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HomeMy WebLinkAbout1998-12-01; City Council; Resolution 98-3871 2 3 4 0 0 RESOLUTION NO. 98-387 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT WITH GALEN PETERSON, CONSULTING ENGINEER, FOR PROFESSIONAL ENGINEERING SERVICES, PROJECT #3595. 5 WHEREAS, the City Council of the City of Carlsbad, California, has reviewed the r the utilization of consultant services to perform an audit of the costs incurred by ( Residential Group for the construction of Poinsettia Lane from Aviara Parkway to Blackrai 6 7 8 and 9 WHEREAS, the City Council has determined that Galen Peterson, Consulting Er 10 has the needed professional engineering skills; and 11 WHEREAS, the City Council recognizes the need to ensure the appl 12 reimbursement of eligible costs to Catellus Residential Group by utilizing Galen PC 13 Consulting Engineer. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of C: 14 California, as follows: 15 1. That the above recitations are true and correct. 2. That the agreement with Galen Peterson, Consulting Engineer, a copy of \ 16 17 attached and made a part hereof is hereby approved. 18 PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City 19 held on the 1st day of December , 1998 by the following vote, to wit: 20 NOES: None 21 AYES: Council Members Lewis, Nygaard, Finnila, Kulchin & Hall 22 ABSENT: None 23 24 25 26 ATTEST: uTENKw-1 2- 6? (SEAL) 0 0 AGREEMENT FOR AUDIT OF COSTS FOR POINSETTIA LANE FROM AVIARA PARWAY TO BLACKRAIL ROAD AS CONSTRUCTED BY CATELLUS RESIDENTIAL GROUP THIS AGREEMENT is made and entered into as of the 1 st day ( December , 19*, by and between the CITY OF CARLSBAD, a municipi corporation, hereinafter referred to as "City", and Galen N. Peterson, hereinaftc referred to as "Contractor." RECITALS City requires the services of an engineering Contractor to provide the necessar professional engineering services for preparation of an audit of costs; and Contract( possesses the necessary skills and qualifications to provide the services required b the City; NOW, THEREFORE, in consideration of these recitals and the mutual covenani contained herein, City and Contractor agree as follows: 1. CONTRACTORS OBLIGATIONS Contractor will audit costs incurred by Catellus Residential Group fc the construction of Poinsettia Lane from Aviara Parkway to Black Rail Roa based upon the improvements that were included in Bridge and Thoroughfar District No. 2 (Aviara ParkwayIPoinsettia Lane) and the agreement between th City and Catellus Residential Group dated May 19, 1998 (reimbursemel agreement). Task 1 - Review all costs and supporting documents submitted by Catelli eligible for reimbursement in accordance with the terms of the reimbursemer agreement. Task 2 - Review eligible costs for items listed under Task 1 with Catelli Residential Group and come to an agreement on the final eligible costs fc reimbursement. . J. Residential Group and provide written draft opinions of the costs which ar rev. 812519 -1 - 0 0 2. CITY OBLIGATIONS The City shall provide Contractor with a copy of the reimbursement agreemer between the City and Catellus Residential Group. 3. PROGRESS AND COMPLETION The work under this contract will begin within ten (IO) days after receipt ( notification to proceed by the City and be completed within one (I) year of that date Extensions of time may be granted if requested by the Contractor and agreed to i writing by the Assistant City Engineer. The Assistant City Engineer will give allowanc for documented and substantiated unforeseeable and unavoidable delays not cause by a lack of foresight on the part of the Contractor, or delays caused by City inaction ( other agencies' lack of timely action. 4. FEES TO BE PAID TO CONTRACTOR The total fee payable for Task 1 shall be $26,500. Task 2 fees will be paid on a time and materials basis at an hourly rate of $1 1 per hour plus expenses as follows: mileage at $0.32 per mile and any other expense: such as reproduction at cost plus 15%. Task 2 fees shall not exceed $8,000. No other compensation for services will be allowed except those items covere by supplemental agreements per Paragraph 8, "Changes in Work.'' The City resew the right to withhold a ten percent (10%) retention until the project has been accept€ by the City. rev. 812515 -2 - 0 0 5. DURATION OF CONTRACT This agreement shall extend for a period of one (1) year from date thereof. Th contract may be extended by the City Manager for three (3) additional one (1) ye: periods or parts thereof, based upon a review of satisfactory performance and the City needs. The parties shall prepare extensions in writing indicating effective date an length of the extended contract. 6. PAYMENT OF FEES Payment of approved items on the invoice shall be mailed to the Contract( within 30 days of receipt of the invoice. 7. FINAL SUBMISSIONS Within ten (I 0) days of completion and approval of the audit of costs, th Contractor shall deliver to the City the following item: Written report indicating whic costs are eligible for reimbursement. 8. CHANGES IN WORK If, in the course of the contract, changes seem merited by the Contractor or th City, and informal consultations w.ith the other party indicate that a change in th conditions of the contract is warranted, the Contractor or the City may request a chanc 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 1 inform them of the proposed changes along with a statement of estimated changes charges or time schedule. A Standard Amendment to Agreement shall be prepared t: the City and approved by the City according to the procedures described in CarlsbE rev. 8/25/E -3 - 0 0 Municipal Code Section 3.28.172. Such Amendment to Agreement shall not rendc ineffective or invalidate unaffected portions of the agreement. 9. COVENANTS AGAINST CONTINGENT FEES The Contractor warrants that their firm has not employed or retained at- company or person, other than a bona fide employee working for the Contractor, 1 solicit or secure this agreement, and that Contractor has not paid or agreed to pay ar company or person, other than a bona fide employee, any fee, commissiol percentage, brokerage fee, gift, or any other consideration contingent upon, or resultin from, the award or making of this agreement. For breach or violation of this warrant the City shall have the right to annul this agreement without liability, or, in its discretiot to deduct from the agreement price or consideration, or otherwise recover, the fi amount of such fee, commission, percentage, brokerage fees, gift, or contingent fee. IO. NONDISCRIMINATION CLAUSE The Contractor shall comply with the state and federal laws regardin nondiscrimination. 11. TERMINATION OF CONTRACT In the event of the Contractor's failure to prosecute, deliver, or perform the WOI as provided for in this contract, the City Manager may terminate this contract fc nonperformance by notifying the Contractor by certified mail of the termination of th Contractor. The Contractor, thereupon, has five (5) working days to deliver sai documents owned by the City and all work in progress to the Assistant City Engineer The Assistant City Engineer shall make a determination of fact based upon th rev. 81251s -4 - e e documents delivered to City of the percentage of work which the Contractor hi performed which is usable and of worth to the City in having the contract completed Based upon that finding as reported to the City Manager, the Manager shall determir the final payment of the contract. This agreement may be terminated by either party upon tendering thirty (3r days written notice to the other party. In the event of such suspension or terminatio upon request of the City, the Contractor shall assemble the work product and put sarr in order for proper filing and closing and deliver said product to City. In the event 1 termination, the Contractor shall be paid for work performed to the termination dat however, the total shall not exceed the lump sum fee payable under paragraph 4. Tt City Manager shall make the final determination as to the portions of tasks completc and the compensation to be made. 12. CLAIMS AND LAWSUITS The Contractor agrees that any contract claim submitted to the City must I: asserted as part of the contract process as set forth in this agreement and not anticipation of litigation or in conjunction with litigation. The Contractor acknowledgf that if a false claim is submitted to the City, it may be considered fraud and tt Contractor may be subject to criminal prosecution. The Contractor acknowledges th California Government Code sections 12650 et sea., the False Claims Act, provides f civil penalties where a person knowingly submits a false claim to a public entity. The: provisions include false claims made with deliberate ignorance of the false informatic or in reckless disregard of the truth or falsity of information. If the City of Carlsbad see1 rev. 8/25/! -5 - e 0 to recover penalties pursuant to the False Claims Act, it is entitled to recover it litigation costs, including attorney's fees. The Contractor acknowledges that the filing c a false claim may subject the Contractor to an administrative debarment proceedin wherein the Contractor may be prevented to act as a Contractor on any public work c improvement for a period of up to five years. The Contractor acknowledges debarmer by another jurisdiction is grounds for the City of Carlsbad to disqualify the Contractc from the selection process. (Initial) F The provisions of Carlsbad Municipal Code sections 3.32.025, 3.32.021 3.32.027 and 3.32.028 pertaining to false claims are incorporated herein by reference k (Initial) 13. 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 callin! and not as an employee of the City. Contractor shall be under control of the City on1 as to the result to be accomplished, but shall consult with the City as provided for in th 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 whatsoever The Contractor is an independent Contractor of the City. The payment made 1 the Contractor pursuant to the contract shall be the full and complete compensation 1 which the Contractor is entitled. The City shall not make any federal or state t~ withholdings on behalf of the Contractor or its employees or subcontractors. The Ci shall not be required to pay any workers' compensation insurance or unemploymel rev. 8125IE -6 - 0 0 contributions on behalf of the Contractor or its employees or subcontractors. Th Contractor agrees to indemnify the City within 30 days for any tax, retiremer contribution, social security, overtime payment, unemployment payment or worker compensation payment which the City may be required to make on behalf of th Contractor or any employee or subcontractor of the Contractor for work done under thi agreement or such indemnification amount may be deducted by the City from an balance owing to the Contractor. The Contractor shall be aware of the requirements of the Immigration Refor and Control Act of 1986 and shall comply with those requirements, including, but nl limited to, verifying the eligibility for employment of all agents, employee subcontractors and Consultants that are included in this agreement. 14. CONFORMITY TO LEGAL REQUIREMENTS The Contractor shall cause all drawings and specifications to conform to : applicable 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. rev. 812511 -7 - 0 a 15. OWNERSHIP OF DOCUMENTS All plans, studies, sketches, drawings, reports, and specifications as herei required are the property of the City, whether the work for which they are made b executed or not. In the event this contract is terminated, all documents, plan! specifications, drawings, reports, and studies shall be delivered forthwith to the City Contractor shall have the right to make one (I) copy of the plans for its records. 16. REPRODUCTION RIGHTS The Contractor agrees that all copyrights which arise from creation of the WOI pursuant to this contract shall be vested in City and hereby agrees to relinquish i claims to such copyrights in favor of City. 17. HOLD HARMLESS AGREEMENT Contractor agrees to indemnify and hold harmless the City of Carlsbad and i officers, officials, employees and volunteers from and against all claims, damage: losses and expenses including attorneys fees arising out of the performance of th work described herein caused by any willful misconduct, or negligent act, or omission ( the contractor, any subcontractor, anyone directly or indirectly employed by any of the1 or anyone for whose acts any of them may be liable. 18. ASSIGNMENT OF CONTRACT The Contractor shall not assign this contract or any part thereof or any monk due thereunder without the prior written consent of the City. rev. 8/251E -8 - 0 0 19. SUBCONTRACTING If the Contractor shall subcontract any of the work to be performed under thi: contract by the Contractor, Contractor shall be fully responsible to the City for the act and omissions of Contractor's subcontractor and of the persons either directly c indirectly employed by the subcontractor, as Contractor is for the acts and omissions c persons directly employed by Contractor. Nothing contained in this contract sha create any contractual relationship between any subcontractor of Contractor and thl City. The Contractor shall bind every subcontractor and every subcontractor of subcontractor by the terms of this contract applicable to Contractor's work unles specifically noted to the contrary in the subcontract in question approved in writing t: the City. 20. PROHIBITED INTEREST No official of the City who is authorized in such capacity on behalf of the City t negotiate, make, accept, or approve, or take part in negotiating, making, accepting, ( approving of this agreement, shall become directly or indirectly interested personally i this contract or in any part thereof. No officer or employee of the City who is authorize in such capacity and on behalf of the City to exercise any executive, supervisory, r similar functions in connection with the performance of this contract shall becorr directly or indirectly interested personally in this contract or any part thereof. rev. 81254 -9 - 0 e 21. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of th City, either before, during or after the execution of this contract, shall affect or modi1 any of the terms or obligations herein contained nor entitle the Contractor to an additional payment whatsoever under the terms of this contract. 22. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 17, "Hold Harmless Agreement," 2 terms, conditions, and provisions hereof shall inure to and shall bind each of the partic hereto, and each of their respective heirs, executors, administrators, successors, an assigns. 23. EFFECTIVE DATE This agreement shall be effective on and from the day and year first writte above. 24. CONFLICT OF INTEREST The City has determined, using the guidelines of the Political Reform Act and tF City's conflict of interest code, that the Contractor will not be required to file a conflict 1 interest statement as a requirement of this agreement. However, Contractor heret acknowledges that Contractor has the legal responsibility for complying with tt Political Reform Act and nothing in this agreement releases Contractor from th responsibility. rev. 812515 -10 - 0 0 25. INSURANCE The Contractor shall obtain and maintain for the duration of the contract and an and all amendments insurance against claims for injuries to persons or damage 1 property which may arise out of or in connection with performance of the WOI hereunder by the Contractor, his agents, representatives, employees or subcontractor: Said insurance shall be obtained from an insurance carrier admitted and authorized i do business in the State of California. The insurance carrier is required to have current Best's Key Rating of not less than "A-:V" and shall meet the City's policy fc insurance as stated in Resolution No. 91-403. A. Coverases and Limits. Contractor shall maintain the types of coverages and minimum limi indicated herein, unless a lower amount is approved by the City Attorney or Ci Manager: 1. Comprehensive General Liability Insurance. $1,000,000 combine single-limit per occurrence for bodily injury, personal injury and property damage. If tt submitted policies contain aggregate limits, general aggregate limits shall app separately to the work under this contract or the general aggregate shall be twice tt required per occurrence limit. 2. Automobile Liability (if the use of an automobile is involved fi Contractor's work for the City). $1,000,000 combined single-limit per accident for bodi injury and property damage. rev. 812511 -11 - e e 3. Workers' Compensation and Employer's Liability. Worker! Compensation limits as required by the Labor Code of the State of California an Employer's Liability limits of $1,000,000 per accident for bodily injury. 4. Professional Liability. Errors and omissions liability appropriate t the contractor's profession with limits of not less than $1,000,000 per claim. Coverag shall be maintained for a period of five years following the date of completion of th work. 6. Additional Provisions. Contractor shall ensure that the policies of insurance required under th agreement contain, or are endorsed to contain, the following provisions. 1. The City shall be named as an additional insured on all polick excluding Workers' Compensation and Professional Liability. 2. The Contractor shall furnish certificates of insurance to the Ci before commencement of work. 3. The Contractor shall obtain occurrence coverage, excludir Professional Liability which shall be written as claims-made coverage. 4. This insurance shall be in force during the life of the agreement ar any extension thereof and shall not be canceled without 30 days prior written notice the City sent by certified mail. 5. If the Contractor fails to maintain any of the insurance coveragc required herein, then the City will have the option to declare the Contractor in breach, may purchase replacement insurance or pay the premiums that are due on existit rev. 81251: -12 - 0 0 policies in order that the required coverages may be maintained. The Contractor responsible for any payments made by the City to obtain or maintain such insuranc and the City may collect the same from the Contractor or deduct the amount paid fro1 any sums due the Contractor under this agreement. 26. RESPONSIBLE PARTIES The name of the persons who are authorized to give written notices or to receh written notice on behalf of the City and on behalf of the Contractor in connection wi, the foregoing are as follows: For City: Title Assistant City Engineer Name David Hauser Address 2075 Las Palmas Drive Carlsbad, CA 92009 For Contractor: Title Principal Name Galen Peterson Address 16064 Sun Summit Pt. San Diego, CA 92127-2050 Registered Civil EngineerlLicense Number: 18364 27. BUSINESS LICENSE Contractor shall obtain and maintain a City of Carlsbad Business License for tt- duration of the contract. rev. 812515 -13 - 0 0 28. ENTIRE AGREEMENT This agreement, together with any other written document referred to o contemplated herein, embody the entire agreement and understanding between thc parties relating to the subject matter hereof. Neither this agreement nor any provisior hereof may be amended, modified, waived or discharged except by an instrument ir writing executed by the party against which enforcement of such amendment, waiver c discharge is sought. Executed by Contractor this 20 day of CONTRACTOR: CITY 0 CARLSBAD, a municip: e 70 /3 c.? , A9 923 By: ATTEST: (print namehitie) h 4.P- (sign here) ALETHA L. RAUTENKRANZ City Clerk (Proper notarial acknowledgment of execution by Contractor must be attached.) (President or vice-president and secretary or assistant secretary must sign fc corporations. If only one officer signs, the corporation must attach a resolution certifie by the secretary or assistant secretary under corporate seal empowering that officer 1 bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL City ney BY 62- fl f&ssi&mt It Attorney rev. 8/25/E -14 - 0 0 d State of California ) 1 County of San Diego ) On October 20, 1998, before me, Belinda R. Guzman, Notary Public, personally appear6 Galen N. Peterson, personally known me to be the person whose name is subscribed 1 the within instrument and acknowledged to. me that he executed the same in h authorized capacity, and that by his signature on theinstrument the person, or entity upc behalf of which the person acted, executed the instrument. WITNESS my hand and official seal '. &L . p &*wm II Signature of Notary '4 (This area for official notary seal) Title or Type of Document Agreement for Audit of costs for Poinsettia Lane From Parkway to Blackrail Road as Constructed by C Residential Group Date of Document none No. of Pages 14 Signer@) other than named above None