HomeMy WebLinkAboutMCS Inspection Group; 2013-03-21; UTIL979UTIL979
AGREEIVIENT FOR COATING INSPECTION SERVICES
(MGS INSPECTION GROUP)
THIS AGREEMENT is made and entered into as of the tQ^l day of
Al^roA 2013, 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 MCS INSPECTION GROUP, a sole
proprietorship, ("Contractor").
RECITALS
A. CMWD requires the professional services of a NACE certified inspector that is
experienced in coating inspection.
B. Contractor has the necessary experience in providing professional services and
advice related to steel water tank coating inspections.
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 PERFORIVIANCE
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. TERIVI
The term of this Agreement will be effective for a period of two (2) years 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
ninety two thousand three hundred dollars ($92,300). No other compensation for the Services
will be allowed except for items covered by subsequent amendments to this Agreement.
CMWD reserves the right to withhold a ten percent (10%) retention until CMWD has accepted
the work and/or Services specified in Exhibit "A".
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
General Counsel Approved Version 1/30/13
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 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 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
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".
General Counsel Approved Version 1/30/13
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 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:
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 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.
General Counsel Approved Version 1/30/13
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 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 DOCUIVIENTS
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.
For CMWD
Name
Title
For Contractor
David Ahles
Senior Civil Engineer
Address
Carlsbad Municipal Water District
5950 El Camino Real
Carlsbad, CA 92008
Phone 760-602-2748
Name
Title
Address
Phone
E-mail
Rusty Pauls
Sole Proprietor
161 Nutwood Circle
Paso Robles, CA 93446
805-610-5455
info@mcsinspectiongroup.com
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 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.
General Counsel Approved Version 1/30/13
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 (10) 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 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.
General Counsel Approved Version 1/30/13
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 ofthe 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 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. 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.
///
///
///
General Counsel Approved Version 1/30/13
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
MCS INSPECTION GROUP,
a sole proprietorship
CARLSBAD MUNICIPAL WATER DISTRICT,
a Public Agency organized under the
Municipal Water Act of 1911, and a \\)>^tAl
Subsidiary District of the City of Carlsbad
By:
here)
Rusty Pauls, Sole Proprietor
^Prcoidont or Executive Manager \<^^^^]^ll"'o,^
: Divioion Dirootor ac authorized byji^^y-'i^-^
(print name/title)
^rSS"^^ (• .WW.-. — ... w. _,.www... .w \N'"«»1PA1
or Division Dirootor ac authorized byjiftflj!y--|^^
Exooutivo Monoger '
ATTEST:
By:
(sign here) BARBARA ENGLESON
Secretary
(print name/title)
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
Assistant General
General Counsel Approved Version 1/30/13
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
State of California
County ofs,
before me,
uaie ^—- ,—- I nere insi
personally appeared TSUJr-)4-^W 4r^a^L^^ \ $
7 ' Name(s) of
Here Insert Name ! and Title of the Officer '
Name(s) of Slgner(s)
KERRY COOPER
Commission # 188071'
Notary Public - California 1
J- San Luis Obispo County J
^^^^^ My Comm. Expires Feb 21,20141
who proved to me on the basis of satisfactory
evidence to be the personi^ whose nam^) is/ajji
subscribed to the within instrument and acknowledged
to me thaj, he/sj?^th^ executed the same in
his/l]<g!f/lhelr authorized capacity(i^, and that by
h\s/h^r/V^\r signature^) on the instrument the
person(^, or the entity upon behalf of which the
person;^ 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 apd/ffibial seal.
Place Notary Seal Above
Signature
OPTIONAL
(Ignature ef Notary Public
Ttiough ttie information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattactiment of this form to another document.
Descrkttion of Attached Document
Title or Type of Document:
Document Dat
Signer(s) Other ThanNamed Above:
Capacity(ies) Claimed DV^gner(s)
Signer's Name:
• Corporate Officer — Title(s):
• Individual
• Partner — • Limited • General
• Attorney in Fact
• Trustee
• Guardian or Conservator
• Other:
Signer Is Representing:
Number of Pages:
Signer's Name:
• Corporate Officer — Tltle(s):
• Individual
• Partner — • Limited • General
attorney in Fact
•
• GuardiarKy Conservator
• Other:
Signer Is Representing:
' 2012 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907
J^^^^^^ I Inspection
Group Exhibit "A'
NACE Certified Inspection Services, MCS Inspection Group
info@mcsinspectiongroup.com 805-610-5455
Date: February 14, 2013
Attention: David Ahles, Senior Engineer
Re: Proposal for Coating Inspection Services -Elm, Ellery, Skyline Water Storage Tanks
l\yiCS Inspection Group is pleased to provide you with this proposal to provide Coating
Inspection Services for Storage Tanks located in the City of Carlsbad.
MCS Inspection Group understands the need for full tinrie coating inspection. MCS Inspection
Group will provide coating inspection to fulfill the specific requirements of the project. UCS
Inspection Group has provided similar services to other agencies such as Grangeville
Boulevard project in Hanford, Yuba City Harbor Storage and Pumping Plant in Yuba City;
Fountaingrove Tanks in Santa Rosa and Chino II Desalter in Chino.
Coating Attributes
During the normal course of inspection the following items need to be verified and
documented to assure the project is in compliance with the specifications, and in accordance
with accepted industry practices. The following quality related attributes require monitoring:
Pre Surface Preparation
Drying Schedules
Surface Preparation
Holiday Inspection
Protective Coverings
Mixing Of Materials
Final Inspection
Ambient Conditions
Application
161 Nutwood Circle, Paso Robles CA 93446
Project Fee Schedule and Breakdown of Rates
The hourly rate for coating inspection services is $69 per hour. The projected
estimate is based on Tank Coatings I have inspected in the past. It is expected that
it will take 60 working key inspection days for the Ellery Tank and 50 days each for
the Elm and Skyline tanks.
ITEM DESCRIPTION QTY UNITS UNIT
PRICE
EXTENDED
PRICE
A Elllery Tank Inspection 500 Hours $69 $34,500
B Elm Tank Inspection 400 Hours $69 $27,600
C Skyline Tank Inspection 400 Hours $69 $27,600
D Project Management 40 Hours $65 $2,600
Total Estinnated Cost: $92,300.00
Ifthe schedule slips or extends, fees may be impacted. Fees shall not exceed the
estimated total without prior written approval.
Feel free to contact us to discuss any concerns, or to request additional
information about our projects, services or capabilities. MCS looks forward to
beginning work on this project upon receiving a signed-as-accepted copy of this
proposal. We appreciate the opportunity to submit this proposal and look fon/vard
to working with you.
Respectfully Submitted,
Rusty Pauls
NACE Certified III #10726
161 Nutwood Circle, Paso Robles CA 93446