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CITY OF CARMEL-BY-THE-SEA

Council Report
To:

January 5, 2015
Honorable Mayor, Members of the City Council,
Douglas J. Schmitz, City Administrator

From:

Sharon Friedrichsen

Subject:

Three Resolutions of the City Council of the City Of Carmel-by-the-

Sea Authorizing the City Administrator to Execute the Existing
Professional Services Consulting Agreements with MarTech, Inc.
for $187,000; Government Staffing Service, Inc. for $259,000; and
Neill Engineers Corporation for $174,000 regarding various
Professional Services.

RECOMMENDATION(S):
By motion to Consent Calendar, Authorizing the City Administrator to Execute the
Professional Services Consulting Agreements with MarTech, Inc. for $187,000; Government
Staffing Service, Inc. for $259,000; and Neill Engineers Corporation for $174,000 regarding
various Professional Services.
EXECUTIVE SUMMARY:
City staff are currently reviewing existing contracts and bringing forth contracts for Council
authorization as necessary. According to the Carmel-by-the-Sea Municipal Code, contracts
over $25,000 shall be entered into only by Council authorization. Council is being asked to
either extend or approve professional services agreements for ongoing services as noted
below.
The City has engaged MarTech Inc., to provide a variety of information technology support
services related to on-site technical support, installations and support, remote support,
server/work station trouble shooting and audio/visual support for City Council and
Commission meetings. To accomplish this work, the then-City Administrator entered into a
preliminary professional consulting contract. This contract was set to run for two years,
starting June 30, 2013 and ending July 1, 2015 in an amount not to exceed $35,000. Based
upon expenditures to date, it is recommended that the contract be amended by an additional
$152,200 for a total not to exceed amount of $187,200.
City Council authorized the then-City Administrator to enter into a professional services
agreement with Government Staffing Services Inc. (dba MuniTemps) on August 6, 2013 for
City Clerk, Deputy City Clerk and Community Activities Assistant consulting services for a not
to exceed amount of $25,000. Current expenditures through the end of November 2014 total
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City Council Meeting of January 5, 2015
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Agenda Item: 8.C
Page 1

$183,230. It is recommended that the City Administrator execute a service agreement with
MuniTemps for a not to exceed amount of $259,000 for fiscal year 2014-15.
The City’s adopted 2014-15 fiscal year budget includes $868,000 for street projects. A
portion of this funding (20%) has been allocated for engineering design services to prepare
the plans and specifications and assist with field construction oversight. About $48,000 has
been spent with Neill Engineers, acting as the City Engineer, on design and construction
management oversight for Phase 1 of the streets project. Additional work remains for Phase
2 of the streets project as well as any necessary drainage-related design needed to
accompany various street improvements, such as drainage related impacts to road conditions
on Carpenter Street. It is recommended that Council authorize the City Administrator to enter
into a professional services agreement with Neill Engineers for engineering services related
to streets and storm drain improvements for a not to exceed amount of $174,000.
ANALYSIS/DISCUSSION:
As these various services are needed to maintain daily operations and/or continue progress
on approved capital projects, it is recommended that Council either amend or enter into
service agreements with the identified contractors. However, Council could not authorize the
proposed contract changes. Under this scenario, services would cease until a new vendor is
selected and brought forward to Council for approval.
FISCAL IMPACT:
Staff has performed an analysis of the contract limit and expenditures incurred through
November 30, 2014 by these vendors. The City has spent $133,000 with Martech, thereby
exceeding the contract limit of $35,000. It is recommended that the contract be amended to
reflect anticipated costs through the contract period of June 30, 2015. The cost of the service
can be absorbed through departmental operating budgets. Previous costs incurred for
community services and City clerk staffing services are about $183,230.An additional cost of
$75,477 is anticipated through June 30, 2015 for city clerk services for a total contract cost of
$259,000. MuniTemps’ costs are offset by salary savings from vacant budgeted staff
positions. Costs incurred by Neill Engineers have already been included within the
recommended capital project.
Vendor/Contractor

MarTech, Inc.
Government Staffing Solutions
Neill Engineers
* Anticipated

Original
Contract
Amount
$35,000
$25,000
N/A

Spending
to Date
(11/30/14)
$133,000
$183,000
$48,000*

Proposed
Contract
Amount
$187,000
$259,000
$174,000

Contract
Authorization
Difference
$152,000
$234,000
$174,000

Additional
Funding
Request
$54,000
$70,000
$126,000

cost of $48,000. About $22,000 has been paid to date.

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City Council Meeting of January 5, 2015
Page 194

Agenda Item: 8.C
Page 2

PREVIOUS COUNCIL ACTION/DECISION HISTORY:
• December 2013 Council Adopted an Amendment to Increase the Contract Limit with
MarTech to $35,000
• August 6, 2013 Council Authorized the then-City Administrator to execute a
professional services agreement with MuniTemps for an amount not to exceed
$25,000
• October 2, 2012 , Council appointed Sherman Low of Neill Engineers as City Engineer
• June 10, 2014, Council adopted the FY 2014-15 budget
ATTACHMENTS :

1.
2.
3.
4.
5.
6.

MarTech Contract Amendment Resolution
MuniTemps Contract Amendment Resolution
Neill Engineers Streets and Storm Drain Improvements Resolution
MarTech Amendment
Professional Services Agreement with MuniTemps
Professional Services Agreement with Neill Engineers

APPROVED:

·')

Date:

r

3 s /t-:\:.... · 1/

Doug !~ J. Schmitz,.eity Administrator

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City Council Meeting of January 5, 2015
Page 195

Agenda Item: 8.C
Page 3

Agenda Item: 8.C
Page 3

RESOLUTION 2015-_____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA
AUTHORIZING THE CITY ADMINISTRATOR TO AMEND THE EXISTING
PROFESSIONAL SERVICES CONSULTING AGREEMENT WITH MARTECH, INC. FOR
INFORMATION TECHNOLOGY SERVICES FOR AN AMOUNT NOT TO EXCEED $187,200
WHEREAS, Martech, Inc. provides information technology services for the City; and
WHEREAS, the contract with Martech, Inc. was originally entered into in FY12-13 for
FY13-14 and FY14-15, and
WHEREAS, this service is currently over the authorized expenditure limit for the

contract term; and,
WHEREAS, the annual contract should authorize expenditures in excess of $35,000
and should be subject of the City's formal bid process.
NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF
CARMEL-BY-THE-SEA does hereby:
Authorize the City Administrator to Amend the Professional Services Consulting Agreement
with Martech, Inc. for Information Technology Services in an Amount not to Exceed $187,200.
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA
on this 6th day of January 2015 by the following roll call vote:
AYES:

COUNCIL MEMBERS:

NOES:

COUNCIL MEMBERS:

ABSENT:

COUNCIL MEMBERS:

ABSTAIN:

COUNCIL MEMBERS:

SIGNED:

ATTEST:

Jason Burnett, MAYOR

Lori Frontella
Interim City Clerk

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City Council Meeting of January 5, 2015
Page 196

Agenda Item: 8.C
Page 4

RESOLUTION 2015-_____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA
AUTHORIZING THE CITY ADMINISTRATOR TO AMEND THE EXISTING
PROFESSIONAL SERVICES CONSULTING AGREEMENT WITH GOVERNMENT
STAFFING SERVICES, INC, FOR CITY CLERK, DEPUTY CITY CLERK AND COMMUNITY
ACTIVITIES ASSISTNAT SERVICES FOR AN AMOUNT NOT TO EXCEED $259,000
WHEREAS, Government Staffing Services, Inc. provides city clerk staffing services for the

City; and
WHEREAS, the contract with Government Staffing Services, Inc. was originally entered
into in August 6, 2013, and
WHEREAS, this service is currently over the authorized expenditure limit for the

contract term; and,
WHEREAS, the annual contract should authorize expenditures in excess of $25,000
and should be subject of the City's formal bid process.
NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF
CARMEL-BY-THE-SEA does hereby:
Authorize the City Administrator to Amend the Professional Services Consulting Agreement
with Government Staffing Services, Inc. for City Clerk Services in an Amount not to Exceed
$259,000.
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA
on this 6th day of January 2015 by the following roll call vote:
AYES:

COUNCIL MEMBERS:

NOES:

COUNCIL MEMBERS:

ABSENT:

COUNCIL MEMBERS:

ABSTAIN:

COUNCIL MEMBERS:

SIGNED:

ATTEST:

Jason Burnett, MAYOR

Lori Frontella
Interim City Clerk

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City Council Meeting of January 5, 2015
Page 197

Agenda Item: 8.C
Page 5

RESOLUTION 2015-_____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA
AUTHORIZING THE CITY ADMINISTRATOR TO EXECUTE A PROFESSIONAL
SERVICES CONSULTING AGREEMENT WITH NEILL ENGINEERS FOR ENGINEERING
SERVICES FOR STREETS AND STORM DRAIN IMPROVEMENTS FOR AN AMOUNT
NOT TO EXCEED $174,000
WHEREAS, Neill Engineers provides engineering services for the City; and
WHEREAS, Council adopted the fiscal year 2014-15 budget, which included funding for
street improvements; and
WHEREAS, engineering services rendered by Neill Engineers for street improvements
and any forthcoming storm drain improvements will be over $25,000 are subject to Council
approval.
NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF
CARMEL-BY-THE-SEA does hereby:
Authorize the City Administrator to Execute a Professional Services Consulting Agreement
with Neill Engineers for Engineering Services for Streets and Storm Drain Improvements in an
Amount not to Exceed $174,000.
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA
on this 6th day of January 2015 by the following roll call vote:
AYES:

COUNCIL MEMBERS:

NOES:

COUNCIL MEMBERS:

ABSENT:

COUNCIL MEMBERS:

ABSTAIN:

COUNCIL MEMBERS:

SIGNED:

ATTEST:

Jason Burnett, MAYOR

Lori Frontella
Interim City Clerk

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City Council Meeting of January 5, 2015
Page 198

Agenda Item: 8.C
Page 6

Amendment to Contract
ASD-PSA-MAR-003-13/14
This amendment (the "Amendment") is made by City of Carmel-by-the-Sea and MarTech,
Inc., parties to agreement ASD-PSA- MAR-003-13/14 (the "Agreement") dated 12 June
2013.
2. The Agreement is amended as follows:
a. The Compensation of the Agreement is modified as follows:
The CITY shall pay CONSULTANT for services in accordance with this agreement in
the amount of $100.00 per hour in an amount not to exceed $187,200 for FY 2013-14
through FY 2014-15 while enterprise support and administrative services are procured.

3. Except as set forth in this Amendment, the Agreement is unaffected and shall continue in
full force and effect in accordance with its terms. If there is conflict between this amendment
and the Agreement or any earlier amendment, the terms of this amendment will prevail.
CITY OF CARMEL-BY-THE-SEA

By: __________________________
Printed Name: _________________
Title: ________________________
Dated: _________________
Attest:
_________________________
Lori Frontella
Interim City Clerk

MARTECH

By: __________________________
Printed Name: _________________
Title: ________________________
Dated: _________________

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City Council Meeting of January 5, 2015
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Agenda Item: 8.C
Page 7

Professional Services Agreement
Municipal Staffing Services

THIS CONTRACT is executed this ________ day of ____________ 2015, by and between the CITY
OF CARMEL-BY-THE-SEA, hereinafter referred to as “CITY”, and Government Staffing Services, Inc.
(dba MuniTemps), hereinafter called “CONSULTANT”.
IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:
1.

Scope. CONSULTANT hereby agrees to provide to CITY, as the scope of services
under this Contract, municipal staffing services including:
A. Recruit, screen, interview and assign its employees (“Assigned Employees”) to perform
various City functions related to city clerk services, community services and special
events under CITY’s supervision at City facilities located at City hall (Monte Verde
between Ocean and 7th) and Public Services Department (Junipero between 4th and
5th).
B. Pay “Assigned Employees’ wages and provide them with the benefits that the
CONSULTANT offers to them.
C. Pay, withhold, and transmit payroll taxes; provide unemployment insurance and
worker’s compensation benefits; and handle unemployment and workers’
compensation claims involving Assigned Employees.

2.
Timely Work. CONSULTANT shall perform all duties incidental or necessary in a in a
timely fashion and shall be performed diligently, competently and in accordance with professional
standards of performance. Failure to so perform is hereby deemed a material breach of this Contract,
and CITY may terminate this Contract with no further liability hereunder. CITY may agree in writing
with CONSULTANT to an extension of time. It is expressly agreed and understood that
CONSULTANT shall not be held responsible for delays occasioned by factors beyond their control,
nor by factors that could not reasonably have been foreseen at the time of execution of this
CONTRACT.
3.
Term. The work under this Contract shall commence July 1, 2014 and terminate on
June 30, 2015.
4.
Compensation. CITY shall pay CONSULTANT in an amount not to exceed $259,000.
Fees paid shall be based upon the hourly rate of $59.75 for City Clerk for up to 40 hours a week and
$89.63 an hour for overtime and an hourly rate of $42.50 for event planner up to 40 hours a week.

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City Council Meeting of January 5, 2015
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Agenda Item: 8.C
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Invoices will be supported by the pertinent time sheets or other agreed system for
documenting time worked by the Assigned Employees. CITY’s signature or other agreed method of
approval of the work time submitted for the Assigned Employees certifies that the documented hours
are correct and authorizes CONSULTANT to bill CITY for those hours. If a portion of any invoice is
disputed, CITY will pay the undisputed portion. CONSULTANT shall email invoices and supporting
timesheets directly to the CITY’s Accounts Payable office with a copy sent to any designated
Department of the CITY.
Compensation under this Contract shall become due and payable thirty (30) days after
CITY’S approval of CONSULTANT’S submission of monthly written invoices. The payment of any
compensation to CONSULTANT hereunder shall be contingent upon performance of the terms and
conditions of this Contract to the satisfaction of the City Administrator.
If the City Administrator determines that the work set forth in the written invoice has not
been performed in accordance with the terms of this Contract CITY shall not be responsible for
payment until such time as the work has been satisfactorily performed.
5.
Additional Services. In the event that CITY should request additional services not
covered by the terms of this Contract, said services will be provided by CONSULTANT and paid for by
CITY only after a fee for said services has been agreed upon between CONSULTANT and City
Administrator and the City Administrator provides written authorization for the additional work.
6.
Meet and Confer. CONSULTANT agrees to meet and confer with CITY or its agents or
employees with regard to services as set forth herein as may be required by City Administrator to
insure timely and adequate performance of this Contract.
7.

Indemnification. CONSULTANT hereby agrees to the following indemnification clause:

To the fullest extent permitted by law (including, without limitation, California Civil Code Sections 2782
and 2782.6), CONSULTANT shall defend (with legal counsel reasonably acceptable to the CITY),
indemnify and hold harmless CITY and its officers, designated agents, departments, officials,
representatives and employees (collectively “Indemnitees”) from and against claims, loss, cost,
damage, injury expense and liability (including incidental and consequential damages, court costs,
reasonable attorneys’ fees, litigation expenses and fees of expert consultants or expert witnesses
incurred in connection therewith and costs of investigation) to the extent they arise out of, pertain to,
or relate to, the negligence, recklessness, or willful misconduct of CONSULTANT, any
SUB-CONSULTANT, anyone directly or indirectly employed by them, or anyone that they control
(collectively “Liabilities”). Such obligations to defend, hold harmless and indemnify any Indemnitee
shall not apply to the extent that such Liabilities are caused in part by the negligence, or willful
misconduct of such Indemnitee.
Notwithstanding the provisions of the above paragraph, CONSULTANT agrees to
indemnify and hold harmless CITY from and against any and all claims, demands, defense costs,

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City Council Meeting of January 5, 2015
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Agenda Item: 8.C
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liability, expense, or damages arising out of or in connection with damage to or loss of any property
belonging to CONSULTANT or CONSULTANT’S employees, contractors, representatives, patrons,
guests or invitees.
CONSULTANT further agrees to indemnify CITY for damage to or loss of CITY OF
CARMEL-BY-THE-SEA property to the proportionate extent they arise out of CONSULTANT’S
negligent performance of the work associated with this Contract or to the proportionate extent they
arise out of any negligent act or omission of CONSULTANT or any of CONSULTANT’S employees,
agents, contractors, representatives, patrons, guests or invitees; excepting such damage or loss
arising out of the negligence of CITY.
8.
Insurance. CONSULTANT shall submit and maintain in full force all insurance as
described herein. Without altering or limiting CONSULTANT’S duty to indemnify, CONSULTANT
shall maintain in effect throughout the term of this Contract a policy or policies of insurance with the
following minimum limits of liability:
Commercial general liability insurance including but not limited to premises, personal
injuries, bodily injuries, products, and completed operations, with a combined single limit of not less
than $1,000,000 per occurrence and $2,000,000 in the aggregate.
Professional Liability Insurance. CONSULTANT shall maintain in effect throughout the
term of this Contract professional liability insurance with limits of not less than $1,000,000 per claim
and $2,000,000 in the aggregate. CONSULTANT will either maintain or cause to be maintained
professional liability coverage in full force or obtain extended reporting (tail) coverage (with the same
liability limits) for at least three (3) years following CITY’S acceptance of work.
Commercial automobile liability insurance covering all automobiles, including owned,
leased, non-owned, and hired automobiles, used in providing services under this Contract, with a
combined single limit of not less than $1,000,000 per occurrence.
Workers’ Compensation Insurance.
If CONSULTANT employs others in the
performance of this Contract, CONSULTANT shall maintain workers’ compensation insurance in
accordance with California Labor Code section 3700 and with a minimum of $100,000 per occurrence
for employer’s liability.
Other Insurance Requirements
A.

All insurance required under this Contract must be written by an insurance
company either:
1)
admitted to do business in California with a current A.M. Best rating of
no less than A:VI; or

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Agenda Item: 8.C
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2)
A:VII

an insurance company with a current A.M. Best rating of no less than

Exception may be made for the State Compensation Insurance Fund when not
specifically rated.
B.

Each insurance policy required by this Contract shall be endorsed to state that
CITY shall be given notice in writing at least thirty (30) days in advance of any
cancellation thereof, except CITY shall be given TEN (10) days notice for
nonpayment of the premium.

C.

The general liability and auto policies shall:
1)
Provide an endorsement naming CITY, its officers, officials, and
employees as additional insureds under an ISO CG 20 10 07 04 or ISO 20 37
07 04 or their equivalent.
2)
Provide that such insurance is primary and non-contributing insurance
to any insurance or self-insurance maintained by CITY.
3)
Contain a “Separation of Insureds” provision substantially equivalent to
that used in the ISO form CG 00 01 10 01 or their equivalent.
4)
Provide for a waiver of any subrogation rights against CITY via an ISO
CG 24 01 10 93 or its equivalent.

D.

Prior to the start of work under this Contract CONSULTANT shall file certificates
of insurance and endorsements evidencing the coverage required by this
Contract with the City Administrator. CONSULTANT shall file a new or
amended certificate of insurance promptly after any change is made in any
insurance policy which would alter the information on the certificate then on file.

E.

Neither the insurance requirements hereunder, nor acceptance or approval of
CONSULTANT’S insurance, nor whether any claims are covered under any
insurance, shall in any way modify or change CONSULTANT’S obligations
under the indemnification clause in this Contract, which shall continue in full
force and effect. Notwithstanding the insurance requirements contained herein,
CONSULTANT is financially liable for its indemnity obligations under this
Contract.

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Agenda Item: 8.C
Page 11

F.

Any deductibles or self-insured retentions must be declared to and
approved by CITY. At the option of CITY either: the insured shall reduce
or eliminate such deductibles or self-insured retentions as respects CITY,
its officers, officials, employees and volunteers; or CONSULTANT shall
provide a financial guarantee satisfactory to CITY guaranteeing payment
of losses and related investigations, claim administration, and defense
expenses.

9.
Ownership of Work. Upon completion of any work under this Contract,
ownership and title to all materials and deliverables produced as part of this Contract will
automatically be vested in CITY and no further contract will be necessary to transfer ownership
to CITY.
10.
Licensing. CONSULTANT represents that it is properly licensed to perform the
work specified under this Contract, including but not limited to, possession of a current city
business license.
11.
Termination. This Contract may be terminated by either party upon thirty (30)
calendar days written notice to the other party. In the event of such termination, CITY shall pay
CONSULTANT for all services performed to the satisfaction of CITY to the date of receipt of
notice of termination. An itemized statement of the work performed to the date of termination
shall be submitted to CITY. In ascertaining the services actually rendered hereunder up to the
date of termination of this Contract consideration shall be given to both completed work and
work in process of completion, and to complete and incomplete drawings and other documents
whether delivered to CITY or in the possession of the CONSULTANT.
12.
Agency. In performing the services specified under this Contract CONSULTANT
is hereby deemed to be an independent CONSULTANT and not an agent or employee of CITY.
13.
Authority of the City Administrator. CONSULTANT shall perform all necessary
services provided under this Contract and outlined in the proposal and shall do, perform, and
carry out said work in a satisfactory and proper manner as determined by and to the satisfaction
of the City Administrator. The City Administrator reserves the right to make changes, additions
or deletions, to the scope of work as deemed necessary or advisable to implement and carry out
the purposes of this Contract. The City Administrator is authorized to execute change orders.
14.
Responsibility of Consultant. By executing this CONSULTANT represents and
states to CITY that he/she possesses, or will arrange to secure from others, all necessary
professional capabilities, experience, resources and facilities necessary to provide to CITY the
services contemplated under this Contract. CONSULTANT further warrants that he/she will
follow the current generally accepted practices of the profession to make findings, render
opinions, prepare factual presentations, and provide professional advice and recommendations
regarding the project for which services are rendered under this Contract.
15.
Materials and Equipment. CONSULTANT shall furnish at his/her own expense
all materials and equipment necessary to carry out the terms of this Contract.

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Agenda Item: 8.C
Page 12

16.
Digital Files. CONSULTANT shall furnish copies of all materials and deliverables
on compact disks (for example, final report) in digital format. Files shall be compatible with the
current versions used by PC computers.
17. Audit Authority. CONSULTANT shall keep full and detailed accounts and exercise
such controls as may be necessary for proper financial management under this Contract; the
accounting and control systems shall be satisfactory to CITY. CITY and CITY’S auditor shall be
afforded access to CONSULTANT’S records, books, correspondence and other data relating to
this Contract. CONSULTANT shall preserve these records, books, correspondence and other
data relating to this Contract for a period of four (4) years after final payment, or for such longer
period as may be required by law. In addition, CONSULTANT agrees to make said records,
books correspondence and other data relating to this Contract available to CITY at CITY’S
principle place of business upon seventy-two (72) hours advance written notice. The City
Administrator, or his or her designee, shall at all times have the right to inspect the work,
services, or materials. CONSULTANT shall furnish all reasonable aid and assistance required
by CITY for the proper examination of the work or services and all parts thereof. Such
inspection shall not relieve CONSULTANT form any obligation to perform said work or services
strictly in accordance with the specifications or any modifications thereof and in compliance with
the law.
18.
Notices. All notices herein provided to be given, or which may be given by either
party to the other, shall be considered fully received when made in writing and deposited in the
United States mail, certified and postage prepaid, and addressed to the respective parties as
follows:
CITY:

City of Carmel-by-the-Sea
City Administrator’s Office
P.O. Box CC
Carmel-by-the-Sea, California, 93921

CONSULTANT:

John Herrera
President/CEO
Government Staffing Services, Inc.
Mail to: MuniTemps Corporate Lockbox
P.O. Box 718
Imperial Beach, California 91933

19.
Entire Contract. This Contract constitutes the entire contract between the parties
hereto and supersedes any and all prior contracts, whether oral or written, relating to the subject
matter thereof. Any modification of this Contract will be effective only if it is in writing signed by
both parties hereto.
20.
Validity. If any provision in this Contract is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions will continue in full
force without being impaired or invalidated in any way.

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Agenda Item: 8.C
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21.
Assignment of Interest. The duties under this Contract shall not be assignable,
delegable, or transferable without the prior written consent of CITY. Any such purported
assignment, delegation, or transfer shall constitute a material breach of this Contract upon
which CITY may terminate this Contract and be entitled to damages.
22. Conflict of Interest. CONSULTANT shall at all time avoid conflicts of interest, or
the appearance of conflicts of interest, in the performance of this Contract. CONSULTANT shall
file statements of financial interest on forms provided by CITY to the extent and at the times
required by CITY’S Conflict of Interest Code and applicable law.
During the term of this Contract CONSULTANT shall not directly or indirectly,
either as a partner, employer, employee, consultant, principal, agent or in any individual or
representative capacity, engage or participate in any business or voluntary activity on behalf of
any other party on any property located within the City of Carmel-by-the-Sea without notification
to City Administrator.
23.
Non-discrimination/Affirmative Action.
CONSULTANT will not discriminate
against any employee or applicant for employment because of race, creed, color, sex, age,
national origin, marital status, physical or other motor handicap, unless based upon bonafide
occupational disqualification.
CONSULTANT will take affirmative action to ensure that applicants are employed
and that employees are treated during employment without regard to their race, creed, color,
sex, age, national origin, marital status, physical or other motor handicap.
24.
Counterparts. This Contract may be executed in multiple originals, each of which
is deemed to be an original, and may be signed in counterparts.
25.
Laws. CONSULTANT agrees that in the performance of this Contract it will
reasonably comply with all applicable state, federal and local laws and regulations. This
Contract shall be governed by and construed in accordance with the laws of the State of
California and the City of Carmel-by-the-Sea.
26.
legal action

Attorneys Fees and Court Venue. Should either party to this Contract bring

against the other, (formal judicial proceeding, mediation or arbitration), the case shall be
handled in Monterey County, California, and the party prevailing in such action shall be
entitled to a reasonable attorney’s fee which shall be fixed by the judge, mediator or
arbitrator hearing the case and such fee shall be included in the judgment, together with all
costs.
27.
Severability. If any term of this Contract is held invalid by a court of
competent jurisdiction the remainder of this Contract shall remain in effect.

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Agenda Item: 8.C
Page 14

IN WITNESS WHEREOF, this Contract is entered into by the parties hereto in Carmel,
California, on the day and year first above written.

CITY OF CARMEL-BY-THE-SEA:

CONSULTANT:

By: _________________________
Doug Schmitz, City Administrator

By: ________________________
John Herrera, President/CEO

ATTEST:

_________________________________
Lori Frontella, MMC
Interim City Clerk

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City Council Meeting of January 5, 2015
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Agenda Item: 8.C
Page 15

Professional Services Agreement
Neill Engineers
Engineering Services- Streets and Storm Drains

THIS CONTRACT is executed this 5th day of January 2015, by and between the CITY OF
CARMEL-BY-THE-SEA, hereinafter referred to as “CITY”, and Neill Engineers, hereinafter
called “CONSULTANT”.
IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:
2.

Scope. CONSULTANT hereby agrees to provide to CITY, as the scope of
services under this Contract, engineering and construction services related to
Streets and Road Projects (Phase 1 and 2) and miscellaneous drainage
improvements associated with street improvements.
D. Contract Plans and Cost Estimate:
1. Prepare complete and detailed final contract plans for the proposed
improvements
2. Assist City in obtaining approval of utilities and other public agencies.
3. Prepare a complete set of front end documents and technical
specifications for the construction/bid packages.
4. Provide quantities and a detailed estimate of cost of work.
5. Prepare the notice to contractors for bidding purposes and assist in
notifying contractors to bid on proposed projects.
E. Construction- Related Services
1. Assist the City in advertising for bids, attend pre-bid meeting(s) and the
bid opening, prepare bid tabulations, and assist in analyzing bids and
making recommendation with respect to the selection of a qualified
contractor.
2. Assist the City in preparing and forwarding contract documents to the
contractor selected by the City.
3. Assist City in preparing for and conducting pre-construction meeting with
contractor and City staff.
4. Answer questions and provide assistance related to interpretation of
plans and specifications during construction.
5. Conduct site visits and observe construction during several intervals of
project for general conformance with contract plans.
6. Review construction invoices and assist City in discussing any billings
issues with contractor.
7. Review all shop and working drawings and as built plans.

2.
Timely Work. CONSULTANT shall perform all duties incidental or necessary in a
in a timely fashion and shall be performed diligently, competently and in accordance with
professional standards of performance. Failure to so perform is hereby deemed a material

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Agenda Item: 8.C
Page 16

breach of this Contract, and CITY may terminate this Contract with no further liability hereunder.
CITY may agree in writing with CONSULTANT to an extension of time. It is expressly agreed
and understood that CONSULTANT shall not be held responsible for delays occasioned by
factors beyond their control, nor by factors that could not reasonably have been foreseen at the
time of execution of this CONTRACT.
3.
Term. The work under this Contract shall commence July 1, 2014 and terminate
on June 30, 2015.
4.
Compensation. CITY shall pay CONSULTANT in an amount not to exceed
$174,000. The not to exceed amount shall be based upon CONSULTANT hourly fee as
specified within Exhibit A for work performed.
Compensation under this Contract shall become due and payable thirty (30) days
after CITY’S approval of CONSULTANT’S submission of monthly written invoices. Written
invoices shall clearly itemize each charge.
The payment of any compensation to
CONSULTANT hereunder shall be contingent upon performance of the terms and conditions of
this Contract to the satisfaction of the City Administrator.
If the City Administrator determines that the work set forth in the written invoice has not
been performed in accordance with the terms of this Contract CITY shall not be responsible for
payment until such time as the work has been satisfactorily performed.
5.
Additional Services. In the event that CITY should request additional services not
covered by the terms of this Contract, said services will be provided by CONSULTANT and paid for by
CITY only after a fee for said services has been agreed upon between CONSULTANT and City
Administrator and the City Administrator provides written authorization for the additional work.
6.
Meet and Confer. CONSULTANT agrees to meet and confer with CITY or its agents or
employees with regard to services as set forth herein as may be required by City Administrator to
insure timely and adequate performance of this Contract.
7.

Indemnification. CONSULTANT hereby agrees to the following indemnification clause:

To the fullest extent permitted by law (including, without limitation, California Civil Code Sections 2782
and 2782.6), CONSULTANT shall defend (with legal counsel reasonably acceptable to the CITY),
indemnify and hold harmless CITY and its officers, designated agents, departments, officials,
representatives and employees (collectively “Indemnitees”) from and against claims, loss, cost,
damage, injury expense and liability (including incidental and consequential damages, court costs,
reasonable attorneys’ fees, litigation expenses and fees of expert consultants or expert witnesses
incurred in connection therewith and costs of investigation) to the extent they arise out of, pertain to,
or relate to, the negligence, recklessness, or willful misconduct of CONSULTANT, any
SUB-CONSULTANT, anyone directly or indirectly employed by them, or anyone that they control
(collectively “Liabilities”). Such obligations to defend, hold harmless and indemnify any Indemnitee
shall not apply to the extent that such Liabilities are caused in part by the negligence, or willful
misconduct of such Indemnitee.

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Agenda Item: 8.C
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Notwithstanding the provisions of the above paragraph, CONSULTANT agrees to
indemnify and hold harmless CITY from and against any and all claims, demands, defense costs,
liability, expense, or damages arising out of or in connection with damage to or loss of any property
belonging to CONSULTANT or CONSULTANT’S employees, contractors, representatives, patrons,
guests or invitees.
CONSULTANT further agrees to indemnify CITY for damage to or loss of CITY OF
CARMEL-BY-THE-SEA property to the proportionate extent they arise out of CONSULTANT’S
negligent performance of the work associated with this Contract or to the proportionate extent they
arise out of any negligent act or omission of CONSULTANT or any of CONSULTANT’S employees,
agents, contractors, representatives, patrons, guests or invitees; excepting such damage or loss
arising out of the negligence of CITY.
8.
Insurance. CONSULTANT shall submit and maintain in full force all insurance as
described herein. Without altering or limiting CONSULTANT’S duty to indemnify, CONSULTANT
shall maintain in effect throughout the term of this Contract a policy or policies of insurance with the
following minimum limits of liability:
Commercial general liability insurance including but not limited to premises, personal
injuries, bodily injuries, products, and completed operations, with a combined single limit of not less
than $1,000,000 per occurrence and $2,000,000 in the aggregate.
Professional Liability Insurance. CONSULTANT shall maintain in effect throughout the
term of this Contract professional liability insurance with limits of not less than $1,000,000 per claim
and $2,000,000 in the aggregate. CONSULTANT will either maintain or cause to be maintained
professional liability coverage in full force or obtain extended reporting (tail) coverage (with the same
liability limits) for at least three (3) years following CITY’S acceptance of work.
Commercial automobile liability insurance covering all automobiles, including owned,
leased, non-owned, and hired automobiles, used in providing services under this Contract, with a
combined single limit of not less than $1,000,000 per occurrence.
Workers’ Compensation Insurance.
If CONSULTANT employs others in the
performance of this Contract, CONSULTANT shall maintain workers’ compensation insurance in
accordance with California Labor Code section 3700 and with a minimum of $100,000 per occurrence
for employer’s liability.
Other Insurance Requirements
A.

All insurance required under this Contract must be written by an insurance
company either:

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Agenda Item: 8.C
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1)
admitted to do business in California with a current A.M. Best rating of
no less than A:VI; or
2)
A:VII

an insurance company with a current A.M. Best rating of no less than

Exception may be made for the State Compensation Insurance Fund when not
specifically rated.
B.

Each insurance policy required by this Contract shall be endorsed to state that
CITY shall be given notice in writing at least thirty (30) days in advance of any
cancellation thereof, except CITY shall be given TEN (10) days notice for
nonpayment of the premium.

C.

The general liability and auto policies shall:
1)
Provide an endorsement naming CITY, its officers, officials, and
employees as additional insureds under an ISO CG 20 10 07 04 or ISO 20 37
07 04 or their equivalent.
2)
Provide that such insurance is primary and non-contributing insurance
to any insurance or self-insurance maintained by CITY.
3)
Contain a “Separation of Insureds” provision substantially equivalent to
that used in the ISO form CG 00 01 10 01 or their equivalent.
4)
Provide for a waiver of any subrogation rights against CITY via an ISO
CG 24 01 10 93 or its equivalent.

D.

Prior to the start of work under this Contract CONSULTANT shall file certificates
of insurance and endorsements evidencing the coverage required by this
Contract with the City Administrator. CONSULTANT shall file a new or
amended certificate of insurance promptly after any change is made in any
insurance policy which would alter the information on the certificate then on file.

E.

Neither the insurance requirements hereunder, nor acceptance or approval of
CONSULTANT’S insurance, nor whether any claims are covered under any
insurance, shall in any way modify or change CONSULTANT’S obligations
under the indemnification clause in this Contract, which shall continue in full
force and effect. Notwithstanding the insurance requirements contained herein,
CONSULTANT is financially liable for its indemnity obligations under this
Contract.

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Agenda Item: 8.C
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F.

Any deductibles or self-insured retentions must be declared to and
approved by CITY. At the option of CITY either: the insured shall reduce
or eliminate such deductibles or self-insured retentions as respects CITY,
its officers, officials, employees and volunteers; or CONSULTANT shall
provide a financial guarantee satisfactory to CITY guaranteeing payment
of losses and related investigations, claim administration, and defense
expenses.

9.
Ownership of Work. Upon completion of any work under this Contract,
ownership and title to all materials and deliverables produced as part of this Contract will
automatically be vested in CITY and no further contract will be necessary to transfer ownership
to CITY.
10.
Licensing. CONSULTANT represents that it is properly licensed to perform the
work specified under this Contract, including but not limited to, possession of a current city
business license.
11.
Termination. This Contract may be terminated by either party upon thirty (30)
calendar days written notice to the other party. In the event of such termination, CITY shall pay
CONSULTANT for all services performed to the satisfaction of CITY to the date of receipt of
notice of termination. An itemized statement of the work performed to the date of termination
shall be submitted to CITY. In ascertaining the services actually rendered hereunder up to the
date of termination of this Contract consideration shall be given to both completed work and
work in process of completion, and to complete and incomplete drawings and other documents
whether delivered to CITY or in the possession of the CONSULTANT.
12.
Agency. In performing the services specified under this Contract CONSULTANT
is hereby deemed to be an independent CONSULTANT and not an agent or employee of CITY.
13.
Authority of the City Administrator. CONSULTANT shall perform all necessary
services provided under this Contract and outlined in the proposal and shall do, perform, and
carry out said work in a satisfactory and proper manner as determined by and to the satisfaction
of the City Administrator. The City Administrator reserves the right to make changes, additions
or deletions, to the scope of work as deemed necessary or advisable to implement and carry out
the purposes of this Contract. The City Administrator is authorized to execute change orders.
14.
Responsibility of Consultant. By executing this CONSULTANT represents and
states to CITY that he/she possesses, or will arrange to secure from others, all necessary
professional capabilities, experience, resources and facilities necessary to provide to CITY the
services contemplated under this Contract. CONSULTANT further warrants that he/she will
follow the current generally accepted practices of the profession to make findings, render
opinions, prepare factual presentations, and provide professional advice and recommendations
regarding the project for which services are rendered under this Contract.
15.
Materials and Equipment. CONSULTANT shall furnish at his/her own expense
all materials and equipment necessary to carry out the terms of this Contract.
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Agenda Item: 8.C
Page 20

16.
Digital Files. CONSULTANT shall furnish copies of all materials and deliverables
on compact disks (for example, final report) in digital format. Files shall be compatible with the
current versions used by PC computers.
17. Audit Authority. CONSULTANT shall keep full and detailed accounts and exercise
such controls as may be necessary for proper financial management under this Contract; the
accounting and control systems shall be satisfactory to CITY. CITY and CITY’S auditor shall be
afforded access to CONSULTANT’S records, books, correspondence and other data relating to
this Contract. CONSULTANT shall preserve these records, books, correspondence and other
data relating to this Contract for a period of four (4) years after final payment, or for such longer
period as may be required by law. In addition, CONSULTANT agrees to make said records,
books correspondence and other data relating to this Contract available to CITY at CITY’S
principle place of business upon seventy-two (72) hours advance written notice. The City
Administrator, or his or her designee, shall at all times have the right to inspect the work,
services, or materials. CONSULTANT shall furnish all reasonable aid and assistance required
by CITY for the proper examination of the work or services and all parts thereof. Such
inspection shall not relieve CONSULTANT form any obligation to perform said work or services
strictly in accordance with the specifications or any modifications thereof and in compliance with
the law.
18.
Notices. All notices herein provided to be given, or which may be given by either
party to the other, shall be considered fully received when made in writing and deposited in the
United States mail, certified and postage prepaid, and addressed to the respective parties as
follows:
CITY:

City of Carmel-by-the-Sea
City Administrator’s Office
P.O. Box CC
Carmel-by-the-Sea California, 93921

CONSULTANT:

Neill Engineers
Sherman Low
P.O. Box LL
Carmel-by-the-Sea California, 93921

19.
Entire Contract. This Contract constitutes the entire contract between the parties
hereto and supersedes any and all prior contracts, whether oral or written, relating to the subject
matter thereof. Any modification of this Contract will be effective only if it is in writing signed by
both parties hereto.
20.
Validity. If any provision in this Contract is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions will continue in full
force without being impaired or invalidated in any way.

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Agenda Item: 8.C
Page 21

21.
Assignment of Interest. The duties under this Contract shall not be assignable,
delegable, or transferable without the prior written consent of CITY. Any such purported
assignment, delegation, or transfer shall constitute a material breach of this Contract upon
which CITY may terminate this Contract and be entitled to damages.

22. Conflict of Interest. CONSULTANT shall at all time avoid conflicts of interest, or
the appearance of conflicts of interest, in the performance of this Contract. CONSULTANT shall
file statements of financial interest on forms provided by CITY to the extent and at the times
required by CITY’S Conflict of Interest Code and applicable law.
During the term of this Contract CONSULTANT shall not directly or indirectly,
either as a partner, employer, employee, consultant, principal, agent or in any individual or
representative capacity, engage or participate in any business or voluntary activity on behalf of
any other party on any property located within the City of Carmel-by-the-Sea without notification
to City Administrator.
23.
Non-discrimination/Affirmative Action.
CONSULTANT will not discriminate
against any employee or applicant for employment because of race, creed, color, sex, age,
national origin, marital status, physical or other motor handicap, unless based upon bonafide
occupational disqualification.
CONSULTANT will take affirmative action to ensure that applicants are employed
and that employees are treated during employment without regard to their race, creed, color,
sex, age, national origin, marital status, physical or other motor handicap.
24.
Counterparts. This Contract may be executed in multiple originals, each of which
is deemed to be an original, and may be signed in counterparts.
25.
Laws. CONSULTANT agrees that in the performance of this Contract it will
reasonably comply with all applicable state, federal and local laws and regulations. This
Contract shall be governed by and construed in accordance with the laws of the State of
California and the City of Carmel-by-the-Sea.26.
Attorneys Fees and Court Venue. Should
either party to this Contract bring legal action
against the other, (formal judicial proceeding, mediation or arbitration), the case shall be
handled in Monterey County, California, and the party prevailing in such action shall be
entitled to a reasonable attorney’s fee which shall be fixed by the judge, mediator or
arbitrator hearing the case and such fee shall be included in the judgment, together with all
costs.
27.
Severability. If any term of this Contract is held invalid by a court of
competent jurisdiction the remainder of this Contract shall remain in effect.

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Agenda Item: 8.C
Page 22

IN WITNESS WHEREOF, this Contract is entered into by the parties hereto in Carmel,
California, on the day and year first above written.
CITY OF CARMEL-BY-THE-SEA:

CONSULTANT:

By: _________________________
Doug Schmitz, City Administrator

By: ________________________
Sherman Low, Neill Engineers

ATTEST:

______________________________
Lori Frontella, MMC
Interim City Clerk

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Agenda Item: 8.C
Page 23

Exhibit A
Fee Schedule
Hourly Rates for Staff Members for Normal Assignments
Principal Engineer

$159.00

Project Engineer

$151.00

Staff Engineer/Surveyor

$134.00

Engineering/Technician

$111.00

CADD Draftsperson

$99.00

Field Observer

$105.00

Administrative Assistant

$74.00

2- Man Field Survey Crew

$193.00

3- Man Field Survey Crew

$256.00

Blueprinting and Copying

Cost +10%

Other Consultants

Cost +10%

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Agenda Item: 8.C
Page 24