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HomeMy WebLinkAbout2011/10/25 Item 06[TY COUNCIL STATEMENT ~~~ ciTV of CHU[A VISTA 10/25/11, Item ~' ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA APPROVING AN AGREEMENT FOR PROFESSIONAL LAND SURVEYING CONSULTING SERVICES REQUIRED FOR VARIOUS CAPITAL IMPROVEMENT PROGRAM (CIP) PROJECTS DURING THE DESIGN AND CONSTRUCTION PHASES WITH EACH OF THE FOL OWING CONSULTING FIRMS: BERGGREN & ASSOCIATE , BURKETT & WONG AND HUNSAKER & ASSOCIATES SAN SEGO INC. SUBMITTED BY: DIRECTOR OF PUBLIC WORKS ASSISTANT DIRECTOR OF EN REVIEWED BY: CITY MANAGER S 1- ASSISTANT CITY ANAGER ~ 1 4/STHS VOTE: YES ^ NO SUMMARY City staff has identified the need to enlist qualified consultants from time-to-time to assist City Survey staff. On-call survey personnel would provide timely, as-needed services in the event that an urgent need arises and existing City Survey staff is committed to other time-sensitive assignments. ENVIRONMENTAL REVIEW The Development Services Director has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and it has been determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it will not result in a physical change in the envirorunent; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, environmental review is not necessary. RECOMMENDATION Council adopt the resohltion. BOARDS/COMMISSION RECOMMENDATION Not applicable. 6-1 10/25/11, Item Page 2 of 4 DISCUSSION For the past few years, Survey section staffing has consisted of three frill-time staff augmented on an as-needed basis by the services of two on-call survey consultants. Through the acquisition and implementation of technological land survey equipment, Survey staff has achieved exceptional efficiency while not compromising accuracy. The Survey section provides land surveying services for general maintenance, Capital Improvement Project (CIP), and Land Development projects, including, but not limited to: • Upgrading the City's first order control network, • Topographic engineering design field surveys and map drafting, • Subdivision & Parcel Map checking for new land development projects, • Monument inspection for new land development projects, • Control surveys, both conventional and GPS, including calculations and map preparation, • Construction staking, including field staking and preparation of staking calculations, • Monument preservation and preparation of corner records and/or record of surveys, and • Response to dig alerts for City projects and emergency repairs. JUSTIFICATION FOR ON-CALL CONSULTANTS Staff has determined that it is necessary to secure the assistance of land surveying consultants on an as-needed basis, rather than hiring additional staff, for the following reasons: It is critical that right-of--way engineering, topographic design surveys, monument preservation, and constriction surveying work for existing and firture CIP Projects be performed in a timely manner to avoid project and construction delays. Although. Survey staff has become significantly more efficient, occasionally assistance is needed during periods of high volume land, surveying requests and emergencies. 3. Specialized Land Surveying services are needed periodically while Land Survey staff is focused on capital improvement projects, right of way inquiries, map processing. In May 2011, a Request for Proposals was advertised in the Star News and in the San Diego Daily Transcript to obtain the highest number of qualified respondents. Proposals were received on June 16, 2011 from thirteen consulting firms qualified to provide professional land surveying services. CONSULTANT SELECTION PROCESS Because it was anticipated that the contract amount for these services would be in excess of $50,000, staff followed the procurement procedures outlined in City Council Policy and in Chula Vista Municipal Code Section 2.56. The City Manager authorized the following staff to act as a selection committee to evaluate the proposals, to prepare a list ranking the responding firms, and to submit a recommendation to the Director of Public Worlcs: Jose Luis Gomez, Land Surveyor, Public Worlcs -Engineering Kathy Morgan, Assistant Land Surveyor, Public Worlcs -Engineering Greg Tscherch, Associate Civil Engineer, Public Works -Engineering 6-2 IO/25/ll, Item Page 3 of 4 Boushra Salem, Senior Civil Engineer, Public Works -Engineering Kalani Camacho, Senior Inspector, Public Works -Operations The selection committee evaluated and ranked each of the proposals. Ranking was based upon objective evaluation criteria that included the following: experience; capacity to perform the required scope of services; quality of the management team; grasp and understanding of the scope of services required; responsiveness of proposals to the required scope of work; quality and clarity of the proposal; familiarity with the local area; and, cost proposal. Six firms were selected for interviews in July 2011: Hunsaker & Associates, San Diego, Inc. Project Design Consultants Berggren & Associates Towill Alta Land Surveying, Inc. Burkett & Wong Upon the conclusion of the consultant interviews and deliberations by the consultant selection committee, the committee reached a decision on the ranking of the consultants. Berggren & Associates, Hunsaker & Associates, San Diego, Inc., and Burkett & Wong were selected as the three top ranking firms. Fee schedules and contract details have been successfully negotiated with all three consultants. The terms of these contracts include hourly rates with a maximum compensation over the life of the contract of $500,000. SCOPE OF SERVICES Typical services that the City may require during the planning, design, and constriction phases of CIP projects may involve field and office land survey tasks, including: • Monument Preservation, including research, tie outs, resets, and preparation of Corner Records and/or Record of Surveys, • Right of Way Determination, • Preparation of Conveyance documents, • Control surveys, both conventional and GPS, including calculations and map preparation, • Topographic field surveys and map drafting, • Monument Inspection for new land development projects, and • Constriction staking, including field staking and preparation of staking calculations. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in Califon~ia Code of Regulations section 18704.2(a)(1) is not applicable to this decision. 6-3 10/25/11, Item Page 4 of 4 CURRENT YEAR FISCAL IMPACT CIP projects include staff costs for surveying services. This item establishes a list for use of professional land surveying services in the event staff is not available to perform such services. Sufficient survey funds are budgeted in each CIP budget resulting in no fiscal impact. ONGOING FISCAL IMPACT Expenditures resulting from the use of professional land surveying consultants will be paid. from existing CIP budgets. ATTACHMENTS Agreements with Berggren & Associates, Burkett & Wong, and Hunsalcer & Associates San Diego, Inc. for Professional Land Surveying Consulting Services. Prepared by: Jose Luis Gomez, Land Surveyor Public Works-Engineering J: IEngineerlAGENDAiCAS2011110-25-111Professional Land Surveying Council Agenda -Rev 2.doc 6-4 RESOLUTION NO. 20ll- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA APPROVING AN AGREEMENT FOR PROFESSIONAL LAND SURVEYING CONSULTING SERVICES REQUIRED FOR VARIOUS CAPITAL IMPROVEMENT PROGRAM (CIP) PROJECTS DURING THE DESIGN AND CONSTRUCTION PHASES WITH EACH OF THE FOLLOWING CONSULTING FIRMS: BERGGREN & ASSOCIATES, BURKETT & WONG AND HUNSAKER & ASSOCIATES SAN DIEGO INC. WHEREAS, the City has identified the need to enlist qualified consultants to assist City land surveying staff; and WHEREAS, in May 2011, an RFP was advertised in the Star News and in the San Diego Daily Transcript to obtain the highest number of qualified respondents; and WHEREAS, the selection committee evaluated and ranked the proposals; WHEREAS, the ranking was based on an evaluation criteria that included the following; the consultant's experience, the capacity to perform the work, the quality of the management team, the grasp of the project requirements, responsiveness to the scope of work, the quality and clarity of the proposal, familiarity with the local area and the cost proposal; and WHEREAS, fee schedules and contract details have been successfully negotiated. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does herby approve an agreement for Professional Land Surveying Consulting Services for various Capital Improvement Program (CIP) projects during the design and construction phases with each of the following consulting firms: Berggren & Associates, Burkett & Wong, and Hunsaker & Associates San Diego Inc. Presented by Richard A. Hopkins Director of Public Works 6-5 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY Dated: ~ 0 t ~ f AGREEMENT BETWEEN THE CITY OF CHULA VISTA, AND BERGGREN & ASSOCIATES FOR LAND SURVEYING SERVICES 6-6 Agreement between City of Chula Vista and Berggren & Associates For Land Surveying Services This agreement (Agreement), dated ,for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A to this Agreement {Exhibit A), Paragraph 1, is between the City-related entity whose name and business form is indicated on Exhibit A, Paragraph 2, (City}, and the entity whose name, business form, place of business and telephone numbers are indicated on Exhibit A, Paragraphs 4 through 6, (Consultant), and is made with reference to the following facts: RECITALS WHEREAS, The City desires to have Land Surveying Consulting Services in conjunction with various capital improvement projects in which it engages and in conjuction with monument preservation, engineering design surveys, construction surveys, and property acquisition surveys; and WHEREAS, Consultant desire to perform these services for the City at the price and terms herein specified; and, WHEREAS, Consultant warrants and represents that it is experienced and staffed in a manner such that it can deliver the services required of Consultant to City in accordance with the time frames and the terms and conditions of this Agreement. Page 1 Twn Pnriy rt,reemeiid Between City of Chula vista and t~ Conduct Ghe " -7 OBLIGATORY PROVISIONS PAGES NOW, THEREFORE, for valuable consideration the City and Consultant do hereby mutually agree as follows: All of the Recitals above are incorporated into this Agreement by this reference. A. General ARTICLE I. CONSULTANT'S OBLIGATIONS 1. General Duties. Consultant shall perform all of the services described on Exhibit A, Paragraph 7 (General Duties). 2. Scope of Work and Schedule. In performing and delivering the General Duties, Consultant shall also perform the services, and deliver to City the "Deliverables" described in Exhibit A, Paragraph 8, entitled "Scope of Worlc and Schedule," according to, and within the time frames set forth in Exhibit A, Paragraph 8, time being of the essence of this agreement. The General Duties and the work and Deliverables required in the Scope of Worlc and Schedule shall be referred to as the "Defined Services." Failure to complete the Defined Services by the times indicated does not, except at the option of the City, terminate this Agreement. a. Redzections in Scope of Work. City may independently, or upon request from Consultant, from time to time, reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with the reduction. b. Additional Services. In addition to performing the Defined Services, City may require Consultant to perform additional consulting services related to the Defined Services {Additional Services), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 10(C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. 3. Standard of Care. The Consultant expressly wan ants that the work to be perfoi~ned pursuant to this Agreement, whether Defined Services or Additional Services, shall be performed in accordance with the standard of care ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. a. No LVaiver of Standard of Cccre. Where approval by City is required, it is understood to be conceptual approval only and does not relieve the Consultant of responsibility for complying with all laws, codes, industry standards, and liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the Consultant or its subcontractors. Page 2 Too Ptr+-n- -i,; ree:+rerxt 13etiveex City of Claiila vista and to Cuaduct the '` ~-$ B. Application of Laws. Should a federal or state law pre-empt a local law, or regulation, the Consultant must comply with the federal or state law and implementing regulations. No provision of this Agreement requires the Consultant to observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of federal, state, territorial, or local law, regulation, or ordinance. If compliance with any ,provision of this Agreement violates or would require the Consultant to violate any law, the Consultant agrees to notify City immediately in writing. Should this occur, the City and the Consultant agree that they will make appropriate arrangements to proceed with or, if necessary, amend or terminate this Agreement, or portions of it, expeditiously. 1. Subcontractors. Consultant agrees to take appropriate measures necessary to ensure that all participants utilized by the Consultant to complete its obligations tinder this Agreement, such as subcontractors, comply with all applicable laws, regulations, ordinances, and policies, whether federal; state, or local, affecting Project implementation. In addition, if a subcontractor is expected to fillfill any responsibilities of the Consultant under this Agreement, the Consultant shall ensure that the subcontractor carries out the Consultant's responsibilities as set forth in this Agreement. C: Insurance 1. General. Consultant must procure and maintain, during the period of performance of this Agreement, and for twelve months after completion, policies of insurance from insurance companies to protect against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under this Agreement and the results of that work by the Consultant, his agents, representatives, employees or subcontractors, and provide documentation of same prior to commencement of work. 2. Minimum Scope of Insurance. Coverage must be at least as broad as: a. CGL. Insurance Services Office Commercial General Liability coverage (occurrence Form CG0001). b. Auto. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). c. YVC. Workers' Compensation insurance ~as required by the State of Califon~ia and Employer's Liability Insurance. d. E&O. Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. 3. Minimum Limits of Insurance. Consultant must maintain limits no less than those included in the table below: Page 3 Twn Pm~ty.~~reenient Between City of Giula Vista arrd to Conduct the " _g i. General Liability: $1,000,000 per occurrence for bodily injury, personal injury, (Including (including death), and property damage. If Commercial General operations, Liability insurance with a general aggregate limit is used, either products and the general aggregate limit must apply separately to this completed Project/location or the general aggregate limit must be twice the operations, as required occurrence limit. applicable) ii. Automobile $1,000,000 per accident for bodily injury, including death, and Liability: property damage. iii. Workers' Statutory Compensation $1,000,000 each accident Employer's $1,000,000 disease-policy limit Liability: $1,000,000 disease-each employee iv. Professional $1,000,000 each occurrence Liability or Errors & Omissions Liability: 4. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Consultant will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. 5. Other Insurance Provisions. The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: a. Additional Insureds. City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect to all policies of insurance, including those with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Consultant, including providing materials, parts or equipment fiirnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the Consultant's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. b. Primary Insurance. The Consultant's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the Page 4 Two Pnrg~,~greeuieru Between City of Chula Vista and [o Conduct the '` -~d Consultant and in no way relieves the Consultant from its responsibility to provide insurance. c. Cancellation. The insurance policies required by this Agreement shall not be canceled by either party, except after thirty days' prior written notice to the City by certified mail, return receipt requested. d. Active Negligence. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insureds in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. e. Waiver of Subrogation. Consultant's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage for the term required by this Agreement. 6. Claims Fonms. If General Liability, Polhrtion and/or Asbestos Polhition Liability and/or Errors & Omissions coverage are written on a claims-made form: a. Retro Date. The "Retro Date" must be shown, and must be before the date of the Agreement or the beginning of the work required by the Agreement. b. Maintenance and Evidence. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the work required by the Agreement. c. Cancellation. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the effective date of the Agreement, the Consultant must purchase "extended reporting" coverage for a minimum of five years after completion of the worlc required by the Agreement. d. Copies. A copy of the claims reporting requirements must be submitted to the City for review at City's request. 7. Acceptability of Insurers. Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insl~rer must be listed on the State of California List of Eligible Surplus Lines Insurers (LESLI) with a ctu-rent A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. 8. Verification of Coverage. Consultant shall furnish the City with original certificates and amendatory endorsements effecting coverage required by Section I.C. of this Agreement. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the requirements of this Agreement. All certificates and endorsements are to be received and approved by the City before work commences. The Page 5 Two ?arty A; reenaent 6enveen City of Chula I~ista and to conduct the ~~ _ _- 11 or policies conform to the requirements of this Agreement. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. 9. Subcontractors. Consultant must include all subconsultants as insureds under its policies or fiirnish separate certificates and endorsements for each subconsltltant. All coverage for subconsultants is subject to all of the requirements included in these specifications. 10. Not a Limitation of Other Obligations. Insurance provisions Linder this Article shall not be construed to limit the Consultant's obligations Linder this Agreement, including Indemnity. D. Security for Performance 1. Performance Bond. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Performance Bond (indicated by a check marls in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond, in the amount indicated at Exhibit A, Paragraph 18, in the form prescribed by the City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, http://www.fims.treas.~ov/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the Agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the limits so required. Form must be satisfactory to the Risk Manager or. City. 2. Letter of Credit: In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at its unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bai~lc, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit," in Exhibit A, Paragraph 18. 3. Other Security. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such Two Party.dgreenre~it Between City of CLa~la Vista and to Corrduci die '` ~'_ Page 6 other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. E. Business License. Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. ARTICLE II. CITY OBLIGATIONS A. Consultation and Cooperation. City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule, and to provide direction and guidance to achieve the objectives of this Agreement. The City shall allow Consultant access to its office facilities, files and records, as deemed necessary and appropriate by the City, throughout the term of this Agreement. In addition, City agrees to provide the materials identified at Exhibit A, Paragraph 9, with the understanding that delay in the provision of those materials beyond thirty days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance. B. Compensation. 1. Following Receipt of Billing. Upon receipt of a properly prepared bill from Consultant, submitted to the City as indicated in Exhibit A, Paragraph 17, but in no event snore frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkmarlc" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 11. 2. Supporting Information. Any billing submitted by Consultant shall contain sufficient information as to the propriety of the billing, including properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature of the charges to the Project in order to permit the City to evaluate that the amount due and payable is proper, and such billing shall specifically contain the City's account number indicated on Exhibit A, Paragraph 17(C) to be charged upon making such payment. 3. Exclusions. In determining the amount of the compensation City will exclude any cost: 1) incurred prior to the effective date of this Agreerr~ent; or 2) arising out of or related to the errors, omissions, negligence or acts of willful misconduct of the Consultant, its agents, employees, or subcontractors. a. Errors and Omissions. In the event that the City Administrator determines that the Consultant's negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater- than would have resulted if there were no such negligence, .errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing in this Page 7 Trvn Part~~. {g~-eerrrent Betmecic City of C'Iat~La Vista acid to CorrdueY 11u ' F'i'- ~ 3 paragraph is intended to limit City's rights under other_ provisions of this Agreement. 4. Payment Not Final Approval. The Consultant understands and agrees that payment to the Consultant for any Project cost does not constitute a City final decision about whether that cost is allowable and eligible for payment under the Project and does not constitute a waiver of any violation of Consultant of the terms of the Agreement. The Consultant acknowledges that City will not make a final determination about the eligibility of any cost until the final payment has been made on the Project or the results of an audit of the Project requested by the City has been completed, whichever occurs latest. If City determines that the Consultant is not entitled to receive any portion of the compensation due or paid, City will notify the Consultant in writing, stating its reasons. The Consultant agrees that Project closeout will not alter the Consultant's responsibility. to rehire any fiends due City as a result of later refunds, corrections, or other similar transactions; nor will Project closeout alter the right of City to disallow costs and recover fiords provided for the Project on the basis of a later audit or other review. a. Consultant's Obligation to Pay. Upon notification to the Consultant that specific amounts are owed to City, whether for excess payments or disallowed costs, the Consultant agrees to remit to City promptly the amounts owed, including applicable interest. ARTICLE III. ETHICS A. Financial Interests of Consultant Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 14, as an "FPPC filer," Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if none are specified, then as determined by the City Attorney. 2. No Participation in Decision. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not malce, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties tinder this Agreement. Page 8 Two Party Agreement Between City of Clurla Yista and to Conduct the " =14 4. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices. Act. 5. Duty to Advise of Conflicting_Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney if Consultant learns of an economic interest of Consultant's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. 6. Specific Warranties Against Economic Interests. Consultant warrants, represents and agrees that: a. Neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents (Consultant Associates) presently have any interest, directly or indirectly, whatsoever in any property which maybe the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, (Prohibited Interest), other than as listed in Exhibit A, Paragraph 14. b. No promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in comiection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for twelve months thereafter. c. Consultant Associates shall not acquire any such Prohibited Interest within the Ternz of this Agreement, or for twelve months after the expiration of this Agreement, except with the written permission of City. d. Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party that may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. IV. LIQUIDATED DAMAGES A: Application of Section. The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. 1. Estimating Damages. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to amve at a reasonable amount to compensate for delay. Page 9 Two Parry Agree~neut Betwee~a City of Chula Vista and ~o Condncl ~~,~ ~~ ~.1 5 2. Amount of Penalty. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have withheld froth monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 (Liquidated Damages Rate). 3. Request for Extension of Time. If the performance of any act required of Consultant is directly prevented or delayed by reason of strikes, lockouts, labor disputes, unusual governmental delays, acts of God, fire, floods, epidemics, freight embargoes, or other causes beyond the reasonable control of the Consultant, as determined by the City, Consultant shall be excused from performing that act for the period of time equal to the period of time of the prevention or delay. In the event Consultant claims the existence of such a delay, the Consultant shall notify the City's Contract Administrator, or designee, in writing of that fact within ten calendar days after the beginning of any such claimed delay. Extensions of time will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. ARTICLE V. INDEMNIFICATION A. Defense, Indemnity, and Hold Harmless. 1. General Requirement. Except for liability for Design Professional Services covered under Article V., Section A.2., Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers, agents and employees, from and against any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of Consultant, its officials, officers, employees, agents, and contractors, arising out of or in connection with the performance of the Defined Services or this Agreement. This indemnity provision does not include any claims, damages, liability, costs and expenses (including without limitations, attorneys fees} arising from the sole negligence, active negligence or willful misconduct of the City, its officers, employees. Also covered is liability arising from, comiected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. 2. Design Professional Services. If Consultant provides design professional services, as defined by California Civil Code section 2782.5, as may be amended from time to dine, Consultant shall defend, indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or relating to the negligence, recklessness, or willfiil misconduct of Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the Paae 10 Troo Party ,d;reemcnt 6etwcen City of Cluda D'istn and to Cazduc! tl:e " -~6 performance of Consultant's services. Consultant's duty to defend, indemnify, and hold harmless shall not include any claims or liabilities arising from the sole negligence, active negligence or willful misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the Consultant's obligations and duties under this Agreement. 3. Costs of Defense and Award. Included in the obligations in Sections A.1 and A.2, above, is the Consultant's obligation to defend, at Consultant's own cost, expense and risk, any and all suits, actions or other legal proceedings, that may be brought or instittrted against the City, its directors, officials, officers, employees, agents and/or volunteers, subject to the limitations in Sections A.1. and A.2. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents and/or volunteers, for any and all related legal expenses and costs incurred by each of them, subject to the limitations in Sections A.1. and A.2. 4. Insurance Proceeds. Consultant's obligation to indemnify -shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents, and/or volunteers. 5. Declarations. Consultant's obligations under Article V shall not be limited by any prior or subsequent declaration by the Consultant. 6. Enforcement Costs. Consultant agrees to pay any and all costs City incurs enforcing the indemnity and defense provisions set forth in Article V. 7. Survival. Consultant's obligations under Article V shall survive the termination of this Agreement. ARTICLE VI. TERMINATION OF AGREEMENT A. Termination for Cause. If, through any cause, Consultant shall fail to fiilfill in a timely and proper mamier Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such tenmination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable tinder this Agreement and less any damages caused City by Consultant's breach, for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination,. B. Termination of Agreement for Convenience of City. City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and Paae 11 T~uo Par[y A~ reenrent Beirveen Cite of Clrula Vista acrd to Conduct the ~'=~ other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement, for any satisfactory. work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth in this section. ARTICLE VII. RECORD RETENTION AND ACCESS A. Record Retention. During the course of the Project and for tl-~ree (3) years following completion, the Consultant agrees alid to maintain, intact and readily accessible, all data, documents, reports, records, contracts, and supporting materials relating to the Project as City may require. B. Access to Records of Consultant and Subcontractors. The Consultant agrees to permit, and require its subcontractors to permit City or its authorized representatives, upon request, to inspect all Project work, materials, payrolls, and other data, and to audit the books, records, and accounts ofthe Contractor and its subcontractors pertaining to the Project. C. Project Closeout. The Consultant agrees that Project closeout does not alter the- reporting and record retention requirements of this Agreement. ARTICLE VIII. PROJECT COMPLETION, AUDIT, AND CLOSEOUT A. Project Completion. Within ninety (90) calendar days following Project completion or termination by City, Consultant agrees to submit a final certification of Project expenses and audit reports, as applicable. B. Audit of Consultants. Consultant agrees to perform financial and compliance audits the City may require. The Consultant also agrees to obtain any other audits required by City. Consultant agrees that Project closeout will not alter Consultant's audit responsibilities. Audit costs are allowable Project costs. C. Project Closeout. Project closeout occurs when City notifies the Consultant that City has closed the Project, and either forwards the final payment or acknowledges that the Consultant has remitted the proper refiind. The Consultant agrees that Project closeout by City does not invalidate any continuing requirements imposed by the Agreement or any ummet requirements set forth in a written notification from City ARTICLE IX. MISCELLANEOUS PROVISIONS A. Assignability. The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. Page 12 Two Parry ,9,reenienf 6etiveen City of Chula Vista and to Conduct the ~` ''=18 1. Limited Consent. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 to the subconsultants identified as "Permitted Subconsultants." B. Ownership, Publication, Reproduction and Use of Material. All reports, studies, information, data, statistics, forms, designs, plans, procedures,. systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as maybe limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. C. Independent Contractor. City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, independent contractors and shall not be deemed to be employees of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard to them. 1. Actions on Behalf of City. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever, as an agent or otherwise. Consultant shall have no authority, express or implied, to bind City or its members, agents, or employees, to any obligation whatsoever, unless expressly provided in this Agreement. 2. No Obligations to Third Parties. In connection with the Project, Consultant agrees and shall require that its agents, employees, subcontractors agree that City shall not be responsible for any obligations or liabilities to any third party, including its agents, employees, subcontractors, or other person or entity that is not a party to this Agreement. Notwithstanding that City may have concurred in or approved any solicitation, subagreement, or third party contract at any tier, City shall have no obligation or liability to any person or entity not a party to this Agreement. D. Administrative Claims Requirements and Procedures. No suit or arbitration shall be brought arising out of this Agreement, against City unless a claim has first been presented in writing and filed with City and acted upon by City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth Page 13 Two Party Agreement Betroeeu City of Chula Vista and to conduct the ~° =19 herein, and such policies and procedures used by City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the teens of this Agreement. E. Administration of Contract. Each party designates the individuals (Contract Administrators) indicated on Exhibit A, Paragraph 12, as that party's contract administrator who is authorized by the party to represent it in the routine administration of this Agreement. F. Term. This Agreement shall terminate when the parties have complied with all executory provisions hereof. G. Attorney's Fees. Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorneys' fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. H. Statement of Costs. In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in the report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. I. Consultant is Real Estate Broker and/or Salesman. If the box on Exhibit A, Paragraph 15 is marked, the Consultant and/or is principals is/are licensed with the State of California or some other state as a real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor its principals are licensed real estate brokers or salespersons. J. Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified in this Agreement as the places of business for each of the designated parties. K. Integration. This Agreement, together with any other written document referred to or contemplated in it, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision of it may be amended, modified, waived or discharged except by an instntment in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. L. Capacity of Parties. Each signatory and party to this Agreement warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all necessary resolutions or other actions have been taken so as to enable it to enter into this Agreement. Page 14 Tivo Party .A, reemeut 6cttveen City of C1zu(a Vista arad to Conduct die " ~'=~ M. Governing Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising tinder or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible., Venue for this Agreement, and performance under it, shall be the City of Chula Vista. (End of page. Next page is signature page.} Page 15 Tivo Party rl~reetuent Betrveeri City of Gea~la vista ¢nd to ~'onduct tLe " C _ Signature Page to Agreement between City of Chula Vista and Berggren & Associates For Land Surveying Consulting Services IN WITNESS WHEREOF, City and Consultant have executed this Agreement, indicating that they have read and understood same, and indicate their fiill and complete consent to its terms: Dated: City of Chula Vista By: Suzi Brool~,s Senior Procurement Specialist Attest: Donna Norris, City Clerlc Approved as to form: Glen R. Googins, City Attorney Dated: Exhibit List to Agreement ( ) Exhibit A. Pergg, -en ~~ Associates By: ~' John R. Berggren Page 16 Troo Parry Agreeurent Between L'ity nf'Grula Vista and to Cm~dc:ct t/~e " -22 Exhibit A to Agreement between City of Chula Vista And Berggren & Associates 1. Effective Date of Agreement: October 25, 2011 2. City-Related Entity: ( )City of Chula Vista, a municipal chartered corporation of the State of California ()Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California ()Industrial Development Authority of the City of Chula Vista, a ()Other: , a [insert business form] (City) 3. Place of Business for City: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Consultant: Berggren & Associates 5. Business Form of Consultant: ( )Sole Proprietorship ( )Partnership ( }Corporation 6. Place of Business, Telephone and Fax Ntunber of Consultant: Berggren & Associates 6046 Cornerstone Ct. West, Suite 116 San Diego, CA 92121 Page 17 Two Party .-lgreenient Between City of Chtrla Vista a~ad tv CUnduct the " c'= ~ 3 General Duties: A. Land Surveying services for City and Developer funded projects before, during, and after construction operations. The Consultant maybe required to make recommendations regarding altenlate methods and procedures based upon previous Land Surveying efforts and upon the Consultant's own observations. The number and scope of such projects will vary from year-to-year. B. Consultant shall provide personnel that are experienced in all phases of Technical and Professional Land Surveying to satisfy the requirements of this Consultant contract. Consultant shall comply with applicable City codes, procedures, and regulations. The City shall have the right to make a determination as to the qualifications of individual personnel and shall have the right to require substitution ofnon-qualified individuals with qualified personnel. C. Personnel are to provide Land Surveying services in response to the City's request for such services. The time and location at which Land Surveying is required shall be determined by the City Land Surveyor. However, requests for field Land Surveying services shall be made with 48 hours notice by the City. D. Professionally maintained and calibrated instruments and devices shall be utilized in the field. E. Consultant shall provide the City with all original field notes, data, reports, records, etc. of field and office tasks in hardcopy and digital drawings in LDD format, fitnlish photos, & utilize City topo codes. Further, the Consultant shall maintain copies of all records related to field and office tasks performed under the contract for a minimum of five years from the date of the survey, calculations, report, etc. This period maybe extended during the course of any unresolved litigation or when requested by the City of Chula Vista at no additional cost. F. Consultant shall provide separate invoices for each City project identified. Each invoice will list all work performed on each project. Invoice shall show total amount billed to date for the project, payments received, and amotmt due. All work elements shall be itemized: i.e. work performed, personnel charges/hours, reimbursable costs, etc. G. The Consultant will forfeit payment for work performed and billed to City more than sixty (60) calendar days after performance of work. 8. Scope of Worlc and Schedule: A. Detailed Scope of Work: Typical services that the City may require during the plamZing, design, and construction phases of CIP projects may involve field and office survey tasks to include: Page 18 Trop Party Agreerrrent 6enveen City of Chula Vista arart to Cnndrrc•t t{re " =24 ^ Monument Preservation including research, tie outs, resets, and preparation of Corner Records and/or Record of Surveys. ^ Right of Way Determination ^ Preparation of Conveyance documents ^ Control surveys, both conventional and GPS, including calculations and map preparation. ^ Topographic field surveys and map drafting. ^ Monument Inspection for new land development projects. ^ Construction staking, including field staking and preparation of staking calculations. ^ Map Checking for technical correctness B. Date for Commencement of Consultant Services: OSame as Effective Date of Agreement ()Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No. 1: Deliverable No. 2: Deliverable No. 3: D. Date for completion of all Consultant services: Shall be two years from the date of this agreement. The City Contract Administrator shall give notice of election to extend this agreement by sending a notice by letter to Consultant not later than 3 months prior to the expiration of the term. 9. Materials Required to be Supplied by City to Consultant: 10. Compensation: A. OSingle Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: Milestone or Event or Deliverable payable as follows: Amount or Percent of Fixed Fee O 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest Page 19 Tivo Party Agreement Bebveen Ctty of Gttrla Vista axd to Conduct tke " __ =25 free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall~receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the frill retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made tmless the Consultant shall have represented in writing that said percentage of completion of the phase has been performed by the Consultant. The practice of mal~ing interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. OPhased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. P11ase Fee for Said Phase 1. $ 2. $ 3. $ O 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 18 is to be applied to each interim payment such that, at the end of the phase, the 6211 retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and Luifettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Consultant shall have represented in writing that said percentage of completion of the phase has been performed by the Consultant. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. Page 20 Two Party A, reenteirt 6ebveei: City of Chula Vista and to Conduct the " C -~ C. ()Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: Rate Schedule Category of Employee of Consultant Office Personnel Land Surveyor Survey Technician 2-Klan Field Crew/Prevailing wages Hourly Rate $ 60.00/hr $ 97.00/hr. $ 87.00/hr. $192.00/hr. (1) (}Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perfozm all of the Defined Services herein required of Consultant for $ , including all Materials, and other "reimbursables" (Maximum Compensation). (2) OLimitation without Further Airth©rization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $ (Authorization Limit), Consultant shall not be entitled to aizy additional compensation without further authorization issued in writing acid approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. See Exhibit B for wage rates. ( )Hourly rates may increase by 6% for services rendered after [month], 20_, if delay in providing services is caused by City. 11. Materials Reimbursement Arrangement For the cost of out of pocket expenses inctured by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amotmts set forth below: ( }None, the compensation includes all costs. Cost or Rate O Reports, not to exceed $ $ O Copies, not to exceed $ $ O Travel, not to exceed $ $ Page 21 Tioo Pm~t~~,~greeauentBearveen City of C/uda Vista rand to Coarduct the " G'= O Printing, not to exceed $ ' (} Postage, not to exceed $ ' () Delivery, not to exceed $ ' {) Outside Services: O Other Actual Identifiable Direct Costs: not to exceed $ not to exceed $ 12. Contract Administrators: City: Consultant: 13. Liquidated Damages Rate: O $ per day. ()Other: $ 14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code (Chula Vista Municipal Code chapter 2.02): ()Not Applicable. Not an FPPC Filer. O FPPC Filer OCategory No. 1. Investments, sources of income and business interests. OCategory No. 2. Interests in real property. OCategory No. 3. Investments, business positions, interests in real property, and sources of income subject to the regulatory, permit or licensing authority of the department administering this Agreement. OCategory No. 4. Investments and business positions in business entities and sources of income that engage in land development, construction or the acquisition or sale of real property. OCategory No. 5. Investments and business positions in business entities and sources of income that, within the past two years, have contracted with the City of Chula Vista or the City's Redevelopment Agency to provide services, supplies, materials, machinery or equipment. OCategory No. 6. Investments and business positions in business entities and sources of income that, within the past two years, have contracted with the department Page 22 Two Parg~,9~reement Between City of'Claula f/ista nerd to Cundrect the " C . ~ $ administering this Agreement to provide services, supplies, materials, machinery or equipment. ()List Consultant Associates interests in real property within 2 radial miles of Project Property, if any: 15. OConsultant is Real Estate Broker and/or Salesman 16. Permitted Subconsultants: 17 Bill Processing: A. Consultant's Billing to be submitted for the following period of time: ()Monthly ( )Quarterly ()Other: B. Day of the Period for submission of Consultant's Billing: ()First of the Month () 15th Day of each Month ()End of the Month OOther: C. City's Account Number: ~:'I'O B:l ~~.SS1C~1~1~) 18 Security for Performance OPerformance Bond, $ ()Letter of Credit, $_ OOther Security: Type: Amount: $ Tivo Party ,~; regiment Between Cify of Chukt Vista and to Conduct the ~~ -29 Page 23 )Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ( )Retention Percentage: ORetention Amount: $_ Retention Release Event: ( ) Completion of All Consultant Services ( )Other: Page 24 Tu~o Parry A, reeurent Bet3veen City of Chufa Yista arzd to Cnndrut the " =30 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY TI~ CITY COCIL // ---~~'i' Glen I~. Googins City Attorney Dated: ~ ~ AGREEMENT BETWEEN THE CITY OF CHULA VISTA, AND BURKETT & WONG FOR LAND SURVEYING SERVICES 6-31 Agreement between City of Chula Vista and Burkett & Wong For Land Surveying Services This agreement (Agreement), dated ,for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A to this Agreement (Exhibit A), Paragraph 1, is between the City-related entity whose name and business form is indicated on Exhibit A, Paragraph 2, (City), and the entity whose name, business form, -place of business and telephone numbers are indicated on Exhibit A, Paragraphs 4 through 6, (Consultant), and is made with reference to the following facts: RECITALS WHEREAS, The City desires to have Land Surveying Consulting Services in conjunction with various capital improvement projects in which it engages and in conjuction with monument preservation, engineering design surveys, construction surveys, and property acquisition surveys; and WHEREAS, Consultant desire to perform these services for the City at the price and teens herein specified; and, WHEREAS, Consultant warrants and represents that it is experienced and staffed in a manner such that it can deliver the services required of Consultant to City in accordance with the time frames and the terms and conditions of this Agreement. Page 1 Two Pru•ry,-fgreenvent Between City gf'Chttla Vdsta and to Conduct the " -32 OBLIGATORY PROVISIONS PAGES NOW, THEREFORE, for valuable consideration the City and Consultant do hereby mutually agree as follows: All of the Recitals above are incorporated into this Agreement by this reference. ARTICLE I. CONSULTANT'S OBLIGATIONS A. General 1. General Duties. Consultant shall perform all of the services described on Exhibit A, Paragraph 7 (General Duties). 2. Scope of Work and Schedule. In performing and delivering the General Duties, Consultant shall also perform the services, and deliver to City the "Deliverables" described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule," according to, and within the time frames set forth in Exhibit A, Paragraph 8, time being of the' essence of this agreement. The General Duties and the work and Deliverables required in the Scope of Work and Schedule shall be referred to as the "Defined Services." Failure to complete the Defined Services by the times indicated does not, except at the option of the City, terminate this Agreement. a. Reductions in Scope of Work. City may independently, or upon request from Consultant, from time to time, reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with the reduction. b. Additional Services. In addition to performing the Defined Services, City may require Consultant to perform additional consulting services related to the Defined Services (Additional Services), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 10(C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. 3. Standard of Care. The Consultant expressly warrants that the work to be performed pursuant to this Agreement, whether Defined Services or Additional Services, shall be performed in. accordance with the standard of care ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. a. No Waiver of Standard of Care. Where approval by City is required, it is understood to be conceptual approval only and does not relieve the Consultant of responsibility for complying with all laws, codes, industry standards, and liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the Consultant or its subcontractors. Page 2 Two Party ~;reement Between City of Chada Vista and to Condaict the " -33 B. Application of Laws. Should a federal or state law pre-empt a local law, or regulation, the Consultant must comply with the federal or state law and implementing regulations. No provision of this Agreement requires the Consultant to observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of federal, state, territorial, or local Law, regulation, or ordinance. If compliance with any provision of this Agreement violates or would require the Consultant to violate any law, the Consultant agrees to notify City immediately in writing. Should this occur, the City and the Consultant agree that they will make appropriate arrangements to proceed with or, if necessary, amend or terminate this Agreement, or portions of it, expeditiously. 1. Subcontractors. Consultant agrees to take appropriate measures necessary to ensure that all participants utilized by the Consultant to complete its obligations under this Agreement, such as subcontractors, comply with all applicable laws, regulations, ordinances, and policies, whether federal, state, or local, affecting Project implementation. In addition, if a subcontractor is expected to fulfill any responsibilities of the Consultant under this Agreement, the Consultant shall ensure that the subcontractor carries out the Consultant's responsibilities as set forth in this Agreement. C. Insurance General. Consultant must procure and maintain, during the period of performance of this Agreement, and for twelve months after completion, policies of insurance from insurance companies to protect against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under this Agreement and the results of that work by the Consultant, his agents, representatives, employees or subcontractors, and provide documentation of same prior to commencement of work. 2. Minimum Sc~e of Insurance. Coverage must be at least as broad as: a. CGL. Insurance Services Office Commercial General Liability coverage (occurrence Form CG0001). b. Auto. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto}. c. WC. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. d. E&O. Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. 3. Minimum Limits of Insurance. Consultant must maintain Limits no less than those included in the table below: Page 3 Two Parry,-l~reement Between City of Chula Vista anti to Conduct the " _ _ -34 i. General Liability: $1,000,000 per occurrence for bodily injury, personal injury, (Including (including death), and property damage. If Commercial General operations, Liability insurance with a general aggregate limit is used, either products and the general aggregate limit must apply separately to this completed Project/location or the general aggregate limit must be twice the operations, as required occurrence limit. applicable) ii. Automobile $1,000,000 per accident for bodily injury, including death, and Liability: property damage. iii. Workers' Statutory Compensation $1,000,000 each accident Employer's $1,000,000 disease-policy limit Liability: $1,000,000 disease-each em loyee iv. Professional $1,000,000 each occurrence Liability or Errors & Omissions Liability: 4. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Consultant will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. 5. Other Insurance Provisions. The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: a. Additional Insureds. City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect to all policies of insurance, including those with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Consultant, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the Consultant's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. b. Primary Insurance. The Consultant's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the Page 4 Two Party Agreement Between City of C7ta~la Vista and to ~onduci the " -35 Consultant and in no way relieves the Consultant from its responsibility to provide insurance. c. Cancellation. The insurance policies required by this Agreement shall not be canceled by either party, except after thirty days' prior written notice to the City by certified mail, return receipt requested. d. Active Negligence. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insureds in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b} of Section 2782 of the Civil Code. e. Waiver of Subrogation. Consultant's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage for the term required by this Agreement. 6. Claims Forms. If General Liability, Pollution and/or Asbestos Pollution Liability alzd/or Errors & Omissions coverage are written on a claims-made form: a. Retro Date. The "Retro Date" must be shown, and must be before the date of the Agreement or the beginning of the work required by the Agreement. b. Maintenance and Evidence. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the work required by the Agreement. c. Cancellation. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the effective date of the Agreement, the Consultant must purchase "extended reporting" coverage for a minimum of five years after completion of the work required by the Agreement. d. Copies. A copy of the claims reporting requirements must be submitted to the City for review at City's request. 7. Acceptability of Insurers. Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surphis Lines Insurers (LESLI) with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. 8. Verification of Covera,~e. Consultant shall furnish the City with original certificates and amendatory endorsements effecting coverage required by Section LC. of this Agreement. The endorsements should be on insurance industry forms, provided those endorsements Page ~ Two Party ~ fgreeirrerxi Betweerx City of Giaila Yista and to Candar~ct the " =36 or policies conform to the requirements of this Agreement. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. 9. Subcontractors. Consultant must include all subconsultants as insureds under its policies or furnish separate certificates and endorsements. for each subconsultant: All coverage for subconsultants is subject to all of the requirements included in these specifications. 10. Not a Limitation of Other Obligations. Insurance provisions under this Article shall not be construed to limit the Consultant's obligations under this Agreement, including Indemnity. D. Security for Performance 1. Performance Bond. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond, in the amount indicated at Exhibit A, Paragraph 18, in the form prescribed by the City and. by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, http://www.fms.treas.~ov/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the Agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the limits so required. Form must be satisfactory to the Risk Manager or City. 2. Letter of Credit. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at its unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit," in Exhibit A, Paragraph 18. 3. Other Security. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such Page 6 Two Party A, reement Bettiveen City of Chula Vista and to Conduct the " C ~_ 3 7 other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. E. Business License. Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. ARTICLE II. CITY OBLIGATIONS A. Consultation and Cooperation. City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule, and to provide direction and guidance to achieve the objectives of this Agreement. The City shall allow Consultant access to its office facilities, files and records, as deemed necessary and appropriate by the City, throughout the term of this Agreement. In addition, City agrees to provide the materials identified at Exhibit A, Paragraph 9, with the understanding that delay in the provision of those materials beyond thirty days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance. B. Compensation. Following Receipt of Billing. Upon receipt of a properly prepared bill from Consultant, submitted to the City as indicated in Exhibit A, Paragraph 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 11. 2. Supportin Information. Any billing submitted by Consultant shall contain sufficient information as to the propriety of the billing, including properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature of the charges to the Project in order to permit the City to evaluate that the amount due and payable is proper, and such billing shall specifically contain the City's account number indicated on Exhibit A, Paragraph 17(C) to be charged upon making such payment. 3. Exclusions. In determining the amount of the compensation City will exclude any cost: 1} incurred prior to the effective date of this Agreement; or 2) arising out of or related to the errors, omissions, negligence or acts of willful misconduct of the Consultant, its agents, employees, or subcontractors. a. Errors and Omissions. In the event that the City Administrator determines that the Consultant's negligence, errors, or omissions in the performance of work tinder this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, .errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing in this Page 7 Tivo Party Agreement Between City of Chula Pistn and to Conda~ct the " =38 paragraph is intended to limit City's rights under other provisions of this Agreement. 4. Payment Not Final Approval. The Consultant understands and agrees that payment to the Consultant for any Project cost does not constitute a City final decision about whether that cost is allowable and eligible for payment under the Project and does not constitute a waiver of any violation of Consultant of the terms of the Agreement. The Consultant acknowledges that City will not make a final determination about the eligibility of any cost until the final payment has been made on the Project or the results of an audit of the Project requested by the City has been completed, whichever occurs latest. If City determines that the Consultant is not entitled to receive any portion of the compensation due or paid, City will notify the Consultant in writing, stating its reasons. The Consultant agrees that Project closeout will not alter the Consultant's responsibility to return any funds due City as a result of later refunds, corrections, or other similar transactions; nor will Project closeout alter the right of City to disallow costs and recover funds provided for the Project on the basis of a later audit or other review. a. Consultant's Obligation to Pay. Upon notification to the Consultant that specific amounts are owed to City, whether for excess payments or disallowed costs, the Consultant agrees to remit to City promptly the amounts owed, including applicable interest. ARTICLE III. ETHICS A. Financial Interests of Consultant 1. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 14, as an "FPPC filer," Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions; and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if none are specified, then as determined by the City Attorney. 2. No Participation in Decision. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this Agreement. Page 8 Two Parry 1,;reement Between City of Clnda I/ista and to Conduct the " ~_ r3 4. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. 5. Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney if Consultant learns of an economic interest of Consultant's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. 6. Specific Warranties Against Economic Interests. Consultant warrants, represents and agrees that: a. Neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents (Consultant Associates) presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, (Prohibited Interest), other than as listed in Exhibit A, Paragraph 14. b. No promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for twelve months thereafter. c. Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for twelve months after the expiration of this Agreement, except with the written permission of City. d. Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party that may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. IV. LIQUIDATED DAMAGES A. Application of Section. The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. 1. Estimating Damages. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Page 9 Tivo Party A,reement Bettiveen City of Cluila Vista and to Conduct the " i~-40 2. Amount of Penalty. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 (Liquidated Damages Rate). 3. Request for Extension of Time. If the performance of any act required of Consultant is directly prevented or delayed by reason of strikes, lockouts, labor disputes, unusual governmental delays, acts of God, fire, floods, epidemics, freight embargoes, or other causes beyond the reasonable control of the Consultant, as determined by the City, Consultant shall be excused from performing that act for the period of time equal to the period of time of the prevention or delay. In the event Consultant claims the existence of such a delay, the Consultant shall notify the City's Contract Administrator, or designee, in writing of that fact within ten calendar days after the beginning of any such claimed delay. Extensions of time will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. ARTICLE V. INDEMNIFICATION A. Defense, Indemnity, and Hold Harmless. 1. General Requirement. Except for liability for Design Professional Services covered under Article V., Section A.2., Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers, agents and employees, from and against any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of Consultant, its officials, officers, employees, agents, and contractors, arising out of or in connection with the performance of the Defined Services or this Agreement. This indemnity provision does not include any claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence, active negligence or willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. 2. Design Professional Services. If Consultant provides design professional services, as defined by California Civil Code section 2782.5, as may be amended from time to time, Consultant shall defend, indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or relating to the negligence, recklessness, or willful misconduct of Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the Page 10 Two P¢rty .4;reement Between City of C/u~la Siista and to Conduct the -41 performance of Consultant's services. Consultant's duty to defend, indemnify, and hold harmless shall not include any claims or liabilities arising from the sole negligence, active negligence or willful misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the Consultant's obligations and duties under this Agreement. Costs of Defense and Award. Included in the obligations in Sections A. l and A.2, above, is the Consultant's obligation to defend, at Consultant's own cost, expense and risk, any and all suits, actions or other legal proceedings, that may be brought or instituted against the City, its directors, officials, officers, employees, agents and/or volunteers, subject to the limitations in Sections A.1. and A.2. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents and/or volunteers, for any and all related legal expenses and costs incurred by each of them, subject to the limitations in Sections A.1. and A.2. 4. Insurance Proceeds. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents, and/or volunteers. 5. Declarations. Consultant's obligations under Article V shall not be limited by any prior or subsequent declaration by the Consultant. 6. Enforcement Costs. Consultant agrees to pay any and all costs City incurs enforcing the indemnity and defense provisions set forth in Article V. 7. Survival. Consultant's obligations under Article V shall survive the termination of this Agreement. ARTICLE VI. TERMINATION OF AGREEMENT A. Termination for Cause. If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement and less any damages caused City by Consultant's breach, for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination,. B. Termination of Agreement for Convenience of City. City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and Page 11 Two Party A, regiment Behveen City of Chula f/ista antf to Conduct dee " -42 other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement, for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth in this section. ARTICLE VII. RECORD RETENTION AND ACCESS A. Record Retention. During the course of the Project and for three (3) years following completion, the Consultant agrees and to maintain, intact and readily accessible, all data, documents, reports, records, contracts, and supporting materials relating to the Project as City may require. B. Access to Records of Consultant and Subcontractors. The Consultant agrees to permit, and require its subcontractors to permit City or its authorized representatives, upon request, to inspect all Project work, materials, payrolls, and other data, and to audit the books, records, and accounts of the Contractor and its subcontractors pertaining to the Project. C. Project Closeout. The Consultant agrees that Project closeout does not alter the reporting and record retention requirements of this Agreement. ARTICLE VIII. PROJECT COMPLETION, AUDIT, AND CLOSEOUT A. Project Completion. Within ninety (90) calendar days following Project completion or termination by City, Consultant agrees to submit a final certification of Project expenses and audit reports, as applicable. B. Audit of Consultants. Consultant agrees to perform financial ,.and compliance audits the City may require. The Consultant also agrees to obtain any other audits required by City. Consultant agrees that Project closeout will not alter Consultant's audit responsibilities. Audit costs are allowable Project costs. C. Project Closeout. Project closeout occurs when City notifies the Consultant that City has closed the Project, and either forwards the final payment or acknowledges that the Consultant has remitted the proper refund. The Consultant agrees that Project closeout by City does not invalidate any continuing requirements imposed by the Agreement or any unmet requirements set forth in a written notification from City ARTICLE IX. MISCELLANEOUS PROVISIONS A. Assignability. The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. Page 12 Two Party ,agreement Between City of Chula Vista anal to conrlnet the ~~ ~-43 1. Limited Consent. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 to the subconsiiltants identified as "Permitted Subconsultants." B. Ownership, Publication, Reproduction and Use of Material. All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. C. Independent Contractor. City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, independent contractors and shall not be deemed to be employees of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard to them. 1. Actions on Behalf of City. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever, as an agent or otherwise. Consultant shall have no authority, express or implied, to bind City or its members, agents, or employees, to any obligation whatsoever, unless expressly provided in this Agreement. 2. No Obligations to Third Parties. In connection with the Project, Consultant agrees and shall require that its agents, employees, subcontractors agree that City shall not be responsible for any obligations or liabilities to any third party, including its agents, employees, subcontractors, or other person or entity that is not a party to this Agreement. Notwithstanding that City may have concurred in or approved any solicitation, subagreement, or third party contract at any tier, City shall have no obligation or liability to any person or entity not a party to this Agreement. D. Administrative Claims Requirements and Procedures. No suit or arbitration shall be brought arising out of this Agreement, against City unless a claim has first been presented in writing and filed with City and acted upon by City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth Page 13 Two Party a;reement Behveezz City of Chzzla Vista and to Conduct the " -44 herein, and such policies and procedures used by City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. E. Administration of Contract. Each party designates the individuals (Contract Administrators) indicated on Exhibit A, Paragraph 12, as that party's contract administrator who is authorized by the party to represent it in the routine administration of this Agreement. F. Term. This Agreement shall terminate when the parties have complied with all executory provisions hereof. G. Attorney's Fees. Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorneys' fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. H. Statement of Costs. In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in the report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. Consultant is Real Estate Broker and/or Salesman. If the box on Exhibit A, Paragraph 15 is marked, the Consultant and/or is principals is/are licensed with the State of California or some other state as a reel estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor its principals are licensed real estate brokers or salespersons. J. Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified in this Agreement as the places of business for each of the designated parties. K. Integration. This Agreement, together with any other written document referred to or contemplated in it, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision of it may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. L. Capacity of Parties. Each signatory and party to this Agreement warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all necessary resolutions or other actions have been taken so as to enable it to enter into this Agreement. Page 14 Two Party Agreeme~it Between City of Chula Vista and to Condaect tfre ~` ___ -45 M. Governing Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance under it, shall be the City of Chula Vista. (End of page. Next page is signature page.) Page 15 Two Party.~l~reement Behveen City of Chu[a vista and to Conduct the " -46 Signature Page to Agreement between City of Chula Vista and Burkett & Wong For Land Surveying Consulting Services IN WITNESS WHEREOF, City and Consultant have executed this Agreement, indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: City of Chula Vista By: Suzi Brooi:s Senior Procurement Specialist Attest: Donna Norris, City Clerk Approved as to form: Glen R. Googins, City Attorney Dated: Burkett & Fong „-~ By: ~~Thomas A. Newsom President Exhibit List to Agreement ( ) Exhibit A. Page 16 Two Party A, reenzent Behveen City of Chttia Vista and to Conda~ct the " -47 Exhibit A to Agreement between City of Chula Vista And Burkett & Wong 1. Effective Date of Agreement: October 25, 2011 2. City-Related Entity: ( )City of Chula Vista, a municipal chartered corporation of the State of California {)Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California ()Industrial Development Authority of the City of Chula Vista, a OOther: , a [insert business form] {City} 3. Place of Business for City: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Consultant: Burkett & Wong 5. Business Form of Consultant: ( }Sole Proprietorship ( )Partnership ( )Corporation 6. Place of Business, Telephone and Fax Number of Consultant: Burkett & Wong 3434 Fourth Avenue San Diego, CA 92103 619-299-5550 Fax: 619-299-9934 Tiro Part~~,lgreeinerr7 Bet~veeir City of~Charlrt Vista and to Conduct tfee " Page 17 =48 7. General Duties: A. Land Surveying services for City and Developer funded projects before, during, and after construction operations. The Consultant may be required to make recommendations regarding alternate methods and procedures based upon previous Land Surveying efforts and upon the Consultant's own observations. The number and scope of such projects will vary from year-to-year. B. Consultant shall provide personnel that are experienced in all phases of Technical and Professional Land Surveying to satisfy the requirements of this Consultant contract. Consultant shall comply with applicable City codes, procedures, and regulations. The City shall have the right to make a determination as to the qualifications of individual personnel and shall have the right to require substitution ofnon-qualified individuals with qualified personnel. C. Personnel are to provide Land Surveying services in response to the City's request for such services. The time and location at which Land Surveying is required shall be determined by the City Land Surveyor. However, requests for field Land Surveying services shall be made with 48 hours notice by the City. D. Professionally maintained and calibrated instruments and devices shall be utilized in the field. E. Consultant shall provide the City with all original field notes, data, reports, records, etc. of field and office tasks in hardcopy and digital drawings in LDD format, furnish photos, & utilize City topo codes. Further, the Consultant shall maintain copies of all records related to field and office tasks performed under the contract for a minimum of five years from the date of the survey, calculations, report, etc. This period may be extended during the course of any unresolved litigation or when requested by the City of Chula Vista at no additional cost. F. Consultant shall provide separate invoices for each City project identified. Each invoice will list all work performed on each project. Invoice shall show total amount billed to date for the project, payments received, and amount due. All work elements shall be itemized: i.e. work performed, personnel charges/hours, reimbursable costs, etc. G. The Consultant will forfeit payment for work performed and billed to City more than sixty (60) calendar days after performance of work. 8. Scope of Work and Schedule: A. Detailed Scope of Work: Typical services that the City may require during the planning, design, and construction phases of CIP projects may involve field and office survey tasks to include: Two Party Agreement Between City of Gaula Vista and to Conduct the " -49 Page 18 ^ Monument Preservation including research, tie outs, resets, and preparation of Corner Records and/or Record of Surveys. ^ Right of Way Determination ^ Preparation of Conveyance documents ^ Control surveys, both conventional and GPS, including calculations and map preparation. ^ Topographic field surveys and map drafting. ^ Monument Inspection for new land development projects. ^ Construction staking, including field staking and preparation of staking calculations. ^ Map Checking for technical correctness B. Date for Commencement of Consultant Services: ()Same as Effective Date of Agreement ()Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No. 1: Deliverable No. 2: Deliverable No. 3: D. Date for completion of all Consultant services: Shall be two years from the date of this agreement. The City Contract Administrator shall give notice of election to extend this agreement by sending a notice by letter to Consultant not later than 3 months prior to the expiration of the term. 9. Materials Required to be Supplied by City to Consultant: 10. Compensation: A. ()Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: Milestone or Event or Deliverable payable as follows: Amount or Percent of Fixed Fee () 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest Page 19 Two Party Agreement Betlveen City of Chula [vista and to Conduct the '-~0 free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall-receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the frill retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Consultant shall have represented in writing that said percentage of completion of the phase has been performed by the Consultant. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. OPhased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase 1. Fee for Said Phase 2. $ 3. $ O 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If .the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount~or percentage set forth in Paragraph 18 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Consultant shall have represented in writing that said percentage of completion of the phase has been performed by the Consultant. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. Page 20 Two Party Agreement Between City of Chaala Ursta arad to L'onduct tf~e " _ C, OHourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: Rate Schedule Category of Employee Hourly Rate of Consultant Surveyor -Manager $ 130.00/hr Project Surveyor $ 100.00/hr. One-Man Field Crew $ 110.00/hr. 2-Man Field Crew $190.00/hr. Two-Man Field Crew (Prevailing Wage) $215.00/hr. (1) ()Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ , including all Materials, and other "reimbursables" (Maximum Compensation}. (2) ()Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $ (Authorization Limit), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. See Exhibit B for wage rates. ( )Hourly rates may increase by 6% for services rendered after [month], 20_, if delay in providing services is caused by City. 11. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: ( )None, the compensation includes ail costs. () Reports, not to exceed $ () Copies, not to exceed $_ () Travel, not to exceed $_ Cost or Rate Page 21 Tivo Party ~l;reement Bebveen City ojChula Vista and to Conduct the '` '_ 5 2 () Printing, not to exceed $ ' () Postage, not to exceed $ ' O Delivery, not to exceed $ ' () Outside Services: () Other Actual Identifiable Direct Costs: not to exceed $ . not to exceed $ 12. Contract Administrators: City: Consultant: 13. Liquidated Damages Rate: () $ per day. ()Other: 14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code (Chula Vista Municipal Code chapter 2.02): ( )Not Applicable. Not an FPPC Filer. ()FPPC Filer ()Category No. 1. Investments, sources of income and business interests. ()Category No. 2. Interests in real property. (.)Category No. 3. Investments, business positions, interests in real property, and sources of income subject to the regulatory, permit or licensing authority of the department administering this Agreement. {)Category No. 4. Investments and business positions in business entities and sources of income that engage in land development, construction or the acquisition or sale of real property. ()Category No. 5. Investments and business positions in business entities and sources of income that, within the past two years, have contracted with the City of Chula Vista or the City's Redevelopment Agency to provide services, supplies, materials, machinery or equipment. ()Category No. 6. Investments and business positions in business entities and sources of income that, within the past two years, have contracted with the department Page 22 Two Party A;reement Bettiveen City of Cluila T/ista and to Condccct the " -53 administering this Agreement to provide services, supplies, materials, machinery or equipment. -- ()List Consultant Associates interests in real property within 2 radial miles of Project Property, if any: 15. ()Consultant is Real Estate Broker and/or Salesman 16. Permitted Subconsultants: 17. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: ()Monthly ( )Quarterly OOther: B. Day of the Period for submission of Consultant's Billing: OFirst of the Month () 15th Day of each Month OEnd of the Month ()Other: C. City's Account Number: (TO SE ASSIGNED] 18 Page 23 Two Party f(~ reement Between City of Chula [iista anti to Canduct the " Security for Performance OPerformance Bond, $ ()Letter of Credit, $ ()Other Security: Type: Amount: $ -54 ()Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the -City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ( )Retention Percentage: ()Retention Amount: $_ Retention Release Event: ( ) Completion of All Consultant Services ()Other: Page 24 Two Parry Agreement Between City of Clzula Vista and fo Conduct the " -55 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROV BY ---, THE CITY COLYNCIL _.---'""~ J Uoogins ttorney Dated: AGREEMENT BETWEEN THE CITY OF CHULA VISTA, AND HUNSAKER & ASSOCIATES FOR LAND SURVEYING SERVICES 6-56 Agreement between City of Chula Vista and Hunsaker & Associates For Land Surveying Services This agreement (Agreement), dated ,for the pLtrposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A to this Agreement (Exhibit A), Paragraph 1, is between the City-related entity whose name and business form is indicated on Exhibit A, Paragraph 2, (City), and the entity whose name, business form, place of business and telephone numbers are indicated on Exhibit A, Paragraphs 4 through 6, (Consultant), and is made with reference to the following facts: RECITALS WHEREAS, The City desires to have Land Surveying Consulting Services in conjunction with various capital improvement projects in which it engages and in conjuction with monument preservation, engineering design surveys, constriction surveys, and property acquisition surveys; and WHEREAS, Consultant desire to perform these services for the City at the price and terms herein specified; and, WHEREAS, Consultant warrants and represents that it is experienced and staffed in a manner such that it can deliver the services required of Consultant to City in accordance with the time frames and the terms and conditions of this Agreement. Page 1 Two Par-ty,a;reemerzt Benveerr Cite of Chada Vista and to Cnrufuct the " =57 OBLIGATORY PROVISIONS PAGES NOW, THEREFORE, for valuable consideration the City and Consultant do hereby mutually agree as follows: All of the Recitals above are incorporated into this Agreement by this reference. ARTICLE I. CONSULTANT'S OBLIGATIONS A. General 1. General Duties. Consultant shall perform all of the services described on Exhibit A, Paragraph 7 (General Duties). 2. Scope of Work and Schedule. In performing and delivering the General Duties, Consultant shall also perform the services, and deliver to City the "Deliverables" described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule," according to, and within the time frames set forth in Exhibit A, Paragraph 8, time being of the essence of this agreement. The General Duties and the work and Deliverables required in the Scope of Worlc and Schedule shall be referred to as the "Defined Services." Failure to complete the Defined Services by the times indicated does not, except at the option of the City, terminate this Agreement. a. Reductions in Scope of Work. City may independently, or upon request from Consultant, from time to time, reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with the reduction. b. Additional Services. In addition to performing the Defined Services, City may require Consultant to perform additional consulting services related to the Defined Services (Additional Services), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 10(C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. 3. Standard of Care. The Consultant expressly warrants that the work to be performed pursuant to this Agreement, whether Defined Services or Additional Services, shall be performed in accordance with the standard of care ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. a. No Waiver of Standard of Care. Where approval by City is required, it is understood to be conceptual approval only and does not relieve the Consultant of responsibility for complying with all laws, codes, industry standards, and liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the Consultant or its subcontractors. Page 2 Twn Party A, regiment Between City of Chula Y~ista and to Condaiet the " 58 B. Application of Laws. Should a federal or state law pre-empt a local law, or regulation, the Consultant must comply with the federal or state law and implementing regulations. No provision of this Agreement requires the Consultant to observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of federal, state, territorial, or local law, regulation, or ordinance. If compliance with any provision of this Agreement violates or would require the Consultant to violate any law, the Consultant agrees to notify City immediately in writing. Should this occur, the City and the Consultant agree that they will make appropriate arrangements to proceed with or, if necessary, amend or terminate this Agreement, or portions of it, expeditiously. 1. Subcontractors. Consultant agrees to take appropriate measures necessary to ensure that all participants utilized by the Consultant to complete its obligations under this Agreement, such as subcontractors, comply with all applicable laws, regulations, ordinances, and policies, whether federal, state, or local, affecting Project implementation. In addition, if a subcontractor is expected to fulfill any responsibilities of the Consultant under this Agreement, the Consultant shall ensure that the subcontractor carries out the Consultant's responsibilities as set forth in this Agreement. C. Insurance 1. General. Consultant must procure and maintain, during the period of performance of this Agreement, and for twelve months after completion, policies of insurance from insurance companies to protect against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under this Agreement and the results of that work by the Consultant, his agents, representatives, employees or subcontractors, and provide documentation of same prior to commencement of work. 2. Minimum Scope of Insurance. Coverage must be at least as broad as: a. CGL. Insurance Services Office Commercial General Liability coverage (occurrence Form CG0041). b. Auto. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). c. WC. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. d. E&O. Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. 3. Minimum Limits of Insurance. Consultant must maintain limits no less than those included in the table below: Page 3 Two Parry;l~rewnent Between City of Chula [vista and to Conduct tlae " =59 i. General Liability: $1,000,000 per occurrence for bodily injury, personal injury, (Including (including death), and property damage. If Commercial General operations, Liability insurance with a general aggregate limit is used, either products and the general aggregate limit must apply separately to this completed Project/location or the general aggregate limit must be twice the operations, as required occurrence limit. applicable) ii. Automobile $1,000,000 per accident for bodily injury, including death, and Liability: property damage. iii. Workers' Statutory Compensation $1,000,000 each accident Employer's $1,000,000 disease-policy limit Liability: $1,000,000 disease-each em loyee '~ iv. Professional $1,000,000 each occurrence Liability or Errors & Omissions Liability: 4. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Consultant will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. 5. Other Insurance Provisions. The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: a. Additional Insureds. City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect to all policies of insurance, including those with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of -- the Consultant, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the Consultant's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. b. Primary Insurance. The Consultant's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and vohtnteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the Page 4 Two Party A~reeu:ent Between City of Clatda vista and to Cazda~cr the " fi = 6 Q Consultant and in no way relieves the Consultant from its responsibility to provide insurance. -- c. Cancellation. The insurance policies required by this Agreement shall not be canceled by either party, except after thirty days' prior written notice to the City by certified mail, return receipt requested. d. Active Negligence. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insureds in .any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. e. Waivei of Subrogation. Consultant's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage for the teen required by this Agreement. 6. Claims Forms. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: a. Retro Date. The "Retro Date" must be shown, and must be before the date of the Agreement or the beginning of the work required by the Agreement. b. Maintenance and Evidence. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the work required by the Agreement. c. Cancellation. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the effective date of the Agreement, the Consultant must purchase "extended reporting" coverage for a minimum of five years after completion of the work required by the Agreement. d. Copies. A copy of the claims reporting requirements must be submitted to the City for review at City's request. 7. Acceptability of Insurers. Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Ir~st~rers (LESLI) with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. 8. Verification of Coverage. Consultant shall fiirnish the City with original certificates and amendatory endorsements effecting coverage required by Section I.C. of this Agreement. The endorsements should be on insurance industry forms, provided those endorsements Paae 5 Tivo Party,4~ reerrzent Betfveere City of Chtrla ~LSY[L ar¢d [v Cnnduc[ the " C'_ or policies conform to the requirements of this Agreement. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. 9. Subcontractors. Consultant must inchide all subconsultants as insureds under its policies or furnish separate certificates and endorsements for each subconsultant. All coverage for subconsultants is subject to all of the requirements included in these specifications. 10. Not a Limitation of Other Obli atg ions. Insurance provisions under this Article shall not be construed to limit the Consultant's obligations under this Agreement, including Indemnity. D. Security for Performance 1. Performance Bond. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"}, then Consultant shall provide to the City a performance bond, in the amount indicated at Exhibit A, Paragraph 18, in the form prescribed by the City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, http:/,'tivtivcv.fms.treas.gov/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the Agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the limits so required. Form must be satisfactory to the Risk Manager or City. 2. Letter of Credit. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at its unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit," in Exhibit A, Paragraph 18. 3. Other Security. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such Page 6 Trvo Party ft; reerraent Between City of Chaefa rlista arm to Cariclarct the " =62 other security therein listed in a form and amount satisfactory to th_ e Risk Manager or City Attorney. E. Business License. Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. ARTICLE II. CITY OBLIGATIONS A. Consultation and Cooperation. City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule, and to provide direction and guidance to achieve the objectives of this Agreement. The City shall allow Consultant access to its office facilities, files and records, as deemed necessary and appropriate by the City, throughout the term of this Agreement. In addition, City agrees to provide the materials identified at Exhibit A, Paragraph 9, with the understanding that delay in the provision of those materials beyond thirty days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance. B. Compensation. 1. Followin Receipt of Billing. Upon receipt of a properly prepared bill from Consultant, submitted to the City as indicated in Exhibit A, Paragraph 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 11. 2. Supporting Information. Any billing submitted by Consultant shall contain sufficient information as to the propriety of the billing, including properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature of the charges to the Project in order to permit the City to evaluate that the amount due and payable is proper, and such billing shall specifically contain the City's account number indicated on Exhibit A, Paragraph 17(C) to be charged upon making such payment. 3. Exclusions. In determining the amount of the compensation City will exclude any cost: 1) incurred prior to the effective date of this Agreerrient; or 2) arising out of or related to the errors, omissions, negligence or acts of willful misconduct of the Consultant, its agents, employees, or subcontractors. a. EYYOYS and Omissions. In the event that the City Administrator determines that the Consultant's negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing in this Page 7 Two Party Agreement Between City of Ckula vista and to Condaect the =63 paragraph is intended to limit City's rights under other provisions of this Agreement. 4. Payment Not Final Approval. The Consultant understands and agrees that payment to the Consultant for any Project cost does not constitute a City final decision about whether that cost is allowable and eligible for payment under the Project and does not constitute a waiver of any violation of Consultant of the terms of the Agreement. The Consultant acknowledges that City will not make a final determination about the eligibility of any cost until the final payment has been made on the Project or the results of an audit of the Project requested by the City has been completed, whichever occurs latest. If City determines that the Consultant is not entitled to receive any portion of the compensation due or paid, City will notify the Consultant in writing, stating its reasons. The Consultant agrees that Project closeout will not alter the Consultant's responsibility to return any funds due City as a result of later refunds, corrections, or other similar transactions; nor will Project closeout alter the right of City to disallow costs and recover funds provided for the Project on the basis of a later audit or other review. a. Consultant's Obligation to Pay. Upon notification to the Consultant that specific amounts are owed to City, whether for excess payments or disallowed costs, the Consultant agrees to remit to City promptly the amounts owed, including applicable interest. ARTICLE III. ETHICS A. Financial Interests of Consultant 1. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 14, as an "FPPC filer," Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if none are specified, then as determined by the City Attorney. 2. No Participation in Decision. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. 3. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this Agreement. Page 8 Two Party A~ree~nent Between City of Chula Yisfa and to Coudaict die " =64 4. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. 5. Duty to Advise of Conflicting_Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney if Consultant learns of an economic interest of Consultant's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. 6. Specific Warranties Against Economic Interests. Consultant warrants, represents and agrees that: a. Neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents (Consultant Associates) presently have any interest, directly or indirectly, whatsoever in any property which maybe the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined. Services, (Prohibited Interest), other than as listed in Exhibit A, Paragraph 14. b. No promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for twelve months thereafter. c. Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for twelve months after the expiration of this Agreement, except with the written permission of City. d. Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party that may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. IV. LIQUIDATED DAMAGES A. Application of Section. The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. 1. Estimating Damages. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Page 9 Two Party Agreement Setrveerr City of Chula f~isia and to Condttctthe " =65 2. Amount of Penalty. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 (Liquidated Damages Rate). 3. Request for Extension of Time. If the performance of any act required of Consultant is directly prevented or delayed by reason of strikes, lockouts, labor disputes, unusual governmental delays, acts of God, fire, floods, epidemics, freight embargoes, or other causes beyond the reasonable control of the Consultant, as determined by the City, Consultant shall be excused from performing that act for the period of time equal to the period of time of the prevention or delay. In the event Consultant claims the existence of such a delay, the Consultant shall notify the City's Contract Administrator, or designee, in writing of that fact within ten calendar days after the beginning of any such claimed delay. Extensions of time will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. ARTICLE V. INDEMNIFICATION A. Defense, Indemnity, and Hold Harmless. 1. General Requirement. Except for liability for Design Professional Services covered under Article V., Section A.2., Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers, agents and employees, from and against any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of Consultant, its officials, officers, employees, agents, and contractors, arising out of or in connection with the performance of the Defined Services or this Agreement. This indemnity provision does not include any claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence, active negligence or willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which maybe in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. 2. Design Professional Services. If Consultant provides design professional services, as defined by California Civil Code section 2782.5, as maybe amended from time to time, Consultant shall defend, indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or relating to the negligence, recklessness, or willful misconduct of Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the Page 10 Trvo Party Rgreement Between City of Chula Vista a~ad to Conduct the "r+= 6 6 performance of Consultant's services. Consultant's duty to defend, indemnify, and hold harmless shall not include any claims or liabilities arising from the sole negligence, active negligence or willful misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the Consultant's obligations and duties under this Agreement. Costs of Defense and Award. Included in the obligations in Sections A.1 and A.2, above, is the Consultant's obligation to defend, at Consultant's own cost, expense and risk, any and all suits, actions or other legal proceedings, that may be brought or instituted against the City, its directors, officials, officers, employees, agents and/or volunteers, subject to the limitations in Sections A.1. and A.2. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents and/or volunteers, for any and all related legal expenses and costs incurred by each of them, subject to the limitations in Sections A.1. and A.2. 4. Insurance Proceeds. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents, and/or volunteers. 5. Declarations. Consultant's obligations under Article V shall not be limited by any prior or subsequent declaration by the Consultant. 6. Enforcement Costs. Consultant agrees to pay any and all costs City incurs enforcing the indemnity and defense provisions set forth in Article V. 7. Survival. Consultant's obligations under Article V shall survive the termination of this Agreement. ARTICLE VI. TERMINATION OF AGREEMENT A. Termination for Cause. If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement and less any damages caused City by Consultant's breach, for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination,. B. Termination of Agreement for Convenience of City. City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and Two Party Agreement Betweele L'ity of L'lxula Yista and to Conduct the " F,'= Page 11 other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement, for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth in this section. ARTICLE VII. RECORD RETENTION AND ACCESS A. Record Retention. During the course of the Project and for three (3) years following completion, the Consultant agrees and to maintain, intact and readily accessible, all data, documents, reports, records, contracts, and supporting materials relating to the Project as City may require. B. Access to Records of Consultant and Subcontractors. The Consultant agrees to permit, and require its subcontractors to permit City or its authorized representatives, upon request, to inspect all Project work, materials, payrolls, and other data, and to audit the books, records, and accounts of the Contractor and its subcontractors pertaining to the Project. C. Project Closeout. The Consultant agrees that Project closeout does not alter the reporting and record retention requirements of this Agreement. ARTICLE VIII. PROJECT COMPLETION, AUDIT, AND CLOSEOUT A. Project Completion. Within ninety (90) calendar days following Project completion or termination by City, Consultant agrees to submit a final certification of Project expenses and audit reports, as applicable. B. Audit of Consultants. Consultant agrees to perform financial ,and compliance audits the City may require. The Consultant also agrees to obtain any other audits required by City. Consultant agrees that Project closeout will not alter Consultant's audit responsibilities. Audit costs are allowable Project costs. C. Project Closeout. Project closeout occurs when City notifies the Consultant that City has closed the Project, and either forwards the final payment or acknowledges that the Consultant has remitted the proper refund. The Consultant agrees that Project closeout by City does not invalidate any continuing requirements imposed by the Agreement or any unmet requirements set forth in a written notification from City ARTICLE IX. MISCELLANEOUS PROVISIONS A. Assignability. The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. Page 12 Two Party .-1; reement Betweer¢ L'ity of ~'hrrla '/ista mrtl to Corulrrci the °~'+~- 6 8 1. Limited Consent. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 to the subconsultants identified as "Permitted Subconsultants." B. Ownership, Publication, Reproduction and Use of Material. All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as maybe limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. C. Independent Contractor. City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, independent contractors and shall not be deemed to be employees of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard to them. 1. Actions on Behalf of City. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever, as an agent or otherwise. Consultant shall have no authority, express or implied, to bind City or its members, agents, or employees, to any obligation whatsoever, unless expressly provided in this Agreement. 2. No Obligations to Third Parties. In connection with the Project, Consultant agrees and shall require that its agents, employees, subcontractors agree that City shall not be responsible for any obligations or liabilities to any third party, including its agents, employees, subcontractors, or other person or entity that is not a party to this Agreement. Notwithstanding that City may have concurred in or approved any solicitation, subagreement, or third party contract at any tier, City shall have no obligation or liability to any person or entity not a party to this Agreement. D. Administrative Claims Requirements and Procedures. No suit or arbitration shall be brought arising out of this Agreement, against City unless a claim has first been presented in writing and filed with City and acted upon by City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth Page 13 Ttvo Party Agreement Between ~'ity of Ckaela vista and to Conduct the " =69 herein, and such policies and procedures used by City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. E. Administration of Contract. Each party designates the individuals (Contract Administrators) indicated on Exhibit A, Paragraph 12, as that party's contract administrator who is authorized by the party to represent it in the routine administration of this Agreement. F. Term. This Agreement shall terminate when the parties have complied with all executory provisions hereof. G. Attorney's Fees. Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorneys' fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. H. Statement of Costs. In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in the report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. I. Consultant is Real Estate Broker and/or Salesman. If the box on Exhibit A, Paragraph 15 is marked, the Consultant and/or is principals is/are licensed with the State of California or some other state as a real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor its principals are licensed real estate brokers or salespersons. J. Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified in this Agreement as the places of business for each of the designated parties. K. Integration. This Agreement, together with any other written document referred to or contemplated in it, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision of it may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. L. Capacity of Parties. Each signatory and party to this Agreement warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all necessary resolutions or other actions have been taken so as to enable it to enter into this Agreement. Page 14 Ttivo Party rl; reernent Behveert ~'ity of G7ufa 6~ista and GO COnC~11CZ L~2L ~` _ _ -7~ M. Governing Law/Venue. This Agreement shall be governed by and constnied in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this. Agreement, and performance under it, shall be the City of Chula Vista. (End of page. Next page is signature page.) Page 15 Two Party ; l~reeneerzt Betweeiz City of Chula Vista and to Caaduct tke " G'-~ Signature Page to Agreement between City of Chula Vista and Hunsaker & Associates For Land Surveying Consulting Services IN WITNESS WHEREOF, City and Consultant have executed this Agreement, indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: City of Chula Vista By: SaLi Brooks Senior Pirocurement Specialist Attest: Donna Norris, City Clerk Approved as to form: Glen R. Googins, City Attorney Dated: Hunsaker ~ Ass ciates B Y Daniel P. Smith, PLS Vice President Exhibit List to Agreement ( } Exhibit A. Troo Party.-l; reenaent Benvee~¢ ~.'ity of Chula Yista and to Conduct the " F'=7 `~ Page 16 Exhibit A _ to Agreement between City of Chula Vista And Hunsaker & Associates 1. Effective Date of Agreement: October 25, 2011 2. City-Related Entity: ( )City of Chula Vista, a municipal chartered corporation of the State of California O Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California ()Industrial Development Authority of the City of Chula Vista, a ()Other: (City) 3. Place of Business for City: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Consultant: Hunsaker & Associates 5. Business Form of Consultant: ( )Sole Proprietorship ( )Partnership ( )Corporation a [insert business form] Pale 17 Tivo Party ff,; reement Setiveen City of Chula Vista and to Conduct the " =73 Hunsaker & Associates 9707 Waples Street San Diego, CA 92121 7. General Duties: A. Land Surveying services for City and Developer funded projects before, during, and after construction operations. The Consultant maybe required to make recommendations regarding alternate methods and procedures based upon previous Land Surveying efforts and upon the Consultant's own observations. The number and scope of such projects will vary from year-to-year. B. Consultant shall provide personnel that are experienced in all phases of Technical and Professional Land Surveying to satisfy the requirements of this Consultant contract. Consultant shall comply with applicable City codes, procedures, and regulations. The City shall have the right to make a determination as to the qualifications of individual personnel and shall have the right to require substitution ofnon-qualified individuals with qualified personnel. C. Personnel are to provide Land Surveying services in response to the City's request for such services. The time and location at which Land Surveying is required shall be determined by the City Land Surveyor. However, requests for field Land Surveying services shall be made with 48 hours notice by the City. D. Professionally maintained and calibrated instruments and devices shall be utilized in the field. E. Consultant shall provide the City with all original field notes, data, reports, records, etc. of field and office tasks in hardcopy and digital drawings in LDD format, furnish photos, & utilize City topo codes. Further, the Consultant shall maintain copies of all records related to field and office tasks performed under the contract for a minimum_of five years from the date of the survey, calculations, report, etc. This period maybe extended during the course of any unresolved litigation or when requested by the City of Chula Vista at no additional cost. F. Consultant shall provide separate invoices for each City project identified. Each invoice will list all work performed on each project. Invoice shall show total amount billed to date for the project, payments received, and amount due: All work elements shall be itemized: i.e. work performed, personnel charges/hours, reimbursable costs, etc. G. The Consultant will forfeit payment for work performed and billed to City more than sixty (60) calendar days after performance of work. 8. Scope of Work and Schedule: Page 18 Two Party A~reenaent Betwee~a City of CF:aila Vista and to Cairk~ct the '` ~'_ ~ 4 A. Detailed Scope of Work: Typical services that the City may require during the planning, design, and construction phases of CIP projects may involve field and office survey tasks to include: Monument Preservation including research, tie outs, resets, and preparation of Corner Records and/or Record of Surveys. Right of Way Determination Preparation of Conveyance documents Control surveys, both conventional and GPS, including calculations and map preparation. Topographic field surveys .and map drafting. Monument Inspection for new land development projects. Construction staking, including field staking and preparation of staking calculations. Map Checking for technical correctness B. Date for Commencement of Consultant Services: ()Same as Effective Date of Agreement ()Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No. 1: Deliverable No. 2: Deliverable No. 3: D. Date for completion of all Consultant services: Shall be two years from the date of this agreement. The City Contract Administrator shall give notice of election to extend this agreement by sending a notice by letter to Consultant not later than 3 months prior to the expiration of the term. 9. Materials Required to be Supplied by City to Consultant: 10. Compensation: A. ()Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: Milestone or Event or Deliverable payable as follows: Amount or Percent of Fixed Fee Page 19 Two Party A;reen:ent Betfveen City of Chula S~ista ar:d to Contlucf the " =75 () 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Consultant shall have represented in writing that said percentage of completion of the phase has been performed by the Consultant. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. ()Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase Fee for Said Phase 1. ~ 2. $ 3. ~ () 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 18 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof Page 20 Two Parry A;reenzent Between City of C'lurla Vista and to Condeict the " ~'-~ (j demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Consultant shall have represented in writing that said percentage of completion of the phase has been performed by the Consultant. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. OHourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: Rate Schedule Category of Employee of Consultant Hourly Rate Office Personnel One Person Survey Crew Two Person Survey Crew Three Person Survey Crew $ 125.00/hr $ 158.00/hr $ 198.00/hr $ 238.00/hr (1) ()Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ , including all Materials, and other "reimbursables" (Maximum Compensation). (2) ()Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $ (Authorization Limit), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. See Exhibit B for wage rates. ( )Hourly rates may increase by 6% for services rendered after [month], 20_, if delay in providing services is caused by City. 11. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: Page 21 Tivo Parry .A; regiment Between City of Chula Yisia a~ad to Conduct the " ~~-~ ()None, the compensation includes all costs. () Reports, not to exceed $ ' () Copies, not to exceed $ ' O Travel, not to exceed $ ' () Printing, not to exceed $ ' () Postage, not to exceed $ ' () Delivery, not to exceed $ ' O Outside Services: () Other Actual Identifiable Direct Costs: not to exceed $ not to exceed $ 12. Contract Administrators: City: Consultant: 13. Liquidated Damages Rate: () $ per day. ()Other: Cost or Rate 14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code (Chula Vista Municipal Code chapter 2.02): ONot Applicable. Not an FPPC Filer. O FPPC Filer ()Category No. 1. Investments, sources of income and business interests. ()Category No. 2. Interests in real property. ()Category No. 3. Investments, business positions, interests in real property, and sources of income subject to the regulatory, permit or licensing authority of the department administering this Agreement. ()Category No. 4. Investments and business positions in business entities and sources of income that engage in land development, construction or the acquisition or sale of real property. Page 22 Tivo Party A;reenrent Between City of L'hula Vista and to Conduct fire ' _. -70 OCategory No. 5. Investments and business positions in business entities and sources of income that, within the past two years, have contracted with the City of Chula Vista or the City's Redevelopment Agency to provide services, supplies, materials, machinery or equipment. ()Category No. 6. Investments and business positions in business entities and sources of income that, within the past two years, have contracted with the department administering this Agreement to provide services, supplies, materials, machinery or equipment. ()List Consultant Associates interests in real property within 2 radial miles of Project Property, if any: 15. ()Consultant is Real Estate Broker and/or Salesman 16. Permitted Subconsultants: 17. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: ()Monthly ()Quarterly ()Other: B. Day of the Period for submission of Consultant's Billing: () First of the Month () 15th Day of each Month ()End of the Month ()Other: C. City's Account Number: (TO SE ~~SSIGNED] Page 23 Twa Party Agreerraertt Between City of Clur[a Y"ista arzd to Conrlcret the " =79 18. Security for Performance OPerformance Bond, $ OLetter of Credit, $ OOther Security: Type: Amount: $ ()Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ( )Retention Percentage: ORetention Amount: $_ Retention Release Event: ( )Completion of All Consultant Services. ( )Other: Page 24 Tivo Parry .d; regiment Between City of Chula Vista and to Conduct the " -~~