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HomeMy WebLinkAbout2016-09-27; City Council; Resolution 2016-195RESOLUTION NO. 2016-195 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING EXECUTION OF MASTER SERVICE AGREEMENTS FOR AS-NEEDED VERTICAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES WITH GRIFFIN STRUCTURES, INC., KITCHELL CEM, INC., AND SCHNEIDER CM, INC. EXHIBIT2 WHEREAS, the City Council of the City of Carlsbad, California has determined the need for the vertical construction management and inspection services 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 vertical construction management and inspection services consistent with Carlsbad Municipal Code section 3.28.070; and WHEREAS, based on evaluation of proposals received, staff recommends the city enter into Agreements with Griffin Structures, Inc., Kitchell CEM, Inc., and Schneider CM, Inc.; and WHEREAS, staff recommends that each Agreement be in an amount not to exceed $400,000 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 Griffin Structures, Inc. (Attachment A.1L Kitchell CEM, Inc. (Attachment A.2L and Schneider CM, Inc. (Attachment A.3). EXHIBIT2 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 $400,000 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 (SEAL) I -r , ;'] Vl,tl C ,,,_ I MASTER AGREEMENT FOR AS-NEEDED VERTICAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (GRIFFIN STRUCTURES, INC.) THIS AGREEMENT is made and entered into as of the~ Ciq::t\ day of ~~ , 20L by and between the CITY OF CARLSBAD, a municipal corp rat1on, hereinafter referred to as "C1ty", and GRIFFIN STRUCTURES, INC., a Cahforn1a 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 buildings and facilities/vertical 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 City Attorney Approved Version 6/9/15 delays not caused by a lack of foresight on the part of Contractor, or delays caused by City inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed four hundred thousand dollars ($400,000) per Agreement year. If the City elects to extend the Agreement, the amount shall not exceed four hundred thousand dollars ($400,000) 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 2 City Attorney Approved Version 6/9/15 fees arising out of the performance of the work described herein caused by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense 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: Name £/ ,.) f1-k .Lu /:_ 7 For Contractor: I /. Name Jo t1 lil{q k ~ 4 City Attorney Approved Version 6/9/15 Title Dept 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 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-tfl day of ()e~ , 20~. By: By: (sign here) ~(L If-or, ... VJC;I) I cfo ~ (print name/title~ CITY OF CARLSBAD, a municipal corporation of the State of California By: J/fk// ~lE~RSON AUTHORIZED TO SIGN ~ity Manager or Mayor or DivisiaR Dire a~ 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:~~ AssistBflt City Attorney ~ MASTER AGREEMENT FOR AS-NEEDED VERTICAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (GRIFFIN STRUCTURES, INC.) 7 City Attorney Approved Version 6/9/15 California All-Purpose Certificate of Acknowledgment A notary public or other officer completing this certificate verifies only the identity of the individual who document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that State of California County of 0 f O.J\ ~ e_., S.S. On f1V~USt5,c2oly before me, __ ._:_~'_,_· __________ _ personally appeared j 0 p t\ V% h-e S . · ... , .. \-{Cty .l( t\ 9~>t~0d who proved to me on the basis of satisfactory evidence to be the perso@whose namE@ ~/are subscribed to the within instrument an~knowledged to me that Refstle/they executed the same in Qi.s.Lber/th~uthorized capacit~. and that by ~r/their signatur~n the instrument the perso~or the entity upon behalf of which the persor@})acted, executed the mstrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Description of Attached Document The preceding Certificate of Acknowledgment is attached to a document titled/for the purpose of ________ _ containing __ pages, and dated ________ _ The signer(s) capacity or authority is/are as: lndividual(s) Attorney-in-fact Corporate Officer(s) -------------- Guardian/Conservator · Partner -Limited/General Trustee(s) :; Other:----------------- representing: ---------------- l Proved to me on the basis of satisfactory ev1dence form(s) of identif1cal1on credible Wltness(es; Notarial event is detailed in notary ;ournal Oli' Page# __ Entry# __ Notary contact:--------- Additional Signer Signer(s) Thumbprints(s) EXHIBIT "A" SCOPE OF SERVICES Contractor shall perform as-needed vertical 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%. SCHEDULE OF HOURLY RATES GRIFFIN STRUCTURES, INC. Principal-in-Charge: ...................................................................................................................... $225.00 CFO & Financial ........................................................................................................................... $195.00 Project Executive .......................................................................................................................... $195.00 Sr. Construction Manager .......................................................................................................... $175.00 Construction Manager /lnspector ............................................................................................. $165.00 Estimating ....................................................................................................................................... $165.00 Needs Assessment ....................................................................................................................... $165.00 Administration.............................................................................................................................. $95.00 8 City Attorney Approved Version 6/9/15 1 ' . I ~ , MASTER AGREEMENT FOR AS-NEEDED VERTICAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (KITCHELL CEM, INC.) THIS AGREEMENT is made and entered into as of the ~ day of ~ ~ $<), 20J¥. by and between the CITY OF CARLSBAD, a municipal corporat n, heremafter referred to as "C1ty", and KITCHELL CEM, INC., a Cahforn1a 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 buildings and facilities/vertical 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 City Attorney Approved Version 6/9/15 delays not caused by a lack of foresight on the part of Contractor, or delays caused by City inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed four hundred thousand dollars ($400,000) per Agreement year. If the City elects to extend the Agreement, the amount shall not exceed four hundred thousand dollars ($400,000) 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. OTHERCONTRACTORS 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 2 City Attorney Approved Version 6/9/15 fees arising out of the performance of the work described herein caused by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense 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: Name For Contractor: Name t lA ? s e II ~" /Co)( I 4 City Attorney Approved Version 6/9/15 Title Dept Address Phone Swl:t;, roO Sa cJt) eJt 'j5to 1 v t:&·;:tfll,/~ aM- 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 2 9_-tf/\ day of tSe~ , 20 {G. CONTRACTOR By:n2-~·~ ~ign here) \ CITY OF CARLSBAD, a municipal corporation of the State of California By: ;Js~ (I~ L£1=PERSON AUTHORIZED TO SIGN {City Manager OF Mayor or Division Director 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 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:~ -Assistant City Attorney ~ MASTER AGREEMENT FOR AS-NEEDED VERTICAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (KITCHELL CEM, INC.) 7 City Attorney Approved Version 6/9/15 EXHIBIT "A" SCOPE OF SERVICES Contractor shall perform as-needed vertical 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%. FEE SCHEDULE Hourly Rates Principal·in~Charge $195.00 Senior Project/Construction Manager $170.00 •• U 4 ... 0. 0 0.~0 .... ~"'*"-"" .............. ~ ...... ~.I UC.O 0 0 0 O.iol 0 0 ~ .. ~ ~ ....... ""''"" ••• 4&.0~..& 0 I I 0 & 'I 0 0 O.U 0 ~ ~~· ........ ~ ..................... U.o• I 0.0 0 0 0 0 • ..... 0 0 ~0.0.0.,~0.·" ~ ............... ~ 0 0 0 ... _.I <.Ot I 0 0 J I l I 0 0 0.0 Project Construction Manager $160.00 ~ .. ' ·~ ,.,, ............... ~ .... ~ ............ ~ ............ ' ...... ~ ....... ~··~~ ............................................................. ~ ............... ~ ................ ' ...................................................................................... ' ...... .. Estimator $145.00 Scheduler $155.00 ~II I 0 t I I I 0 OU 00'10··~·· ·~··~~· 0 t U~ 1 tttOO I I IH I 0 <~I I 000'0 '"'~~~<000 .. ~00 1 I I I til II OU IOU i 0 0 ···,~·~·~~·Ott 0 00~> I I 00 0 I I I ltff f. •010 I 00~~~~•110~· 0 n~ 0 Ht t t UTT ott 0 0 t lPI rt Project Engineer/Document Control Specialist $110.00 Quality Manager $160.00 -~-~ -·~-...... ~-... ~-. -~· ~--------------~ .. -... ·-.......... -----~--~---. ·---......... -~· .. ·--------·-·--. -------.. -· .............. -------------·---------..... . Engineering & Architectural Services {EAS) Manager $180.00 Ooo£00_. I> 0-i>l I 0 o 0 0 I I o .. H ~~U•-""' •"-• ···--·~ j I 0 0 0 I 0 0 IO 0 0 0 0 I 0 ~~-~lo. ~OOol<~ <A O~.Oi,O,O"A 0.) 0 0 i I 0 H IU o 00-U -~-~J ... ~. 0 -~~.I I I I 0 I I I i 0 t 0 0 0 00 i I 0 t ~~ ........ o oA~ .. ~J .. ~~~ 0 I U 0 l l I 0 t Licensed Architect $145.00 ·--~~~~-~-~-~~--~~?:J.~~-~~r-~_.\~~-~~~-~~-i:~.~(~~~~~-~-i-~~~!.~~:-:.~~~---······································~-~-~?.:?9. .. .. f9.~!!!.~.~-~.i.?.~!~~ .. ?.P~~!~.'.~~~ .......... " ................................................................. ,. ..... ~.1.~? .. g9. .. Inspector (subcontractor} $95.00 •••••• oot It'! !llllt! "'''"lallllolll•••••'l•l~ tlt.ll I I to f I 1 I I I •tr••••••·~·~~-~~, I !Ill I 1111111-l'lU c•r••••••••~•••••~•ooo I 11-11 ttH'I f IH Ill ··~~••••••••••814!1•1"11ll"' t I lilt Clerical )75.00 B I a i £i : I J ! ! 8 City Attorney Approved Version 6/9/15 / j' MASTER AGREEMENT FOR AS-NEEDED VERTICAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (SchneiderCM, Inc.) THIS GREEMENT is made and entered into as of the :3 ~ day of 4s:o:ttlf'-f-L-'-"oW'-'-:-"-~=-..,;~· 20~, by and between the CITY OF CARWBAD, a municipal corpo ation, hereinafter referred to as "City", and SchneiderCM, 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 buildings and facilities/vertical 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 four hundred thousand dollars ($400,000) per Agreement year. If the City elects to extend the Agreement, the amount shall not exceed four hundred thousand dollars ($400,000) 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: Name £\"-L'~.i. Lu K~ Title Az~~ eu'O\ic_..W~ For Contractor: Name .\l} \ ({.~'L.. Title 4 CArZL City Attorney Approved Version 6/9/15 Dept Address Phone Address l(J..5CJ c;ec_(..( L 0 ~6(UOI A C.AiZL. 'S 13 40 C' A C>ftcoc-t Phone 0 ref. qo 5-#z '2.. Email carl. ~ci.M lchue~trMt)r;JCtf!.t1e t 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 ~ qt:h day of cJf:~r , 2o__L0_. CONTRACTOR By: (sign here) t:4tZL-. ~CHI0cZ7 Q.;:/l /Pfc:---s;{Jc:-'""01 (print name/title) By:~ I ~~ (sign here) c~ ~¥t10c:Z10e¥2 I CF"e> (print name/tale) CITY OF CARLSBAD, a municipal corporation of the State of California By 4k{~ ~TTU~ o PERsoN AUTHORIZED TO SIGN ('City Mafla§er OJ:> Mayor 01 Division Bil ee~ as authorized by the City Manager)] ATTEST: 0.. l ~~ BARMAENGLESON 6G') 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. MASTER AGREEMENT FOR AS-NEEDED VERTICAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (SchneiderCM, Inc.) 7 City Attorney Approved Version 6/9/15 EXHIBIT "A" SCOPE OF SERVICES Contractor shall perform as-needed vertical 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%. SchneiderCr.ft Attn: Fred Gaines Jr. Management Analyst City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 74511 Cln:ulo Stquoia Calilbad, CA 92009 Tel: 11~22 Fax: 888-4138-1504 16May2016 Subject: FEE PROPOSAL for the Oty of Carlsbad's As-Needed Vertical Construction Management and Inspection Services, RFQ #16-11 Dear Mr. Gaines, SchneiderCM's Fee Proposal is based on the services provided section included on pg. 24 of the written proposal: Scope Position Hourly Fee Project Management Sr.CM $145 Construction Management 5r.CM $145 Program Management Sr.CM $145 Program Controls Sr.CM $145 Quality Assurance Sr.CM $145 On·Site Inspection 5r.CM $145 Constructablllty Review Sr.CM $145 Value Engineering Sr.CM $145 Cost Estimating Sr.CM $145 Scheduling & Pull Planning Sr.CM $145 Document Management Technical Assistant $75 Project Administrative Support Technical Assistant $75 Detailed Cost Estimating Diversified Service Center $145 Quality assurance and inspection are provided by the Senior Construction Manager as outlined above. Firm Principal involvement in the above categories, where required is $160/hr. 8 City Attorney Approved Version 6/9/15 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 11 89 A, no tart oubiic or other officer ::omplettng this certificate verif es only tne ;denttty Jf the 'nd1';!d,~al whO s1gred rre docJ:rent to wnich thts certificate s attaci'ed, and ret the cruthfulress accurac:;, '}r tal1dity of that docu01em State of California County of ---'S:;.._v._l_"-_.;:;;0=--'-t-=9:...0_______ ) On q J I...J J }1., before me, _,_K:..:...Y'-'~5>~}c.J--"-4:.-=--_,_AA~-""__,5o__' --N_,._O_fo._ ... _,"f_P._u_h_l_;<. __ _ Date Her9 Insert Name ana Title of the Officer persorally appeared 5c.t .. 0<-i <l .. ,- Name(s) of Signer($) who proved to me on the basis of satisfactor:1 ev1dence co be the person(s) whose name(s) is/are sL.bscribed to the with1n tnstrurnent and acknowledged to me tha: he/she/they executed the same in his/\1er/their aL.tnorized capacity(ies), and that by l'lis/rer/tre1r s:gnatura(s) on the instrument the person(s), or the entity upon behalf of which the oerson(s) acted, executed the instrumert. Place Notary Seai Abo•;e l cert:fy under PENALTY o;: PERJURY under the laws of the State of Cal1forl"ia that tre forego1ng paragrapn is true and correct, WITNESS my hand and offic1a1 seal. Signature_'~--...:~'---'------'::__-~-------- Signature of Notary Public -----------------------------OPTIONAL----------------------------- Though tnis sect1on is oprional, COT'1pletir:g rhs inforrr.atJon car 'ieter atterafior Gf the docurrert or fraudulenr '"eartachmert of this form rc an J'l•nteTlaed ctocurner.t, Description of Attached Document ll , . .._.,......4 ~.~ AJ "'"'•.:'-l ~· T . tn~.• '"" c;, -' ..-. _:j/4._:_/_1_(, --11t1e or ype ot Document: v,~l-·'L.r..l t.M~t, fl:l'>.i,.. ...,nr.S'•".•,Docurnent Date: NurT~ber of ?ages: ~--S,gner(s; Other Thar Named Aoove. --·--·· Capacity(ies) Claimed by Signer(s) Signer's l'<ar'1e '.:-:J"'OCr3te <J-F;c~r -~·t:e/st P3r:~er -- '"di'Jidt.a: --Tr~stee ~ t:;Jr""'ey r· Fac1: -<J~-'arr:!lar· :;r ::Jr'"'S~r,~~.:::~ ----·--.. ----·- ~=>:;r::;ora:t~ -:'.::>ff!r:~r -::t~er·s·,· ----~----- ;:;srtr~ey -_;rr:1:~d --::;eqe(ai O~her: .:.~cr:e'r" ~r ;=act ·:=;:__,arrjia---,;r ,:.-:;rs~""Jac::r