HomeMy WebLinkAboutDYK INC; 2012-01-31;AGREEMENT FOR REPAIR OF EXPOSED TIE WIRE AT
MAERKLE RESERVOIR
DYK Incorporated
THIS AGREEMENT is made and entered into as of the 3l
day of Jar\(Jarc/ 20/A, by and between the CARLSBAD
MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal
Water Act of 1911, and a Subsidiary District of the City of Carlsbad, referred to
as ("CMWD"), and DYK Incorporated, a Corporation, ("Contractor").
RECITALS
A. CMWD requires the professional services of a tank builder that is
experienced in building and repairing concrete reservoirs.
B. Contractor has the necessary experience in providing professional
services and advice related to concrete reservoirs.
C. Selection of Contractor is expected to achieve the desired results in
an expedited fashion.
D. Contractor has submitted a proposal to CMWD and has affirmed its
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", 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 Agreehient will be effective for a period of thirty days from the
date first above written in an amount not to exceed Ten Thousand Five Hundred
Twenty Five dollars ($10,525.00), plus a 20% contingency for a not to exceed
amount of Twelve Thousand Six Hundred Thirty dollars ($12,630.00).
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 Ten Thousand Five Hundred Twenty Five dollars
($10,525.00) plus a 20% contingency for an amount not to exceed Twelve
Thousand Six Hundred Thirty dollars ($12,630.00). 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.
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8. OTHER CONTRACTORS
CMWD reserves the right to employ other Contractors in connection with the
Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers,
officials, employees and volunteers from and against all claims, damages, losses
and expenses including attorneys fees arising out ofthe performance ofthe work
described herein caused by any negligence, recklessness, or willful misconduct
of the Contractor, any subcontractor, anyone directly or indirectly employed by
any of them or anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense
City incurs or makes to or on behalf of an injured employee under the City's self-
administered workers' compensation is included as a loss, expense or cost for
the purposes of this section, and that this section will survive the expiration or
early termination of this Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any
and all amendments, insurance against claims for injuries to persons or damage
to property which may arise out of or in connection with performance of the
services by Contractor or Contractor's agents, representatives, employees or
subcontractors. The insurance will be obtained from an insurance carrier
admitted and authorized to do business in the State of California. The insurance
carrier is required to have a current Best's Key Rating of not less than "A-:VH",
OR with a surplus line insurer on the State of California's List of Eligible Surplus
Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at
least "A:X".
10.1 Coverages 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 Liability 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.
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10.1.2 Automobile Liability (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.
10.1.3 Workers' Compensation and Employer's Liability. Workers'
Compensation limits as required by the California Labor Code. Workers'
Compensation will not be required if Contractor has no employees and provides,
to CMWD's satisfaction, a declaration stating this.
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 Providing 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 Coverage. 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.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the
term ofthe 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
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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
ofthe 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 CMWD: For Contractor:
Name: Jase Warner Name: Randy Smith
Title: Water Operations Supervisor Title: CTS Operations
Carlsbad Municipal Water District Address: P.O. Box 696
Address: 5950 El Camino Real El Cajon, CA 92022
Carlsbad, CA 92008 Phone No.: 619-440-8181
Phone No.: 760-438-2722 E-Mail Address: randy.smith(gdyk.com
Each party will notify the other immediately of any changes of address that would
require any notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
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
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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 (10) 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.
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
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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 employed or retained any company
or person, other than a bona fide employee working for Contractor, to solicit or
secure this Agreement, and that Contractor has not paid or agreed to pay any
company or person, other than a bona fide employee, any fee, commission,
percentage, brokerage fee, gift, or any other consideration contingent upon, or
resulting from, the award or making of this Agreement. For breach or violation of
this warranty, 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 ofthe 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
seg.. 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 ofthe 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.
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
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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
'By: DYK Incorporated
(sign here)
David R. Gouriey, Vice President
Construction
(print name/title)
Ramon Lpcero, Secretary
(print name/title)
CARLSBAD MUNICIPAL WATER
DISTRICT, a Public Agency
organized under the Municipal Water
Act of 1911, and a Subsidiary District
of the City of Carisbad
By
General Manager
ATTEST:
LORRAINE M. WOOD
Secretary
7^^.>f^P^
If required by CMWD, proper notarial acknowledgment of execution by contractor must
be attached. If a Corporation. Agreement must be signed by one corporate officer from
each of the following two groups.
*Group A.
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
BV: m }nP>
Deputy General jpounsel
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ADDRESS: 35 1 CYPRESS LANE • EL CAJON. CA 92020 • MAILING: P.O. BOX 696 • EL CAJON, CA 92022-0696
PHONE: (619)440-8181 • FAX: (619)440-8653 • WEB: WWW.DYK.COM • EMAIL: DYKINC@IDYK.COM
December 12,2011
Carlsbad Municipal Water District
5950 El Camino Real
Carlsbad, CA 92008
Attn: Mr. Jase Warner
RE: Maerkle Reservoir Work Request
Carlsbad, Califomia
Dear Mr. Warner,
As requested, please find a preliminary budget report for the above referenced project for your consideration.
Leak testing and chlorination that may be required will be performed by others. Concrete Tank Services vnW be available to do this work
for an additional cost.
Provide inspection of one 5.0 MG, (section dimensions, 218'xl35'x26') reservoir at no charge. Inspection to include visual inspection of
the interior wall, floor, columns, roof and all appurtenances, sounding the bottom eight feet of the interior wall and exposed exterior wall,
to help determine the integrity of the structural concrete. A written report summarizing the results of the inspection including any
recommendations for remedial work and cost estimate associated with performing the remedial work.
Lump sum total: No Cost
Provide all labor, equipment, material and incidentals required to clean by high pressure water blasting of the interior wall, floor and
columns, including removal of up to 1" of silt from the floor of each tank. All siU and wash water to be purged from the tank interior
through an existing drain line at floor level and disposed by client.
Lump sum total: $7,875.00
Tank to be drained by others prior to mobilization.
Access and level, and stable work area to be provided by others.
The client will provide all lockout/tagout of valves to comply with all applicable OSHA regulations.
Permits and fees, if required, are not included.
State, local and federal taxes, if applicable, are not included.
Provide all labor, equipment, material and incidentals required for the repair of exposed tie wire on the interior of the reservoir floor and
walls. The price outlined blow represents mobilization and repair of 50 locations only. The client will direct DYK Incorporated if they
wish to resolve any exposed tie wire corrosion beyond the 50 locations and the added costs that will be incurred.
Lump sum total: $650.00 Mobilization
Lump sum total: $40.00 Cost per single location
Total Estimate $10.525.00 ^ ^S)
_ ^ U)
If you find this acceptable as a whole or in part, please contact us at your convenience for scheduling. Of course, if you should require any
further information please do not hesitate to contact us.
_U0PtA_ (P7f
Randy Smith, CTS Operations
DYK Incorporated
A Division of DN Tanks