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HomeMy WebLinkAboutKEH AND ASSOCIATES INC; 2012-10-19; UTIL940UTiL940 AGREEMENT FOR ENGINEERING DESIGN SERVICES (KEH AND ASSOCIATES INC.) THIS AGREEMENT is made and entered into as of the // day of ./rySf^r^./^ , 2012, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and KEH AND ASSOCIATES INC., a California corporation, ("Contractor"). RECITALS A. City requires the professional services of a professional engineering firm that is experienced in the design of wastewater lift stations. B. Contractor has the necessary experience in providing professional services and advice related to wastewater lift stations. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein. City and Contractor agree as follows: 1. SCOPE OF WORK City 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 .... * u The term of this Agreement will be effective for a period of (1) one year from the date first above written. 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 twenty nine thousand nine hundred ninety five dollars ($29,995). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". City Attorney Approved Version 2/17/12 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 City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City 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 City within thirty (30) days for any tax, retirement contnbution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election. City 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 City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City 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 City. 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 City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out 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 of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers: compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurarice 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 City Attorney Approved Version 2/17/12 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 Risk Manager or City 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. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability approphate 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 City'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 The City will be named as an additional insured on Commercial 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 City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City 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 City Attorney Approved Version 2/17/12 maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City 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. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term 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 City 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 City. 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 City. 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 City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City For Contractor Name Mark Biskup Name Ray Fakhoury Title Associate Engineer Title Project Manager Department Utiltities Address 2173 Salk Avenue, Suite 250 City of Carlsbad Carlsbad, CA 92008 Address 1635 Faraday Avenue Phone No. 858-386-3040 Carlsbad, CA 92008 Email rfakhoury@kehgroup.com Phone No. 760-602-2763 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. City Attorney Approved Version 2/17/12 16. CONFLICT OF INTEREST Contractor shall file a Confiict 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 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 otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be fon/varded to the City Manager. The City 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 City 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, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City 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 City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City 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 City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee City Attorney Approved Version 2/17/12 payable under this Agreement. City 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. City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or othen/vise 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 City 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 City, 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 information or in reckless disregard of the truth or falsity of information. If City 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. 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 City 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 City, 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. City Attorney Approved Version 2/17/12 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 KEH AND ASSOCIATES INC., a California corporation (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By: City Managor or Mayor OP Division Director as authorized by the City Manager (sign here) (print name/title) vj If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant City Attorney City Attorney Approved Version 2/17/12 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of ^'^8° QdteB^before me, Daina Blackmon. Notary Public personally appeared (Here insert name and title of the officer) Who proved to me on the basis of satisfactory evidence to be the person^ whose name(^ is/^ubscnbed to the within mstrument and acknowledged to me that he/sbe^ executed the same m his/hcr/meir authonzed capacity(i«<), and that by his/bM*ife«i«ignature(^ on the instrument the personCsi), or the entity upon behalt ot which the persoij)^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is true and correct. ,,,ar '"^ OFFICIAL SEAL I DAINA BLACKMON | WITNESS my^id^ndjjfficid^^ ^^^^'^^lm^^&^ Signature of Notary Public (Notary Seal ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or descri|rtion of attached document) htle'or description of attached document continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER • Individual (s) • Corporate Officer (Title) • Partner(s) • Attorney-in-Fact • Trustee(s) • Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in Califomia must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of Califomia. In such instances, any altemative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in Califomia (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • state and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that die signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the namc(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/she/tbey^ is ) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. • Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. • Indicate title or type of attached document, number of pages and date. • Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate die title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed dociiment 2008 Version CAPA vl2.10.07 800-873-9865 www.NotaryClasses.com RESOLUTIONS ADOPTED BY SOLE DIRECTOR AND SHAREHOLDER OF KEH & ASSOCIATES. INC. The undersigned, being the sole Director/Shareholder of KEH & Associates, Inc., hereby adopts the fol- lowing resolution: (1) RESOLVED, that all actions heretofore taken by the Incorporator(s) of the Corporation are adopted, ratified and confirmed by this Director/Shareholder. (2) RESOLVED, that the form of Bylaws submitted to this meeting be, and they are hereby adopted as the Bylaws of the Corporation. (3) RESOLVED, that the following person(s) are elected to the office(s) set opposite his/her name, to assume the duties and responsibilities fixed by the Bylaws or by the undersigned as the Sole Director of the Corpora- tion: President: Vice President: Secretary: Treasurer: Kenneth E. Hume Kenneth E. Hume Kenneth E. Hume Kenneth E. Hume (4) RESOLVED, that the form of seal, an impression of which is hereto affixed in the margin of these minutes, is hereby adopted as the corporate seal for this corporation. (5) RESOLVED, that the specimen form of certificate is hereby approved and adopted as the certifi- cate representing the shares of this Corporation. (6) RESOLVED that Kenneth E. Hume(treasurer) is hereby authorized to open a bank account on behalf of the Corporation with US Bank, located at 5804 Van Allen Way, Carlsbad, Califomia 92008, and the resolutions required by the said bank were adopted by the undersigned and at- tached hereto to these minutes. (7) RESOLVED, that the Corporation proceed to carry on the business for which it was incorporated. Dated: (\oyi.4 ^-^^QcL Kenneth E. Hume Sole Director and Shareholder EXHIBIT A CITY OF CARLSBAD FOXES LANDING LIFT STATION WETWELL / PUMP REPLACEMENT EVALUATION SCOPE OF WORK Task 1 - Project Management Task 1 includes all project management related work, including project set up, coordination with City staff, and preparing invoices. This task also includes the project kickoff meeting with the City and all quality assurance and quality control activities for this project. Task 2 - Data Collection and Review Task 2 consists of a detailed review of all existing as-built drawings for the existing lift station, existing easements documents, historical flow data, and other future improvement plans within the project site that could impact the project altematives. Task 3 - Site Visit and Meetings (2) This task includes one site visit to the project area as well as coordination and review meetings with City staff and other stakeholders. It is estimated that a total of two meetings would be required for the completion of this project. Task 4 - Evaluate Alternatives Task 4 consists of identifying and evaluating altematives for the conversion of the existing wet well / dry well into a submersible lift station. Three altematives that would be evaluated include the following: 1. Conversion of the existing wet well / dry well to a submersible lift station. 2. Construction of new submersible lift station wet well just north of the existing wet well / dry well within the project site. 3. Identifying a potential third location within the vicinity of the existing lift station for construction of a new submersible wet well and utilizing the existing site to support this new lift station. The altemative evaluation will include the following: 1. Lift station hydraulics and pump sizing. 2. Stmctural modifications of existing wet well / dry well to convert it to a wet well. 3. Utilizing existing wet well / dry well as an emergency storage tank. 4. Upgrades and improvements to electrical, control and SCADA systems. 5. Utilizing the existing wet well / dry well as emergency storage. 6. Identifying temporary and permanent easement needs. 7. Utilizing the existing odor control system. Page 1 of 2 8. Bypass pumping and construction sequencing. 9. Construction methods for new wet well construction. 10. Life cycle of project altematives. Task 5 - Prepare Preliminary Cost Estimate Once the preferred altemative has been established, a detailed project cost estimate will be prepared for the preferred altemative. The project cost estimate will include a detailed level constmction cost estimate. The accuracy of this estimate will be a planning level estimate in accordance with the American Association of Cost Engineers (AACE) guidelines. The accuracy of the estimate will be +/- 35%. Task 6 - Evaluation Report The results, findings, conclusions, and recommendations for the work completed in Tasks 4 and 5 will be presented in an evaluation report. The report will include exhibits for the project altematives, and detailed exhibits for the recommended altemative. Five copies of the draft report will be submitted for City review. A meeting will be held with City staff to review and discuss comments on the draft report. Five copies of the final report would be submitted to City along with one PDF copy. Page 2 of2 Foxes Fee Estimate City of Carisbad Landing Lift Station Wet Well / Pump Replacement Evaluation September 27,2012 LABOR HOUR BREAKDOWN Project Project Drafter Word Project Labor Labor Total Manager Engineer Processori Accountant Hours Cost Simon Wong Cost Clerk Engineering Task Description Houriy Rates $135 $100 $95 $65 $65 Task 1 -Project IManaqement t 2 1.1- Project Management / Coordination 4 4 $540 $540 1.2 -Kiclcoff Meeting 6 6 $810 $810 1.3 - Project Administration / Setup / Invoicing 4 4 4 12 $1,060 $1,060 1.4-QA/QC 10 10 $1,350 $1,350 Task 2 - Data Collection and Review 2.1 -Data Collection & Review 4 4 8 $940 $940 Task 3 - Site Visit and Meetings 3.1 - Site Visit 4 4 8 $940 $940 3.2 - Meetings (2) 8 8 $1,080 $1,080 Task 4 - Evaluation of Relocation Altematives 4.2 -Evaluate Altematives 24 12 36 $4,440 $5,000 $9,440 4.3 -Conduct Workshop with City Staff 4 8 12 $1,340 $1,340 Task 5 - Prepare Preliminary Cost Estimate 5.1 - Prepare Estimate 1 12 13 $1,335 $1,335 Task 6 - Prepare Assessment Report 6.1 - Prepare Draft Report 24 8 30 6 68 $7,280 $7,280 6.2 - Prepare Final Report 16 12 2 30 $3,430 $3,430 Subtotal Direct Costs: 109 48 42 12 4 215 $24,545 $5,000 $29,545 Mileage $150 Reproduction / Miscellaneous Field Costs $300 Subtotal Direct Costs: $450 Total Estimated Fee $29,995 FeeEstimateExhibitB6-12.07 (2)