HomeMy WebLinkAboutNinyo & Moore; 2014-04-24; UTIL1085UTIL1085
AGREEMENT FOR GEOTECHNICAL EVALUATION SERVICES
(NINYO & MOORE)
iTHlS AGREEMENT is made and entered into as of the day of
_, 2014, 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 NINYO & MOORE, a California corporation,
("Contractor"),
RECITALS
A. CMWD requires the professional services of a Geotechnical Engineer that is
experienced in geotechnical evaluations.
B. Contractor has the necessary experience in providing professional services and
advice related to geotechnical reports.
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.
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 thousand one hundred dollars ($20,100). 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
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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 ofthis 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 Carisbad, their
officers, officials, employees and volunteers from and against all claims, damages, losses and
expenses including attorneys fees arising out of the peri'ormance 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 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,
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-:VM", 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".
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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 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 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.
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,
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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 incurred 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 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,
For CMWD
Name
Title
For Contractor
David Ahles
Sr. Engineer
Address
Phone
Carisbad Municipal Water District
1635 Faraday Ave,
Carisbad, CA 92008
760-602-2748
Name
Title
Address
Phone
E-mail
Jeffrey Kent
Sr. Engineer
5710 Ruffin Rd.
San Diego, CA 92123
858-576-1000
jkent@ninyoandmoore.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 Carisbad Conflict of Interest Code. The Contractor shall report:
investments or interests in all four categories.
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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 peri'ormance 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 fonwarded 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 CMVi/D address contained in this
Agreement. CMWD will make a determination of fact based upon the work product delivered to
CMWD and of the percentage of work that Contractor has performed which is usable and of
worth to CMWD in having the Agreement completed. Based upon that finding CMWD will
determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may terminate this
Agreement. In this event and upon request of CMWD, Contractor will assemble the work
product and put it in order for proper filing and closing and deliver it to CMWD. Contractor will be
paid for work performed to the termination date; however, the total will not exceed the lump sum
fee payable under this Agreement. CMWD will make the final determination as to the portions of
tasks completed and the compensation to be made,
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
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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.
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26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR
NINYO & MOORE, a California corporation
(sign here)
Avram Ninyo / President
(print name/title)
By:
(sign here)
Elaine O. Autus / Assistant Secretary
(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
or Executive Manager
Jtvfeion Director as authorized by the
Executive Manager
Jim Howell
ATTEST:
BARBARA E
Secretary
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
By:.
' Assistant General Counsel
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EXHIBIT A
-ll.-, ,• (rr>viiri(imen!til Science's CoriStiiljnis
April 2, 2014
Proposal No. P-21459
Mr. David Ahles, PE
City of Carisbad, Public Works - Engineering
1635 Faraday Avenue
Carisbad, Califbmia 92008
Subject: Proposal fbr Geotechnical Evaluation
La Costa Golf Course Wateriine Replacement
Carlsbad, California
Dear Mr. Ahles:
In response to your request, we are pleased to submit this proposal to perform a geotechnical
evaluation for the La Costa Golf Course Wateriine Replacement project in Carlsbad, California.
Based on our review of 75 percent submittal preliminary plans, we understand the project will
include the installation of 970 feet of 8inch diameter PVC wateriine piping. An approximately
580-foot long section of the piping is proposed to be installed using horizontal directional drill-
ing (HDD) techniques to cross beneath San Marcos Creek and various portions of the golf
course. The HDD portion of the piping installation will extend to depths up to approxinnately
30 feet below the surface grade.
SCOPE OF SERVICES
Based on our understanding ofthe project, we propose the fbllowing scope of services:
• Reviewing published geologic reports, groundwater reports, topographic maps and stereo-
scopic aerial photographs.
• Obtaining a boring pennit from the County of San Diego Department of Environmental
Health (DEH). As part of our permit application, we will need to have the owner's represen-
tative sign a Property Owner Consent forni.
• Reviewing of utility plans provided by the client.
• Coordinating for site access with the client and the property owner.
• Performing a geologic reconnaissance of the site.
57 !0 Ruffin Road • San Diego. Caiifomia 92123 • Frcne (858) 576 1000 • Fax (358) 576-9600
SanDiego • imrm • iDsAngeies • SarxJw Cucamonga • OaK-Td • Smfiwm • San Jose • Saoamento
lasvsegas • Ptmm • Tucson • Prescott vs(ey • t^nvw • Hcsuston
La Costa Golf Course Wateriine Replacement April 2, 2014
Carisbad, Califomia Proposal No. P-21459
Siting and staking proposed exploratory boring locations for clearance by Underground
Service Alert.
Drilling, logging, and sampling two exploratory excavations to a depth of approximately
35 feet (or refusal) at the proposed locations of the HDD entry and receiving pits. Bulk and
in-place samples of the encountered soils will be collected and transported to our in-house
geotechnical laboratory for testing.
Performing geotechnical laboratory testing on representative samples to evaluate soil pa-
rameters for design purposes.
Compiling and analyzing the data obtained from our background research, subsuiface explora-
tion, and laboratory testing.
Preparing an illustrated geotechnical evaluation report presenting our findings and con-
clusions related to geotechnical conditions at the site and providing recommendations for
the design and construction of the project
FEE ESTIMATE
Our fees for the services described for the project will be invoiced on a lump sum basis. Our
fee to perform the geotechnical evaluation outlined above will be $20,100 (Twenty Thousand
One Hundred Dollars).
ASSUMPTIONS
The proposed scope and fee is based on the following assumptions:
• The site will be granted by the owner and is accessible to access to a limited-access drill rig.
• Our field services may be performed during daylight hours.
• We will not need to install or erect temporary fencing for the perfonnance of our field work
including drilling operations.
• Locations of the borings will be coordinated with the client and the owner.
SCHEDULING
We are prepared to begin our sen/ices immediately upon receiving your authorization to proceed.
We anticipate that scheduling the drilling operations and acquisition of a boring permit will take
approximately 2 weeks after receipt of the signed Property Owner Consent forni for the boring
La Costa Golf Course Wateriine Replacement April 2, 2014
Carisbad, California Proposal No. P-21459
permit application. The drilling operations may take up to two days to perfonn. The report will be
finished approximately four weeks following the drilling operations. If this proposal meets with your
approval, please send us your contract documents fbr signature authorizing us to proceed.
We appreciate the opportunity to submit this proposal and look fonward to working with you on
this project.
Respectfully submitted,
NINYO & MOORE
Jertrey T. Kent PE, GE Kenneth H. Mansir, Jr., PE, GE /
Senior Engineer Principal Engineer /
JTK/KHM/gg
Distribution: (1) Addressee