Carnes & Associates - Lot Line Adjustments for 7310 and 7320 Monterey Rd (2019)AGREEMENT FOR SERVICES
(For contracts of $5,000 or less - CONSULTANT)
This AGREEMENT made this 18th day of September. 2019, between:
CITY: City of Gilroy, having a principal place of business at
7351 Rosanna Street, Gilroy, California
and CONSULTANT: Carnes & Associates, having a principal place of business at 9505 Suaar
Babe Drive, Gilrov. CA 95020.
ARTICLE L TERM OF AGREEMENT
This Agreement will become effective on 6/1/2018 and will continue in effect through
3/l/2020 unless terminated in accordance with the provisions of Article 7 of this Agreement.
ARTICLE 2. INDE13ENDENT CONTRACTOR STATUS
It is the express intention of the parties that CONSULTANT is an independent contractor
and not an employee, agent, joint ventLirer or partner of CITY. Nothing in this Agreement shall
be interpreted or construed as creating or establishing the relationship of employer and employee
between CITY and CONSULTANT or any employee or agent of CONSULTANT. Both parties
acknowledge that CONSULTANT is not an employee for state or federal tax purposes.
CONSULTANT shall not be entitled to any of the rights or benefits afforded to CITY' S
employees, including, without limitation, disability or unemployment insurance, workers'
compensation, medical insurance, sick leave, retirement benefits or any other employment
benefits. CONSULTANT shall retain the right to perform services for others during the term of
this Agreement.
ARTICLE 3. SERVICES TO BE PERFORMED BY CONSULTANT
Specific Services
CONSULTANT agrees to: Perform the services as outlined in Exhibit "A" within the
time periods described therein.
Method of Performing Services
CONSULTANT shall determine the method, details and means of performing the above -
described services. CITY shall have no right to, and shall not, control the manner or determine
the method of accomplishing CONSULTANT'S services.
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Employment of Assistants
CONSULTANT may, at the CONSULTANT'S own expense, employ such assistants as
CONSULTANT deems necessary to perform the services required of CONSULTANT by this
Agreement, subject to the prohibition against assignment and subcontracting contained in Article
5 below. CITY may not control, direct, or supervise CONSULTANT'S assistants in the
performance of those services. CONSULTANT assumes full and sole responsibility for the
payment of all compensation and expenses of these assistants and for all state and federal income
tax, unemployment insurance, Social Security, disability insurance and other applicable
withholding.
Place of Work
CONSULTANT shall perform the services required by this Agreement at any place or
location and at such times as CONSULTANT shall determine is necessary to properly and timely
perform CONSULTANT'S services.
ARTICLE 4. COMPENSATION
In consideration for the services to be performed by CONSULTANT, CITY agrees to pay
CONSULTANT as provided for in Exhibit `B", "Payment Schedule".
Invoices
CONSULTANT shall submit invoices for all services rendered.
Payment
Payment shall be due within thirty (30) days after receipt of invoice describing the work
performed during the preceding period. If CITY objects to all or any portion of any invoice,
CITY shall notify CONSULTANT of the objection within thirty (30) days from receipt of the
invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall
not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to
which it has objected until the objection has been resolved by mutual agreement of the parties.
Expenses
CONSULTANT shall be responsible for all costs and expenses incident to the
performance of services for CITY, including but not limited to, all costs of equipment used or
provided by CONSULTANT, all fees, fines, licenses, bonds or taxes required of or imposed
against CONSULTANT and all other of CONSULTANT'S costs of doing business. CITY shall
not be responsible for any expenses incurred by CONSULTANT in performing services for
CITY.
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ARTICLE 5. OBLIGATIONS OF CONSULTANT
Tools and Instrumentalities
CONSULTANT shall supply all tools and instrumentalities required to perform the
services under this Agreement at its sole cost and expense. CONSULTANT is not required to
purchase or rent any tools, equipment or services from CITY.
Licenses
CONSULTANT shall possess a State of California Contractor's license in the
appropriate category for performing services under this Agreement. CONSULTANT shall
obtain a City of Gilroy Business License.
Workers' Compensation
CONSULTANT agrees to provides workers' compensation insurance for
CONSULTANT'S employees and agents and agrees to hold harmless, defend with counsel
acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees
from and against any and all claims, suits, damages, costs, fees, demands, causes of action,
losses, liabilities and expenses, including without limitation attorneys' fees, arising out of any
injury, disability, or death of any of CONSULTANT'S employees.
Indemnification of Liability, Duty to Defend
A. As to professional liability, to the fullest extent permitted by law,
CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be
unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents
and employees against any and all suits, damages, costs, fees, claims, demands, causes of action,
losses, liabilities and expenses, including without limitation attorneys' fees, to the extent arising
or resulting directly or indirectly from any willful or negligent acts, errors or omissions of
CONSULTANT or CONSULTANT'S assistants, employees or agents, including all claims
relating to the injury or death of any person or damage to any property.
B. As to other liability, to the fullest extent permitted by law, CONSULTANT shall
defend, through counsel approved by CITY (which approval shall not be unreasonably withheld),
indemnify and hold harmless CITY, its officers, representatives, agents and employees against
any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and
expenses, including without limitation attorneys' fees, arising or resulting directly or indirectly
from any act or omission of CONSULTANT or CONSULTANT'S assistants., employees or
agents, including all claims relating to the injury or death of any person or damage to any
property.
Insurance
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In addition to any other obligations under this Agreement, CONSULTANT shall, at no
cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial
Liability Insurance on a per occurrence basis, including coverage for owned and non -owned
automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for
all damages due to bodily injury, sickness or disease, or death to any person, and damage to
property, including the loss of use thereof; and (b) Professional Liability Insurance (Errors &
Omissions) with a minimum coverage of $1,000,000 per occurrence or claim, and $2,000,000
aggregate; provided however, Professional Liability Insurance written on a claims made basis
must comply with the requirements set forth below. Professional Liability Insurance written on a
claims made basis (including without limitation the initial policy obtained and all subsequent
policies purchased as renewals or replacements) must show the retroactive date, and the
retroactive date must be before the earlier of the effective date of the contract or the beginning of
the contract work. Claims made Professional Liability Insurance must be maintained, and
written evidence of insurance must be provided, for at least five (5) years after the completion of
the contract work. If claims made coverage is canceled or non -renewed, and not replaced with
another claims -made policy form with a retroactive date prior to the earlier of the effective date
of the contract or the beginning of the contract work, CONSULTANT must purchase so called
"extended reporting" or "tail" coverage for a minimum of five (5) years after completion of
work, which must also show a retroactive date that is before the earlier of the effective date of
the contract or the beginning of the contract work. As a condition precedent to CITY'S
obligations under this Agreement, CONSULTANT shall furnish written evidence of such
coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive
Liability insurance policy referred to in (a) immediately above via a specific endorsement) and
requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in
policy terms.
Assignment
Notwithstanding any other provision of this Agreement, neither this Agreement nor any
duties or obligations of CONSULTANT under this Agreement may be assigned or subcontracted
by CONSULTANT without the prior ,"Titten consent of CITY, which CITY may withhold in its
sole and absolute discretion.
State and Federal Taxes
As CONSULTANT is not CITY'S employee, CONSULTANT shall be responsible for
paying all required state and federal taxes. Without limiting the foregoing, CONSULTANT
acknowledges and agrees that:
*CITY will not withhold FICA (Social Security) from CONSULTANT'S payments;
*CITY will not make state or federal unemployment insurance contributions on
CONSULTANT'S behalf;
*CITY will not withhold state or federal income tax from payment to CONSULTANT;
*CITY will not make disability insurance contributions on behalf of CONSULTANT;
*CITY will not obtain workers' compensation insurance on behalf of CONSULTANT.
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ARTICLE 6. OBLIGATIONS OF CITY
Cooperation of City
CITY agrees to respond to all reasonable requests of CONSULTANT and provide access,
at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably
necessary to the performance of CONSULTANT'S duties under this Agreement.
Assignment
CITY may assign this Agreement or any duties or obligations thereunder to a successor
governmental entity without the consent of CONSULTANT. Such assignment shall not release
CONSULTANT from any of CONSULTANT'S duties or obligations under this Agreement.
events:
ARTICLE 7. TERMINATION OF AGREEMENT
Termination on Occurrence of Stated Events
This Agreement shall terminate automatically on the occurrence of any of the following
1. Bankruptcy or insolvency of either party;
2. Sale of the business of either party;
3. Death of either party.
Termination by City for Default of Consultant
Should CONSULTANT default in the performance of this Agreement or materially
breach any of its provisions, CITY, at CITY'S option, may terminate this Agreement by giving
written notification to CONSULTANT„ For the purposes of this section, material breach of this
Agreement shall include, but not be limited to the following:
Not t)erformina any of its services professionally and/or timely.
2. CONSULTANT'S breach of any o:f its representations. warranties or
covenants contained in this Agreement.
CONSULTANT shall be entitled to payment only for work satisfactorily completed
through the date of the termination notice, as reasonably determined by CITY, provided that such
payment shall not exceed the amounts set forth in this Agreement for the tasks described on
Exhibit "B" which have been fully, competently and timely rendered by CONSULTANT.
Notwithstanding the foregoing, if CITY terminates this Agreement due to CONSULTANT'S
default in the performance of this Agreement or material breach by CONSULTANT of any of its
provisions, then in addition to any other rights and remedies CITY may have, CONSULTANT
shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses
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incurred by CITY in order to complete the tasks constituting the scope of work as described in
this Agreement, to the extent such costs and expenses exceed the amounts CITY would have
been obligated to pay CONSULTANT for the performance of that task pursuant to this
Agreement.
Termination for Failure to Make Agreed -Upon Payments
Should CITY fail to pay CONSULTANT all or any part of the compensation set forth in
Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a
default under this Agreement, CONSULTANT, at the CONSULTANT'S option, may terminate
this Agreement if such default is not remedied by CITY within thirty (30) days alter demand for
such payment is given by CONSULTANT to CITY.
Transition After Termination
Upon termination, CONSULTANT shall immediately stop work, unless cessation could
potentially cause any damage or harm to person or property, in which case CONSULTANT shall
cease such work as soon as it is safe to do so. CONSULTANT shall incur no further expenses in
connection with this Agreement. CONSULTANT shall promptly deliver to CITY all work done
toward completion of its services, and shall act in such a manner as to facilitate any new
CONSULTANT'S assumption of duties.
ARTICLE S. GENERAL PROVISIONS
Notices
Any notice to be given hereunder by either party to the other may be effected either by
personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to a party at the address appearing below such
party's signature below, but each party may change the address by written notice in accordance
with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt;
mailed notices will be deemed delivered as of three (3) days after mailing.
Entire Agreement of the Parties
This Agreement supersedes any and all prior agreernents, either oral or written, between
the parties hereto with respect to the rendering of services by CONSULTANT for CITY and
contains all the covenants and agreements between the parities with respect to the rendering of
such services in any manner whatsoever. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or otherwise, have been made by
any party, or anyone acting on behalf of any party, which are not embodied herein, and that no
other agreement, statement or promise not contained in this Agreement shall be valid or binding.
Any modification of this Agreement will be effective only if it is in writing signed by both
parties.
Partial Invalidity
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If any provision in this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force
without being impaired or invalidated in any way.
Americans With Disabilities Act of 1990
Throughout the term of this Agreement, the CONSULTANT shall comply fully with all
applicable provisions of the Americans With Disabilities Act of 1990 ("the Act") in its current
form and as it may be amended from time to time. The Contractor shall also require such
compliance of all subcontractors performing work under this Agreement, subject to the
prohibition against assignment and subcontracting contained in Article 5 above. The
CONSULTANT shall defend with counsel acceptable to CITY, indemnify and hold harmless the
CITY OF GILROY, its officers, employees, agents and representatives from and against all suits,
claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees,
including without limitation attorneys' fees, that may arise out of any violations of the Act by the
CONSULTANT, its subcontractors, or the officers, employees, agents or representatives of
either.
Compliance With Laws
The CONSULTANT shall keep itself informed of all State and National laws and all
municipal ordinances and regulations of the CITY which in any manner affect those engaged or
employed in the work, or the materials used in the work, or which in any way affect the conduct
of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or
authority over the same. Without limiting the foregoing, CONSULTANT agrees to observe the
provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or
subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for
goods or services to refrain from discriminatory employment or subcontracting practices on the
basis of the race, color, sex, religious creed, national origin or ancestry of any employee,
applicant for employment, or any potential subcontractor.
Attorneys' Fees
If any action at law or in equity, including an action for declaratory relief, is brought to
enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to
reasonable attorneys' fees, which may be set by the court in the same action or in a separate
action brought for that purpose, in addition to any other relief to which that party may be
entitled.
Governing Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of the
State of California without regard to the conflict of laws or provisions of any jurisdiction. The
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exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in
state and federal courts located in Santa Clara County, California.
Executed at Gilroy, California, on the date and year first above written.
CONSULTANT: CITY:
CARNES & ASSOCIA CITY OF GILROY
By: / B
Gt+, Ntc ;ri 60 rn 15 i -, N V, `Pk-),1,lin
(Print a e) (Print Name)
Address for Notices: Address for Notices:
Carnes & Associates 7351 Rosanna Street
9505 Sugar Babe Drive Gilroy, CA 95020
Gilroy, CA 95020 Attn: City Administrator
Social Security or Taxpayer
Identification Number:
94-2777757
Approved as to Form:
1�
/�%'L [4[1 -City Attorney
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EXHIBIT "A"
I. SCOPE OF SERVICES
Lot Line Adjustment Legal Descriptions & Plat for property located at 7310 and 7320 Monterey
Road, Gilroy, APN: 841-08-003 and 004.
1. Research Records
2. Prepare 2 Legal Descriptions for Lot Line Adjustment
3. Prepare an Accompanying Plat for Lot Line Adjustment
II. NOTICE TO PROCEED/COMPLETION OF SERVICE
A. NOTICE TO PROCEED
CONSULTANT shall commence services upon delivery to CONSULTANT of written
Notice to Proceed.
B. COMPLETION OF SERVICES
When CITY determines that CONSULTANT has satisfactorily completed all of the
services defined under this Agreement, CITY shall give CONSULTANT written Notice of Final
Acceptance, and CONSULTANT shall not incur any further costs hereunder. CONSULTANT
may request this determination of completion when, in its opinion, it has satisfactorily completed
all of the services under this Agreement, and if so requested, CITY shall make this determination
within two (2) weeks of such request, or if CITY determines that CONSULTANT has not
satisfactorily completed all of such services, CITY shall so inform CONSULTANT within this
two (2) week period.
III. SCHEDULE
The Lot Line Adjustment will be completed within 30 days after execution of this agreement.
IV. DIRECT EXPENSES
Direct expenses are charges and fees not included in the Scope of Services described
above. CITY shall be obligated to pay only for those direct expenses which have been
previously approved in writing by CITY. CONSULTANT shall obtain written approval from
CITY prior to incurring or billing of direct expenses.
Copies of pertinent financial records, including invoices, will be included with the
submission of billing(s) for all direct expenses.
III. GENERAL PROVISIONS
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A. STANDARD OF WORKMANSHIP
CONSULTANT represents and warrants that it has the qualifications, skills and licenses
necessary to perfonn the services, and its duties and obligations, expressed and implied,
contained herein, and CITY expressly relies upon CONSULTANT'S representations and
warranties regarding its skills, qualifications and licenses. CONSULTANT shall perform such
services and duties in conformance to and consistent with the standards generally recognized as
being employed by professionals in the same discipline in the State of California.
B. RESPONSIBILITY OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy, and
the coordination of the services furnished by it under this Agreement. The CITY'S review,
acceptance or payment for any of the services required under this Agreement shall not be
construed to operate as a waiver of any rights under this Agreement or of any cause of action
arising out of the performance of this Agreement, and CONSULTANT shall be and remain liable
to CITY in accordance with applicable law for all damages to CITY caused by
CONSULTANT'S negligent performance of any of the services furnished under this Agreement.
C. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT
CITY, through its authorized employees, representatives or agents, shall have the right, at
any and all reasonable times, to audit the books and records (including, but not limited to,
invoices, vouchers, canceled checks, time cards, etc.) of CONSULTANT for the purpose of
verifying any and all charges made by CONSULTANT in connection with this Agreement.
CONSULTANT shall maintain for a minimum period of three (3) years (from the date of final
payment to CONSULTANT), or for any longer period required by law, sufficient books and
records in accordance with standard accounting practices to establish the correctness of all
charges submitted to CITY by CONSULTANT, all of which shall be made available to CITY at
the CITY's offices within five (5) business days after CITY'S request.
D. NO PLEDGING OF CITY'S CREDIT.
Under no circumstances shall CONSULTANT have the authority or power to pledge the
credit of CITY or :incur any obligation in the name of CITY.
E. OWNERSHIP OF MATERIAL.
All material (including information developed on coinputer(s)) prepared (or caused to be
prepared) under this Agreement shall be the property of CITY.
F. NO THIRD PARTY BENEFICIARY.
This Agreement shall not be construed or deemed to be an agreement for the benefit of
any third party or parties, and no third party or parties shall have any claim or right of action
hereunder for any cause whatsoever.
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G. WAIVER.
CONSULTANT agrees that waiver by CITY of any one or more of the conditions of
performance under this Agreement shall not be construed as waiver(s) of any other condition of
performance under this Agreement.
H. AMENDMENTS.
No alterations or changes to the terms of this Agreement shall be valid unless made in
writing and signed by both parties hereto.
I. CONFLICT OF INTEREST.
CONSULTANT certifies that to the best of its knowledge, no CITY employee or office
of any public agency interested in this Agreement has any pecuniary interest in the business of
CONSULTANT and that no person associated with CONSULTANT has any interest that would
constitute a conflict of interest in any manner or degree as to the execution or performance of
this Agreement.
J. CAPTIONS.
The captions of the various sections, paragraphs and subparagraphs of this Agreement are
for convenience only and shall not be considered nor referred to for resolving questions or
interpretation.
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EXHIBIT "B"
PAYMENT SCHEDULE
The cost for services rendered under this Agreement will be an amount not to exceed $5,000 for
Work Items 1 through 3, as outlined in the first paragraph of Exhibit "A" ("Scope of Services").
FUNCTION
RATE
Principal Land Surveyor
$155.00/hr
Associate Land Surveyor
$150.00/hr
Land Use Planner
$150.00/hr
CAD Draftsmen
$85.00/hr
Clerical
$70.00/hr
2 Man Field Survey Crew
$180.00/hr
Robotic One Man Survey Crew
$180.00/hr
*GPS Equipment
$30.00/hr
Court Preparation & Appearance
$450.00/hr
REIMUBURSABLES
Blueprints $5.00/hr
Copies Varies
Postage/Mailing Varies
Mileage (When Required) $0.56/mile
Other Materials $1.25 x Cost
Note: 1. (*) = Add to Field Survey Crew rate, when appropriate.
2. All County/City fees, Other Consultants' fees, and Title Company fees, to be paid by
CITY