HomeMy WebLinkAboutEpic Land Solutions Inc; 2012-11-28; CA929CA929
MASTER AGREEMENT FOR REAL PROPERTY SERVICES
(EPIC LAND SOLUTIONS, INC.)
CJTHIS AGREEMENT is made and entered into as of the <^<f^ day of
y^i^-^nJu^ • 20/^, by and between the CARLSBAD MUNICIPAL WATER
DISTRfCT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary
District of the City of Carisbad, hereinafter referred to as "CMWD", and EPIC LAND
SOLUTIONS, INC., a California corporation, hereinafter referred to as "Contractor."
RECITALS
A. CMWD requires the professional services of an engineering consultant that is
experienced in real property services.
B. The professional services are required on a non-exclusive, project-by-project
basis.
C. Contractor has the necessary experience in providing professional services and
advice related to real property services.
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.
Contractor's obligations with respect to any project granted to Contractor under this Agreement
will be as specified in the Task Description for the project (see paragraph 5 below).
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 three years starting from the date first
written above.
4. PROGRESS AND COMPLETION
The work for any project granted to Contractor pursuant to this Agreement will begin within ten
(10) days after receipt of notification to proceed by CMWD and be completed within the time
specified in the Task Description for the project (see paragraph 5 below). Extensions of time for
a specific Task Description may be granted if requested by Contractor and agreed to in writing
by the Executive Manager (or designee) or General Manager of CMWD as authorized by the
Executive Manager ("General Manager"). The Executive Manager (or designee) or General
Manager will give allowance for documented and substantiated unforeseeable and unavoidable
delays not caused by a lack of foresight on the part of Contractor, or delays caused by CMWD
inaction or other agencies' lack of timely action. In no event shall a specific Task Description
exceed the term of this Agreement.
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5. COMPENSATION
The cumulative total for all projects allowed pursuant to this Agreement will not exceed twenty
five thousand dollars ($25,000) for the term of the agreement; the total amount allowed per
Project Task Description and Fee Allotment will not exceed twenty five thousand dollars
($25,000). Fees will be paid on a project-by-project basis and will be based on Contractor's
Schedule of Rates specified in Exhibit "A". Prior to initiation of any project work by Contractor,
CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description")
which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or
General Manager, will be considered a part of this Agreement. The Task Description will include
a detailed scope of services for the particular project being considered and a statement of
Contractor's fee to complete the project in accordance with the specified scope of services. The
Task Description will also include a description of the method of payment and will be based
upon an houriy rate, percentage of project complete, completion of specific project tasks or a
combination thereof.
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 Carisbad 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.
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 CMWD and the City of Carlsbad and its
officers, officials, employees and volunteers from and against alt claims, damages, losses and
expenses including attorneys fees arising out of the performance of the work described herein
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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 CMWD or the
City of Carisbad incurs or makes to or on behalf of an injured employee under CMWD'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 alt
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 Risk Manager or Executive Manager for CMWD 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.
10.1.3 Workers' Compensation and Emplover's Liabilitv. 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.
10.1.4 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.
I I If box is checked. Professional Liability
CMWD's Initials Contractor's Initials Insurance requirement is waived.
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:
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10.2.1 CMWD will be named as an additional insured on General Liability which
shall provide primary coverage to the City.
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 any time,
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 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 alt 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 alt copyrights that arise from the services will be vested in CMWD and
Contractor relinquishes alt claims to the copyrights in favor of CMWD.
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16. NOTICES
The name of the persons who are authorized to give written notice or to receive written notice
on behalf of CMWD and on behalf of Contractor under this Agreement.
For CMWD: For Contractor:
Name Glenn Pruim Name Lynette Overcamp
Title Utilities Director Title Vice President
Dept Utilities Department Address 2601 Airport Drive, Suite 115
Carlsbad Municipal Water District Torrance CA 90505
Address 1635 Faraday Avenue Phone (310) 626-4848
Carisbad CA 92008 Email lovercamp@epicland.com
Phone (760) 602-2768
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
Contractor shall file a Confiict of Interest Statement with the Clerk for the City of Carlsbad in
accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The
Contractor shall report investments or interests in alt four categories.
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 whose services are
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 othenA/ise 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 fonA/arded 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 fonA/arded
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
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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 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 othenA/ise 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 City 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.
Executed by Contractor this day of _ 20 \'^.
CONTRACTOR
EPIC LAND SOLUTIONS, INC., a
California corporation
By:
CARLSBAD MUNICIPAL WATER
DISTRICT, a Public Agency organized
under the Municipal Water Act of 1911, and
a Subsidiary Disjrict of,thej3ity of Carlsbad
By:
(sign here)
(print name/title)
ATTEST:
(sign here) ^
r name/titled T (print name/title)
or
CO ~
If required by CMWD, proper notarial acknowledgment of execution by contfd6lbV 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
Assistant General\Cou ounsel
General Counsel Approved Version 2/17/12
ACKNOWLEDGMENT
State of Califomia ^
County of LDS nH
On before me.
(insert name and titie of the officer)
personally appeared "^OOlAUtW ,
who proved to me on the basis of satisfactory evidence to be the person(s)iA/hose namej^Si(^"
subscribed to the within instrument and acknowledged to me that he^^h^they executed the same in
hiSi(^^their authorized capacityXiesTTand that by his(^?/their signatur^(8)rbn the instrument the
personj^ajCor the entity upon behalf of which the personis)'acted, executed the instrument
I certify under PENALTY OF PERJURY under the laws ofthe State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
I I i I till
EVAPOUZZI I COMM. #1848210 m
Notary Pufaio^^Mtomia S2
LOS ANGELES COUNTY -* ^ ^N^C^&f. MAY 8^2013 I
CALIFORNIA ALL PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF Los Angeles
On Septennber 27, 2012 .before me.
Jesus Ortiz, Notary Public
(here insert name and titie of the officer)
, notary public, personally appeared James L. Overcamp, Jr.
who proved to me on the basis of satisfactory evidence to be the person^ whose
n^ej^ \sl^ subscribed to the within instrument and acknowledged to me that
'^ekhelthey executed the same in^lifDher/their authorized capacitj^fieSf, and that by
^^^Aier/their signatujr^(^ on the instrument the persor]j^ or the entity upon behalf of
which the persor];{^acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the state of
California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal
Signature
JESUS ORTIZ COMM. #1969100 m
NotMyPuMo^iWomia iS
, LMANOafS COUNTY ^
(This area for official notarial seal)
Optional
Though the information below is not required by law, it may prove valuable to persons relying 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: Service Agreement Contract
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
(Not including this page)
Holly Rockwell
5. Rate Schedules
EXHIBIT A
Key Personnel
Name Classification / Titie Hourly Rate
Lynette Overcamp, SR/WA Principal $200
Walt Evans, SR/WA, R-W/NAC, R-W/RAC Regional & Project Manager $150
Gary Peck, SR/WA Review Appraiser & Appraisal Manager $200
Jacqueline Franks Acquisition Agent $110
Rosie Metsker Acquisition Agent $100
Mike Harris Acquisition Agent $85
Administrator Administrator $65
Title & Escrow
Lawyers Title
Other Direct Costs
Preliminary Title Reports $450 - $850
Litigation Guarantee (up to $1,000,000) $375-$3,000
CLTA Policy of Title Insurance (up to $1,000,000) $396 - $2,800
Escrow Fee $630-$2,300
The Catling Company
Name/Classificatton lobfumtton Hourly Rate
Jean Catling Appraiser $160 Jean Catling
Thai preparation and expert testimony $250 - $300
*15 Hour Minimum for Appraisal Services. Litigation support, deposition and court testimony fees are
additional. 4 hour minimum for deposition ond court testimony fees.
Other Direct Costs At Cost
Appraisal
Crockett & Associates
Classification Job Function Hourly Rate
Richard Crockett Appraiser $175
Senior Appraiser Appraiser $150
Staff Appraiser Appraiser $125
Research Researcher $75
Clerical Administrative $50
* Litigation support, deposition and court testimony fees ore additional 4 hour minimum for deposition and
court testimony fees.
Other Direct Costs At Cost
Donna Desmond Associates |
Name/Classificatfon Job Function Hourly Rate
Donna Desmond Principal Appraiser $275 Donna Desmond Trial preparation ond expert testimony $375
* Litigation support, deposition ond court testimony fees ore odditionaL 4 hour minimum for deposition and
court testimony fees.
Other Direct Costs At Cost
CREATING LAND SOLUTIONS FOR THE PUBLIC GOOD
www.EpicLand.com
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