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HomeMy WebLinkAboutGordon Hess and Associates Inc; 2012-09-25; UTIL890UTIL890 AGREEIMENT FOR CONSULTING SERVICES FOR DESALINATED WATER RATE ANALYSIS (GORDON HESS AND ASSOCIATES, INC.) ^GREEMENT is made and entered into as of the day of JfZI . 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, ("CMWD"), and GORDON HESS AND ASSOCIATES, INC., a California corporation, ("Contractor"). RECITALS A. CMWD requires the professional services of a consultant that is experienced in desalinated water rate analysis. B. Contractor has the necessary experience In providing professional services and advice related to desalinated water rate analysis. C. Contractor has submitted a proposal to CMWD and has affinned its willingness and ability to perfomi 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 Agreement will be effective for a period of one (1) year from the date first above written. The Executive Manager may amend the Agreement to extend it for one (1) additional one (1) year period or parts thereof in an amount not to exceed eighteen thousand dollars ($18,000) 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. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement tenn will be eighteen thousand dollars ($18,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. CMWD reserves the right to withhoki a ten percent (10%) retention until CMWD has accepted the work and/or Services specified In Exhibit "A". General Counsel Approved Version 2/17/12 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 Carisbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or wori<ers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for wori< 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 eittier 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 temis of this Agreement applicable to Contractor's work unless spedfically noted to tiie 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 hamnless 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 work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectiy 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 wori<ers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or eariy termination of tills 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 perfomiance of the services by Contractor or Contractor's agents, representatives, employees or subconti*actors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of Califomia. The General Counsel /^proved Version 2/17/12 insurance carrier is required to have a cun'ent Best's Key Rating of not less than "A-rVll", OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLl) with a rating in tiie latest Best's Key Rating Guide of at least "AiX". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits Indicated below, unless the Risk Manager 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 earned 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 Conti'actor's sole expense. 10.1.1 Commercial General Liabiiitv 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 occun*ence limit. nt ortne general aggregate v If box is checked, General Liability CMWD's Initials Contractor's initials Insurance requirement is waived. 10.1.2 Automobile Liabllltv (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 Woricers' Compensation and Employer's Liabiiitv. Workers' Compensation limits as required by tiie Califomia 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 Liability. 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. e years TO /^'TT^ [K| 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: 10.2.1 CMWD will be named as an additional insured on Commercial General Liability which shall provide primary coverage to CMWD. 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 tiie 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. General Counsel Approved Version 2/17/12 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, tiien 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 Carisbad 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 incun'ed under this Agreement. All records will be cleariy 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 wori^, 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 woric product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of CMWD. In the event tiiis 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 tiie 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 Name Christine Ruess Titie Senior Management Analyst Carisbad Municipal Water District Address 5950 El Camino Real Carlsbad. CA 92008 Phone 760-438-2722x7110 For Contractor Name Gordon Hess Titie Address Phone E-mail President 4132 Albatross Drive San Diego, CA 92103 619-261-2839 aordQnhess(a)sbcQlQbal.net 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. General Counsel Approved Version 2/17/12 16. CONFUCT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report Investments or interests in all 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 that the services required by tiiis 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 perfomiance of the Services the following procedure will be used to resolve any questions of fact or interpretation not othenAdse 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 fonvarded to botii 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 tiie 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 wori< or services contemplated by this Agreement, CMWD may terminate this Agreement upon written notice to Contractor. Upon notification of tenmlnation. Contractor has five (5) business days to deliver any documents owned by CMWD and all wori< in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the wori^ product delivered to CMWD and of the percentage of work that Contractor has perfomied 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 perfomied to the tennlnation date; however, tiie total will not exceed the lump sum General Counsel Approved Version 2/17/12 fee payable under this Agreement. CMWD will make the final detemiination 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 worthing for Contractor, to solicit or secure this Agreement, and tiiat 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 othenivise 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 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 of the false infomnation or in reckless disregard of the truth or falsity of infonnation. 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 Conti-actor to an administrative debamient 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 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. Neitiier 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 tiie 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. General Counsel Approved Version 2/17/12 26. AUTHORITY The individuals executing tills 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 GORDON HESS AND ASSOCIATES, INC., a California corporation By: (sign here) (print name/title) CARLSBAD MUNICIPAL WATER DISTRICT^ a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary Distriot^f the CJ^of Carisbad By: Presidont or ixemtive Manager •or Division Director as authorized by the Executive Manager By: (sign here) (print name/title) If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a corooration. 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 Counsel General Counsel Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of fTki -T^l f^d) personally appeared / mneremsertnaro ere insert name4md title of the officer) who proved to me*on the basis of satisfactory evidence to be the person(a^ whose name^ is/afe-subscribed to the within instrument and acknowledged to me th2<Qfi§!shie/they executed tiie same h(m^er/their auttaized capacity(ic!^, and that b/hi^er/their signature(s) on the instrument the person(s), or tiieentity upon behalf of which tiie person^ act^T^cuted the instrument. I certify under PENALTY OF PERJURY under tiie laws ©f tiie State of Califomia tiiat the foregoing paragraph is tme and correct. . ^ VIRGINIA KEEl^R I S my hand and official §eal. Publfc (Notary Seal) NOTAftYWeffciALITORNIA [ SAN DIEQO COUNTY if My Commission Bcplros % mYli8f11,. J ADDITIONAL OPTIONIAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document contiriued) Number of Pages Document Date<f//^//^ (Additional infonnation) CAPACITY CLAIMED BY THE SIGNER Jj^dividual (s) • Corporate Officer (Title) • Partner(s) • Attorney-in-Fact • Trustee(s) • Other INSTRUCTIONS FOR COMPLETING THIS FORM Avy mcknowledpnent completed m Califomia must contain verbiage exactly as appemrs above in the notary section or a separate acknowledgment form must be propmrly completed and attached to that document The only exception is if a documtent is to be recorded outside of CaHfimiia. In such instances, any alternative acknamledgment verbiage as may be printed on such a document so long as the verbimge does not require the notary to do something that is illegal for a notary in California (i.e. certifying the auOmrized capacity of the signer). Please check the documient carefully for proper notarial -woriling and attach this form ifrequired. • Sttate and County information must be the State and County where the document siffiner(s) personally appeared before the notary public for acknowledgment. • Dfflte of notarization must be the date that the signer(s) personally appeared which muist also be the same date the acknowledgment is completed. • Tflie notary public must print his or her name as it appears within his or her commiission followed by a comma and then your title (notary public). • Pniint the name(s) of document signer(s) who personally appear at the time of naltarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. heUabc/^tteyr is /»e ) or circling the correct forms. Failure to correctly indicate this infformation may lead to rejection of document recording. • THie notaiy seal impressicm must be clear and photographically reproducible. IniQwession must not cover text or lines. If seal impression smudges, re-seal if a sufiicient area permits, otherwise complete a different acknowledgment form. • Sisnature of the notaiy public must match the signature m file with the oflRce of the county dark. ^ Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. •9» Indicate title or type ofattached document, number ofpt^ and date. ^ Indicate the capacity claimed by the signer. If the claimed capdcity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Sfloicurely attach this document to the signed document omfl V«>raiAn PAPA v19 1 n 07 Knn.X7^.QR^S www KntRrvriw^es coin EXHIBIT A Scope of Work and Fees Desalinated Water Rate Analysis Task Description 1 Project Management and Administration a. Prepare Project Schedule b. Two meetings with CMWD staff c. Prepare agendas and meeting minutes d. Coordination and progress meetings with other agencies or parties e. Coordinate with San Diego County Water Authority (SDCWA) staff and attend Board workshops 2 Desalination Alternatives Analysis a. Refine existing rate model and tailor to CMWD and SDCWA Urban Water Management Plan demand projections. b. Analyze potential CMWD desalinated water costs using SDCWA provided cost information and existing and proposed SDCWA water rate structure. Provide a range of SDCWA water rate increases and desalinated water quantities and costs including a no-desalinatlon alternative. c. Incorporate cost impacts (provided by CMWD) of other factors that may impact the cost of a SDCWA desalination contract. d. Account for other pricing changes as agreed to on SDCWA rates, desalination rates, and blended water costs. e. Project total blended CMWD water costs and charges 3 Reliability Impact of Desalination Contract with SDCWA a. Compute increased reliability of CMWD supplies with desalination based on 10%, 20%, and 30% SDCWA overall allocation shorUige levels. 4 Conclusions and Recommendations a. Compare alternatives identified in Task 2 with SDCWA costs based on varying quantities of desalinated water and other assumptions b. For each alternative identify cross-over point when desalinated supplies become more cost effective than CMWD blended water costs c. Provide draft and final letter report that documents analysis with all major assumptions, scenario definitions, and results d. Present results to CMWD Board of Directors. Fees: Flat Rate-Task 2a.Refine existing rate model to Carlsbad projected demands and historic delh/erles $3,300 Portion of hours shared among 4 agencies ($12,800 x 0.25} $3,200 District only analysis (Hourly) Sgt745 Total, Not to Exceed $15,245 Additional Analysis as may be requested by the Utilities Director S2.755 Total Contract $18,000 Hourty rates: Robert Campbell and Gordon Hess $175