately to the work unc
this contract or the general aggregate shall be twice the required F
occurrence limit.
2) Automobile Liability (if the use of an automobile is involved
Contractor’s work for the City). $1,000,000 combined single-limit F accident for bodily injury and property damage.
3) Worker’s Compensation and Employer’s Liability. Work(
Compensation limits as required by the Labor Code of the State
California and Employer’s Liability limits of $1,000,000 per accid for bodily injury.
4) Professional Liability. Errors and omissions liability appropriate
the Contractor’s profession. Coverage will be continued in force
not less than twelve (12) months after completion of work
termination of contract. $1,000,000 per claim and in the aggregz
B. Additional Provisions
Contractor shall ensure that the policies of insurance required under 1
Agreement contain, or are endorsed to contain, the following provisior
1) The City shall be named as an additional insured on all polic
excluding Worker’s Compensation and professional liability.
2) The Contractor shall furnish ‘certificates of insurance to the (
before commencement of work.
3) This insurance shall be in force during the life of the agreement i
shall not be canceled without thirty (30) days prior written noticl
the City sent by certified mail.
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27. RESPONSIBLE PARTIES
The name of the persons who are authorized to give written notices or to recei\
written notice on behalf of the City and on behalf of the Contractor in connection with tt
foregoing are as follows:
For City: Title Citv Engineer
Name Llovd Hubbs
Address 2075 Las Palmas ,Drive
Carlsbad. CA 92009-1 576
For Contractor: Title Vice-president
Name Galen N. Peterson
Address ' 10920 Via Frontera
San Dieso, CA 921 27-1704
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28. BUSINESS LICENSE
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Contractor shall obtain and maintain a City of Carlsbad Business License
duration of the contract.
Executed by Contractor this / ? +4 day of \ 8 I
CONTRACTOR:
" NBS/LOWRY INCORPORATED, a California Corporation
1
ATIEST:
GAcd d. Fib"#?a%J
1LC-E /@
(print name here) dlLaLL J. Q&
(title and organization of signatory)
ALETHA L. RAUTENKRANZ lF3/0Efl City Clerk
A -_
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$5 I ITAlz/ 7 5- /2 FT&#-z '/
(title and organization of signatory)
(Proper notarial acknowledgment of execution by Contractor must be attached.:
(President or vice-president and secretary or assistant secretary must s, corporations. If only one officer signs, the corporation must attach a resolution c by the secretary or assistant secretary under corporate seal empowering that 01
bind the corporation.)
APPROVED AS TO FORM:
RONALD R. BALL ci"L - BY EL
1 ~ty Attorney
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