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HomeMy WebLinkAboutEMA Services Inc; 1996-02-28;AGREEMENT THIS AGREEMENT, made and entered into as of the 28th day of FEBRUARY, 19 96 , by and between the CARLSBAD MUNICIPAL WATER DISTRICT, a municipal corporation, hereinafter referred to as "District", and EMA SERVICES, INC. hereinafter referred to as "Contractor." RECITALS District requires the services of a Contractor to provide the necessary professional services for the preparation of an 0 & M Paradigm Assessment; and Contractor has the necessary skills and qualifications to provide the services required by the District; NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, District and Contractor agree as follows: 1. CONTRACTOR'S OBLIGATIONS The basic purpose of the assessment is for the Contractor complete the following: a. Teach District staff about specific new paradigms on methods of operation used by European privatizers. b. Assess the District's organization versus those new paradigms using quantitative methods. C. Present and discuss the assessment with District staff to enhance their understanding of how they compare to the privatizers. I Rev. Anwry 11,l- 2. DISTRICT OBLIGATIONS The District shall furnish all necessary information as requested by the Contractor in completion of Contractor’s obligations under this agreement. 3. PROGRESS AND COMPLETION The work under this contract will begin within ten (IO) days after receipt of notification to proceed by the District and be completed within ninety 90 days of that date. Extensions of time may be granted if requested by the Contractor and agreed to in writing by the General Manager. The District will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of the Contractor, or delays caused by District inaction or other agencies’ lack of timely action. 4. FEES TO BE PAID TO CONTRACTOR The total shall not exceed the fee payable according to Paragraph 6, “Payment of Fees,” and shall be $7,500. No other compensation for services will be allowed except those items covered by supplemental agreements per Paragraph 8, “Changes in Work.” 5. DURATION OF CONTRACT This agreement shall extend for a period of one (1) year from date thereof. The contract may be extended by the General Manager for one (1) additional one-year period or parts thereof, based upon a review of satisfactory performance and the District‘s needs. The parties shall prepare extensions in writing indicating effective date and length of the extended contract. Rev. Janwy 11,1886 2 6. PAYMENT OF FEES Payment in full shall be mailed to the Contractor within fifteen (15) days of the date the invoice and approved final report are submitted. 7. FINAL SUBMISSIONS Within sixty (60) days of completion and approval of the General Manager the Contractor shall deliver to the District the following items: 1. A presentation to District staff to include a facilitated discussion about the assessment data and conclusions; and 2. A report documenting the assessment. 8. CHANGES IN WORK If, in the course of the contract, changes seem merited by the Contractor or the District, and informal consultations with the other party indicate that a change in the conditions of the contract is warranted, the Contractor or the District may request a change in contract. Such changes shall be processed by the District in the following manner: A letter outlining the required changes shall be forwarded to the District by Contractor to inform them of the proposed changes along with a statement of estimated changes in charges or time schedule. A Standard Amendment to Agreement shall be prepared by the District and approved by the District according to the procedures described in Carlsbad Municipal Code Section 3.28.172. Such Amendment to Agreement shall not render ineffective or invalidate unaffected portions of the agreement. 3 RH. January 11, lood 9. COVENANTS AGAINST CONTINGENT FEES The Contractor warrants that their firm has not employed or retained any company or person, other than a bona fide employee working for the 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, the District shall 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 such fee, cornmission, percentage, brokerage fees, gift, or contingent fee. 10. NONDISCRIMINATION CLAUSE The Contractor shall comply with the state and federal laws regarding nondiscrimination. 11. TERMINATION OF CONTRACT In the event of the Contractor's failure to prosecute, deliver, or perform the work as provided for in this contract, the District may terminate this contract for nonperformance by notifying the Contractor by certified mail of the termination of the Contractor. The Contractor, thereupon, has five (5) working days to deliver said documents owned by the District and all work in progress to the General Manager. The General Manager shall make a determination of fact based upon the documents delivered to District of the percentage of work which the Contractor has performed which is usable and of worth to the District in having the contract completed. Based upon that Rev. Januy 11, lood 4 finding as reported to the General Manager, the Manager shall determine the final payment of the contract. This agreement may be terminated by either party upon tendering thirty (30) days written notice to the other party. In the event of such suspension or termination, upon request of the District, the Contractor shall assemble the work product and put same in order for proper filing and closing and deliver said product to District. In the event of termination, the Contractor shall be paid for work performed to the termination date; however, the total shall not exceed the lump sum fee payable under paragraph 4. The District shall make the final determination as to the portions of tasks completed and the compensation to be made. 12. DISPUTES If a dispute should arise regarding the performance of work under this agreement, the following procedure shall be used to resolve any question of fact or interpretation not otherwise settled by agreement between parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this contract, shall be reduced to writing by the principal of the Contractor or the General Manager. A copy of such documented dispute shall be fowarded to both parties involved along with recommended methods of resolution which would be of benefit to both parties. The General Manager or principal receiving the letter shall reply to the letter along with a recommended method of resolution within ten (IO) days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to the Board of Directors for their resolution through the Office 5 Rev. Janwry 11,lWO of the Executive Manager. The Board of Directors may then opt to consider the directed solution to the problem. In such cases, the action of the Board Directors shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties seeking remedies available to them at law. 13. CLAIMS AND LAWSUITS The Contractor shall agree that any contract claim submitted to the District must be asserted as part of the contract process as set forth in this agreement and not in anticipation of litigation or in conjunction with litigation. The Contractor acknowledges that if a false claim is submitted to the District, it may be considered fraud and the Contractor may be subject to criminal prosecution. The Contractor acknowledges that California Government Code sections 12650 et sea, the False Claims Act, 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 the District seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. The Contractor shall acknowledge that the filing of a false claim may subject the Contractor to an administrative debarment proceeding wherein the Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five years. 6 14. STATUS OF THE CONTRACTOR The Contractor shall perform the services provided for herein in Contractor's own way as an independent Contractor and in pursuit of Contractor's independent calling, and not as an employee of the District. Contractor shall be under control of the District only as to the result to be accomplished, but shall consult with the District as provided for in the request for proposal. The persons used by the Contractor to provide services under this agreement shall not be considered employees of the District for any purposes whatsoever. The Contractor is an independent contractor of the District. The payment made to the Contractor pursuant to the contract shall be the full and complete compensation to which the Contractor is entitled. The District shall not make any federal or state tax withholdings on behalf of the Contractor or hidher employees or subContractors. The District shall not be required to pay any workers' compensation insurance or unemployment contributions on behalf of the Contractor or hislher employees or subcontractors. The Contractor agrees to indemnify the District within 30 days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which the District may be required to make on behalf of the Contractor or any employee or or subcontractor of the Contractor for work done under this agreement or such indemnification amount may be deducted by the District from any balance owing to the Contractor. The Contractor shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including, but not limited 7 to, verrfying the eligibility for employment of all agents, employees, subcontractors and Contractors that are included in this agreement. 15. CONFORMITY TO LEGAL REQUIREMENTS The Contractor shall cause all drawings and specifications to conform to all applicable requirements of law: federal, state and local. Contractor shall provide all necessary supporting documents, to be filed with any agencies whose approval is necessary. The District will provide copies of the approved plans to any other agencies. 16. OWNERSHIP OF DOCUMENTS All plans, studies, sketches, drawings, reports, and specifications as herein required are the property of the District, whether the work for which they are made be executed or not. In the event this contract is terminated, all documents, plans, specifications, drawings, reports, and studies shall be delivered forthwith to the District. Contractor shall have the right to make one (1) copy of the plans for hidher records. 17. REPRODUCTION RIGHTS The Contractor agrees that all copyrights which arise from creation of the work pursuant to this contract shall be vested in District and hereby agrees to relinquish all claims to such copyrights in favor of District. 8 I ! Rev. January 11.1098 18. HOLD HARMLESS AGREEMENT The District, its elected and appointed officers and employees shall not be liable for any claims, liabilities, penalties, fines, or any damage to goods, properties, or effects of any person whatever; nor for personal injuries or death caused by, or resulting from, or any intentional or negligent acts, errors or omissions of Contractor or Contractor's agents, employees, or representatives. Furthermore, Contractor agrees to defend, indemnify, protect, and hold free and harmless the District and its elected and appointed officers and employees against any claims for damages, liabilities, penalties or fines, costs or expenses, including liabilities or claims by reason of alleged defects in any plans and specifications arising out of the conduct of the Contractor or any agent or employee, subcontractor, or others in connection with the execution of the work covered by this agreement, except only for those claims arising from the sole negligence or sole willful conduct of the District, or its elected and appointed officers and employees. Furthermore, Contractor agrees to defend, indemnify, protect, and hold free and harmless the District and its elected and appointed officers and employees against any claims for damages, liabilities, penalties or fines, costs or expenses, including liabilities or claims by reason of alleged defects in any plans and specifications arising out of or connected with the negligent conduct of the Contractor or any agent or employee, subcontractors, or others in connection with the execution of the work covered by this agreement. 9 Contractor's indemnification shall include any and all costs, expenses, attorneys fees and liability incurred by the District, its officers, agents, or employees in defending against such claims, whether the same proceed to judgment or not. Contractor shall at its own expense, upon written request by the District, defend any such suit or action brought against the District, its officers, agents or employees. Contractor's indemnification of District shall not be limited by any prior or subsequent declaration by the Contractor. 19. ASSIGNMENT OF CONTRACT The Contractor shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the District. 20. SUBCONTRACTING If the Contractor shall subcontract any of the work to be performed under this contract by the Contractor, Contractor shall be fully responsible to the District 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 contract shall create any contractual relationship between any subcontractor of Contractor and the District. The Contractor shall bind every subcontractor and every subcontractor of a subcontractor by the terms of this contract applicable to Contractor's work unless specifically noted to the contrary in the subcontract in question approved in writing by the District. 10 Rev. Jinwry 11, l~od 21. PROHIBITED INTEREST No official of the District who is authorized in such capacity on behalf of the District to negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or approving of this agreement, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer or employee of the District who is authorized in such capacity and on behalf of the District to exercise any executive, supervisory, or similar functions in connection with the performance of this contract shall become directly or indirectly interested personally in this contract or any part thereof. 22. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of the District, either before, during or after the execution of this contract, shall affect or modify any of the terms or obligations herein contained nor entitle the Contractor to any additional payment whatsoever under the terms of this contract. 23. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 18, "Hold Harmless Agreement," all terms, conditions, and provisions hereof shall inure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. 24. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written above. 25. CONFLICT OF INTEREST The District has determined, using the guidelines of the Political Reform Act and the District's conflict of interest code, that the Contractor will not be required to file a 11 conflict of interest statement as a requirement of this agreement. However, Contractor hereby acknowledges that Contractor has the legal responsibility for complying with the Political Reform Act and nothing in this agreement releases Contractor from this responsibility. 26. INSURANCE The Contractor shall obtain and maintain for the duration of the contract 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 work hereunder by the Contractor, his agents, representatives, employees or subcontractors. Said insurance shall 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-:V" and shall meet the District's policy for insurance as stated in Resolution No. 772. A. Coveraaes and Limits. Contractor shall maintain the types of coverages and minimum limits indicated herein, unless a lower amount is approved by the General Counsel or Executive Manager: 1. Comprehensive 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 shall apply separately to the work under this contract or the general aggregate shall be twice the required per occurrence limit. Aw. January 11, lood 12 2. Automobile Liability (if the use of an automobile is involved for Contractor's work for the District). $1,000,000 combined single-limit per accident for bodily injury and property damage. 3. Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the Labor Code of the State of California and Employer's Liability limits of $1,000,000 per accident for bodily injury. 4. Professional Liability. Errors and omissions liability appropriate to the Contractor's profession, with a discovery period of not less than 12 months after completion of work or termination of contract. $1,000,000 per occurrence. 6. Additional Provisions. Contractor shall ensure that the policies of insurance required under this agreement contain, or are endorsed to contain, the following provisions. 1. The District shall be named as an additional insured on all policies excluding Workers' Compensation. 2. The Contractor shall furnish certificates of insurance to the District before commencement of work. 3. The Contractor shall obtain occurrence coverage, excluding Professional Liability which shall be written as claims-made coverage. 4. This insurance shall be in force during the life of the agreement and any extension thereof and shall not be canceled without 30 days prior written notice to the District sent by certified mail. i 5. If the Contractor fails to maintain any of the insurance coverages required herein, then the District will have the option to declare the Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order that the required coverages may be maintained. The Contractor is responsible for any payments made by the District to obtain or maintain such insurance and the District may collect the same from the Contractor or deduct the amount paid from any sums due the Contractor under this agreement. 27. RESPONSIBLE PARTIES The name of the persons who are authorized to give written notices or to receive written notice on behalf of the District and on behalf of the Contractor in connection with the foregoing are as follows: For District: Title General Manaaer Name Robert J. Greanev Address 5950 El Camino Real Carlsbad. CA 92008 For Contractor: Title Chief Executive Officer Name Alan W. Mannina Address 3478 Buskirk Avenue, Suite 343 Pleasant Hill, CA 94523 14 Rev. January 11, lDod 28. BUSINESS LICENSE Contractor shall obtain and maintain a City of Carlsbad Business License for the duration of the contract. Executed by Contractor this d A day of F c L n.+ y ,i9 76. Contractor: CARLSBAD MUNICIPAL WATER DISTRICT, a municipal corporation of EvmA Scvuiccd- Zmc- the State of California (name of Contractor) ign here) ALETHA L. RAUTENKRANZ Secretary JCCYCAdV- Y G~A~uL / (print ndme/titIe) (Proper notarial acknowledgment of execution by Contractor must be attached.) (President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL General Counsel 15