HomeMy WebLinkAboutGordon Hess and Associates Inc; 2015-08-11; UTIL1229AGREEMENT FOR CONSULTING SERVICES FOR
DESALINATED WATER RATE ANALYSIS
GORDON HESS AND ASSOCIATES, INC.
UTIL 1229
MENT is made and entered into as of the // 77/' day of
---'-4&1.~~~-· 2015, by and between the CARLSBAD MUNICIPAL WATER DISTRICT,
ency organized under the Municipal Water Act of 1911, and a Subsidiary District of
the Cit Carlsbad, ("CMWD"), and Gordon Hess and Associates, Inc., a California corporation,
("Con ractor").
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 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 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 year
or parts thereof. 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 term will be
ten thousand dollars ($10,000). No other compensation for the Services will be allowed except
for items covered by subsequent amendments to this Agreement. If the City elects to extend the
Agreement, the amount shall not exceed ten thousand dollars ($10,000) per Agreement year.
CMWD reserves the right to withhold a ten percent ( 1 0%) retention until CMWD has accepted the
work and/or Services specified in Exhibit "A".
General Counsel Approved Version 412/15
1
UTIL 1229
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
with holdings 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.
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, their officers,
officials, employees and volunteers from and against all claims, damages, losses and expenses
including attorney's 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 indirectly employed by any ofthem 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 Carlsbad incurs or makes to or on behalf of an injured employee under the their 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.
1 0. INSURA Wtl.i V~ p~...-(, /"J.&J /1 f .e IN'-~ i t .f.lr
Contractor will obt n and maintain for the duration of the Agreement and any and all
amendments, ins nee against claims for injuries to persons or damage to property which may
arise out of or i connection with performance of the services by Contractor or Contractor's
atives, employees or subcontractors. The insurance will be obtained from an
General Counsel Approved Version 412/15
2
UTIL 1229 e~ll c,.sr
insurance carrier admitted and uthorized to do business in the State of California. The insurance
carrier is required to have a cur nt Best's Key Rating of not less than "A-:VII"; OR with a surplus
line insurer on the State of Califo nia's List of Approved Surplus Line Insurers (LASLI) with a rating
in the latest Best's Key Rating uide of at least "A: X"; OR an alien non-admitted insurer listed by
the National Association of Ins ranee Commissioners (NAIC) latest quarterly listings report.
10.1 Covera es and Limit .
Contractor will maintain the pes of coverages and minimum limits indicated below, unless the
Risk Manager or Executi Manager approves a lower amount. These minimum amounts of
coverage will not constit te any limitations or cap on Contractor's indemnification obligations
under this Agreement. C WD, its officers, agents and employees make no representation that
the limits of the insuran specified to be carried by Contractor pursuant to this Agreement are
adequate to protect Cont ctor. If Contractor believes that any required insurance coverage is
inadequate, Contractor wil btain such additional insurance coverage, as Contractor deems
adequate, at Contractor's sol expense. The full limits available to the named insured shall also
be available and applicable to WD as an additional insured.
1 0.1.1 Commercial G neral Liabilit Insurance. $2,000,000 combined single-limit per
occurrence for bodily injury, person I injury and property damage. If the submitted policies contain
aggregate limits, general aggregat limits will apply separately to the work under this Agreement
or the general aggregate will be ce the required per occurrence limit.
1 0.1.2 Automobile L abilit (if the use of an automobile is involved for Contractor's
work for CMWD). $1,000,000 ombined single·limit per accident for bodily injury and property
damage.
1 0.1.3 Workers' C m ensation and Em lo er's Liabili . Workers' Compensation
limits as required by the Califo ia Labor Code. Workers' Compensation will not be required if
Contractor has no employees an provides, to CMWD's satisfaction, a declaration stating this.
1 0.1.4 Professionallia ilit . 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 o ompletion of the work.
1 0.2. Additional Provisions. Contractor ·11 ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
1 0.2.1 CMWD will be nam as an additional insured on Commercial General
Liability which shall provide primary cove age to CMWD.
1 0.2.2 Contractor will obt in occurrence coverage, excluding Professional Liability,
which will be written as claims-made c verage.
1 0.2.3 This insurance will be in force during the life of the Agreement and any
extensions of it and will not be canceled 'thout thirty (30) days prior written notice to CMWD sent
by certified mail pursuant to the Notice pr is ions of this Agreement.
10.3 Providin Certificates of Insurance nd Endorsements. Prior to CMWD's execution of this
Agreement, Contractor will furnish certificat s of insurance and endorsements to CMWD.
10.4 Failure to Maintain Coverage. If ontractor fails to maintain any of these insurance
coverages, then CMWD will have the opti n to declare Contractor in breach, or may purchase
General Counsel Approved Version 4/2115
3
UTIL 1229
VJ()3veJ... f4!.*' t,/VI/16 .tlM-~ t ~~
replacement insurance or pay t e premiums that are due on existing policies in order to maintain
the required coverages. Contra tor is responsible for any payments made by CMWD to obtain or
maintain insurance and CMWD ay collect these payments from Contractor or deduct the amount
paid from any sums due Cont ctor under this Agreement.
10.5 Submission of In sura e Policies. CMWD reserves the right to require, at any time,
complete and certified copies 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 all
work, data, documents, proceedings, and activities related to the Agreement for a period of three
{3) years from the date of final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant
to this Agreement is the property of CMWD. In the event this Agreement is terminated, all work
product produced by Contractor or its agents, employees and subcontractors pursuant to this
Agreement will be delivered at once to CMWD. Contractor will have the right to make one (1) copy
of the work product for Contractor's records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in CMWD and
Contractor relinquishes all claims to the copyrights in favor of CMWD.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written notice
on behalf of CMWD and on behalf of Contractor under this Agreement.
ForCMWD
Name Kirsten Plonka
Title Engineering Manager
Public Works I Utilities -
Carlsbad Municipal Water District
Address 5950 El Camino Real
Carlsbad, CA 92008
Phone 760-438-2722 x7105
For Contractor
Name Gordon Hess
Title President
Address 4132 Albatross Drive
San Diego, CA 92103
Phone 619-261-2839
E-mail gordonhess@sbcglobal.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 4/2/15
4
UTIL 1229
16. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carlsbad 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 this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not otherwise settled by agreement
between the parties. Representatives of Contractor or CMWD will reduce such questions, and
their respective views, to writing. A copy of such documented dispute will be forwarded to both
parties involved along with recommended methods of resolution, which would be of benefit to
both parties. The representative receiving the letter will reply to the letter along with a
recommended method of resolution within ten (1 0) business days. If the resolution thus obtained
is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the
Executive Manager. The Executive Manager will consider the facts and solutions recommended
by each party and may then opt to direct a solution to the problem. In such cases, the action of
the Executive Manager will be binding upon the parties involved, although nothing in this
procedure will prohibit the parties from seeking remedies available to them at law.
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 tenninate 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
General Counsel Approved Version 4/2/15
5
UTIL 1229
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 of the fee, commission, percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any agreement claim submitted to CMWD must
be asserted as part of the agreement process as set forth in this Agreement and not in anticipation
of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is
submitted to CMWD, it may be considered fraud and Contractor may be subject to criminal
prosecution. Contractor acknowledges that California Government Code sections 12650 et seq.,
the False Claims Act applies to this Agreement and, provides for civil penalties where a person
knowingly submits a false claim to a public entity. These provisions include false claims made
with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of
information. If CMWD seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement for
a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is
grounds for CMWD to terminate this Agreement.
23. JURISDICTION 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 nor 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.
Ill
Ill
General Counsel Approved Version 4/2/15
6
UTIL 1229
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
GORDON HESS AND ASSOCIATES,
INC., a California corporation
By:
Gordon A. Hess I President
(print name/title)
By:
(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 Carlsbad
By:
Patrick A Thoma ubltc Works Director
(as authorized by the Executive Manager)
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:
CELIA A. BREWER, General Counsel
General Counsel Approved Version 4/2/15
7
Gordon Hess and Associates, Inc.
May 2015
Exhibit A
Scope of Work-Carlsbad Municipal Water District
UTIL1229
Task 1. Review changes to Uniform Contract for Member Agency Purchase of Treated Water
from the San Diego County Water AuthorityN Carlsbad Desalination Project.
The review will be from the perspective of identifying changes to the agreement that may impact
the water rate charged by the San Diego County Water Authority (SDCWA) to the Carlsbad
Municipal Water District (CMWD) or potential changes to the reliability of such supplies, should
SDCWA change its drought water allocation policy. A legal review of the agreement should be
made by CMWD legal staff.
Task 2. Review updated desalinated water costs (provided by SDCWA) to determine consistency
of estimated costs with assumptions provided by SDCWA and incorporated into the 2012 report
by Gordon Hess and Associates, Inc.
The 2012 report by Gordon Hess and Associates, Inc. used desalination costs provided by
·SDCWA to determine the impact of CMWD and its water rate payers. Since 2012, SDCWA has
developed a water reliability charge that was under consideration at the time of the 2012 report.
The 2012 analysis made certain assumptions regarding this potential charge. This task is to
review new data provided by SDCWA for desalination costs and the impact, in general, of the
actual adopted water reliability charge on CMWD. A comparison will be made of new cost data
with assumptions used in the 2012 report.
Task 3. Provide additional analysis as requested by CMWD staff.
A complex desalination rate impact model was developed specifically for CMWD as part of the
2012 report. Updating this model and providing additional analysis to CMWD may prove to be
useful, pending the outcome of Tasks 1 and 2, above. Additionally, CMWD staff may need
additional analysis performed or assistance in preparing a recommendation to the City Council
regarding the project.
Time and Expenses
The estimated time for each task is as follows and will be billed at the rate of $195/per hour. Times
are estimates only and may be greater or less than the estimated time. Billing will be made for
actual time and expenses incurred:
Estimated Time:
Task 1. 6 hours
Task 2. 12 hours
Task 3. To Be Determined
Estimated Expenses:
None
General Counsel Approved Version 4/2/15
8
WAIVER REQUEST FORM
FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S)
Generally, a modification to the coverage requirement will be accepting a lower li mit of coverage or waiving the
rcquirement(s).
Requested by: Kirsten Plonka I Public Works-Utilities June 9. 2015
(Name and Department) (Date)
Proposed modification(s) to the requirement(s) for Gordon Hess and Associates
(Type of insurance) (Name of contract)
0 Reduce coverage to the amount of: ""'$ ______ _
[j] Waive coverage
0 Other:
FACTOR(S) IN SUPPORT OF MO DfFICATlON(S)
(checkthosethatappiy)
[j)Signiflcancc of Contractor: Contractor has previous experience with the City that is important to the
efficiency of completing the scope ofworkand the quality ofthc work-product. {explain] Contractorprevious-'ly~
advised on the Desai Agreement. The City Attorney would like the city to use the consult again for consistency. NOTE: we waived insurance on the
contractors previous agreement.
0 Significance of Contractor: 'Contractor has unique skills and there are few if any alternatives. [explain:
include number of candidates RF'P sent to and number responded if applicable]
0Contract Amount/Term of Contract: $ _______ . Work will be completed over a period of __ _
0Professional Liability coverage is not available to this contractor or would increase the cost of the contract by
$ [explain). ----------------------------
OOther (e.g. explain why exposures are mini mal, how exposures are covered in another policy, exposure
control mechanisms, and any other information pertinent to your request):
A cr for this contract on\· : ~ -2y-cr-
(Date)
H:\WORD\Insumnce\Admin Order /168.doc
06/15/2006 27