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HomeMy WebLinkAbout2012-11-27; City Council; Resolution 2012-2621 RESOLUTION NO. 2Q12-2fi2 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. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 Cartsbad 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 25 capital project funding; 26 27 "I 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 Carisbad. /// /// /// /// /// /// /// /// /// 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 City Council and Cartsbad 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 LORRAINE^. WOOD', City^rk (SEAL) Karen R. Kundtz, Assistant City Clefk 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 f^hu^y^^^tUiy , 20M^, by and between the CITY OF CARLSBAD, a municipal corFToration, 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 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 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 earty 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^-.'' 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. 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. ^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. 10 ''-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 periocj ^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 '•0-2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 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. 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. '•0-4 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 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 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: Name Title Dept Address For Contractor: Skip Hammann Transportation Director Transportation CITY OF CARLSBAD 1635 Faraday Avenue Cartsbad CA. 92008 Phone (760) 602-2751 Name Title Address Phone Email Matt Capuzzi Program Director 401 B Street, Suite 600 San Diego. CA 92101 (619) 744-0122 Matt.Capuzzi(^Kimlev-Horn.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 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 City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fonvarded 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 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, arid 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 ef 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. 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 KIMLEY-HORN AND ASSOCIATES, INC. a North Carolin day of , 20 i CITY OF CARLSBAD, a municipal corporation of the State of California By: (sign here) K4frrvfe^^l M{(£^ Ft^ ica^r (print name/title) By: Mayor (sign here) (print name/title) / ATTEST: LORRAINE City Clerk Proper notarial acknowledgment of execution by Contractor must be attached. \f^^^ojMlk^ Agreement must be signed by one corporate officer from each ofthe following two gVdtfpQ'*'^ 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 QF CARLSBAD, a municipal corporation ofthe State of California APPROVED AS TQ 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?/! t>)>^D On mmCM^ before me, ^^£nZ^jn__£M^±,^^ ,' , (Here insert name and title ofthe officer) 3/ ' personally appeared mV\d \L^Y\Y ^/^t'lqfiVI md /)1AM^JA1 T C which the person(s) acted, executed the rnstrumenV^ °' '"^''^ the foregoing paragraph LTriSoIrL™^^^^ PERJURY under the laws ofthe State of Califomia that WITNESS my hand and official seal. Signature of Notary Public (Notary Seal) tRIKA M. CSASZI ( COMM. #1841978 z Notary Public • Califomia 2 San Diego County -* My Comm. Expires Mar. 26.2013| ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT ,, (Title or descri^ftion of attached document) /-x.,n„ description ofattached document cpntinued) (A n-c\. Wib-h/^j , Pages 1_ Document Date [O/ h nZ (AdditionaHhformation^ CAPACITY CLAIMED BY THE SIGNER • Individual (s) W Corporate Officer , , v iiLtlmsijimf /kna^fW \ • Attomey-in-Fact h£ C ^(^jirkVly^, • Trustee(s) f^(Ky\(£\ • 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's if a document,s 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 Cahforma (i.e. certifying the authorized capacity ofthe 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 s^gner(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 rnust print his or her name as it appears within his or her commission followed by a comma and then your title (notary public) * notarization^^^''* document signer(s) who personally appear at the time of * wrlll? 'r^f ^t^'^g^J^-- «>• plural forms by crossing off incorrect forms (i e ha/she/tbey^ is /are) 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 * th?c?unty de?k """^^"^ """'^ '"^^''^ °" ^'^ "^'^ ""^^'"^ °f • Additional information is not required but could help to ensure this ^ acknowledgment is not misused or attached to a different document V ndicate title or type of attached document, number of pages and date V Indicate the capacity claimed by the signer. If the claimed capacity' ,s a corporate officer, indicate the title (i.e. CEO, CFO, Secretary) * Securely attach this document to the signed document Statment ofQmltfieaHam h Provide MatttrAffiemtnt ComuUing SfrvUxt 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 Carisbad 21 I 0Y800007.12 SfcllBF^ KImley-Horn and Associates, Inc. CA897 MASTER AGREEMENT FOR CIVIL AND TRAFFIC ENGINEERING SERVICES (MARK THOMAS & COMPANY, INC.) (THIS AGREEMENT is made and entered into as of the day of y^^i^^n^ J 20 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: 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 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 earty 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^ '' 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 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. lO-l-S 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. 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 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 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 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 Cartsbad 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. 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 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 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 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 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 nghts 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 0 cA-6)o-€-20J_9L CONTRACTOR MARK THOMAS & COMPANY, INC., a California corporation By: 1. U I (sign her (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California ^ Mayor (print name/fitle) ' ATTEST: LOPIRAIN 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 Attonley City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of 5s (Xy^\i\ QAiX.<r^ On Oe^. 0^O\QL before me, Yo^C-c^ ^Wv>^-tA No^/M '^\D\.'»C Date I Here Insert Na*ie and Title of the Officer personally appeared VA\cW/e^ Jfss^ptW L-OV\W>A^\ ^lAiA Name(s) of Signer(s) U)\VV #1889426 Nolary PuMic - CaMbniit Santa Clwa County ^ who proved to me on the basis of satisfactorv evidence to be the person(s) whose name(s) is^aS^ subscribed to the within instrument and acknowledged to me th|it J^©/6he^t6iy> executed the same in hlSTTreT/t^e^authorized capacity(ies), and that by meir^ 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 and/or Stamp 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: tAft&Vgi*^ Agr-ei/tsfl^'V J^^ Ctj;V flu^"\#»rff\c &v\^vr\tJA/^ Se.^\j\a.i, CA^'^ \ 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: 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*Ctiatsworth, CA 91313-2402• www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 ^ , Mosfer Agreemenf Consu/f/ng Semces - C/v//ond Troff/c £ng/neer/ng Hi '" ' """""'"''•' "~ ^ •• > . • it • ft' * EXHIBIT A ^ Section 5: Rate Schedule ^ f#j Mark Thomas & Company, Inc. ** I''lorLS51{)fvAf 0 Of n^:r ifc Principal/Project Manager $290.00 per hour Structural Manager 255.00 per hour Engineering Manager lli 215.00 per hour Engineering Manager II 205.00 per hour Engineering Manager 1 178.00 per hour Engineer X 170.00 per hour Engineer IX 162.00 per hour Engineer Vill 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 lli 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 II 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 Messenger 42.00 per hour s .vifiONW?-r's!y\4/M.Hit'U' 'i'-; <:s Environmental Manager $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 R'eld Party and Vehicle. 298.00 per hour SPECIAL SERVICES 5 Expert Witness $350.00 per hour A Strategic Consulting (Principal) $350.00 per hour Reimbursables including, but not limited to: Printing and Materials, Filing Fees, and Field Expenses Cost plus 5% '* Outside Consultant Fees Cost plus 5% ^ llir mftU THOMAS iCQMPAHY 22 >^ Masfer Agreemenf Consulfmg Services - GV/7 ond Traffic Engineering 3 IBS Fehr & Peers Principal $200.00 - $295.00 Senior Associate $185.00 - $200.00 Associate $165.00 - $185.00 Senior Engineer/Planner $135.00 - $165.00 Engineer/Planner $110.00 - $135.00 Senior Technical Support $120.(K) - $155.00 Administrative Support $100.00 - $120.00 Technician $115.00 - $120.00 Intern $90.00 Pat Noyes CSS/Traffic Calming/Public Outreach $180.00 KTU+A Principal $165.00 * Senior Associate. $135.00 I; Associate $115.00 Senior Designer/Senior Planner/GIS Analyst $105.00 Designer/Planner $95.00 J Administration $75.00 »».., Jl f* Bicycle Solutions «^ Planning and Design $120 ^ Safety evaluations $120 ' Bicycle storage facility design $1CK} EKFERT WITWESS V Research $120 % Deposition and Courtroom $225 0 *j Bicycle $0.07/mile In addition to transit fares (If any) San Francisco Bay Area (Within 5 miles of BART, Caltrain, SF Muni, VTA Light Rail, and buses) Actual expenses Out-of-area (Rental car. Inter-city transit, airfare, lodging) Actual expenses including meals, unless otherwise agreed mUK mOKAS SrCOMPAHr • • ^ • • ^ ^ ^ 23 CA898 MASTER AGREEMENT FOR CIVIL AND TRAFFIC ENGINEERING SERVICES (RBF CONSULTING) CTJHIS AGREEMENT is made and entered into as of the ^P~^ day of ^M^^^^TKJ^ , 20/£:f 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, 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 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 earty 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 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 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 Cartsbad CA, 92008 Phone (760) 602-2751 Name Tim Thiele Title Project Manager Address 5050 Avenida Encinas, Suite 260 Cartsbad. CA 92008-4386 Phone (760) 603-6243 Email tthiele@rbf.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 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 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 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 othen/vise 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 27 day of ^^p^ , 20 I'Z CONTRACTOR RBF CONSULTING, a California corporation ^ (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 B Group A Chairman, President, or Vice-President Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant City Attorney City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of On before me, ' '^'^ Here Insert Name and Title of the Officer Date' personally appeared "ScX)Tr "TPrWU)/2- flame(s) of Signer(s) ANDREA SANDERS | Commtssion # 1947527 I Notary Pubiic - California | San Diego County g tt Comm. Expife$Aufl11.20151 '^i^'^'W'^^iwmfm'mm'm^ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(9) is/are- subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/hor/thoif authorized capacity(i©8), and that by his/hor/thotf signature(-e) on the instrument the person(-8), or the entity upon behalf of which the person(G) 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: fT\fiCTE)g. Ptea/^SgmOUT E>M5^.SQ2.U IC^6 - Q^rxj oF CMJ^0^ Document Date: MoT ftftfTHO^TTmg of SlCN.i Number of Pages: S Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: 'SCJQTT'TA^ Signer's Name: "^Corporate Officer - Title(s): V/tCeQ^iQ^T" • Corporate Officer - Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT 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) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Orange } On Septennber 28, 2012|3efore Kim Hartsfield, Notary Public me, Here Insert Name and Title of tfie Officer personally appeared Michael V. Valenza Name(s) of Signer(s) KIM HARTSFIELO Comniission # 1824540 Notary PuWic - Califomia Orange County My Comm. Expires Nov 25.20121 I i I I > p V l I I g 1 p PC Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(^whose name][^is/a)>6_subscribed to the within instrument and acknowledged to me that he/sb^b^y executed the same in his/b^/tjjueir authorized capacity(i9<S), and that by his/b^ttJsic signature(8i)Lon the instrument the person(^ or the entity upon behalf of which the person(j4-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 Notar/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: Capacity(ies) Claimed by Signer(s) Signer's Name: • Individual Michael V. Valenza Signer's Name: • Individual •)^orporate Officer — Title(s): Vice President • 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 RBF consulting • 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 • Chatswortfi, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 r' Ik *' •i a' Ih %. «>' fc iC tt. •r" fc •I' fc fc Ik rA T- c n Y o f CARLSBAD Master Agreement Consulting Services Civil and Traffic Engineering EXHIBIT A RATE SCHEDULE RBF CONSIJlTIF^cS 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 $ / 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 Vehide 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. 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%. UN CONSUO-ING 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 Plummer/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; |^3p CA899-CMWD Master/Stomn Water Engr Svcs - CA905-City; CA907-CMWD (Type of insurance) (Name of contract) O Reduce coverage to the amount of: n Waive coverage ^ Other: Waive requirement of surplus lines carrier on the LASLI (formerly LESLI) FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check (hose 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] 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] 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]. ' 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 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) Quarterly List of Alien Insurers arc 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/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 from 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 irom 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 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 tbe 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 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\lnsurancc\Admin Order #68 waiver modify insurance requirements.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^iL^^tyuic^^ 20j^, by and between the CITY 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 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 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 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 Jason Pack Title Transportation Director Title Senior Associate Dept Transportation Address 101 W. Broadway, Suite 1970 CITY OF CARLSBAD San Diego. CA 92101 Address 1635 Faraday Avenue Phone (619) 234-3190 Carlsbad CA, 92008 Email j.pack@fehrandpeers.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 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. 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 By: rnia corporation day of 20. CITY OF CARLSBAD, a municipal corporation of the State of California By: (print namb/title) ATTEST: By: (sign here) (print nameititle) LORRAIN City Clerk Proper notarial acknowledgment of execution by Contractor must be attache'cfK^jfiatObV^poration. 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: J^OA, Assistant City Attorney City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT } ^ On efore me, State of Californi County of Date personally appeared Here Insert Name and Title ofthe Officer Name(s) of pigner{s) T IP? LISA M. CURL Commission # 1880833 Notary Public - California Contra Costa County ' Comm. Expires Fab 25.20141 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 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: Capaclty(les) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Individual n Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator n 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 THUIVIBPRINT OF SIGNER Top of thumb here ©2009 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT A section five ,'.') I r 1 billing rate for each team member '•^ Cl T Y O CARLSBAD Rate Schedule Fehr & Peers will utilize the foliowing 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 Pack) $165.00 - $225.00 Associate (Matt Benjamin) $115.00-$185.00 Senior Engineer/Planner (Support Staff) $120.00-$175.00 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. scliedHte, 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 c^V^ day of ^X/W^^c..^ 20^Li 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 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 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 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 Mike Singleton Title Transportation Director Title Principal Dept Transportation Address 3916 Normal Street Dept CITY OF CARLSBAD San Diego, CA 92103 Address 1635 Faraday Avenue Phone (619)294-4477 Carlsbad 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 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 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/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 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 fM^tSUS^dav of <S<^fCm\Qg^ 20 . CONTRACTOR KTU&A, a California porporation A (srgn here) CITY OF CARLSBAD, a municipal corporation of the State of California By: (print nanrW/title) ATTEST: (sign here) ^ LO ^UgAf^^.cAiuri^j^^ THeA^iiHB^ City Clerk (print name/title) Proper notarial acknowledgment of execution by Contractor must be attache)! y gj^oofcoration. 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 Attorney City Attorney Approved Version 2/17/12 CALIFORNIA CERTIFICATE OF ACKNOWLEDGEMENT State of Califomia County of San Diego On before me, Robert E. Anderson, a Notary Public personally appeared KS^AM^ J,.cJf)oQ-^^^^^f< , and 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 of the State of Califomia that the foregoing paragraph is tme and correct. WITNESS my hand and official seal. Signature \ .^ir^l^ ROBERT E. ANDERSON { ^ COMM. #1823044 o I NOTARY PUBUC-CALIFORNIA » SAN DIEGO COUNTY 2 My Commission Expires • DECEMBER 14.2012 j This Certificate is attached to Project Approach and Rate Schedule EXHIBIT A KTU+A Rate Schedule 2013-2015 Prindpal $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 Schedule 2013-2015 Principal Engineer $200.00 Associate Principal Engineer $190.00 Senior Transportation Engineer $178.00 Transportation Engineer 111 $158.00 Transportation Planner 11 $114.00 Transportation Planner 1 $102.00 Engineering Associate II $113.00 Engineering Computer Analyst 1 $85.00 Senior CADD Drafter $109.00 CADD Drafter I $77.00 Engineering Technician 11 $102.00 Engineering Technician 1 $77.00 Clerical $72.00 Engineering Aide 1 $55.00 ^ City ofCarlsbad 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 1iPlu^7K^^ 20M-J, 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 offive years following the date of completion ofthe work. [2] 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 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 Skip Hammann Title Transportation Director Dept Transportation Dept CITY OF CARLSBAD Address 1635 Faraday Avenue Carlsbad CA, 92008 Phone (760) 602-2751 Name John Keating Title Principal Address 4542 Ruffner Street, Suite 100 San Diego, CA 92111 Phone (858) 300-8800 Email keating(^llgengineers.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 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 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 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 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 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 ^ 7 day of S^fiTH^^/Sf^ 2012^ . CONTRACTOR LINCOTT LAW AND GREENSPAN, ENGINEERS, a California corporation ere) CITY OF CARLSBAD, a municipal corporation ofthe State of California (print name/title) (sign here) ^^^^ i^pim/tp ^^mm (print name/title)/ / ATTEST: LORRAfNE City Clerk Proper notarial acknowledgment of execution by Contractor must be attached.Mf/ oofb^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 Atton REGINA RUZZINI j COMM. #1853486 o NOTARY PUBUC-CAUFORNIA SAN DIEQO COUNTY 2 My Comminion ExpifM • JUNE 9.2013 I City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of O^^^Q^ 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 name^s)®^ subscribed to the within instrument and acknowledged to me that @^he/they executed the same in ^jSfher/their authorized capacity(ies)7 and that by(@lhor/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. Mb WITNESS my ifflcial seal. Signal (Notary Seal) LORI Committion Notery Public I >^BiB£^ Orange County p I NQBB^^ ^ ^^^^ Expires Oct 9, 20121 l^'^i'''V'V'^r*«''<V"P'iv^v''V'^'^^ M. CLARK I lion # 1818508 | iblic ^ Calttomia | 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) • 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 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/dwyr is /are) 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^Cy On personally appeared } before me, NCAiy^^ I Tjj y Here Insert Name and Title of the Officer ^ Name(s) of Signer(s) REQINA RUZZINI | COMM. #1853486 o NOTARY PUBUC-CALIIK)RNIA 10 SAN DIEGO COUNTY 2 My Commission Expires • JUNE 9.2013 [ 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. 1 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) Other Than 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., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 EXHIBIT A 5. RATE SCHEDULE 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 thi-ough at cost. CITY OF CARLSBAD - FEE SCHEDULE Effective November 1,2006 TITLE Principals „ . . , . $ 200.00 Principal Engineer ^ Associate Principal Engmeer ^ ^"'"^ Transportation Engineers Senior Transportation Engineer $ 178.00 $ 1 CO Af) Transportation Engineer 111 • ^ Transportation Planners <C 114 00 Transportation Planner II ^ <C 109 00 Transportation Planner I * Technical Support *R 111 00 Engineering Associate II • Engineering Computer Analyst 1 ^ ^-^-^^ Senior CADD Drafter $ ^^^-^^ CADD Drafter I '-^ ^^'^^ Engineering Technician II ^ ^^^'^^ <r 77 00 Engineering Technician I ^ Word Processor/Secretaiy • ^ ^^"^^ . ... T $ 55.00 Engineering Aide I LINSCOTT, LAW & GREENSPAN, engineers 19 CA903 IVIASTER AGREEMENT FOR TRANSPORTATION PLANNING SERVICES (LSA ASSOCIATES, INC.) THIS AGREEMENT is made and entered into as of the day of , 20 /<^bv and between the CITY OF CARLSBAD, a municipal corp<fration, 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: 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 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 Contractors 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 11 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 12 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 13 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 14 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 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 Proiect 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 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. 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 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 of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS u ^ * ^ * * Bv 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 junsdiction 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 junsdiction 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. 6 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. ^ day of Executed by Contractor this. CONTRACTOR LSA ASSOCIATES, INC., a California corporation By: ., 20/^ CITY OF CARLSBAD, a municipal corporation of the State of California (sign here) (priiit na/rie/title) sign here) (print name/title) ATTEST: LOR City Clerk Proper notarial acknowledgment of execution by Contractor must be attached. 11^*4'Byrporation. 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 Attornjy City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County n, fx am. } ' I Here Insert Name ^nd Titla of the OfficerO Qn t/CT \iWO^ before me, ^ ' D^i^ ^ I Here Insert Name ^nd Titla of thi personally appeared "30^65 r»Ad US CO^^ Name(s) of Signer{s) iii<i • » CHRISTINE BRADY Commission # 1949054 <^irf^3 Notary Public - California Orange County | L^™^ Mv Comm. Expires Aug 21.20151 1^ W'WW^^^'^'^^F^ who proved to me on the basis of satisfactory evidence to be the person© whose nameJ© ^^are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in +tis/heT/their authorized capacit\^), and that by l iis/her/their signatur^ on the instrument the persoi©, or the entity upon behalf of which the persort^ 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\/)l?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 Attached.Document Title or Type o, Docu.en,: f^Uxr\^'V ^(0^(\(^^O(^ mmW^ Document Date: Signer(s) Other Than Named Above: Number of Pages: Capacity(ies) Claimed by Signer(s) Signer's Name • Individual ^g^Corporate Officer — Title(s) • Partner — • Umited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: ^)^orporate Officer — Title(s): Signer's Name • Individual RIGHTTHUMBPRINT OF SIGNER Top of thumb here • 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., P.O. Box 2402 .Chatsworth, CA 91313-2402.www.NationalNotary.org Item #5907 Reorder; Call Toil-Free 1-800-876-6827 LSA ASSOCIATES, INC. HOURLY BILLING RATES EFFECTIVE AUGUST 2011 Job Classification Hourly Rate Range'-^ Pianning Environmental Transportation Air/NoAse Cultural Resources Biology GIS Hourly Rate Range'-^ Principal Principal Principal Principal Principal Principal Principal $140-305 Associate Associate Associate Associate Associate Associate 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 Plarmer/ Engineer Air QuaJity/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 Field Crew/Field Crew | | III 1 $55-90 Office Services Research Assistant/Technician $35-60 Graphics $100-120 Office Assistant $60-100 Word Processing/Technical Editing $80-100 X inc nouny raic lor worit mvoivmg actual expenses m coun, givmgaeposiiions or simnar expert lesjunony, wui oe omea at 3>4uu per nour regaraiess orjOD ciassmcations. 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, JNC. 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 (11x17) 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 Instmment $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 f^^^-^-thJ^' . 20y^ by and between the CITY OF CARLSBAD, a municipal corpotation, 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-iVH" 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. '•3. 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 Ehab Gerges Title Transportation Director Title Contract Manager Dept Transportation Address 750 B Street, Suite 1800 Address CITY OF CARLSBAD 1635 Faraday Avenue San Diego, CA 92101 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. 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 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 S^jp\e.Yr\oeY^ , 20 )Z . CONTRACnp^ HARRIS^-^^^^IATES, INC., a Califorp^^^i^ation (sign here) CITY OF CARLSBAD, a municipal corporation of the State of California By: Mayor (print yime/title) By: (sign here) (print name/title) LOR City Clerk Proper notarial acknowledgment of execution by Contractor must be atta6l?ie/jiMf ^xCbrporation. Agreement must be signed by one corporate officer from each of the following ^wo 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 Attornev\ City Attorney Approved Version 2/17/12 ACKNOWLEDGMENT State of California Countv of rimY\g[e On("^pV^bft^ rt] oio\Si before me, 7ignr>;dr 5bc<\cUv/cA\r (insert name and title of the officer) personally appeared £.\ncAh A^rotP.?. who proved to me on the basis of satisfbbtorv who proved to me on the basis of satisfbbtory 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 of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) "JeStfFla'LUoiVAR " Commfition # 1971S70 Notary PuMic • CaMfomit Ortnge County ^ My Comm. Explrw Mif^^ EXHIBIT A CITYOF CABLSBAD Master Agreement Consulting Services - 4. Storm Water Engineering PAGE 23 RATE SCHEDULE Harris & Assodates 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 othenA/ise 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) f THIS AGREEMENT is made and entered into as of the ^ clay of A/^<^IC^ 20 A^bv 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 . ^ .u ^ * * + 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 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 earner 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". ^^•^ Coveraqes 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. ^^•^•^ Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. ^^•^•^ Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 0-1 Workers' Compensation and Employer's Liabilitv. Workers' Compensation Hmits 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. ^^•^•'^ 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 City's Initials Contractor's Initials Insurance requirement is waived. 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 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 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 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 O/y/ibL^^ ., 20/2, CONTRACTOR RBF CONSULTING, a California corporation ^ (sign here) CITY OF CARLSBAD, a municipal corporation of the State of California (print name/title) ATTEST: , ngn here) (print name/title) LORRAINE City Clerk Proper notarial acknowledgment of execution by Contractor must be attached.^H*q>obVporation. 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 BV: m.)^nL. Assistant Citv Attorney City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of before me, Here Insert Name and Title of th* Officer ^ On personally appeared Name(s) of Signer(s) MELISSA C. KESSLER I Commission No . 1830381 o NOTARY PUBUC-CAUFORNIA f SAN DIEGO COUNTY < MyComm.ExpitesJanuary11, 2013 f Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the personj^ whose nameif^il^jj^^ subscribed to the within instrument and acknowledged to me that (©^/t|;% executed the same in^fijSi'b^r/t^^ir authorized capacity^ils^, and that by ^5iii!Pi^r/t><[r signaturej^) on the instrument the person])!^, or the entity upon behalf of which the personjjS^ 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^^nd 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: Signer(s) Other Than 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: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer Is Representing: © 2007 National Notary Association . 9350 De Soto Ave., RO. Box 2402 . Ctiatsworth, 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 Michael V. Valenza Here Insert Name and Title of the Officer Name{s) of Signer(s) • •_• I • • • t I 1 KIM HARTSFiELO Commission # 1824540 Notary Public - California Orange County Z who proved to me on the basis of satisfactory evidence to be the person^ whose name(jj),is/aje.subscribed to the within instrument and acknowledged to me that he/9i3e/tl56y executed the same in his/h»r/tliigftr authorized capacity(i06f, and that by his/lief/tbeir signature(»^n the instrument the person(^ or the entity upon behalf of which the person(5Mcted, executed the instrument. 1 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 orType 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 Michael V. Valenza K Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: Vice President RIGHTTHUMBPRINT OF SIGNER Top of thumb here RDF 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 Toll-Free 1 -800-876-6827 CARLSBAD Master Agreement Consulting Services Storm Water Engineering Ik, I.' if 5 5 5 5 5 5 5 RATE SCHEDULE EXHIBIT A 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 Manager 192.00 Task Manager 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/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 CDNBULTING A ^^^^^1 CofnparH' 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 Plummer/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; l^gp CA899-CMWD Master/Storm Water Engr Svcs - CA905-City; CA907-CMWD (Type of insurance) (Name of contract) O Reduce coverage to the amount of: n Waive coverage 13 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 RF'P 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 I [explain]. ' I^Other (e.g. 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 (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 oflnsurance 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 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 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 ofthe writing of this wmvev and in recent articles appearing in the Tn«.i.r«nr>P Joumal it appears that the state's implementing legislation has resulted in i.ssues 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 Lloyds is trying to work with the state to sort out .some ofthe confiision ad it can he anticipated that there will be more to come on this matter. In the meantime. Llovds of Londony^eazlev syndicate ha^ «nd continues to be the earner 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 regne^tPH Lloyds of London/Beazlev syndicate be accepted as the carrier for professional liabilitv insurance for RRF. Approved bv Risk Manager for these 4 contracts onlv: ^ /O "/^ ^ ZfO/'Z^ (Signature) (Date) H:\WORD\lnsurancc\Adtnin Order #68 waiver modify insurance re<|uiremcnts doc 06/15/2006 CA906 MASTER AGREEMENT FOR STORM WATER ENGINEERING SERVICES (CHANG CONSULTANTS) /THIS AGREEMENT is made and entered into as of the ^ day of ^^>^^f7UUc^ . 20 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-iVH" 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 Coveraqes 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 clearty identifiable. Contractor will allow a representative of City 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 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 copynghts 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 anse 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 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 cnminal 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 penod of up to five (5) years. Contractor acknowledges debarment by another junsdiction 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 nghts 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^/nhiT 20 J2^. CONTRACTOR CHANG CONSULTANTS, a Sole Proprietors l^jp By; )ign here) Wayne Chang, Sole Proprietor CITY OF CARLSBAD, a municipal corporation of the State of California By: Mayor cipal (print name/title) ATTEST: By: (sign here) LORRAINE City Clerk (print name/title) )0D Proper notarial acknowledgment of execution by Contractor must be att^^^ _ Agreement must be signed by one corporate officer from each ofthe folloveripa^twjp*'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 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 CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of ^\\n Y)i€Q^n On Qbt^boia beforeme$0-Ne.S. Vl\l\iamS.Vl64ig^a , (Here insert name and titl^ of the 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 instmment 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 instmment the person(s), or the entity upon behalf of which the person(s) acted, executed the instmment. I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is tme 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 of attached 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/^ieyr 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 v 12.10.07 800-873-9865 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 POCs Reimbia-sable 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 $1 oo 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 1 $90 Right-of-Way Special 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%. R/WP/CONTRACT/GEN/LABORRATE-10FINALSD.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 Carisbad for the STORM WATER ENGINEERING SERVICES MASTER AGREEMENT, then workers' compensation and employers' liability insurance will be obtained. Executed on this t^^ay of ffffkwhfr- . 2012 3iX _X{llliMl^ ., California WAYNE W. CHANG Name Signature SOLE PROPRIETOR - CHANG CONSULTANTS Title CA910 MASTER AGREEMENT FOR WASTEWATER ENGINEERING SERVICES (DUDEK) U^IS AGREEMENT is made and entered into as of the <=^y^ day of y^iL^TH^u^ 20by 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 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-: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 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 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 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 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 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_ day of CONTRACTOR DUDEK^California corporation CITY OF CARLSBAD, a municipal corporation of the State of California (print name/title) Frank Dudek President sneiAi mm ATTEST: LORRAINE M City Clerk (print name/title) Proper notarial acknowledgment of execution by Contractor must be attacffed.lff. aToSrporation. 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: JQfLk Assistant City Attorney City Attorney Approved Version 2/17/12 CALIFORNIA JURAT WITH AFFIANT STATEMENT GOVERNMENT CODE § 8202 )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 ENGINEERING SERVICES Project Director S235.00/hr Principal Engineer III S220.00/hr Principal Engineer li S205.00/hr Principal Engineer I S195.00/hr Program Manager S200.00/hr Senior Project Manager S185.00/hr Project Manager S175.00/lir Senior Engineer lli S165.00/hr Senior Engineer II $160.00/hr Senior Engineer I $150.00/hr Project Engineer IV/Technician IV $140.00/hr Project Biginew HI/Technician III S130.00/hr Project Engineer Il/Technidan II $120.00/hr Project Engineer I/T echnician I $105.00/hr Project Coordinator $85.00/hr Engineering Assistant $75.00/hr ENV)RONMENTAt SERVICES Principal S225.00/hr Senior Project Manager/^ecialist li S210.00/hr Senior Project Manager/Specialist i $200.00/hr Environmental SpeciaiistfPlanner VI S180.00/hr Environmental Spedalisi/Planner V $160.00/hr Environmental ^ecialist/Planner IV S150.00/hr Environmental Specialist/Planner 111 $140.00/hr Environmental ^ecialist/Planner II 5130.Q0/hr Environmental Specialist/Planner I .,=.,.„S120.00/hr Analyst $100.00/hr Planning Research Assistant. $80.00/hr COASTAL PLANNING/POLICY SERVICES Senior Project Manager/Coastal Planner I S200.00/hr Envtronmental SpeciaHst/Coastal Planner VI ..$190.00/hr Environmental Specialist/Coastal Planner V 70.00/hr Environmental SpeciaHstA^oastat Planner IV ..S160.00/hr Environmental Specialist^oastal Planner III.. S150.00/hr Environmental Speclallst/Goastal Planner H....S140.00/hr Environmental SpeclaBsl/Coasta! Planner I S130.00/hr ARCHAEOLOGICAL SERVICES Senior Project Manager/Archaeologist II S210.00/hr Senior Projecl Manager/Archaeologist I $200.00/hr Environmental Specialist/Archaeologist VI S180.00/hr Environmental SpecialistfArchaeologist V...S160.Q0/hr Environmental sjiecialist/Archaeologtst I V..S150.00/hr Environmental Spectalist^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 Archaeolc^ist Technician I S50.(X)/hr CONSTRUCTION MANAGEMENT SERVICES Principal/Manager S195.00/hr Senior Construction Manager S180.00/hr Senior Project Manager S160.00/hr Construction Manager S150.00/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 III $125.00/hr Construction Inspector 11 S115.00/hr Construction Inspector I S105.00/hr Prevailing Wage 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.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 $1Q5.00/hr Hydrogeologist I/Engineer I $95.00/hr Technician .' S95.00/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. $95.00/hr Grade V Operator $100.00/hr Grade IV Operator S85.00/hr Grade III Operator S80.0Q/hr Grade li Operator $63.00/hr Grade I Operator S55.00/hr Operator in Training S40.00/hr CoBection Maintenance Wbrker II S55.00/hr Collection Maintenance Vtorker 1 $40.00/hr OPFICESERVlCKS Technical/Drafting/CADD Services 3D Graphic Artist $150.00/hr Senior Designer $135.00/hr Designer $125.00/hr Assistant Designer $120.00flir GIS Specialist IV $150.00/hr GIS Specialist III $140.00/hr GIS SpeciaS^ 11 $130.00/hr GIS Specialist I $120.00/hr CADD Operator 111 $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 SERVICES Technical Edibar III $140.00/hr Technical Editor II $125.00/hr Technical Editor I $110.00/hr Publications Assistant III $100.00/hr Publications /Assistant II $90.00/hr Publications Assistant I $80.00/hr Clerical /^dmini^ation II S80.00/hr Clerical Adminisfration I $75.00/hr Forensic Engineering - Court atipsaiancss, deposilians, and interrogatories as sxpert vrimess \wM be trilled at 2.00 thnas normal mles. Emergency and Holidays - Minimum charge of two hours will be billed at 1.75 times the normal rate. IVIaterial and Outside services - Subcontractor, rental of speciai equipment, special reproducHons tuid blueprinHng. outside data processing and computer seivices, etc., are charged at 1 .IS tfenes the direct cost. Travel Expenses - Mileage at cunent IRS alowable rates. Per diem where ovem^t stay is involved is charged al cost lnvoices,Late Ctiarges. • All fees wiH be billed to Client monthly and shaM be due and payatile i^on receipt. Invoices are deKnquant If not paid witiiin tMify (30) days t-om the data of the invoice, dent agrees to pay a monthly late charge equal to one percent (1 %) per monUt ofthe outsiandbig balance until paid in kiS. DUDEK Effective January 1,2012 DUDEK Master Agreement Consulting Services - Waste Water Engineering CA911 MASTER AGREEMENT FOR WASTEWATER ENGINEERING SERVICES (KENNEDY/JENKS CONSULTANTS, INC.) CpHIS AGREEMENT is made and entered into as of the day of Jyih/^h.^^ 20_^ by and between the CITY OF CARLSBAD, a municipal corporation, 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: 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 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 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 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 William Plummer Title Engineering Manager Dept Utilities Department CITY OF CARLSBAD Address 1635 Faraday Avenue Carisbad CA, 92008 Phone (760) 602-2768 Name Corey Young Title Lead Project Manager Address 10920 Via Frontera, Suite 110 San Diego, CA 92127 Phone (858) 676-3620 Email coreyyoung@KennedyJenks.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 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 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 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 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 2.5^ day of SV^«>K4^ , 2012^. CONTRACTOR KENNEDY/JENKS CONSULTANTS, INC., a California corporatiqn ^ ^ By: CITY OF CARLSBAD, a municipal corporation of the State of California (sign here) By; (print name/title) vcc^ pr«3;o/«A't'. ATTEST: LOPtRAINE City Clerk (sign here) DONALD a WE1D£AI SECRETARY (print name/title) Proper notarial acknowledgment of execution by Contractor must be attacheci!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: Assistant CiTy y Attorriey City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of. On ^IZT/IZ before me Date personally appeared 1 Here Insert Name and Title of the Officer (\ Name(s) of Signer(s) KIMBERLY R. CARAKER Committiofi # 1843189 I Notary Public - Caltfornia | m-pr San Francisco County | ™^ My Comm. Expires May 2.20131 who proved to me on the basis of satisfactory evidence to be the person(s)L whose name(s) isy'atQ subscribed to the within instrument and acknowledged to me that he/5he/th«y executed the same in his/her/theit^authorized capacity(t©s), and that by his/hef/toeii: signature(s) on the instrument the person^s), or the entity upon behalf of which the person(Sf). acted, executed the instrument. 1 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: nriPfeWA^Vtrnwl fev lAJlPt'sfeiOX-k/V^'^^^ Document Date: ^IZsliX Number of Pages: _S Signer(s) Otiier Than Named Above: \d^r\ck. l-t-U&W^, iSiyrrCK\^^VOt>Cx^j jZpyyxl^j R. fegt 11 Capacity(ies) Claimed by Signer(s) Signer's Name: Ponccldi ^. U^'eidec^ Corporate Officer - Tltle(s): SeCyt^ycj RIGHT THUMBPRINT OF SIGNER Top of thumb here • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: Kcvav^^i^|(jev\ks rner's Name: n CoilSQrate Officer - Title(s): • Individui • Partner - Dliiqiited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHT THUMBPRINT 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 Californi County ol Or ^^/r /^,A 1 i before me, '^J^jS. 6^^cri^^A^^,yyy^JtA Dale /ft Her^'Jnsen Neme eilB THle ol the Officer/" personally appeared NBme(E) of Signer(s) 1 JEFF B. LANGFORD Commission # 1959089 Notary Public - California ^ San Diego County uyr»mm Expires Nov 29.201^ Place Notary Seal Above Vi'ho proved to me on the basis of Satisfactoi'^/ evidence lo be the person(^ vv'hose name(;gr) is/^e subscribed to the vvdlhin instrument and acknovi'ledged to me thai he/sj^/the^/ executed the same in his/|-)d/lh0fr aulhorized capacify(jfB€], and that by his/hen'Ai>di' signature(^} on the instrument the personj;;^, or ihe entity/ upon behalf of vv'hich the person(p) acted, executed the instrument. I certify under PENALTY OF PERJURY under the lavv's of the State of CaliforniE that the foregoing paragraph is true and correct. V\nTNESS my hand and Sipnature OPTIOMAL Though the information below is noi required by lav\/, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form io another document. Description of Attached Document Title or Type of Documeni: /^.^^ Document Date; Number ol Page? >igner(s) Other Than Named Above: 0£p&cft)^(ie£) Claimed by Signer(a} Signer's Name: /^f/7i • Individual , yr ^ y ^ Corporate Officer — Title(s): ^fCr^/^^*>f>^ • Partner — • Limited • General M^i'llW-J^i^^'j • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing:. Top of thumb here Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Faci O Trustee • Guardian or Conservator • Other: Signer Is Representing: Top of Ihumb here ©2007 National Notary Assodation* S350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA SI313-2402' wvw.NetionaIlNlolary.org Hem *6907 Reorder: Call Toil-Free 1-800-676-6827 Client/Address: City of Carisbad 1635 Faraday Avenue Carlsbad, CA 92008 EXHIBIT A 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 Houriy 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 pubiic 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 wori<. 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 Consuttants CA913 MASTER AGREEMENT FOR STRUCTURAL ENGINEERING SERVICES (MOFFATT & NICHOL) (JHIS AGREEMENT is made and entered into as of the ^Igy of J/^^t€^?KA^ . 20 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 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 Coveraqes 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 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 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 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 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. CONTRACTOR MOFFATT & NICHOL, a California corporation By: day of ,20 fl. CITY OF CARLSBAD, a municipal corporation of the State of California By: (sign here) (print name/title) ^ Mayor (print name/title) tie) / ATTEST: LORT^INE M City Clerk Proper notarial acknowledgment of execution by Contractor must be attached. If a't?6i158ration. 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 county of PO^kS On I0)d>j)2r- 7 Dat? } before me. I Datel j ^ Here Insert Name and Title of the Officer >^ 7 personally appeared _ y Name(s) of Signe^fs) \^ Place Nolary 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 ot Nolary 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 • Cfiatswortti, 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 signerfs], not Notary) Signature of Document Signer No. 1 Signature of Documeni Signer No. 2 (if any) State of California County of \jh5 A?\fylfi QABRIEU HERNANDEZ CominitsiGii # 1972581 Nolwy Public-CiMoniia i >SXB^ Aiigilw County x »Comm. Eapiftt Apr 15.20161 Place Nolary Seal Above Subscribed and sworn to (or affirmed) before me on this day of ^}tfyib^ . 20:^ Dale I ' Month 7 /' Year A \^me of signer proved to me on the basis of satisfactory evidence to be the person who appeared before me (.) (,) (2). Name of Signer proved to to be the pe Signature the basis of satisfactory evidence who appeai^ed befor^ 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. 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., PO. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5910 Reorder: Call Toll-Free 1 -800-876-6827 'i^'^.. '.-'''.^ *' ' STRUCTURAL ^:xm'^isr^-^)^m 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 h4h% moffatt & nichol Structural Engineering Services Table 1 Rate Schedule for Professional Services Effective June 27, 2009 Until Revised Classification tHouriy 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 S 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 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 III $185.00 Ron Butler, PE, Senior Engineer $197.00 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 day of ^^^hUU^ • 20/^ by and between the CITY OF CARLSBAD, a municipal corpqfation, 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 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 Coveraqes 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. M 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 Citv: For Contractor: Name Skip Hammann Name Mark Creveling Title Dept Transportation Director Transportation Title Vice President/Project Manager Address 9968 Hibert Street, 2"'' Floor Address CITY OF CARLSBAD 1635 Faraday Avenue San Diego, CA 92131 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. 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 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 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. /// /// /// /// /// /// /// /// 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. day CONTRACTOR SIMON WONG ENGINEERING, a California corporation By: of nAi^Lt-r , 20J2. CITY OF CARLSBAD, a municipal corporation of the State of California (print nami/title)^ ATTEST: (print name/title) ^ LORRAtKlE M City Clerk Proper notarial acknowledgment of execution by Contractor must be attachecf.^Wa*l)orporation. 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: Assistant City Attorriey City Attorney Approved Version 2/17/12 ACKNOWLEDGMENT state of Califqmia Q County of j/t/^y before me ^insert,name and title ofthe officer) personally appeared who proved to me on the basis of satisfactory evjiertce 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 of the State of Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) TERRI LYNN LONDON i COMM.# 1894536 NOTARY PUBUC-CALFORNIA ^ SAN DNEOO COUNTY " MY COMM. EXP. JULY 3,2014 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 i day of yy/^jjj-jH.'du^ . 20^ by and between the CITY OF CARLSBAD, a municipal corporamon, 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 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 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-:Vir' 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 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 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 Ruffin Road Dept CITY OF CARLSBAD San Diego, CA 92123 Address 1635 Faraday Avenue Phone (858)576-1000 Carisbad 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 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 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 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 cnminal 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 junsdiction 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 Wvvvb 20 Ji^ CONTRACTOR NINYO & MOORE, a California corporation By: CITY OF CARLSBAD, a municipal corporation of the State of California By: (sign J3€f^ (print name/title) ATTEST: By: . (signhere) / ^^^/^^^ (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 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 Assistant City Attortney City Attorney Approved Version 2/17/12 I I nn I i I I I I I I I f I I I I I I EXHIBIT A CARLSBAD May 23,2012 Proposal No. P-20702 Cily of Carlsbad Qualifications to Provide Master Agreement Consulting Services Geotechnical Services Discipline 5. RATE SCHEDULE HOURLY CHARGES FOR PERSONNEL Principal Engineer/Geoiogist/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 $ 89 $ 85 $ 85 $ 85 $ 85 $ 85 $ 85 $ 85 $ 85 $ 85 $ 85 $ 85 $ 75 $ 60 $ 55 $ 50 ENVIRONMENTAL FiELD EQUIPMENT/CONSUMABLES XRF Lead Analysis $ 250/day PID/FID Usage $ 120/day Air Sampling Cassettes $ 100/case Level C Personal Protective Equipment (person/day [p/d]) $ 55/day Air Sampling Pump Usage $ 45/day 19 CARLSBAD May 23,2012 Proposal No. P-20702 City of Carlsbad Qualifications to Provide Master Agreement Consulting Services Geotechnical Services Discipline SCHEDULE OF FEES FOR LABORATORY TESTING Laboratory Test, Test Designation, and Price Per Test Soils Atteiterg 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 Consolidatton - Time Rate, 0 2435, CT 219 $ 70 Direct Shear - Remolded, 0 3080 $ 290 Direct Shear - Undisturbed, D 3080 $ 250 Durability Index, CT 229 $ 150 Expanston Index. D 4829, UBC 18-2 $ 165 Expansion Potential (Method 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, Asti, & 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 UnccMifined Compression, D 2166, T 208 $ 100 WaxDensity, D1188 $ 90 Roofing Built-i^J Roofing, cut-out samples, D 2829 $ 165 Roofing Materials Analysis, D 2829 $ 500 Roofing Tile Absorption, (set of 5), UBC 15-5 $ 190 Roofing Tile Strength Test, (set of 5), UBC 15-5 $ 190 Masonry Brick Absorption, 24-hour submersion, C 67 $ Brick Absorption, 5-hour boiling, C 67 $ Brick Absotption, 7-day, C 67 $ Brick Compression Test, C 67 $ Brick Efflorescence, C 67 $ Brick Modulus of Rupture, C 67 $ Brick Moisture as received, C 67 $ Brick Saturation Coefficient, C 67 $ Concrete Block Compression Test, 8x8x16, C140 $ Concrete Block Conformance Package, C 90 $ 440 Concrete Block Unear Shrinkage, C 426 $ 120 Concrete Block Unit Weight and Absorption, C 140 $ Cores, Compression or Shear Bond, CA Code $ Masonry Grout, 3x3x6 prism compression, UBC 21-18 $ Masonry Mortar, 2x4 cylinder compression, UBC 21-16 $ Masonry Prism, half size, compression, UBC 21-17 $ 55 55 30 30 110 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 Lightweight 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. Mechanically Spliced Reinforcing Tensile Test, ACI Pre-Stress Strand (7 wire), A 416 Chemical Analysis, A-36, A-615 Reinforcing Tensile or Bend up to No. 11, 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, AC!.... Asphalt Coocfite 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 Aggregates /Absorption, Coarse, C127 Absorption, Fine, C 128 Clay Lumps and Friable Particles, C 142 Cleanness Value, CT 227 Crushed Particles, CT 205 Durability, Coarse, CT 229 Durability, Fine, CT 229 Los Angeles Abrasron, C 131 or C 535 Mortar making properties of fine aggregate, C 87 Organic Impurities, C 40 Potential Reactivity of Aggregate (Chemical Method), C 289. Sand Equivalent, CT 217 Sieve Analysis, Coarse Aggregate, C 136 Sieve Analysis, Fine Aggregate (including wash), C 136 Sodium Sulfate Soundness (per size fraction), C 88 Specific Gravity, Coarse, C127 Specific Gravity, Fine, C128 55 50 120 95 140 120 50 70 55 .$ 2,200 .$ 150 .$ 215 .$ 100 .$ 195 .$ 215 .$ 120 .$ 165 .$ 90 35 .$ 35 .$ 100 .$ 120 .$ 140 .$ 130 .$ 130 .$ 180 .$ 275 .$ 55 .$ 390 .$ 90 .$ 105 .$ 105 .$ 160 .$ 75 .$ 85 Special preparation of standard test specimens wiil be charged at the technician's houriy rate. Ninyo & Moore is accredited to perfomi the AASHTO equivalent of many ASTM test procedures. 21 l U in I I I I I I I I I I I I I I I cnv Of CARLSBAD OTHER CHARGES May 23,2012 Proposal No. P-20702 City of Carlsbad Qualifications to Provide Master Agreement Consulting Services 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 Determination made by the State of California, 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.) THIS 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 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 Ronald Thomson Title Utilities Director Title Proiect Manager Dept Utilities Address 5015 Shoreham Place Carisbad Municipal Water District San Diego, CA 92122 Address 1635 Faraday Avenue Phone (858) 320-2000 Carisbad 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 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 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 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 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_ 25 day of September ., 20_H. CONTRACTOR KLEINFELDER WEST, INC., a California corporation By; CITY OF CARLSBAD, a municipal corporation ofthe State of California Mayor John Moossazadeh, Vice President (print name/title) (sign h Johrf M. Pilkington, CP (print name/title) LQBRAINE 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, President, or Vice-President Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant City Attorney City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of'S^'1^(2Vn J Date I ~I^-f^ \ ^ \ \ I ^^'^^ \r\sen Name at • Date / l CN \ \ I Here Insert Name and Title of personally appeared xJ^KlA V I \V>\\r'gmN^ /^W <—TTV J i Name(s) orSigner(s) the Officer RHEA PRENATT Commission # 1933956 notary PuWic - Caiifornil San Oitgo County rComm.E«8if»M«f24^ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/^^ subscribed to the within instrument and acknowledged to me that he/she/^^ej) executed the same in his/her/toeir 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 - hand and official/ise^l. 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 THUIVIBPRINT OF SIGNER Top of thumb here ©2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT A CITY QF CARLSBAn KLEINFELDER FEE SCHEDULE FOR ENVIRONMENTAL, CONSTRUCTION MANAGEIVIENT AND GEOTECHNICAL/MATERIALS TESTING SERVICES Construction Inspector I ..o^ y. Professional .... '11)105/hour Staff Professional I. '- f ^''^ ^ ^^^^ Staff Professional 11 / Project IVIanager I "! If^ i 1^°"'' Construction Manager l]tt)\!,^^^ Senior Construction Manager J ) !|°"*" Project Professional / Project Manager II "" I Senior Professional / Senior Project Manager ""« , ^ Project Manager III '"' WoJ^^^^ Principal / Principal Professional Z.''I Program/Client Manager ' \ ; Senior Principal / Senior Principal Professional ''\ fZ. f Expert Witness.... J^iOO/hour • $340/hour Administrative I « 7c / u Materials Tester / Special Inspector l 1 /u SoilsTichnfclan............ '! ff supervisory Te^fmldanlZ ''"" f ^Z^"'" Draftsperson f 90/hour CADD Operator ' IIIV,^''^^ Designer $140/hour ' $150/hour Minimum Charges for Office Time Per Day One Hour at Applicable Rate All sen/Ices will be charged portal-to-portal when applicable. a'bte^^&faSl>i»£'^J^S1*^^^^ -^i-' *° P-a,ng Wage laws. Tha 1. 4. 5. 6. BASIS OF CHARGES hdudi'rn"r„!S;^M '° Kleinfelder's liability to the client and to all agents of the client Tr'nPt^m^.n,'" f"^"* °" ^ """"^'y °' "P°" •^""'Pletion of a project, whichever Is sooner Iter ml rtT^f ,f 1P^^^"'^ °" presentation of the Invoice, if nit paid within 30 dav^ after the date of the invoice, the unpaid balance shall be subject to a FiNANCF rwAPr-P M I per month, which Is an ANNUAL PERCENTAGE IWTE of 18% '^"^'^^^^ CHARGE of 1.5% fhel^afte""' """"''^ ""'"^ ^" *en actual hours worked 8. A one-hour minimum charge per day will be made for any office service. Time worked in excess of 8 hours per day and weekend\hollday work will be charaed at 1 «; tim« ^^e^houriy rate. Time worked In excess of 12 hours per day will be chaJged Smes d!e hTuri^ oLt? f ^ °' '^'^^ 'l^y pel- person or expenses plus 20% whichever Is Seider offlcf™" ^" ^"^^^ °' 5° '^'^^ from t^n^a^^l Outside services will include a 20% markup, unless othenvise noted. tae''S°bf cterQe'^"ffT„ni"^ T'""? '""^ 'l^'^" A^lo"^' administrative LmmaL) is rS^^^ " /^^"V "eld reports, or work .^SonirrSa^^^^^^^^^^^^ " — - subiect ''^•Sl"I11f' ^"''^''^ Compensation Insurance (including Emplover's Liabilitvl fShtSefuronle'^^^^^^ ''"'^'^ — 12. Kleinfelder routinely disposes of non-environmental and uncontaminated .^amni*... oft.r "-^^^ envi^^TrSmsrinf S^^S " -a^Sotrr^Lirc^r^^^^^^ responsibility of the client. Upon request. Kleinfelder can provide contal^i^ers^^^^^ nn.Tto containment and can advise tf^e client regarding proper handling prSres 14. The proposed rates will be In effect for 90 days from the proposal date. ^iwc"ff''^®''J®^®'^r "9ht to adjust the fee schedule on projects not completed within 180 ^HZ!^:^""^'' ^-ts. any noufexc^^^^^^^^^^ SOIL TESTS SOIL DENSITY TESTS Test Invoice Name Test IVIethod^ Price standard Proctor, 4" Mold STANDARD PROCTOR, 4" D698, T99 $210.00 each standard Proctor, 6" Mold STANDARD PROCTOR. 6" •698, T99 $235.00 each Modified Proctor, 4" Mold MODIFIED PROCTOR. 4" D1557, T180 $215.00 each Modified Proctor, 6" Mold MODIFIED PROCTOR, 6" D1557, T180 $240.00 each Proctor Check Point PROCTOR CHECK POINT T272 $115.00 each Proctor Oversize Correction PROCTOR CORR OVRSZ D4718 $65.00 each Treated Soil Proctor TREATED SOIL PROCTOR D558 $280.00 each Minimum/Maximum Relative Density MIN-MAX REL DENS D4352. D4253 $360.00 each Moisture/Density, TEX 113-E MOIST DENS TEX 113-E TEX113-E $260.00 each Moisture/Density, TEX 114-E MOIST DENS TEX 114-E TEX114-E $260.00 each California Impact, CTM 216, Dry Method CTM 216. DRY CTM216 $215.00 each California Impact, CTM 216, Wet Method CTM216, WET CTM216 $185.00 each SOIL CLASSIFICATION AND INDEX TESTS Test invoice Name Test Method^ Price Visual Classification CLASSIFICATN, VISUAL D2488 $10.00 each Sieve Analysis, % Finer than 200 Sieve SIEVE ANALYSIS, -200 C117. D1140 $80.00 each 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 Hydrometer Analysis HYDROMETER D422 $165.00 each Water Content WATER CONTENT D2216, D4643 $25.00 each Water Content and Dry Unit Weight WATER/DENSITY, SOIL D2216,D2937, D7263 $45.00 each Atterberg Limits, Single Point ATTERBERG, SINGLE PT. D4318-Method B $110.00 each Atterberg Limits, Multiple Point ATTERBERG. MULTI PT. •4318-Method A $170.00 each Atterberg Limits, Liquid Limit Only LIQUID LIMIT ONLY D4318 $110.00 each Soil Specific Gravity SOIL SPEC. GRAV •854 $140.00 each Soil Organic Content SOIL ORGANIC CONTENT D2974-Method C $115.00 each Pinhole Dispersion Classification PINHOLE DISPERSION •4647 $300.00 each SoilpH SOIL PH D4972. G51 $55.00 each Soil Resistivity SOIL RESISTIVITY G187 $160.00 each Chloride Content CHLORIDE CONTENT $50.00 each Sulfate Content SULFATE CONTENT $100.00 each SOIL BEARING PRESSURE TESTS Test invoice Name Test Method^ Price California Bearing Ratio, Single Point" CBR, 1 POINT •1883 $350.00 each Califomia Bearing Ratio, 3 Points * CBR, 3 POINTS •1883 $650.00 each Resistance R-Value R-VALUE •2844 $300.00 each Resistance R-Value of Treated Material R-VALUE, TREATED •2844 $350.00 each Rock Correction for R-Value R-VALUE, ROCK CORR. •2844 $80.00 each Stabilized Soil UC Strength, 1 Point STABIL. SOIL UC PT. •1633, ^5102 $150.00 each Stabilized Soil UC Strength. Set of 3 STABIL. SOIL UC SET •1633. D5102 $900.00 each *Note: Does not include Proctor Values SOIL BEARING PRESSURE TESTS Test invoice Name Test Method* Price CTM 373,1 Ume Content, W/O Opt. Moist. CTM 373, CHECK POINT CTM373 $150.00 each CTM 373,1 Lime Content CTM 373,1 UME % CTM373 $350.00 each CTM 373, 3 Lime Contents CTM 373, 3 LIME %'S CTM373 $950.00 each Eades and Grim Test (Opt. Lime Content) EADES AND GRIM TEST C977 $135.00 each Resilient Modulus RESILIENT MODULUS T307 $450.00 each SOIL TESTS Icontinijedl SOIL STRENGTH AND PERMEABILITY TESTS Test Invoice Name Test IVIethod^ Price Unconfined Compressive Strength UNCONFINED COMP STR. •2166 $135.00 each Direct Shear, 1 Point •IRECT SHEAR, 1 PT. •3080 $125.00 each Direct Shear, 3 Points •IRECT SHEAR, 3 PTS. •3080 $350.00 each Consolidation without Time Rate Plots CONSOL W/OTR •2435 $330.00 each Consolidation with 2 Time Rate Plots CONSOL W/2TR •2435 $425.00 each Consolidation, All Loads with Time Rates CONSOL ALLTR •2435 $600.00 each Consolidation, Additional Rebound CONSOL. A^^. REBOUND •2435 $75.00 each Collapse Potential COLLAPSE POTENTIAL •5333 $175.00 each One Dimensional Free Swell ONEDIM FREE SWELL •4546 $150.00 each One Dimensional Swell, Percent Heave ONEDIM SWELL % HEAVE •4546 $240.00 each One Dimensional Swell with Consolidation ONEDIMSWELL W/CONSOL •4546 $450.00 each Expansion Index EXPANSION INDEX •4829 $175.00 each Denver Swell Test •ENVER SWELL TEST $65.00 each Permeability, Rigid Wall PERMEABILITY, RIGl^ •2434 $225.00 each Permeability, Flexible Wall PERMEABILITY, FLEX •5084-Method C $300.00 each Triaxial Shear, CU, 1 Point TRIAX. CU, 1 POINT •4767 $450.00 each Triaxial Shear, CU, 3 Points TRIAX, CU, 3 POINTS •4767 $1,200.00 each Triaxial Shear, UU, 1 Point TRIAX, UU, 1 POINT •2850 $200.00 each Triaxial Shear, UU, 3 Points TRIAX, UU, 3 POINTS •2850 $550.00 each Triaxial Shear, UU Saturated, 1 Point TRIAX. UU SAT, 1 POINT D2850-Modified $270.00 each Triaxial Shear, UU Saturated, 3 Points TRIAX, UU SAT, 3 POINTS •2850-Modlfled $750.00 each Triaxial Test, TEX117E. Part 1 TR1AX,TEX117E-PARTI TEX117E $2,200.00 each Triaxial Test, TEX117E, Part II TR1AX,TEX117E-PARTI1 TEX117E $2,200.00 each Resonant Column Torsional Shear RCTS $4,000.00 each Test invoice Name Test {Method^ Price Acid Solubility SOLUBILITY, ACI^ AWWA B100 $100.00 each Air Degradation AG AIR •EGRADATION \TD T15 $200.00 each ASR Reactivity, Long Method AG ASR REACT... LONG C227, C1293 $2,100.00 each ASR Reactivity, Short method AG ASR REACT., SHORT C1260. C1567 $1,050.00 each Clay Lumps and Friable Particles, per sz * AG CLAY LUMP/FRIABLE C142 $100.00 each Cleanness Value AG CLEANNESS VALUE CTM227 $150.00 each Coarse Durability AG COARSE DURABIUTY •3744 $150.00 each Fine Durability AG FINE DURABILITY •3744 $110.00 each Coarse Specific Gravity & Absorption AG COARSE SPG/ABSORP C127 $60.00 each Fine Specific Gravity & Absorption AG FINE SPG/ABSORP C128 $100.00 each Flat and Elongated Particles, per size * AG FLAT&ELONG/SIZE •4791 $75.00 each Fractured Faces, per size * AG FRACT. FACES/SIZE •5821 $100.00 each Lightweight Pieces ** AG LIGHTWT. PIECES C123 $330.00 each Los Angeles Abrasion, Large Aggregate AG LA ABRASION. LG C535 $200.00 each Los Angeles Abrasion, Small Aggregate AG LA ABRASION. SM C131 $175.00 each Mortar Sand Strength AG MORTAR SAN^ STR. C87, CTM515 $550.00 each Organic Impurities AG ORGANIC IMPURITIES C40 $60.00 each Potential Reactivity (Chem. Method) AG POT. REACT. CHEM. C289 $700.00 each Sand Equivalent, 1 point AG SAND EQUIV.. 1PT. •2419 $70.00 each Sand Equivalent, 3 points AG SAN^ EQUIV, 3PT. •2419 $130.00 each Sieve Analysis, % Finer than 200 Sieve SIEVE ANALYSIS,-200 C117, D1140 $80.00 each AGGREGATE TESTS (cpnfcftiuedl 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 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 *Note: "Note: Test IViethodJ: C136, D422, •6913 C136. ^422, D6913 C136. •422. ^6913 C88 C29 •2216 TEX116E Price $120.00 each $100.00 each $150.00 each $140.00 each $60.00 each $25.00 each $250.00 each sZ%llstmttZr' °'''''''^'P'''^'"' ---P/e aradatlon and Test •Imension Stone, Absorptlon/Spec. Grav. •imension Stone, Compressive Strength •imension Stone, Flexural Strength •imension Stone, Modulus Of Rupture •irect Shear, 1 Point •irect Shear. 3 Points Direct Shear, 5 Points Mohs Hardness Point Load Index Point Load, Set of 10 Slake •urabillty 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 •rying Shrinkage, set of 3 Flexural Strength Modulus of Elasticity Splitting Tensile Strength Concrete Core Thickness Laboratory Trial Batch RCC Compression Shotcrete Compression RQCH: TESTS invoice Name •IM STONE-ABS/SPG •IM STONE-COMPRESS •IM STONE-FLEX STR •IM STONE-MO OF RUP ROCK DIR. SHEAR, IPT ROCK OIR. SHEAR, SPT ROCK OIR. SHEAR, 5PT ROCK MOHS HARONESS ROCK PT LOAO IN^EX ROCK PT LOAD SET/10 ROCK SLAKE OURABIL. ROCK SPLIT. TENSILE ROCK TRIAX. HARO ROCK TRIAX. WEAK ROCK TRIAX, WEAK/MOO ROCK TRIAX. WEATHERO ROCK UNCON. COMP. .CQ:NCR.£TE TESTS Invoice Name ROCK UCIUOD OF RUP CONCRETE COMPRESSION CONCRETE CORE COMP. CONCRETE CREEP CONC. CYL. UNIT WT. CONC. ORY SHRINKAGE CONC. FLEX STRENGTH CONC. MOO OF ELAST CONC. SPLIT. TENSILE CONC. CORE THICKNESS CONCRETE TRIAL BATCH RCC COMPRESSION SHOTCRETE COMPRESS. Test iVIethod^ C97 C170 C880 C99 •5607 •5607 •5607 •5731 •5731 •4644 •3967 •7012 •7012 •7012 •7012 •7012 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 •7012 $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 MASONRY TESTS Test Grout Compression Mortar Compression Core Compression Core Shear Prism Compression CMU Absorption and Received Moisture CMU Compression CMU •imension Verification CMU Lineal Shrinkage BINDER TESTS Test Absolute Viscosity Bitumen Penetration Kinematic Viscosity Recovery by Roto-Vapor Softening Point, Ring & Ball IWIX 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 •esign, Hveem Method Mix •esign. Marshall Method Mix •esign, Superpave Method 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 ASPHALT TESTS invoice Name AC ABSOLUTE VIS. AC BIT. PENETRATION AC KINEMATIC Vise. AC RECOVERY ROTOVAP AC SOFTPT..R&B invoice Name AC AGGREGATE GRAOATION AC CORE THICKNESS AC EXTRACTION AC HVEEM STABILITY AC IGNITION OVEN AC IGNT. OVEN CAUB. AC MOISTURE CONTENT AC NUC. CONT. GAUGE AC STABILITY & FLOW AC SWELL AC CORE WT./THICK. Invoice Name AC CKE AC FILM STRIPPING AC INOEX RET. STRGTH AC UNIT WT., GYRA. AC UNIT WT.. HVEEM AC UNIT WT, MARSH. AC MAX THEO. SPG AC MOIST. IND •AM. AC CALTRANS TS AC MOIST. VAPOR SUS. HVEEM OESIGN W/RAP HVEEM MIX •ESIGN MARSHALL MIX DESIGN SUPERPAVE MIX DSGN Test IVIethod^ C1019 C942 CADSA CADSA C1314 C140 C140 C140 C426 Test iWethod^ •2171 •2170 •5404 •36 Test Mettiod^ •5444 •3549 •2172 •1560 •6307, T308 •6307 •4125 •6927 CTM307 •1188, ^2726 Test IVIethod^ CTM303 T312 •1561 •6926 •2041 T283 CTM371 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 Price $210.00 each $75.00 each $190.00 each $365.00 each $100.00 each 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 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 METAL TESTS Invoice Name BOLT ASSEMBLY SUITE BOLT HARDNESS BOLT PROOF LOAD BOLT WEOGE TENSILE NUT HARONESS NUT PROOF LOAO WASHER HARDNESS Test Method^ F606 El 8 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. 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 METAL TESTS fcontinyed) invoice Name METAL, BEN^ METAL, CHARPY, SET/3 METAL COUPLER SUP METAL, COUPLER TENS. METAL CTM670 STRAIN METAL PT TENSILE METAL. SPUCE TENS. METAL. TENSILE <2" METAL TENSILE >2" ROCKWELL HARDNESS Test Method^ Price A370 $40.00 each A370. A673 $300.00 set A370 $130.00 each A370 $80.00 each CTM670 $15.00 each A370 $145.00 each A370 $80.00 each A370 $85.00 each A370 $140.00 each E18 $30.00 each *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 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 Oisposal Fee invoice Name ROCK SAMPLE PREP. SAMPLE CRUSHING SAMPLE CUT & TRIM SAMPLE MIX&PROCESS SAMPLE PREPARATION SAMPLE PREP./HR. SAMPLE REMOLOING CONTAMINATION FEE SAMPLE OlSPOSAL FEE Test Method^ 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 MISCELLANEOUS TESTS Test Fireproofing Oenslty Hydraulic Ram Calibration Non-Masonry Grout Compression Pocket Penetration Value Roof Tile Absorption Roofing, Unit Weight of Surfacing invoice Name FIREPROOFING DENSITY HYDRAULIC RAM CALIB. NON-MAS. GROUT COMP. POCKET PENETRATION ROOF TILE ABSORPTION ROOF UNIT WT. SURF. Test Method^ E605 C579 •2829 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 •evice Asphalt Sampling Box Invoice Name ANCHOR BOLT TST/OAY 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 •iamond Bit Core Barrel Charge 2" Diameter 3" Diameter 4" Diameter 6" Diameter Digital Thickness Gauge FerroScan Equipment Floor Flatness Testing Device Floor Flatness Testing •evice 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 HAR^NESS/^AY SCHMIDT HAMMERIDAY MOIST FLOOR/SALB TST CORING MACHINE IDAY CORING MCH W/GEN DAY CYUNDER MOLOS CORING, 2" DIAM./IN CORING. 3" DIAM./IN CORING, 4" DIAM./1N CORING. 6" DIAM./IN THICKNESS GAUGE IDAY FERROSCAN EQUIPMENT FLOOR FLATNESS/SF FLOOR FLATNESS TST HANO AUGER/^AY MAGNETIC PARTICLE REBAR LOCATOR/OAY SKl^WILH BOniDAY TORQUE WRENCH/OAY UT TESTING EQUIP/DAY Test Method^ E10 C805 F1869 El 155 E1155 ASNT, AWS BL1 A325, A490 A325, A490 ASNT, AWS B1.1 .OJHER EQUIPMENT CHARGES Invoice Name MILEAGE. 2 WH/MILE VEH W/ND EQUIP/HR 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 EMVIRO.NMENTAL 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 $18.15 each $60/day $3/gallon $77/day $166/day $151/day $18.15/day $66/day $59/day ENVIRONMENTAL SA5 ^PLING ANO TESTING Icontinyedl 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 HEAL TH AND 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 • Protection $42.90/day Oxygen Analyzer $54/day Photoionization Oetector $190/day Flame Ionization •etector $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 Kleinfelder West, ^'^^f^x^.^rr. CA917-City;CA918-CMWD (Type of insurance) (Name of contract) n 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) nsignificance 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 J •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]. f^Other (e.g. explain whv exposures are minimal how exposures are covered in another policv, exposure control mechanisms, and anv other information pertinent to your request): Under the Nonadmitted and Reinsurance Reform Act ( NRRAL 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) 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 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 memt>er 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 Llovds 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 liabilitv insurance, it was on the LASLI until it requested removal and it is the carrier for the contractor with significant ongoing projects in tbe 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) M:\WORD\lnsurancc\Admin Order #68 waiver modify insurmcc requirements.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 W 20 by and between the CITY OF CARLSBAD, a municipal )r6tion, herei 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 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 Coveraqes 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 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. 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. i 0.3 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 Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the opfion 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 . * . *u 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 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 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 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 peri'ormance 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 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 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 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 2% ^ day of ^ 20_L CONTRACTOR RIGHT-OF-WAY ENGINEERING SERVICES, INC., a California, corporation By:_ CITY OF CARLSBAD, a municipal corporation of the State of California (sign here) (print name/title) Mayor ATTEST: By: (sign here) LORRfAINE City Clerk (print name/title) Proper notarial acknowledgment of execution by Contractor must be attache'd.'ira 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. 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 of ^ei^ov'^^-Cc County OnSc^k Jbu, a^.>^'>before me, * Date Here Insert Name and Title of the OfficferV Name(s) of Signer(s) ' ^) personally appeared I EUSE CARTER f Commission # 1971799 t Notary PuWic - California i San Diego County 2 My Comm. Expires Mar 11.20161 who proved to me on the basis of satisfactory evidence to be the person(^ whose name(^) [sla/e subscribed to the within instrument and acknowledged to me that jTe/sj^/they 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(?0, 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 - Jignature 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. DescHp^on of Attached Document Title or Typ^f Document: Document Date: Number of Pages: Signer(s) Other Than Nkncjed Above: Capacity(ies) Ciaimed 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 THUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General CTA*torney in Fact • Truste • Guardian oNQonservator • 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 Right-of-Way Engineering Services, Inc. SOQ City of Carlsbad 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 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 $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 day of l^U^^Th^AuJ 20/^. by and between the CITY OF CARLSBAD, a municipal corporation, 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 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 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 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. 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 Douglas Melchior Title Transportation Director Title CEO/Project Manager Dept Transportation Address 5731 Palmer Way, Suite G CITY OF CARLSBAD Carisbad, CA 92010 Address 1635 Faraday Avenue Phone (760) 438-1726 Carisbad CA, 92008 Email mlsi(^pacbell.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 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^^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/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 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 (sign Susan G. Melchior, President (print name/title) Mayor Douglas R. Melchior, CEO, Vice President (print name/title) ATTEST: LORlRAfNE City Clerk Proper notarial acknowledgment of execution by Contractor must be attacfred^ff, ^Tobrporation. 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: A Assistant City Attorney City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of r^-^- On ^ h^/_L3^ } before me, Dat^ Here Insert Name and Title of the Officer personally appeared 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/she/they executed the same in J^Hs/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 V^xt^^^o^^ 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: ^ - Q.JS^-V^^-fuy). / Number of Pages: ? Signer(s) Other Than Named Above: — Capacity(ies) Ciaimed by Signer(s) Signer's Name: ~^Sz..c.^../a^vg-^ G?-- P\<l^Ji /^\ C Signer's Name:_ • Individual yj ' i ^ ^ Individual , • ^ , Corporate Officer — Title{^: fy^^LA^Aji^r^ Corporate Officer — Title(^: [IL^JI^ rA^AxJj^pdr^ C • 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 • Chatswortfi, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 EXHIBIT A MelGhior 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 Draflsman-$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 Bluelmes - 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 Ib.- (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 ^S>^ ^^>'^^ttLAt_^ 20Mf 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 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 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 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 Besfs Key Rating of not less than "A-:Vil" 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 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 Gail McMorran Title President Address 2534 E. El Norte Parkway, Ste. C Escondido, CA 92027 Phone (760) 480-2347 Email gmcmorran(^airxus.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 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. 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_^£2t^l_ day of v ^^Op^-.20h CONTRACTOR AIRX UTILITY SURVEYORS, INC., a California corporation (sign here) (i\(ii\ H[r]/ipYvr,\A, ?r^i<^l (print name/title) [/ (sign here) / CITY OF CARLSBAD, a municipal corporation of the State of California ATTEST: (print name/title) \el^\ LOR City Clerk Proper notarial acknowledgment of execution by Contractor must be attach^Jd.^f.a^cDrporatlon. 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: V\ssistant City Attorrtpy OFFICIAL SEAL I MICHAEL PAUL GJEFl^^^ NOTARY PUBUC-CAURDRNIA ^ COMM. NO. 1931861 -SAN DIEGO COUIfY,. | MY COMM. EXP. APRILS, 2015 | City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of San Diego On ncr I :>oi:^ before me, Mary F. McGraw, Notary Public (Here insert name and title ofthe officer) personally appeared who proved to me on the basis of satisfactory'evidence to be the personjX) whose namej^«^^^^e. subscribed to . the within instrument and acknowledged to me that he^^Ke/Jiey executed the same in hi^^heir authorized capacity(i«f), and that by hi^er^eir signature^on'the instalment the person]^ or the entity upon behalf of which the personp?f 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. MMNMMH*i<iM|i WITNESS my hand^and official sea r MARY F. MCQRAW^^ <;oifMni88iorK# 19145(9 Notary Pubtie - California San Diego County ^ My COfom. Expiras Nov 26.20141 ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Xifle or description of attached document) (Title or description of attached document continued) Number of Pages ^ Document Date ^(2— (Additional information) CAPACITY CLAIMED BY IHEXGNER • Individual (s) • Corporate Officer (Title) • Partner(s) • Attomey-i/^Fact • Trustee( • Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in Califomia musl contain verbiage exactly as appears above in Ihe 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 ofthe signer). Please check the document carefully for proper notarial wording and attach Ihisform if required. • State and County information must 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 apj)cars within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signcr(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/shc/t)«^ is /are) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. The notary sea] 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 pubiic must match the signature on file with the office of the county cleric. 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! 2.10.07 800-873-9865 vvww.NotaryClasscs.com CALrFORNIA ALL-PUHPOSE ACKNOWLEDGMENT CIVIL CODE § USS State of California County of } On before me, ^^'^ _ Here Inssrt Name and Title of the Officer f Rail Al/KormL) personaiiy appeared Name(s) of Signer(s) OFFICIAL SEAL MICHAEL PAUL GJEFLE NOTARY PUBLIC-CALIFORNIA g 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 acl<nowledged to me that he/she/they executed the same in his/her/iheir authorized capacity(ies), and that by his/her/their signaLure(sj on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 1 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 OPTIO Though the information below is not required by law, ii may prove valuable to persons relying on the document • and could prevent fraudulent removal and reattachment of this form fo another document. Description of Attached Document ^ Tiile or Type of Document: C^^/^^Cc^/s^c{ OMj:ro.C^ A^Mr Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: i_ • 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 — 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 • NalionalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5.907 AIRX Utility Surveyors, Inc. Fee Estimate Summary Date: 00-00-12 Local Pricing on this document is valid for 90 days from the date above. Project: CITY OF CARLSBAD - SAMPLE PRICING (REVISED 10/17/2012) Total Numt>er of estimated potholes: 0 Proiect Manaaement & Report Preoaration Project Management On sight Research/Report Drafting No. No. hours at hours at Potholes less than 5' deep No.: 0 at $600/700 Prevail* Potholes 5'to 8'deep No.: 0 at $800/900 Prevail* Potholes 8'to 11'deep No.: 0 at $1,000/1.100 Prevail* Potholes 11'to 14' deep No.: 0 at $1,200/1.300 Prevail* Potholes greater than 14' deep No. hrs: 0 at $250/300 Prevail* Wet & Drv Utilitv Locatina Locating - Electric, Magnetic ,Sonic, GPR (1 Man) No. hrs: 0 at $175 (2 Man Crew) No. hrs: 0 at $225 CCTV crew with Locator No. hrs: 0 at $300 CCTV crew without Locator No. hrs: 0 at $175 Traffic Control Traffic control plans No.: 0 at $250 Traffic control equipment No.: 0 days at $150 Arrow board No.: 0 days at $100 Flagman No. Flagmen: 0 $50 per hr for 0 Survevina Tl Field Work 0 at $200 Office Calculation 0 at $140 Travel (including mark-out) 0 at $95 Concrete and Asohalt Patchina $95 $125 per hour= $75 per hour= Project Management & Report: per hole= per hole= per hole= per hole= per hour= Pothole estimate totai: per hour per hour per hour per hour Locating estimate totai: each = per day= per day= hours = per hour per hour per hour Surveying estimate total: $0. W_ $0_ Potholinq* $0. $0_ JL |0_ $0_ $0_ 0_ 0. 0_ g_ $0 $0 io. $0 $0 Patch No.: 0 Asphalt Hot Patch No.: 0 Coring -14" Diameter No.: 0 Travel Time Travel time to and from site (billed one-way) No.: 0 at at $75 Call for quote $100 0 hours at $175 each = each = Patching estimate total: each = Travel time total: Estimate Total Authorization: XBD2012 $0 _$o_ $0 $0 JQ. $0 $0 lo" $0 $0 Additional Fees 1) This estimate includes the provision for Prevailing Wage if applicable to all field woric, (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. Fee Schedule CA925 MASTER AGREEMENT FOR CCTV INSPECTION SERVICES (AFFORDABLE DRAIN SERVICES, INC. DBA AFFORDABLE PIPELINE SERVICES) "HIS AGREEMENT is made and entered into as of the day of ^^fJu^tjcJui^ 20MJ, 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. 1 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 Coveraqes 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. t J/^ S?l 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 Contractor: For Citv: Name Skip Hammann Title Transportation Director Dept Transportation CITY OF CARLSBAD Address 1635 Faraday Avenue Carlsbad CA, 92008 Phone (760) 602-2768 Name Duane Johnson Title Vice President Address 8340 Juniper Creek Lane San Diego, CA 92126 Phone (858) 689-4000 Email djohnson(^affordabledrain.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 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 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 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 .yi^ dav of /^/t^^/^^J , 20^, ^2 CONTRACTOR AFFORDABLE DRAIN SERVICES, INC. DBA AFFORDABLE PIPELINE SERyiG^S, a California cp^Doration / (sign here) CITY OF CARLSBAD, a municipal corporation of the State of California iiTornia coroc Mayor (print name/title) ATTEST: JJI:7 cf ^/9r^ LORFtAmE M City Clerk (print name/title) Proper notarial acknowledgment of execution by Contractor must be attached>^:]a aercya^ion. Agreement must be signed by one corporate officer from each of the following twogfS6ps: 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: MX Assistant City Attorriey City Attorney Approved Version 2/17/12 Acknovt^ledgement State of California County of San Diego ) On before me, A. O'Loughlin, a notary, personally appeared QTCV^ fi^V^ XOlli X 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 S COMM. NO. 1904837 ^ SAN DIEGO COUNTY MY COMM. EXP. OCT. 12,2014 J (SEAL) Additional (Optional) Information: i Title of Document: /WlAir fV^V^a^rxV' pK P p)|^rv^kJVvv Number of pages ^ S^ATLCJ^O Other Signer(s) ^ They • • • • I » I EXHIBIT A Affordable Drain Service, Inc. DBA: Affordable Pipeline Services Rates Schedule (All wages are non-prevailing wage) Rates for Contract CCTV Inspection Truck (2 man crew) CCTV Inspections: $185.00 per hour (4 hour minimum) Push Camera Inspection/Line Locating (1 man crew) Push Camera: $165.00 per hour (3 hour minimum) Combination JetA^ac 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 Hourty Rate Trailer Jetter (1 man crew) Trailer Jetter: Drain Cleaning Service (1 man crew) Monday through Friday 8:00 AM to 4:00 PM Nights and Weekends: Supervisor Shop Truck fl-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 Qualifications Master AmBoment Consulting Services CA928 MASTER AGREEMENT FOR REAL PROPERTY SERVICES (ANDERSON & BRABANT, INC.) "HIS AGREEMENT is made and entered into as of the day of '^~h^Ty.M^ 20/CZJ 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 offive 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 wntten 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 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. _ day of 3<^^^^=C^^'^ ., 20 IZ- 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) (print name/title) p n A fihcM.'fJ^ W^i'^ ltd- L0RRA1f3E City Clerk P'ropeT notarial acknowledgment of execution by Contractor must be attached? If 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 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 On yn-f^^ 2^/^ore m Date personally appeared .1 (llfYl^/) Here Insertjvla'me and Title bf the Offiffer #11 who proved to me on thg basis of sati§|actor evidence to be the perso«(sV;whose nan^^M^s/^e subscribed to the withinjn^tn^ and acknowleog^ to me tja^ he/she^he^executecLJhe same in J;J*^(p^j/^tf:^authorize9^^pacitj^(^^ that by signatur^jlJ/'on tneinstrument the r the entity upon behalf of which the ;ted, executed the instrument. >*^1 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 Nolary Seal Above Signat OPTIONAL 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 of Attached Dertfeument /] . /? Title or Type of Domment: U (j^t^ H(M€MOU'i7Jv Document Date: Signer(s) Other Than Named Above: ^^/^ Capacity(ies) Claimed by Signer(s) uapacity(ies; uiaimea Dy bi£mer(s) (/ r ll ly \ Signer's Name: )(XM'^y6 [f^^hiMyt^ Signer's Name: (jnlQfA^ ^ 'K^'H A • Corporate Officer — Tjtle(s): ^p'Wndividual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer l^epjfe^enting: RIGHTTHUMBPRINT OF SIGNER Top of thumb here • Corporate Officer — Tltle(s): ^^4aclividual • 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.) Q"HIS AGREEMENT is made and entered into as of the day of ^P'}t^/?LJUc J . 20_^ 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 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 Lynette Overcamp Title Transportation Director Title Vice President Dept Transportation Address 2601 Airport Drive, Suite #115 CITY OF CARLSBAD Torrance CA 90505 Address 1635 Faraday Avenue Phone (310) 626-4848 Carlsbad CA 92008 Email lovercamp@epicland.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 wnting. 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 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. day of Executed by Contractor this CONTRACTOR EPIC LAND SOLUTIONS, INC., a California corporation \ui a^jj (sign here) (print name/title) / (sign here) o (print name/tme) .20 CITY OF CARLSBAD, a municipal corporation of the State of California Mayor ATTEST: LORRATNE City Clerk Proper notarial acknowledgment of execution by Contractor must be attaciped. ula isffloration. Agreement must be signed by one corporate officer from each of the foIlowin^^wo(S?\iups: 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: J{)AA^ Assistant City AttoiMy City Attorney Approved Version 2/17/12 ACKNOWLEDGMENT State of California j County of IX)S on Dcia lD\^ before me, PAm ?nVa7. (insert name and title of the officer) V\Q\\\\ ^or.t\).)P\\ isis of satisfactorv evidence to be personally appeared . ^ . who proved to me on the basis of satisfactory evidence to be the person(s)^hose name(s)i^are subscribed to the within instrument and acknowledge^J^? me that he/<^/they executed the same in his/fi^P/their authorized capacity(ies7, and that by his^^their signatur§(s)T3n the instrument the person(s); or the entity upon behalf of which the persop^ff) 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. WITNESS my hand and official seal. Signature EVAPOUZZI > COMM. #1848210 m LOS ANQEIES COUNTY -* .Comm. 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 Pubiic (here insert name and title of the officer) , notary public, personally appeared James L. Overcamp, Jr. who proved to me on the basis of satisfactory evidence to be the person^ whose ngme^ is/^R^' subscribed to the wjthin instrument and acknowledged to me that (^bhe/they executed the same in^jMier/their authorized capaat^fie^, and that by ^npher/their signaturepai) on the instrument the personj^af, 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. hand arid official seal WITNESS my hand anj^ official seal Signature JESUS ORTIZ i (COMM. #1969100 rn NotMyPuMto-CaNftmia fC 1 VWi^ LOSANOaW COUNTY (This 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: Signer(s) Other Than Named Above: (Not including this page) Holly Rockwell EXHIBIT A 5. Rate Schedules Key Personnel Name Classification / Title Hourly Rate Lynette Overcamp, SR/WA Principal $200 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 ——••—••^^^ iliiiiiiiBiiii Preliminary Title Reports $450-5850 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 Name/Ciassificatlon lob Function Hourly Rate Appraiser $160 Jean Catling Trial preparation and expert testimony $250 - $300 *15 Hour t^inirnum for Appraisal Services. Litigation support, deposition and court testimony fees are nHHitinnnl. 4 hour minimum for deposition and court testimony fees. Other Direct Costs At Cost Appraisal classification lob Function Hourly Rale 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 additionai 4 hour minimum jor deposiiion und court testimony fees, __— , -— ^ —— 1 At Cost Other Direct Costs ^—_ J Name/Classtficatlon iiiiliiiilliiM^ Hourly Hate Principal Appraiser $275 Donna Desmond Trial preparation and expert testimony $375 * Litigation support, deposition and 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.EpiGLand.com 16 CA926 MASTER AGREEMENT FOR REAL PROPERTY SERVICES (HENDRICKSON APPRAISAL COMPANY, INC.) IIS AGREEMENT is made and entered into as of the c^<f^ day of tf)L^^x.^ 20 by and between the CITY OF CARLSBAD, a municipal corpor^ion, 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 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 anse 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". 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 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. ^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. 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 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@hendricksonappraisal.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 alt 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 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 erminate 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 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 / day of ,20\ CONTRACTOR HENDRICKSON APPRAISAL COMPANY, INC., a California corj 3vk CITY OF CARLSBAD, a municipal corporation of the State of California (sign here) (print name/title/ Mayor ATTEST: c (sign here) /I^a6)aul./-h^clr'd-i^ City ^ (print name/title)^ <<^^..e^i^^ Clerk Proper notarial acknowledgment of execution by Contractor must be'^aSJ^P^^^rporation. Agreement must be signed by one corporate officer from each of the folltEji^n'gi^two^gfoups: 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-Puroose Acknowledgment State of California County of San Diego On JO- ^A,20f^, before me, Joao Bosco F. Veloso, Notary Public, personally appeared r^/) ^./^FA//3/tfC^/ov i-/^0 M/^iL'i:T/{^ir-L, ifm^ii^^ ^ ^ x-JT _ Name(s) of Signers) ^ 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 that4*ej<!*t5/they executed the same ia his/h^/their authorized capacity (ies) and that by hiaWtheir signature(s) on the mstrument 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] OFFICIAL SEAL I JOAO BOSCO F VELOSO * NOTARY PUBLIC-CAUFORNIA g COMM. NO. 1980351 S SAN DIEGO COUNTY^^f MY COMM. EXPTJUNE 28.20161 OPTIONAL Description of Attached Document ^ A ^ ^ Mlhrfc.fl A-cr/e/^^^A^r A^^C PAo/^^rUy Title or Type of Document ^^flV''^^ ^ . Document Date: [U-of'~ fl^ Number of Pages (including this one) £_ Additional Information — Capacity(ies) Claimed by Signer • Individual / ^ ^ / • Partner: Limited General • Attomey-in-Fact • Tmstee • Guardian or Conservator • Other . t •^Ai J ^ / Signer is Representing: C^rrp /hfvy , MV ^ Right Thambprint of Signer 1 Right ThumbpriDt of Signer 2 EXHIBIT A RATE SCHEDULE: As requested, following is a summary of hourly rates for professional services rendered, including services for preparation of appraisal reports, appraisal reviews, pre-trial preparation and conferences, and expert testimony. Appraisal Preparation: Senior/Staff Appraisers (appraisers noted on Org. Chart) $J 10 per hour Principal Appraiser/Project Mgr. - appraisal and review (Ted Hendrickson) 3>150 per hour Expert Testimonv rPrincipal Appraiser/Ted Hendrickson) Trial Preparation and Consulting P^^' Expert Testimony $300 per hour These are fully loaded rates and include clerical support, materials, travel, etc. 14 CityCarlsbttdS liRFP wpd HENDRICKSON APPRAISAL COMPANY. INC. Real 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 , 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 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 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 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-:VN" 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 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 Carlsbad 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 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 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 wilt 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 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 secy., 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 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 wnting 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^r-r^^6er>^ 20 1^. CONTRACTOR PLANNING SYSTEMS, a California corporation By: CITY OF CARLSBAD, a municipal corporation of the State of California (print name/title) By: (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 Assistant City Attorney City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California } County of ^CM^ ^KU-e ^y?^ On \~^r- before me, Date Here Insert Name and Title of the Officer JT* personally appeared \ Vv^'^-^c^-^ W^t.'^jg^w-ico^r'^ Vj Name(s) of Signer(s) ! mrrTA M. BEECHER CofnmlMton # 185S293 Notary PubHc • CaHfomia San Oitgo County 2 MyComm.Eap^;.Ju,«.»i.,^ who proved to me on the basis of satisfactory evidence to be the personj^ whose nanf)j3f(s) is/afe-subscribed to the within instrument and acknowledged to me that • he/sho/they executed the same in his/hef/their authorized capacity(i^^), and that by his/het#»eir signature^ on the instrument the persor^, 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. 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: Docunnent Date: Signer(s) Other Than 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 OFSIGNER 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 Toll-Free 1 -800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Oc^v-\ '^t^^ Dafb } personally appeared before me, Here Insert Name and Title of tne Officer j Name(s) of Signer(s) ^k^A^M a i i a a a a • 1 BRIHAM. BEECHER CommitsiOR # 18SS293 Notary PubHc • CaHfornia | .1— San Diogo County g 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/heifthetr authorized capacity(i^), and that by his/heiT^their 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. 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(les) 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 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 EXHIBIT A RATESCHEDULE PLANNING SYSTEMS rate schedule is as follows: PRINCIPAL: Sl50.00/hr PLANNERS/CEQA: Director of Planning/CEQA Specialist Environmental Planner . Environmental Analyst . Land Planner . $135.00/hr $ 95.00/hr $ 75.00/hr $ 75.00/hr LANDSCAPE ARCHITECT/HABITAT RESTORATION SPECIALIST: Senior Restoration Ecologist Senior Landscape Architect Landscape Designer/Habitat Restoration Specialist Biologist/Construction Monitor 11 Construction Monitor 1 . $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 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 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.) CTjHIS AGREEMENT is made and entered into as of the '^^^ day of ^M^rjU^ 20_^ by and between the CITY OF CARLSBAD, a municipal corpoi?6tion, 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 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 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-: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 periodNof five years following the date of completion of the work. [\ I I If box is checked. Professional Liability City's Initials /^ontSctor'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 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 Carlsbad 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 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 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 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. 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 alt 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 secy., 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 27th day of ,SfiptfimhRr 20J2. CONTRACTOR ATKINS NORTH AMERICA, INC., a Florida corporation CITY OF CARLSBAD, a municipal corporation of the State of California ayor (sign heri^ '•••.^i9s^i^••' / Rene de los Rios^^,, ^ Assistant Secret a ry**""*^^ (pnnt name/title) ATTEST: LORRAINE City Clerk Proper notarial acknowledgment of execution by Contractor must be attached. If^'a^CcrHbtfration. 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: RONAL^^^^^LL^City^tQpney Assistant City Attorni City Attorney Approved Version 2/17/12 NOTARY ACKNOWLEDGEMENT STATE OF FLORIDA } COUNTY OF MIAMI-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. DEBORAH LYNN SHIMEL A I^Y COMMISSION # DD 924543 y.JlL.y EXPIRES: November 13,2013 ^'t^^'' Bonded Thru Notary Public Underwriters NOTARY FUEL] Print Name: DEBORAH LYNN SHIMEL My Commission Expires: Nov. 13, 2013 Environmental/Planning Study Services I 18 5. Rate Schedule ATKINS EXHIBIT A ATKINS STANDARD RATE SCHEDULE FOR THE CITY OF CARLSBAD EFFECTIVE JANUARY 1, 2012 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 11 135.00 Senior Designer 1 120.00 Designer 11 110.00 Designer 1 100.00 CAD Technician III 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 11 85.00 Senior Administrative Assistant 1 80.00 Administrative Assistant 111 75.00 Administrative Assistant 11 65.00 Administrative Assistant 1 / Clerk 60.00 ENVIRONMENTAL SCIENCE SERVICES Supervising Scientist $198.00 Senior Scientist 111 180.00 Senior Scientist 11 170.00 Senior Scientist I 140.00 Scientist III 130.00 Scientist II 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 11 135.00 Senior Professional I / Sr. GIS Analyst 1 122.00 Professional II / GIS Analyst 11 101.00 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, nnileage, 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 I SOQ for City of Carlsbad 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 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 AiVino MOHV. Environmental/Planning Services AtkmsNortil CA932.City;CA934.CMWD Amenca ^ (Type of insurance) (Name of contract) n Reduce coverage to the amount of: [~] Waive coverage H Other: Waive requirement of surplus lines carrier on the LASLI (formerly LESLI) FACTOR(S) IN SUPPORT OF MODIFICATION(S) (check those that apply) nsignificance 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] •Contract Amount/Term of Contract: $ . Work will be completed over a period of nProfessional Liability coverage is not available to this contractor or would increase the cost of the contract by $ [explain]. I^Other (e.g. explain whv exposures are minimaL how exposures are covered in anodier twlicv. exposure control mechanisms, and anv other information pertinent to vour request): Under the Nonadmitted and Reinsurance Refonn Act fNRRA). 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) 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 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 relv 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 oflnsurance to 'tecognize" 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 JoumaLit appears that the state's implementing legislation has resulted in issues that may 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 earners 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, Lloyds of London/Beazlev syndicate has and continues to be the earner 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 Citv. It is requested Lloyds of London/Beazlev syndicate be accepted as the canier for professional liability insurance for Atkins North America. Approved by Risk Manager for these 2 contracts onlv: (Signature) (Date) ll:\WORD\lnsurance\Admin Order «68 waiver modify insunmec requirements doc 06/15/2006 CA935 MASTER AGREEIVIENT FOR FINANCIAL SERVICES (HARRIS & ASSOCIATES, INC.) (THIS AGREEMENT is made and entered into as of the day of ^n^^^z^^ 20/< 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 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 PERFORIVIANCE 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 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 alt 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 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 Carlsbad 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 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 alt times observe and comply with these laws, ordinances, and regulations and wilt 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^/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 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 IH? day of QQJ-OUC^ , 20_r^ CONTRACTOR HARRIS & ASSOCIATES, INC., a California^ corporation By: CITY OF CARLSBAD, a municipal corporation of the State of California (print name/title) By: (sign here) ATTEST: LO City Clerk (print name/title) Proper notarial acknowledgment of execution by Contractor must be attached. if*ff'ebrporation. Agreement must be signed by one corporate officer from each ofthe following two groups: Group B Secretary, Group A Chairman, President, or Vice-President 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: /CLP^A \-^::r^ Assistant City Attorney City Attorney Approved Version 2/17/12 ACKNOWLEDGMENT State of California County of .) before me, ( V>r>y-> Xhx Sch Id i McxT (insert name and title of the officer) 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), 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. Signatur^^^/^A^^>y^ (Seal) JENNIFER L. SALDIVAR Commission # 1971570 Notary Pubiic • CaUfornii OrandsCouRty ^ MyComm.Exptf»sMaf9.2016l CA936 MASTER AGREEMENT FOR FINANCIAL SERVICES (NBS) CTHIS AGREEMENT is made and entered into as of the ^ay of yy/^^^^>^>^^^ . 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 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 alt 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-:Vll" 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 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 alt required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor wilt 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 wilt maintain complete and accurate records with respect to costs incurred under this Agreement. Alt 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 att 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 wilt 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 wilt be vested in City and Contractor relinquishes alt 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 Cartsbad 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 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 taws 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 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 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 wilt 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 wilt not exceed the lump sum fee payabte 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 L davof OCXbf^^iL . 20 1^ . CONTRACTOR NBS, a California corporation By CITY OF CARLSBAD, a municipal corporation of the State of California By: (sign here) (pnnt name/title) By: (sign here) — (pnnt name/title) ATTEST: LOR' City Clerk Proper notarial acknowledgment of execution by Contractor must be attachedcorporation, 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: Assistanfcity Atto City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of __Sl^£M)M On \0\j\\A } Date before me, Here Insert lilame and Title of the Officer personally appeared _ Name(s) of Signer(s) rmCEVM.TAYIJOR Coiiwiliaioii»Hiy»7 NMifMMIe-Mioniia Steni* CaHHlii 1 who proved to me on the basis of satisfactory evidence to be the person^ whose name(^4js/afe subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/hefi*ietr authorized capacity(ie^), and that by h[s/h©fi4hetr signature(^) on the instrument the person(jE?), 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 mvhand and/6fficial Sign OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Number of Pages: Capacity(ies) Claimed by Signer(s) Signer's Name: U\Ci:^l tos^UdU^ • Individual i 0" Corporate Officer — Title(s): 1 CgP • 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 SECTION 4. 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 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. Statment of QiiaKfications far Master Agreement - Financial Consulting Sen/ices for the City of Carlsbad Prepared by NBS - May 23, 2012 4-1