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HomeMy WebLinkAbout2016-09-27; City Council; Resolution 2016-194RESOLUTION NO. 2016-194 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING EXECUTION OF MASTER SERVICE AGREEMENTS FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES WITH RICHARD BRADY & ASSOCIATES, BUTlER ENGINEERING, INC., INFRASTRUCTURE ENGINEERING CORPORATION, AND KLEINFELDER-SIMON WONG ENGINEERING. EXHIBIT 1 WHEREAS, the City Council of the City of Carlsbad, California has determined the need for the Horizontal Construction Management and Inspection Services Agreements requested by the Construction Management & Inspection Division of the Public Works Department for construction projects within the city on an ongoing, as-needed basis in order to maintain service levels; and WHEREAS, the Purchasing Officer authorized competitive negotiations for these services pursuant to Carlsbad Municipal Code section 3.28.070; and WHEREAS, the Construction Management & Inspection Division of the Public Works Department solicited, received, and reviewed responses to a Request for Qualifications for horizontal construction management and inspection services consistent with Carlsbad Municipal Code section 3.28.070; and WHEREAS, based on evaluation ofthe proposals received, staff recommends the city enter into Agreements with Richard Brady & Associates, Butier Engineering, Inc., Infrastructure Engineering Corporation, and Kleinfelder-Simon Wong Engineering; and WHEREAS, staff recommends that each Agreement be in an amount not to exceed $800,000 per year; and WHEREAS, City Council approved sufficient funds with the Fiscal Year 2016-2017 Operating and CIP Budgets to cover the first Agreement year; and WHEREAS, expenditures for these professional services in subsequent fiscal years are subject to availability of council-approved funding from the Public Works Operating Budget and the city's Capital Improvement Program. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the Mayor of Carlsbad is hereby authorized and directed to execute the Master Service Agreements attached hereto with Richard Brady & Associates (Attachment A.l), EXHIBIT 1 Butier Engineering, Inc. (Attachment A.2), Infrastructure Engineering Corporation (Attachment A.3), and Kleinfelder-Simon Wong Engineering (Attachment A.4). 3. That the City Manager is hereby authorized to execute Amendments to extend the Agreements for three additional one-year periods or parts thereof in an amount not to exceed $800,000 per year. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 27th day of September, 2016, by the following vote, to wit: AYES: Hall, Wood, Schumacher, Blackburn, Packard. NOES: None. ABSENT: None. MATT HALL, Mayor .>b\~~ ~ BARBARA ENGLESON, City ctf (SEAL) MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (RICHARD BRADY & ASSOCIATES) THIS AGREEMENT is made and entered into as of the c9{¥h day of ~lo ('('(\ Q \:f-:4 , 20_lk, by and between the CITY OF CARLSBAD, a municipal COfPration, hereinafter referred to as "City", and RICHARD BRADY & ASSOCIATES, a California Corporation, hereinafter referred to as "Contractor." RECITALS A City requires the professional services of an engineering firm that is experienced in inspection and construction management for civil engineering/horizontal projects. B. Contractor has the necessary experience in providing professional services and advice related to inspection and construction management of private as well as municipal projects. C. 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 one year from the date first above written. The City Manager may amend the Agreement to extend it for three additional one year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (1 0) 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 City Attorney Approved Version 6/9/15 inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed eight hundred thousand dollars ($800,000) per Agreement year. If the City elects to extend the Agreement, the amount shall not exceed eight hundred thousand dollars ($800,000) per Agreement year. 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 by any willful misconduct 2 City Attorney Approved Version 6/9/15 or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 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. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 1 0.1.1 Commercial General Liability Insurance. $2,000,000 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. 1 0.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 1 0.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 1 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: 1 0.2.1 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 6/9/15 1 0.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 1 0.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one ( 1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For City: For Contractor: ~;~~· ~Tvft~k!W, J1'ru~, ~;~~· ~'is~Crtf;~ & a 4 City Attorney Approved Version 6/9/15 Dept CITY OF CARLSBAD Address &)8:~5tAv~ \s ell: ;). O() g 3 7 I 0 R. lA, f' r.·(') Ro o.J... Address San {),'ejo 1 CA 92J7...b Phone ~ I tf -7 o I -I 9 s-b Email r brady ~ r/,retJy.nef- Phone :J-r., 0 . ft;G.Z . .,.2.9=5f Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City 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 5 City Attorney Approved Version 6/9/15 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. 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 nor 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. 6 City Attorney Approved Version 6/9/15 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 Al..o\_5 ~~ +-, 20_j___fo_. CONTRACTOR By: ~ (sign hereM- R, \. HAltp 6M~ PfZGil-Df.~ (print na ei'title) ·~ ( € 0 By: ~~n~o( (print name/title~ CITY OF CARLSBAD, a municipal corporation of the State of California By J~4 ~ITlEFPERSON AUTHORIZED TO SIGN{€ity Marrager er Mayor or Di'vi~ior, Direetol"as authorized by the City Manager)] ATTEST: 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 of the State of California APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY:___,.~------:=--=----:--=~~:-:=----=-~--As~istaF1t City Attorney R;Jtdy MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (RICHARD BRADY & ASSOCIATES) 7 City Attorney Approved Version 6/9/15 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of 5c:a.n 'i?iep before me, t:~Vftr1 r1~" '12~~14~.s / N"~ fi?t..;.J,r;.. (insert name and tit e of the off1cer) personally appeared £,o-4-Jl 13,-J'! / CJ..r,)HnL-/:(o/la,...J , who proved to me on the basis of satisfactory evidence to be the person(~hose name(s) is~ subscribed to the within instrument and acknowledged to me that he/she~xecuted the same in his/he~uthorized capacity(ies), and that by his/he~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. Signat~:-C {Seal) I ~ I. .. ·. ·KevAN .iAX 'ovKuNs 1 Commission No.2124336 ~ , NOTARY PUBLIC-CALIFORNIA ~ :/ SAN OtEGO COUNTY J .. ~~c~.~~~~~~~~1·.~.~~~. EXHIBIT "A" SCOPE OF SERVICES Contractor shall perform as-needed horizontal construction management and inspection services in accordance with the city's Request for Qualifications with Fee Proposal dated April 20, 2016. The agreed upon billing rates for services outlined in said proposal are attached hereto. Any rate increases are subject to negotiation and approval by city staff. If the use of subcontractors is approved by the City, they shall be billed at cost plus 10%. HORIZONTAL CONSTRUCTION MANAGEMENT RATE SCHEDULE Name Title PrevaiHng Wage Rate 1 Scott Reilly, CCM Contract Manager/Senior $186.00 Construttion Manager . 2 JaYier Saun<lers, ~F. Technical Advisor/OA Mana~~;er $237.00 3 Ridlard Brady, P£, BCfE Prlncl pa Hn·Cha rge $297.00 4 Jim Wageman .. PE Resident fngin~r $186.00 5 Rvan Fane, PE, QSD Resident Engineer $186.00 6 Danlelle Stepheos, PE, LfED Af> Resident Engineer $14S.OO 7 Brian Montesi, PE Resident Englne!er $186.00 8 Ben Sharon, PE E~ctrical/l&C Inspections $186.00 9 Ryan Nishimura, PE E!ectric;al/l&C lnspectio115 $145.00 10 R. Lee Biggers, PE, SE Structural Inspections $237.00 11 Tim Stanton, EIT, QSO Doeument Control/Constract $103.00 Admlnistration/Sthcduling SUSCONSUlT ANTS'"' Name Title Prevailing Wage Rate 1 SCST Principal £ngineer/Geo!ogist $174.00 2 SCST Senior Engineer/Geologist $146.00 3 SCST Staff Engineer/Geologist $116.00 4 SCST Ptoject Manager $121.00 5 la Salle Solutions Inspector $154.00 ·'- Notes· • Prevailing wage rate-s do not inch.tde overtime .,.Subconsultanh, subcontractors, and aU other direct costs (ODCs) will be billed at actual cost plus a 10 pen;:ent markup. ••• Annui!ll est.llation of 3% Hourly rates include overhead for Laptops, wireless connection, c'l!ll phones, copies, and other minor indclent;;~ls. Mileage at the Job site will be charged the IRS standard rate 8 City Attorney Approved Version 6/9/15 MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (BUTlER ENGINEERING, INC.) THIS AGREEMENT is made and entered into as of the ~ day of ~l!JM Q£-, 201'-.., by and between the CITY OF CARLSBAD, a municipal corpoation, hereina'tter referred to as "City", and BUTlER ENGINEERING, INC., a California Corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering firm that is experienced in inspection and construction management for civil engineering/horizontal projects. B. Contractor has the necessary experience in providing professional services and advice related to inspection and construction management of private as well as municipal projects. C. 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. STANQARP 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 one year from the date first above written. The City Manager may amend the Agreement to extend it for three additional one year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. PROGRESS ANQ COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten ( 1 0) 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 City Attorney Approved Version 6/9/15 inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed eight hundred thousand dollars ($800,000) per Agreement year. If the City elects to extend the Agreement, the amount shall not exceed eight hundred thousand dollars ($800,000) per Agreement year. 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. INPEMNIFICATION 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 by any willful misconduct 2 City Attorney Approved Version 6/9/15 or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 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. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 1 0.1.1 Commercial General Liability Insurance. $2,000,000 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. 1 0.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 1 0.1.3 Workers' Compensation and Employer's Liability. 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. 1 0.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 1 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: 1 0.2.1 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 6/9/15 1 0.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 1 0.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORpS 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 pOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For City: Name {/A-/~ e_ Lu); ;:t; Title /lvtlry fc.)b f/c I.J~ For Contractor: ~ l A""' ·~ Name ~-~·v ", ~-' ,-- tJ, 1 ( e.6/D JL_ Title \Jl'7c {G\ } 4 City Attorney Approved Version 6/9/15 Dept CITY OF ~LSBAD Address ltJ 3("" hCn~ Jh:e. Ph C-rt~~~ C-M-1.ta oY one -=kP o · &o l ·;2.15" f Address Phone Email Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten ( 1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City 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 5 City Attorney Approved Version 6/9/15 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 ANP 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. JURISPICTIONS ANP 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 ANP A5SIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor 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. 6 City Attorney Approved Version 6/9/15 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Executed by Contractor this l \ day of f4UGu '>I , 20 \ k, . CONTRACTOR By: (sign here) Mf\i2i"( M· BUT l E!<.-PRESlOE~T (print name/title) By: ~ ~ (sign heri) ..._,_ ·-·~~~ .. VV""--"~ (print name/title) P \/~~ CITY OF CARLSBAD, a municipal corporation of the State of California Q I. /;a. / By:.· , I~ '1t [INI.t.'r TITL"OF PERSON AUTHORIZED TO SIGN (City Merrager or Mayor or Di"Visiorr Dir eet-er as authorized by the City Manager)] ATTEST: Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY:~~ --~~~~~~--~-------Assi~t&mt City Attorney i)-p;_i':J MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (BUTlER ENGINEERING, INC.) 7 City Attorney Approved Version 6/9/15 EXHIBIT "A" SCOPE OF SERVICES Contractor shall perform as-needed horizontal construction management and inspection services in accordance with the city's Request for Qualifications with Fee Proposal dated April 20, 2016. The agreed upon billing rates for services outlined in said proposal are attached hereto. Any rate increases are subject to negotiation and approval by city staff. If the use of subcontractors is approved by the City, they shall be billed at cost plus 10%. City of Carlsbad-RFQ No. #16-10 As-Needed Horizontal Construction Management & Inspection Services OUTlER Fee Schedule 5/16/16 Unburdened 0 f Rate Class1f1t .ltton F1nn Hourly Rate Multiplier Hourly Rate Premtum OT Rate 1 5 2 0 Construction Management & Inspection S.rvicu Pro1ect Manager Butler $75.00 2.81 s 210 ,, ProJect 01rector Butier $64 00 2.81 s 179.84 Construction Manager Butler $70 50 ?.81 s 198 11 Res1dcnt Eng1neer Butier $64.00 ? 81 s 179 84 Son1or Scheduler Butter $70.50 2.81 s 198.11 Sen1ur EsUmotor Butier $70.50 2.81 s 198 11 F IHkl E nnlnear Butier $58.00 2.81 s 162 98 Lead inSpector Butler $51.00 2 81 s 143 31 s 20.50 $ 168 81 H5l 79 C1v11 tr.spector Butier $48 00 2.81 s 134 88 $ 24.00 $ 158 88 !54.53 Mechanical 1nspector Butler S41l.OO 2 81 $ 134 88 s 24 00 $ 158 88 154 63 E:.lectncal lnspec.tor Butier $52.00 2.81 s 146.12 $ 26 00 5 172.12 154.63 F,eld fechnK.al Suppur! Butler $44.00 2.81 s 123.64 $ 22.00 $ 145.64 ~ 111.U8 Office Ergineers 1 Prowct Coord1nators Butier $30.00 2.81 s 84 JO $ 1500 $ 99.30 ~ 98.10 Sen1or Electncal Engineer Butler S80 uu 281 224 80 Techmcai Support-Cia•ms Butier S7o oo 2.81 210.75 Cumputer Tech./ held Document Control Butler $34 00 2.81 95 ~4 Compulor Prog Netovork Butier S5? on 2 81 146 12 8 City Attorney Approved Version 6/9/15 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT County of flt-/W~ t-11-/J beforem~l'fM'IJt.~s 7JJt:4/v, /17f9i-/( ?J?. gtL;e;zame and title of the officer) ~;;r On personally appeared who proved to me on the basis of satisfactory evidence to ~e person~hose nam~e s~cribed to the within instrument and acknow~ed to me that(!;!Pishe/they executed the same in ~er/their authorized capacity(ies), and that by is er/their signaturefst on the instrument the perso~or the entity upon behalf of which the person~c d, 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. I. Signatur (Seal) OPTIONAL INFORMATION Although the information in this section is not required by law, it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. Description of Attached Document The preceding Certificate of Acknowledgment is attached to a document titled/for the purpose of tn/lfi/ 4& fe...u~ tWe-1Zh/rRi ~¥_ml/K!Tloll/ WJar,«~t:~ containing f' pages, and dated J -/// k The signer(s) capacity or authority is/are as: D lndividual(s) ~::~~~:r(sl __ c_K~"'-~~S_t~cb; __ j-~---=--:------------ Title{s) D Guardian/Conservator D Partner-Limited/General D Trustee(s) D Other: ------------------------- representing: ----cc----cc---:cc=-----:-=--·::c--:--c-::---c-c:--------- Name(sl of Person(s) or Ent1ty(1es) S1gner is Representing 1'", i'l' liH!IT' Method of Signer Identification Proved to me on the basis of satisfactory evidence: LQ form(s) of identification 0 credible witness(es) Notarial event is detailed in notary journal on: Page# .J 0 Entry# 3 Notary contact fL/9 ott--t//'f I Other D Additional Signer(s) D Signer(s) Thumbprint(s) D ------------------ ©Copyright 2007-2014 Notary Rotary, Inc. PO Box 41400, Des Moines, lA 50311-0507 All Rights Reserved Item Number 101772 Please contact your Authorized Reseller to purchase copies of th1s form A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. ACKNOWLEDGMENT OF NOTARY PUBLIC State of California } } County of Orange } On August 12, 2016, before me, Cynthia L. Gillespie, a notary public, personally appeared MARK M. BUTlER, JR., who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, 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. ~J-Y~ MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (INFRASTRUCTURE ENGINEERING CORPORATION) THIS AGREEMENT is made and entered into as of the <9~ day of S£~ , 20)ip_. by and between the CITY OF CARLSBAD, a municipal corpor ion, hereinafter referred to as "City", and INFRASTRUCTURE ENGINEERING CORPORATION, a California Corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering firm that is experienced in inspection and construction management for civil engineering/horizontal projects. B. Contractor has the necessary experience in providing professional services and advice related to inspection and construction management of private as well as municipal projects. C. 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 one year from the date first above written. The City Manager may amend the Agreement to extend it for three additional one year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (1 0) 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 City Attorney Approved Version 6/9/15 inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed eight hundred thousand dollars ($800,000) per Agreement year. If the City elects to extend the Agreement, the amount shall not exceed eight hundred thousand dollars ($800,000) per Agreement year. 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 by any willful misconduct 2 City Attorney Approved Version 6/9/15 or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property 'which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 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. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 1 0.1.1 Commercial General Liability Insurance. $2,000,000 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. 1 0.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $1 ,000,000 combined single-limit per accident for bodily injury and property damage. 1 0.1.3 Workers' Compensation and Employer's Liability. 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. 1 0.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 1 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: 1 0.2.1 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 6/9/15 1 0.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 1 0.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one ( 1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For City: ~i~~· u~l.)\tl ~i rL6k- 4 For Contractor: Name Title ~o6£~T w~c~~~ fflf"St DJZNr City Attorney Approved Version 6/9/15 Dept Address Phone Address Phone Email Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City 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 5 City Attorney Approved Version 6/9/15 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. 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 nor 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. 6 City Attorney Approved Version 6/9/15 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 q-rt't day of ,Sepl-BmJ.sze'te:_ , 2ol¥z_. CONTRACTOR (sign here) Ao~UTS-!wiJef t~/s~·rk~~f (print name/title t By:')/~~ (print name/title) CITY OF CARLSBAD, a municipal ~~o:;:n ~S2~;1~ornia [1Ns1~EOPERSON AUTHORIZED TO SIGN fGity Meru1ger er - Mayor or DivisioR Direeter as authorized by the City Manager)] ATTEST: 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 of the State of California APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY:~ ~p~~ 1t City Attorney MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (INFRASTRUCTURE ENGINEERING CORPORATION) 7 City Attorney Approved Version 6/9/15 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 • State of California } County of ~A-kl DJ EG;o On A(}G;()S T 11 ~ /{, before me, NA-A/0-L AI]. V+me«A I 1\IOTI±fi..X Pt/8L,Io Date re Insert Name and Title of the Offi er personally appeared f)uBfrff W£8£1( Place Notary Sea/ Above Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the perso~) whose name~) is/~ subscribed to the within instrument and acknowledged to me that he/shQithi'y executed the same in hisf.herltl-tcir authorized capacity~), and that by his/Fiel'!their signature(ej on the instrument the person~), 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 ------------------------------OPTIONAL--------~~----------------- Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: ____________ _ Number of Pages: __ _ Capacity{ies) Claimed by Signer{s) Signer's Name: -----------------::7"""- [J Corporate Officer-Title(s): ----~-­ [J Partner -0 Limited [J General LJ Individual 0 Attorney in t 0 Trustee 0 Guardi or Conservator L1 Other: ----------.-c---------- Signer's Name: ____________ _ 0 Corporate Officer-Title(s): ______ _ 0 Partner -0 Limited CJ General 0 Individual [J Attorney in Fact D Trustee 0 Guardian or Conservator 0 Other: _____________ _ Signer Is Representing: ________ _ © 2013 National Notary Association • www.NationaiNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 ~· State of California County of ~ItA) D J f:G 0 } onAU&,USf 1 2JJI6 before me, !VPriJ(/(j /11]. CAIVIBtfA A.!0171KV fvJ3~1C Date' , . Here Insert Name and Title 6f the Office! personally appeared VICKI S't:IAH/ Place Notary Seal Above Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the perso~) whose name(s) islafe. subscribed to the within instrument and acknowledged to me that he/.sRefthey executed the same in his/b.et:.Ltheir authorized capacity(+es), and that by his/-11er/their signature(.s) on the instrument the person~). 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. WITNES~y hand and official seal. Signatuf.L · ------------------------------OPTIONAL--------~-------------------- Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: ____________ _ Number of Pages: ___ Signer(s) Other Than Named Above:~------------ Capacity(ies) Claimed by Signer(s) Signer's Name:-------------./ D Corporate Officer-Title(s): ----------=~­ [1 Partner -D Limited D General D Individual D Attorney in Fa [l Trustee D Guardian onservator D Other: ------;7""---------- ·gner's Name: ___________ _ D Corporate Officer-Title(s): ______ _ D Partner -D Limited n General D Individual D Attorney in Fact D Trustee D Guardian or Conservator D Other: _____________ _ Signer Is Representing: ________ _ © 2013 National Notary Association • www.NationaiNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT "A" SCOPE OF SERVICES Contractor shall perform as-needed horizontal construction management and inspection services in accordance with the city's Request for Qualifications with Fee Proposal dated April 20, 2016. The agreed upon billing rates for services outlined in said proposal are attached hereto. Any rate increases are subject to negotiation and approval by city staff. If the use of subcontractors is approved by the City, they shall be billed at cost plus 10%. CITY OF CARLSBAD RFQ No. 16-10 AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES HOURLY CHARGE RATE AND EXPENSE REIMBURSEMENT SCHEDULE Construction Management and lnspe~tion S~rvice$ Construction lnspPctor. . . .... .. .. . $ 178 Senior Comtruction Inspector .................... $ 140 Resident Eng1neer ................................. $ 145 ConstructiOn Manager.. . .. ................ $ 160 Construction CM Coordinator ................... $ 115 PnnCipill EnginPf'r . . . ............. $ 205 A~~t CM Coordin<~tor ...... .............. ... .. $ IJS 8 City Attorney Approved Version 6/9/15 ACTION BY UNANIMOUS WRITTEN CONSENT OF THE BOARD OF DIRECTORS OF INFRASTRUCTURE ENGINEERING CORPORATION A CALIFORNIA CORPORATION The undersigned, constituting all of the directors of Infrastructure Engineering Corporation, acting pursuant to the authority of Section 307(b) and any other applicable section of the California General Corporation Law, hereby adopt the following recitals and resolutions, effective January l, 2016: WHEREAS, in order to enter into contracts and other agreements, Infrastructure Engineering Corporation. (the "Corporation") desires to designate the authority of its officers and selected employees to sign on behalf of the Corporation; and WHEREAS, the Board of Directors of the Corporation considers it to be in the best interest ofthe Corporation to designate the President, Vice President/CFO and the Past President to have sole signing authority on matters up to $1 million, requiring a second signature above that amount; and WHEREAS, the Board of Directors also desires to designate Amy Czajkowski, Anna Buising, Anders Egense and George Elaro to act on behalf of the Corporation with limited authority to enter into contracts or other agreements and to sign on behalf of the Corporation as resolved below. NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of Infrastructure Engineering Corporation as follows: Section 1: The Presidentlfreasurer, Robert Weber, the Vice President, Scott Humphrey, the Past President, Preston Lewis, each one acting alone, be and they are hereby authorized, without further authorization of the Board, to enter into and execute on behalf of the Corporation such contracts and other instruments as are necessary and appropriate for the Corporation, having a value of One Million Dollars or less; and Section 2: For any transaction having a value greater than One Million Dollars, the signature of either of the Presidentffreasurer, Robert Weber, or the Vice President, Scott Humphrey, or the Past President, Preston Lewis, and the signature of any one of the Secretary, Vicki Shaw, Amy Czajkowski, Anna Buising, Anders Egense, George Elaro or Scott Adamson; and 1 Section 3: The following officers and employees are designated to act on behalf of the Corporation with limited authority to enter into contracts and other agreements that do not exceed the following amounts: Officer Title Limit Amy Czajkowski Sr. Project Manager $750,000 Secretary $300,000 Vicki Shaw Anders Egense Sr. Project Manager $300,000 Anna Buising Principal, $300,000 Environmental Services Flow Services $300,000 George Elaro Group Manager Construction Manager $300,000 Scott Adamson Group Manager Section 4: lbis resolution is effective immediately and shall continue as to each individual until said individual shall leave the employ of the Company or until revoked by the Board of Directors, whichever shall first occur. RESOLVED FURTHER, that the officers ofthis corporation are authorized and directed to take any other actions necessary to carry out the purpose and intent of these resolutions, including the execution, acknowledgement, and filing of any documents, z;;;?? itings, or book entries that may b:; to carry out these resolutions. RobertS .. Weber / 2 I, r .. _.--} ' MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (KLEINFELDER-SIMON WONG ENGINEERING) THIS AGREEMENT is made and entered into as of the ~ day of &nt ~~ 20~ by and between the CITY OF CARLSBAD, a municipal corporatich. hereinafte~ referred to as "City", and KLEINFELDER -SIMON WONG ENGINEERING, a California Corporation, hereinafter referred to as "Contractor." RECITALS A. City requires the professional services of an engineering firm that is experienced in inspection and construction management for civil engineering/horizontal projects. B. Contractor has the necessary experience in providing professional services and advice related to inspection and construction management of private as well as municipal projects. C. 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 one year from the date first above written. The City Manager may amend the Agreement to extend it for three additional one year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (1 0) 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 City Attorney Approved Version 6/9/15 inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed eight hundred thousand dollars ($800,000) per Agreement year. If the City elects to extend the Agreement, the amount shall not exceed eight hundred thousand dollars ($800,000) per Agreement year. 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 by any willful misconduct 2 City Attorney Approved Version 6/9/15 or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 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. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 1 0.1.1 Commercial General Liability Insurance. $2,000,000 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. 1 0.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 1 0.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1 ,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 1 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: 1 0.2.1 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 6/9/15 1 0.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 1 0.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For City: ~i~l;e t/1;';tft~ ~ For Contractor: Name Henry Gentile thtt..cA,tLTitle ProJect Manager 4 City Attorney Approved Version 6/9/15 Dept CITY OF CARLSBAD Address ~3'5'" hr"-LS\ f.tve.... cl s\llA-.0. C14 ao o? Phone :\.(p o ·lR o "A. · cJ.3-5 I Address 5761 Copley Dnve Suite 100, San Diego, CA 92111 Phone 858-223-8500 Email hgent i le@ klei nfe lder. 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 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 (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City 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 5 City Attorney Approved Version 6/9/15 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. 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 nor 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. 6 City Attorney Approved Version 6/9/15 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 \ -r-n day of Pt~u.~t-, 20~. (print name/title) ~ f /7 ~~~_) (sign here) C~""'( D · Low VVtllM..-( GPo (print name/title) I CITY OF CARLSBAD, a municipal corporation of the State of California By:~ PERSON AUTHORIZED TO SIGN ~..,...,Mr=a-=na:::-:g=e=r"""'o"""r Mayor Qf DivisieFI Director as authorized by the City Manager)] ATTEST: 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 of the State of California APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: -"7'"~---':-':::=:-~=--~::---:/~~:"-::.A'~---­Assistent City Attorney bl"f2l!J MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (KLEINFELDER-SIMON WONG ENGINEERING) 7 City Attorney Approved Version 6/9/15 EXHIBIT "A" SCOPE OF SERVICES Contractor shall perform as-needed horizontal construction management and inspection services in accordance with the city's Request for Qualifications with Fee Proposal dated April 20, 2016. The agreed upon billing rates for services outlined in said proposal are attached hereto. Any rate increases are subject to negotiation and approval by city staff. If the use of subcontractors is approved by the City, they shall be billed at cost plus 10%. KLEINF'ELOER :lOUi Ill liNG MA HS CITY Of CAMLUAO A'> NHDfO HORIZONTAl CONSTRUCtiON MANAGtMtNT AND II\ISI'tCtiOIII SUVIC£S fi~tld Stafftn Politlon ")l(!jrt I r\1~1f111ftt:H •,,,fpty "\J'Prlor 1 11~-rn.nmn M~nrtgl'r '>r h•tl11 ~ [ 1'\gi"'PPf ~tjtdt'Pt ln~lf'l'Vt 'tf11!1tH r'~4H*f tt)t .' 1f!"" I''!.\''"'~"' , 1\JWf!,l( 'fi',~5tnr "v14lt•fl.lh 1 ~;let' SIJU Sill~ S IH'l sua :illJ ~.a., SIH ~~~- $>9 $1411 ., __ .. ~J!~L ~~~ ' -$14\. $9f $14J ~I'll )IJil Sl~'> ~flU ) It'\* Slli'> Sl•m $1ht, SI'J!l Stlfl $1611 s \ 1(1 $161'1 SHII UIJ'> $UI! Slllj ~liv :Ol!IJ '.>lil'J ~ltl) ~~~lJ ~d41 ~)H~I ~,I <II $1\l $1~11 ~lH ~ l'>fi $1~6 $11'1 Sill~ +· -· $19 $1-lt. $11'1 rv,,.Jtt.•ttJ!~ ~~~~~~~-"~-·~_., _. _....._ ___ • ___ __.. __ ~-~-~~·•~·~··~·~··" S.li!O sum (PAIVAILINO WAGt) Fhtld Stafflfl 1$/Hr Ran 1 .r'('J••n Mar•~.s··r. Sl91 '·"•·tv '"'·r:-•·t t:.u Sl20 $1'>~ r" ···""' :"'" M.•"·'t: .. , sa,s $19o '" llt•t1ult• I "ii""~N S !Ill $1tJli .1.'~'.~·~~-u:.~'!!!.~-·-.~ .... ~ ............ ~~. _E'!'> .... $118 ·------·~lr--sa s , ~~, t\Jn~~-~ R(~pt\"\t•nt,)tlvt• ~~IX);UJI lt'SPf(~Or $143 : rv1o~l,:r 1,1 1'\ t .. ,t.;r • !rv1o~tc~f•.11·, lt",flng t"l'f\tl(\r• Sl/8 ) $1!!1 $1110 8 .112! ... $120 Sib'• )llll $1~0 SIMI $Ill' $Ill'> !.Jhl! ~· -~-.~~·---·---,-~· ~--., .. t,· ~-.--~s ~~ .. T·. ~ ~ ~:, $268 City Attorney Approved Version 6/9/15 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of 'SO..C'\ \:>\.t'€10 ) On~~TII,'ZD\lD beforeme,<fll\f\-.~.Q.~Mx-1 ~';&~\\£.,, Date \....,.. Here Insert Name and Title of th fficer personally appeared C 1 ~ro ft\~cl:: ~ e..c.._f" \ \:) • \..o ~ ('\"Q...Q Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) $/are subscribed to the within instrument and acknowledged to me that ~/they executed the same in hfefher/their authorized capacity(ies}, and that by 1-'WI:liiFA:heir 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 PENAL TV OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Place Notary Sea/ Above z z ~ ----------------------------OPTIONAL------------------------------ Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended 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: ____________ _ Signer's Name: ____________ _ 0 Corporate Officer -Title(s): ______ _ 0 Corporate Officer -Title(s): ______ _ 0 Partner - 0 Limited 0 General 0 Partner - 0 Limited 0 General 0 Individual 0 Attorney in Fact 0 Individual 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Trustee 0 Guardian or Conservator D Other: _____________ _ 0 Other: _____________ _ Signer Is Representing: _________ _ Signer Is Representing: ________ _ :(,'<5(;~:x;;~:~~~~~~~~~~~~'U.-'CZ,'CZ'CQ', ©2015 National Notary Association· www.NationaiNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907