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HomeMy WebLinkAboutRMC Water and Environment; 2013-05-07; UTIL1004UTIL1004 AGREEMENT FOR PHASE III RECYCLED WATER FINANCIAL ASSISTANCE APPLICATION SERVICES (RMC WATER AND ENVIRONMENT) THIS AGREEMENT is made and entered into as of the ^day of , 2013, by and between the CARLSBAD IVfUNICIPAL WATER DISTRIQt, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, ("CMWD"), and RMC WATER AND ENVIRONMENT, a California corporation, ("Contractor"). RECITALS A. CMWD requires the professional services of a water resources planner that is experienced in preparing financial assistance application package and a project report. B. Contractor has the necessary experience in providing professional services and advice related to State Revolving Fund Loan Application. 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. 6. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be twenty nine thousand four hundred thirty dollars ($29,430). 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 General Counsel Approved Version 1/30/13 1 be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify CMWD and the City of 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 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. 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 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 David Ahles For Contractor Name Rosalyn Prickett Senior Engineer Address Phone Carlsbad Municipal Water District 1635 Faraday Avenue Carlsbad, CA 92008 760-602-2748 Title Address Phone E-mail Water Resources Planner 10509 Vista Sorrento Pkwy, Ste 205 San Diego, CA 92121 858-875-7400 rprickett@rmcwater.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 ofthe 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 ofthe 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 General Counsel Approved Version 1/30/13 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 RMC WATER AND ENVIRONMENT, a California corporation (print n^me/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: Tooidont or Executive Manager -ef Division Director as authorized by the Executive Manager By: (sign here) (print name/title)^ If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. If a 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: CELIAN A. BREWER, General Counsel BV: Af?iA^ Assistant General Counsel General Counsel Approved Version 1/30/13 EXHIBIT A San Diego San Jos(- '>!)nia Vton Walnut C ref* 4225 Executive Square Suite 750 San Diego, CA 92037 ph: 858.8.75.7400 fax: 858,875.7401 www.rnicwater.com imovutive SGfuthm for Wisterand the Envkmmmt April 3,2013 Mr. Dave Ahles City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 RE: Proposal to Prepare SRF Loan Application Dear Mr. Ahles: RMC Water and Environment (RMC) appreciates the opportunity to submit a proposal to assist the City of Carlsbad with a State Revolving Fund (SRF) Loan Application for your recycled water project. This proposal is based on our recent experience on other SRF Loan Applications and our involvement and understanding of the City of Carlsbad's Phase III Recycled Water Project. The State Water Resources Control Board (SWRCB) publication "Water Recycling Funding Program Guidelines" (July 2008) requires completion of a Financial Assistance Application package and a Project Report in order to be eligible for funding. This proposal contains preparation of both deliverables. RMC Qualifications RMC has an extensive resume of experience successfully preparing SRF documentation and securing SRF funding for agencies throughout California, as shown in Table 1 on the following page. RMC will complete the majority of the tasks needed for the application; however, based on RMC's experience securing funding for other agencies, there are certain tasks that are best completed and/or provided by City of Carlsbad staff RMC's role will be to coordinate the assembly of the application package, while requesting specific information and documentation fi-om the City. Page 2 of4 Table 1 RMC Experience with SRF Grant and Loan Applications April 3, 2013 Client Proposal/Project Title Grant/ Loan Funding Source Grant Program Name Amount Received Delta Diablo Sanitation District Aeration Basin Improvements Project Loan ARRA, SWRCB Clean Water SRF $4,200,000 Los Angeles Department of Water and Power Engineering Report: City Trunk Line South, Unit 2 Project Loan American Recovery & Reinvestment Act, DPH Drinking Water SRF $10,000,000 Los Angeles Department of Water and Power Green Business Case: Santa Ynez Water Quality Improvement Project Loan American Recovery & Reinvestment Act, DPH Drinking Water SRF $10,000,000 Los Angeles Department of Water and Power Engineering Report: River Supply Conduit Lower Reach, Unit 3 Project Loan American Recovery & Reinvestment Act, DPH Drinking Water SRF $10,000,000 Modesto, City of Phase 2 Tertiary Treatment Project Grant & Loan SWRCB Clean Water SRF $130,000,000 Novato Sanitary District Wastewater Facility Upgrade Loan Califomia Clean Water State Revolving Fund SRF $75,000,000 Palo Alto, City of Disinfection Alternatives Loan Califomia Clean Water State Revolving Fund SRF $25,000,000 Windsor, Town of Groundwater Well Replacement Project Grant/ Loan. CDPH, ARRA Safe Drinking Water SRF Loan Program $1,101,276 Yucaipa Valley Water District Wochholz WWTP ExpansionAJpgrade Loan SWRCB Clean Water State Revolving Fund $44,700,000 Yucaipa Valley Water District Yucaipa Valley Regional Brineline Loan SWRCB Water Recycling Funding Program $9,752,100 Yucaipa Valley Water District Recycled Water System Phase I Expansion Loan SWRCB Water Recycling Funding Program $7,560,385 Yucaipa Valley Water District Reverse Osmosis Facilities at Wochholz WWTP Grant & Loan SWRCB Grant, SWRCB Loan, EPA grant, Prop 50 Grant Multiple $5,003,170 April 3, 2013 Page 3 of4 Proposed Scope of Work Task 1 - Review Existing Documents This task involves a review of existing documents and available background information, including the following: • Phase III Recycled Water Project Feasibility Study (June 2012) • Phase III Recycled Water Project Mitigated Negative Declaration (November 2012) Task 2 - Prepare Project Report The majority of the information required for the Project Report is contained in the existing documents identified in Task 1. However, some updating of information and additional analysis will be needed to complete the Project Report to satisfy the requirements in the SWRCB publication. RMC will compile the following information in the Project Report format: 1. Study area characteristics. 2. Water supply characteristics and facilities. 3. A cost-effectiveness evaluation of altemative project concepts. 4. An estimate of the total capital costs and annual operation and maintenance costs. 5. A map of the service area. 6. A written record of the required public meeting. A noticed public meeting is required to obtain public comment on the proposed project and to discuss financial and environmental factors related to the project. 7. Documentation showing that the applicant has the legal, institutional, managerial, and financial capability to construct the proposed project and to operate and maintain the project facilities throughout their service life. 8. A discussion of the selected altemative that includes the following: o A detailed description of the selected altemative. o A statement of the relevant design criteria. o The estimated construction cost and annual operation and maintenance cost, and a description of how the local costs will be financed, o Dedication of an identified source of revenue to repay the loan (Required for loans only). o A discussion of the water quality and other non-monetary benefits ofthe project, o A discussion of any interagency service agreements necessary to construct, operate, and maintain the system. 9. An implementation schedule for completion of the project. An electronic copy of a draft Project Report will be provided to the City for review and comment. Following incorporation of comments received, an electronic copy ofthe final Project Report will April 3, 2013 Page 4 of 4 be provided that is suitable for submittal to the State. RMC will also help the City in responding to any comments and questions received fi-om the SWRCB staff on the Project Report. Task 3 - Assist with Financial Assistance Application RMC will assist the City with preparing the SWRCB Financial Assistance Application, using financing information and required certificates provided by the City. It is assumed that Carlsbad and/or the design consultant will provide up-to-date cost estimates for planning, construction, design, right-of-way acquisition, utility relocation, engineering services during construction, contingencies, and any additional cash flow needs. RMC will compile all of the provided materials into a complete application package; no new materials will be developed by RMC. An electronic copy of a draft Financial Assistance Application will be provided to the City for review and comment. Following incorporation of comments received, an electronic copy of the final Financial Assistance Application will be provided that is suitable for submittal to the State. Task 4 - Project Management and Meetings RMC will perform general project management activities, including budget and schedule tracking, and preparation of monthly invoices and progress reports. It is anticipated that several meetings will be necessary with City staff during preparation of the draft Project Report and Financial Assistance Application, and possibly when responding to comments. For budgeting purposes, a total of two (2) meetings with City staff have been included in this proposal. Proposed Fee A breakdown of our proposed fee is contained in the attached table, to be billed on a time and materials basis for the services described above. We are prepared to begin work on this effort upon your authorization to do so. Proposed Schedule The draft Project Report can be completed approximately four to five weeks following the notice to proceed. The draft Financial Assistance Application will be completed within two to three weeks following receipt of all financing information and certificates fi-om the City. Please do not hesitate to contact me (858-875-7420) if you have any questions about this proposal. Sincerely, Rosalyn Prickett, AICP Water Resources Planner RMC Fee Estimate City of Carlsbad Proposal to Prepare SRF Loan Application PIC PM PE Admin $275 $205 $160 890 Task 1: Review Existing Documents Review Existing Documents 0 8 8 0 16 $2,920 $0 $2,920 Subtotal Task 1: 0 8 8 0 16 $2,920 $0 $2,920 Task 2: Prepare Project Report Prepare Project Report 4 32 44 0 80 $14,700 $0 $14,700 Subtotal Task 2: 4 32 44 0 80 $14,700 $0 $14,700 Task 3: Assist With Financial Assistance Application Assist With Financial Assistance Application 2 12 20 0 34 $6,210 $0 $6,210 ^_ ^ Subtotal Task 3: 2 12 20 0 34 $6,210 $0 $6.210 Task 4: Project Management and Meetings Project Management and Meetings 8 12 0 8 28 $5,380 $220 $5,600 Subtotal Task 4: 8 12 0 8 28 $5,380 $220 $5,600 1. The individual hourly rates include salary, overhead and profit. 2. Subconsultants will be billed at actual cost plus 10%. 3. Other direct costs (ODCs) such as reproduction, delivery, mileage (rates will be those altowed by current IRS guidelines), and travel expenses, will be billed at actual cost plus 10%. 4. RMC reserves the right to adjust its hourly rate structure and GDC markup at the beginning ofthe calendar year for all ongoing contracts.