HomeMy WebLinkAboutBlack & Veatch Corporation; 2005-12-21;AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES
(BLACK & VEATCH CORPORATION)
. THIS AGREEMENT is made and entered into as of the d/Ori" day of
20K, by and between the CARLSBAD MUNICIPAL WATER
OiSeublic Agkcy organized under the Municipal Water Act of 1911, and a
Subsidiary District of the City of Carlsbad, referred to as (I'CMWD"), and BLACK 8,
VEATCH CORPORATION, a Delaware corporation, ("Contractor").
RECITALS
A. CMWD requires the professional services of a professional civil engineer
B. Contractor has the necessary experience in providing professional
C. Selection of Contractor is expected to achieve the desired results in an
D. Contractor has submitted a proposal to CMWD and has affirmed its
that is experienced in civil engineering.
services and advice related to advice related to civil engineering.
expedited fashion.
willingness and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, CMWD and Contractor agree as follows:
1. SCOPE OF WORK
CMWD retains Contractor to perform, and Contractor agrees to render, those services
(the "Services") that are defined in attached Exhibit "A" for the Carlsbad Water
Recycling Facility, which is incorporated by this reference in accordance with this
Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional
care and skill customarily exercised by reputable members of Contractor's profession
practicing in the Metropolitan Southern California Area, and will use reasonable
diligence and best judgment while exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of two (2) years from the date
first above written. The Executive Manager may amend the Agreement to extend it for
two (2) additional one (1) year periods or parts thereof in an amount not-to-exceed
fifty thousand dollars ($50,000) per Agreement year. Extensions will be based upon a
satisfactory review of Contractor's performance, CMWD needs, and appropriation of
funds by the CMWD Board of Directors. The parties will prepare a written amendment
indicating the effective date and length of the extended Agreement.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
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5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term
will be fifty-five thousand dollars ($55,000). No other compensation for the Services will
be allowed except for items covered by subsequent amendments to this Agreement.
CMWD reserves the right to withhold a ten percent (10%) retention until CMWD has
accepted the work and/or Services specified in Exhibit "A.
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent
contractor and in pursuit of Contractor's independent calling, and not as an employee of
CMWD. Contractor will be under control of CMWD only as to the result to be
accomplished, but will consult with CMWD as necessary. The persons used by
Contractor to provide services under this Agreement will not be considered employees
of CMWD for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and
complete compensation to which Contractor is entitled. CMWD will not make any
federal or state tax withholdings on behalf of Contractor or its agents, employees or
subcontractors. CMWD will not be required to pay any workers' compensation insurance
or unemployment contributions on behalf of Contractor or its employees or
subcontractors. Contractor agrees to indemnify CMWD and the City of Carlsbad within
thirty (30) days for any tax, retirement contribution, social security, overtime payment,
unemployment payment or workers' compensation payment which CMWD may be
required to make on behalf of Contractor or any agent, employee, or subcontractor of
Contractor for work done under this Agreement. At CMWD's election, CMWD may
deduct the indemnification amount from any balance owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval
of CMWD. If Contractor subcontracts any of the Services, Contractor will be fully
responsible to CMWD for the acts and omissions of Contractor's subcontractor and of
the persons either directly or indirectly employed by the subcontractor, as Contractor is
for the acts and omissions of persons directly employed by Contractor. Nothing
contained in this Agreement will create any contractual relationship between any
subcontractor of Contractor and CMWD. Contractor will be responsible for payment of
subcontractors. Contractor will bind every subcontractor and every subcontractor of a
subcontractor by the terms of this Agreement applicable to Contractor's work unless
specifically noted to the contrary in the subcontract and approved in writing by CMWD.
a. OTHER CONTRACTORS
CMWD reserves the right to employ other Contractors in connection with the Services.
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9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials,
employees and volunteers from and against all claims, damages, losses and expenses
including attorneys fees arising out of the performance of the wcrk described herein
caused in whole or in part by any willful misconduct or negligent act or omission of the
Contractor, any subcontractor, anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense City
incurs or makes to or on behalf of an injured employee under the City's
self-administered workers' compensation is included as a loss, expense or cost for the
purposes of this section, and that this section will
termination of this Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of
amendments, insurance against claims for injuries to
survive the expiration or early
the Agreement and any and all
persons or damage to property
which may arise out of or in connection with performance of the services by Contractor
or Contractor's agents, representatives, employees or subcontractors. The insurance
will be obtained from an insurance carrier admitted and authorized to do business in the
State of California. The insurance carrier is required to have a current Best's Key
Rating of not less than "A-:VI'.
10.1 Coveraqes and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below,
unless the General Counsel or Executive Manager approves a lower amount.
These minimum amounts of coverage will not constitute any limitations or cap on
Contractor's indemnification obligations under this Agreement. CMWD, its officers,
agents and employees make no representation that the limits of the insurance specified
to be carried by Contractor pursuant to this Agreement are adequate to protect
Contractor. If Contractor believes that any required insurance coverage is inadequate,
Contractor will obtain such additional insurance coverage, as Contractor deems
adequate, at Contractor's sole expense.
10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-
limit per occurrence for bodily injury, personal injury and property damage. If the
submitted policies contain aggregate limits, general aggregate limits will apply
separately to the work under this Agreement or the general aggregate will be twice the
required per occurrence limit.
10.1.2 Automobile Liabilitv (if the use of an automobile is involved for
Contractor's work for CMWD). $1,000,000 combined single-limit per accident for bodily
injury and property damage.
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10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers'
Compensation limits as required by the California Labor Code and Employer's Liability
limits of $1,000,000 per accident for bodily injury. Workers' Compensation and
Employer's Liability insurance will not be required if Contractor has no employees and
provides, to CMWD's satisfaction, a declaration stating this.
10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must
be maintained for a period of five years following the date of completion of the work.
10.2. Additional Provisions. Contractor will ensure that the policies of insurance
required under this Agreement contain, or are endorsed to contain, the following
provisions:
10.2.1 The CMWD and the City of Carlsbad will be named as an additional
insured on General Liability.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and
any extensions of it and will not be canceled without thirty (30) days prior written notice
to CMWD sent by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providinq Certificates of Insurance and Endorsements. Prior to CMWD's
execution of this Agreement, Contractor will furnish certificates of insurance and
endorsements to CMWD.
10.4 Failure to Maintain Coveraqe. If Contractor fails to maintain any of these
insurance coverages, then CMWD will have the option to declare Contractor in breach,
or may purchase replacement insurance or pay the premiums that are due on existing
policies in order to maintain the required coverages. Contractor is responsible for any
payments made by CMWD to obtain or maintain insurance and CMWD may collect
these payments from Contractor or deduct the amount paid from any sums due
Contractor under this Agreement.
10.5 Submission of Insurance Policies. CMWD reserves the right to require, at
anytime, complete and certified copies of any or all required insurance policies and
endorsements.
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11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of
the Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred
under this Agreement. All records will be clearly identifiable. Contractor will allow a
representative of CMWD during normal business hours to examine, audit, and make
transcripts or copies of records and any other documents created pursuant to this
Agreement. Contractor will allow inspection of all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the date of
final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors
pursuant to this Agreement is the property of CMWD. In the event this Agreement is
terminated, all work product produced by Contractor or its agents, employees and
subcontractors pursuant to this Agreement will be delivered at once to CMWD.
Contractor will have the right to make one (1) copy of the work product for Contractor's
records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in
CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written
notice on behalf of CMWD and on behalf of Contractor under this Agreement.
For CMW D: For Contractor:
Name Terry Smith Name James H. Clark, P.E.
Title Senior Civil Engineer Title Vice President
Address 1635 Faradav Avenue 6 Venture. Suite 31 5
Carlsbad Municipal Water District Black & Veatch Corporation
Carlsbad, CA 92008 Irvine, CA 9261 8-331 7
Phone No. (760) 602-2765 Phone No. (949) 753-0500
Each party will notify the other immediately of any changes of address that would
require any notice or delivery to be directed to another address.
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16. CONFLICT OF INTEREST
CMWD will evaluate Contractor’s duties pursuant to this Agreement to determine
whether disclosure under the Political Reform Act and CMWD’s Conflict of Interest
Code is required of Contractor or any of Contractor’s employees, agents, or
subcontractors. Should it be determined that disclosure is required, Contractor or
Contractor’s affected employees, agents, or subcontractors will complete and file with the Secretary of the Board those schedules specified by CMWD and contained in the
Statement of Economic Interests Form 700.
Contractor, for Contractor and on behalf of Contractor’s agents, employees,
subcontractors and consultants warrants that by execution of this Agreement, that they
have no interest, present or contemplated, in the projects affected by this Agreement.
Contractor further warrants that neither Contractor, nor Contractor’s agents, employees,
subcontractors and consultants have any ancillary real property, business interests or
income that will be affected by this Agreement or, alternatively, that Contractor will file
with the CMWD an affidavit disclosing this interest.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way
affect the performance of the Services by Contractor. Contractor will at all times observe
and comply with these laws, ordinances, and regulations and will be responsible for the
compliance of Contractor’s services with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act
of 1986 and will comply with those requirements, including, but not limited to, verifying
the eligibility for employment of all agents, employees, subcontractors and consultants
that the services required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations
prohibiting discrimination and harassment.
19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise
settled by agreement between the parties. Representatives of Contractor or CMWD will
reduce such questions, and their respective views, to writing. A copy of such
documented dispute will be forwarded to both parties involved along with recommended
methods of resolution, which would be of benefit to both parties. The representative
receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the Executive Manager. The Executive Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the Executive Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to
them at law.
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20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services,
CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make
a determination of fact based upon the work product delivered to CMWD and of the
percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD will
determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it
to CMWD. Contractor will be paid for work performed to the termination date; however,
the total will not exceed the lump sum fee payable under this Agreement. CMWD will
make the final determination as to the portions of tasks completed and the
compensation to be made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not emploved or retained anv companv or
person, other than a bona fide employee working for Contractor, to solicitor securethis Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of
this Agreement. For breach or violation of this warranty, CMWD will have the right to
annul this Agreement without liability, or, in its discretion, to deduct from the Agreement
price or consideration, or otherwise recover, the full amount of the fee, commission,
percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any agreement claim submitted to CMWD must be asserted as part of the agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor
acknowledges that if a false claim is submitted to CMWD, it may be considered fraud
and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If CMWD seeks to recover penalties pursuant to the False Claims Act, it is
entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor
acknowledges debarment by another jurisdiction is grounds for CMWD to terminate this Agreement.
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23. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of
enforcing a right or rights provided for by this Agreement will be tried in a court of
competent jurisdiction in the County of San Diego, State of California, and the parties
waive all provisions of law providing for a change of venue in these proceedings to any
other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon CMWD
and Contractor and their respective successors. Neither this Agreement or any part of it
nor any monies due or to become due under it may be assigned by Contractor without
the prior consent of CMWD, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated
by it, along with the purchase order for this Agreement and its provisions, embody the
entire Agreement and understanding between the parties relating to the subject matter
of it. In case of conflict, the terms of the Agreement supersede the purchase order.
Neither this Agreement nor any of its provisions may be amended, modified, waived or
discharged except in a writing signed by both parties.
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26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf
of Contractor each represent and warrant that they have the legal power, right and
actual authority to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR CARLSBAD MUNICIPAL WATER BLACK & VEATCH CORPORATION, DISTRICT, a Public Agency
organized under the Municipal Water
Act of 191 1, and a Subsidiary District of the City of Carlsbad
By:
--
t
t, Executive Managera Sit?VI6 IJ.Sel\& ,
(print name/title)
(sign here)
(print namehitle)
**By:
Secret a ry
z 2.. :-I = (e-mail address)
c 5 %.?! &**$.F s -5' 5 r3 ......
If required by CMWD, proper notarial acknowledgment of execution by contr&tq, ~g\\\''
each of the following two groups. be attached. If a Corporation, Agreement must be signed by one corporate officer ? rom
*Group A. Chairman, President, or Vice-president
**Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
RONALD R.-BALL. General Counsel
By: Deputy General Cbunsel
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Itemized
EXHIBIT “A”
SCOPE OF SERVICES
List of what Contractor will do for CMWD and at what price.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
personally appeared S-VP n N. Fbd Im 1
Name@) of Signer($
$,personally known to me
C proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) idare
subscribed to the within instrument and
acknowledged to me that heishelthey executed
the same in his/her/their authorized
capacity(ies), and that by his/her/their
siRnature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
OPTIONAL
Though the information below IS not required by law, if may prove valuable to persons rewing on the document and could prevent
fraudulent removal and reattachment of this form to another document
Description of Attached Document
Title or Type of Document:
Document Date, Number of Pages:
Signer@) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
0 Individual
0 Corporate Officer - Title@):
0 Partner - 0 Limited 0 General
0 Attorney-in-Fact
0 Trustee
0 Guardian or Conservator
0 Other:
Signer Is Representing:
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