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Home My WebLink About2017-05-23; City Council; ; Approve Resolutions authorizing the amendment of existing City of Carlsbad Master Service Agreements for horizontal construction management and inspection services and the execution of new CMWD Master Service AgreementsCA Review _fil_ ~ JOINT CITY COUNCIL AND ~ Si~ftR~~~~WATER DISTRICT Meeting Date: May 23, 2017 To: Mayor/President and City Council/Board From: Staff Contact: Subject: Kevin Crawford, City Manager Fred Gaines Jr., Management Analyst Fred.GainesJr@carl sbad ca.gov or 760-602-7557 Approve Resolutions authorizing the amendment of existing City of Carlsbad Master Service Agreements for horizontal construction management and inspection services to reduce the total contract amounts from $3,200,000 to $2,300,000, and the execution of new Carlsbad Municipal Water District Master Service Agreements for horizontal construction management and inspection services in an amount not to exceed $900,000. Recommended Action Approve Resolutions authorizing the amendment of existing City Master Service Agreements for horizontal construction management and inspection services to reduce the total contract amounts from $3,200,000 to $2,300,000, and the execution of new Carlsbad Municipal Water District Master Service Agreements for horizontal construction management and inspection services in an amount not to exceed $900,000. Executive Summary The city's Construction Management & Inspection Division executes master service agreements with consultants when expertise is needed to support construction projects, or when staff levels are not sufficient. There are projects that require as-needed efforts with both the horizontal (i.e., civil) construction management and inspection, and water construction management and inspection. The agreements were initially executed via the City of Carlsbad legal entity. It has been determined that separate agreements for the City of Carlsbad and the Carlsbad Municipal Water District are now required. Discussion In September 2016, four City of Carlsbad Master Service Agreements were executed for horizontal construction management and inspection services. It is now necessary to create three new Carlsbad Municipal Water District Master Service Agreements, and amend three City of Carlsbad Master Service Agreements to allow work to be performed for water construction management and inspection. A portion of the previously awarded funds will be applied to Carlsbad Municipal Water District projects to reflect estimated project needs. This allows Carlsbad Municipal Water District to access the same quality skills and technical abilities of consultants' staff and proposals accepted by the city during a prior competitive bidding process. One ofthe original four City of Carlsbad Master Service Agreements shall remain unchanged. Page 251 Fiscal Analysis Each agreement is for an annual not-to-exceed amount and will be used as needed. Funding for services on public projects is available in the Capital Improvement Program (CIP) Budget for Public Works projects and will come from the budget for specific projects where the services under these agreements are used. Funding for services on private projects is available in the Construction Management & Inspection Operating Budget and the Water Operations Operating Budget. Funds were approved with the fiscal year 2016-17 Operating and CIP Budgets and are expected to be approved for fiscal year 2017-18. The current City of Carlsbad agreements approved by City Council in September 2016 are as follows: Entity Consultant Amount Percent City of Richard Brady & Associates $800,000/year 100% Carlsbad Butier Engineering, Inc. $800,000/year 100% Kleinfelder-Simon Wong Engineering . $800,000/year 100% Infrastructure Engineering 100% Corporation S8001000Lyear TOTAL $3,200,000/year After the proposed changes the agreements would be: Entity Consultant Amount Percent City of Richard Brady & Associates $500,000/year 63% Carlsbad Butier Engineering, Inc. $500,000/year 63% Kleinfelder-Simon Wong Engineering $500,000/year 63% Infrastructure Engineering Corporation (NO CHANGES) S8001000Lyear 100% TOTAL $2,300,000/year Carlsbad Richard Brady & Associates $300,000/year 37% Municipal Kleinfelder-Simon Wong Engineering $300,000/year 37% Water Butier Engineering, Inc. S3001000Lyear 37% District TOTAL $900,000/year Payments will be made for actual work performed by the contractor based on the fee schedule in each agreement. Work performed for the Capital Improvement Program will be dependent on each project's funding as awarded by City Council on an individual basis. Similarly, payments will also be made for actual work performed for private development projects based on the fee schedule in each agreement, and is limited by the amounts appropriated by City Council during the annual operating budget process. Extensions of all agreements will be based on a Page 252 satisfactory review of the contractor's performance, city needs, and appropriation of funds by City Council to CIP projects and the Operating Budget. Sufficient funds are available in the approved fiscal year 2016-17 budget for the current request. Next Steps Execute the agreements and agreement amendments, and issue task orders as needed. Environmental Evaluation (CEQA) Pursuant to Public Resources Code section 21065, this action does not constitute a "project" within the meaning of CEQA in that it has no potential to cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment, and therefore does not require environmental review. Public Notification This item was noticed in accordance with the Ralph M. Brown Act and was available for public viewing and review at least 72 hours prior to the scheduled meeting date. Exhibits 1. Resolution authorizing the amendment of existing City of Carlsbad Master Service Agreements for horizontal construction management and inspection services to reduce the total contract amounts from $3,200,000 to $2,300,000. 2. Resolution authorizing the execution of new Carlsbad Municipal Water District Master Service Agreements for horizontal construction management and inspection services in an amount not to exceed $900,000. Page 253 RESOLUTION NO. 2017-094 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE AMENDMENT OF EXISTING CITY OF CARLSBAD MASTER SERVICE AGREEMENTS FOR HORIZONTZAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES TO REDUCE THE TOTAL CONTRACT AMOUNTS FROM $3,200,000 TO $2,300,000. EXHIBIT 1 WHEREAS, the City Council of the City of Carlsbad, California awarded four City of Carlsbad Master Service Agreements for horizontal construction management and inspection services in the amount of $3,200,000; and WHEREAS, it is now necessary to reduce the total contract amounts from $3,200,000 to $2,300,000, in order to create three Carlsbad Municipal Water District Master Service Agreements for $300,000, or a total amount of $900,000; and WHEREAS, City Council approved sufficient funds with the fiscal year 2016-2017 Operating and CIP Budgets to cover the first agreement year; and WHEREAS, expenditures for these professional services in subsequent fiscal years are subject to availability of council approved funding from the Public Works Operating Budget and the city's Capital Improvement Program. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the mayor of Carlsbad is hereby authorized and directed to execute the Master Service Agreements attached hereto with Richard Brady & Associates (Attachment A.1), Butier Engineering, Inc. (Attachment A.2), and Kleinfelder-Simon Wong Engineering (Attachment A.3). 3. That the city manager is hereby authorized to execute amendments to extend the agreements for three additional one-year periods or parts thereof in an amount not to exceed $500,000 per year. PASSED, APPROVED AND ADOPTED at a Joint Special Meeting of the Carlsbad Municipal Water District and the City Council of the City of Carlsbad on the 23rd day of May, 2017, by the following vote, to wit: AYES: M. Hall, K. Blackburn, M. Schumacher, C. Schumacher, M. Packard. NOES: None. ABSENT: None. (SEAL) - 1 ~ 3 ,i s 6 7 8 9 Exhibit A EXHIBIT "A" SCOPE OF SERVICES Contractor shall perform as-needed horizontal construction management and inspection services in accordance with the city's Request for Qualifications with Fee Proposal dated April 20, 2016. The agreed upon billing rates for services outlined in said proposal are attached hereto. Any rate increases are subject to negotiation and approval by city staff. If the use of subcontractors is approved by the City, they shall be billed at cost plus 10%. - Name ntle P,evailing Wage Ra te Srntt Reill•,', CCM Ccmtract Manai,:er/Senio $186.00 t:cnstructran Manager Ja'liflr Sat.in ders, Pf · Tech n ,cal Advi~o r /QA Manage r $2:37.00 Richa,rd Bract~·. PE, BC~E P'ri"c:ipa 1-ln-Charge ~2:97.00 Jim W.rge.m,m., PE Residerit EnRine-er $186.00 Ryan Fane, PE. QSD Resident Engine.er $186.00 Daniel'le Stephens, PE, Lf ED AP Resld1mt Eng.ineer ~145.00 Brian Monte5i, PE Resident Englne~r ?186.00 . Ben Sharon, PE FlectricaV l&C Im pect!Of'ls $186.00 Ryan Nishimura, PE Electric<'!l/1.S. C lns-pec:tiom $145.(JlJ 10 : It Lee? ll lggcr.s, Pt SE Slructu r.al !r,.spettf1;1n$ $2.l7.00 11 jnm Sta ton, EIT, QSD Du umerrt (:a,ntrolf Constra i:t SlD3.0U Aclrn lrn~trntio n/Sc:h cdu ling ' SUB-CONSULTANTS·"* - I Name TitJe Prevailing Wi!ge Rate 1 SCST Priind p;,t Engl,,eer/Geotogi,t 51711.00 :z SC:."T Senior Enwrieer/Geologist $146-.UO .3 S.CST Staff Engineer /Geologist $116.00 4 SCST ProJect ManageT I $12 1.00 5 t..i S.ille So l~J.ons lnsjpectm $154.00 • Prevailing wa15e rates uo r:iol inLiude Dl/ertime .. ,.Subc1J<ll.$1,1ltant~, sl1bc::0<ntractors, inc! all other dlirec.t com (00-CsJ \Viii be billed at actual cost plus a la psercent markup. 0 • Arrnual e!>t al<1tion of 3% Honrl•~ ra e inc.luc! e overhead for Laptops, wirekis:S conr..1H.tlon,, c,ell phones, c:opies, and DtherminDr ind (len,als. Mileage at the fab site will be d 1arged tlhe IRS 5t<'ln_dard rate City Attorney Approved Version 9/27 /16 3 Page 259 TRAN1477 AMENDMENT NO. 1 TO MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES BUTlER ENGINEERING, INC. ent No.1 is entered into and effective as of the ~Y of -----------:------1'---'-~~=->t-----' 20B:'amending the agreement dated September 29, 2016 (the "Agreement by a between the City of Carlsbad, a municipal corporation, ("City"), and BUTlER ENGINEE G, INC., ("Contractor") (collectively, the "Parties") for as-needed construction management and inspection services for civil engineering/horizontal projects. RECITALS A. The Parties desire to alter the Agreement's original scope of work to reduce the annual dollar amount of the Agreement by three hundred thousand dollars ($300,000) for a revised Agreement amount of five hundred thousand dollars ($500,000), and reduce subsequent extensions per the original Agreement by three hundred thousand dollars ($300,000); and B. The Parties have negotiated and agreed to a supplemental scope of work and fee schedule, which is attached to and incorporated by this reference as Exhibit "A", Scope of Services and Fee. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. In addition to those services contained in the Agreement, as may have been amended from time to time, Contractor will provide those services described in Exhibit "A". With this Amendment, the total annual Agreement amount shall not exceed five hundred thousand dollars ($500,000). 2. City will pay Contractor for all work associated with those services described in Exhibit "A" on a time and materials basis not-to-exceed five hundred thousand dollars ($500,000). Contractor will provide City, on a monthly basis, copies of invoices sufficiently detailed to include hours performed, hourly rates, and related activities and costs for approval by City. 3. Contractor will complete all work described in Exhibit "A" by September 29,2017. 4. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 5. All requisite insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. City Attorney Approved Version 9/27/16 !Iliac h rr1 errJ A 3 TRAN1476 AMENDMENT NO. 1 TO MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES KLEINFELDER -SIMON WONG ENGINEERING This ndment No.1 is entered into and effective as of the ~ay of -----L......:.----\~~~------' 20...[2L amending the agreement dated September 29, 2016 (the "Agreement") b and between the City of Carlsbad, a municipal corporation, ("City"), and KLEINFELDER-S ON WONG ENGINEERING, ("Contractor") (collectively, the "Parties") for as-needed construction management and inspection services for civil engineering/horizontal projects. RECITALS A. The Parties desire to alter the Agreement's original scope of work to reduce the annual dollar amount of the Agreement by three hundred thousand dollars ($300,000) for a revised Agreement amount of five hundred thousand dollars ($500,000) and reduce subsequent extensions per the original Agreement by three hundred thousand dollars ($300,000); and B. The Parties have negotiated and agreed to a supplemental scope of work and fee schedule, which is attached to and incorporated by this reference as Exhibit "A", Scope of Services and Fee. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. In addition to those services contained in the Agreement, as may have been amended from time to time, Contractor will provide those services described in Exhibit "A". With this Amendment, the total annual Agreement amount shall not exceed five hundred thousand dollars ($500,000). 2. City will pay Contractor for all work associated with those services described in Exhibit "A" on a time and materials basis not-to-exceed five hundred thousand dollars ($500,000). Contractor will provide City, on a monthly basis, copies of invoices sufficiently detailed to include hours performed, hourly rates, and related activities and costs for approval by City. 3. Contractor will complete all work described in Exhibit "A" by September 29, 2017. 4. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 5. All requisite insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. City Attorney Approved Version 9/27/16 1 Exhibit A EXHIBIT "A" SCOPE OF SERVICES Contractor shall perform as-needed horizontal construction management and inspection services in accordance with the city's Request for Qualifications with Fee Proposal dated April 20, 2016. The agreed upon billing rates for services outlined in said proposal are attached hereto. Any rate increases are subject to negotiation and approval by city staff. If the use of subcontractors is approved by the City, they shall be billed at cost plus 10%. City Attorney Approved Version 9/27/16 3 Page 265 RESOLUTION NO. 1568 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD MUNICIPAL WATER DISTRICT BOARD (CMWD), AUTHORIZING THE EXECUTION OF NEW CARLSBAD MUNICIPAL WATER DISTRICT MASTER SERVICE AGREEMENTS FOR HORIZONTZAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES IN AN AMOUNT NOT TO EXCEED $900,000. EXHIBIT2 WHEREAS, the City Council of the City of Carlsbad, California awarded four City of Carlsbad Master Service Agreements for horizontal construction management and inspection services in the amount of $3,200,000; and WHEREAS, it is now necessary to reduce the total contract amounts from $3,200,000 to $2,300,000, in order to create three Carlsbad Municipal Water District Master Service Agreements for $300,000, or a total amount of $900,000; and WHEREAS, City Council approved sufficient funds with the fiscal year 2016-2017 Operating and CIP Budgets to cover the first agreement year; and WHEREAS, expenditures for these professional services in subsequent fiscal years are subject to availability of council approved funding from the Public Works Operating Budget and the city's Capital Improvement Program. NOW, THEREFORE, BE IT RESOLVED by the by the Carlsbad Municipal Water District Board of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the president of the Board is hereby authorized and directed to execute the Master Service Agreements attached hereto with Richard Brady & Associates (Attachment A.4), Butier Engineering, Inc. (Attachment A.S), and Kleinfelder-Simon Wong Engineering (Attachment A.6). 3. That the city manager is hereby authorized to execute amendments to extend the agreements for three additional one-year periods or parts thereof in an amount not to exceed $300,000 per year. TRAN1561 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (10) days after receipt of notification to proceed by CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of Contractor, or delays caused by CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed three hundred thousand dollars ($300,000) per Agreement year. If the City elects to extend the Agreement, the amount shall not exceed three hundred thousand dollars ($300,000) per Agreement year. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A". Prior to initiation of any project work by Contractor, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax 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 2 General Counsel Approved Version 9/1/15 Page 272 TRAN1561 CMWD for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and CMWD. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carlsbad 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 willful misconduct or negligent act or omission 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 CMWD'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-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD 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. The full limits available to the named insured shall also be available and applicable to CMWD as an additional insured. 10.1.1 Commercial General Liability Insurance. $2,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies 3 General Counsel Approved Version 9/1/15 Page 273 TRAN1561 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 CMWD). $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 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. 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 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 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. 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 4 General Counsel Approved Version 9/1/15 Page 274 TRAN1561 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 notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement are: ForCMWD: For Contractor: Name Elaine Lukey Name Javier Saunders Title Public Works Director Title Exec. Vice-President Dept Public Works Address 371 O Ruffin Rd. Carlsbad Municipal Water District San Diego, CA 92123 Address 1635 Faraday Ave. Phone 858-496-0500 Carlsbad, CA 92008 Email jsaunders@rbrady.net Phone 760-602-2751 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 Clerk for the City of Carlsbad 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 5 General Counsel Approved Version 9/1/15 Page 275 TRAN1561 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 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. 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 6 General Counsel Approved Version 9/1/15 Page 276 TRAN1561 discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any agreement claim submitted to CMWD must be asserted as part of the agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to CMWD, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If CMWD seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon CMWD and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of CMWD, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 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. 7 General Counsel Approved Version 9/1/15 Page 277 Exhibit A MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (RICHARD BRADY & ASSOCIATES) EXHIBIT "A" SCOPE OF SERVICES Contractor shall perform as-needed horizontal construction management and inspection services in accordance with the city's Request for Qualifications with Fee Proposal dated April 20, 2016. The agreed upon billing rates for services outlined in said proposal are attached hereto. Any rate increases are subject to negotiation and approval by city staff. If the use of subcontractors is approved by the City, they shall be billed at cost plus 10%. 9 General Counsel Approved Version 9/1/15 Page 280 Exhibit A Name nue Prevailin& Wage Rate 1 Scott Reilly, GCM Contra.ct Man ager /Senio $186.00 Constructian Manager 2 Javi?r S..unders, PE Tech n1cal Adviso r/QA Manager $237.00 3 Richard Brady, PE, BCEE f>rhiclpa l-lri-Charge $297.00 4 Jim Wa15em'1.n, PE Reside,n Engineer $186.00 s Ryan Fane, PE, QSD Resident Engineer ~1S6.00 6 Danielle Stephens, PE, LUO AP R~lder1t Engineer H 45.00 7 Brian Montesi, PE Resident Engineer $186.00 8 Ben Sharon, PE Electrica!/l&C lnspectJoM $186.00 9 Ryan Nish irnura, PE E!ectrical/1& C Ins pii!'ctloru $145.00 1D R. l ee Biggers, P~. SI: Structural ln$pecti1Jns $237.00 11 nm Stanton, EIT, QSD Document Cont ralfCor,stra r.t $103.00 Adlm lii1SU~tio n/Sch~clu ling I SUBCONSULTANTS0 Name Tlile Prevailing Wage Rate 1 SCST Pri11cipgl Engineer/Geologist $174.0D 2 SCST Senior Engineer/Geologi:;t S146:oo 3 SCSi 5,taff Eng]neer /Geologi:;t $116.00 4 SCST Project Manager I $l.21.00 5 L.i Sa fie So Im ion, lnspe-ClOf $154.00 Notes: • Prevailing wage rate~ do r)Ol fntlude 1>1/ertime •~submn:sultants, subi;ontr-actors, ~nd all otller clirect costs (OOCs) wi ll be billed at actual cert plus a 10 percent ntarkup. o.+ ArlrlUii l ·!!~taliltion <J.f 3% Hourlv rate~ inciud'e o•,•erhead for Laptops, wlreles.s connection, tell poones, mpies, and other minor ,nridentals. Mileage at tile Job site will be charged the IRS $!~ nd3 rd rate 10 General Counsel Approved Version 9/1/15 Page 281 TRAN1559 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (10) days after receipt of notification to proceed by CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager''). The Executive Manager (or designee) or General Manager will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of Contractor, or delays caused by CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed three hundred thousand dollars ($300,000) per Agreement year. If the City elects to extend the Agreement, the amount shall not exceed three hundred thousand dollars ($300,000) per Agreement year. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A". Prior to initiation of any project work by Contractor, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax 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 2 General Counsel Approved Version 9/1/15 Page 283 TRAN1559 directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and CMWD. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carlsbad 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 willful misconduct or negligent act or omission 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 CMWD'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-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10 .1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD 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. The full limits available to the named insured shall also be available and applicable to CMWD as an additional insured. 10.1.1 Commercial General Liability Insurance. $2,000,000 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. 3 General Counsel Approved Version 9/1/15 Page 284 TRAN1559 10.1.2 Automobile Liability. (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 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 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. 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 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 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. 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. 4 General Counsel Approved Version 9/1/15 Page 285 TRAN1559 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 notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement are: ForCMWD: Name Elaine Lukey Title Public Works Director Dept Public Works Carlsbad Municipal Water District Address 1635 Faraday Ave. Carlsbad, CA 92008 Phone 760-602-2751 For Contractor: Name Title Address Phone Email Mark M. Butier Jr. Vice President I CFO 17822 E. 171h Street, Suite 404 Tustin, CA 92780 714-832-7222 jrbutier@butier.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 Clerk for the City of Carlsbad 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. 5 General Counsel Approved Version 9/1/15 Page 286 TRAN1559 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. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, CMWD will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any agreement claim submitted to CMWD must be asserted as part of the agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to CMWD, it may be considered fraud and Contractor may be subject to criminal 6 General Counsel Approved Version 9/1 /15 Page 287 TRAN1559 prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If CMWD seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon CMWD and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of CMWD, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 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. 7 General Counsel Approved Version 9/1 /15 Page 288 TRAN1560 4. PROGRESS AND COMPLETION The work for any project granted to Contractor pursuant to this Agreement will begin within ten (10) days after receipt of notification to proceed by CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of Contractor, or delays caused by CMWD inaction or other agencies' lack of timely action. In no event shall a specific Task Description exceed the term of this Agreement. 5. COMPENSATION The cumulative total for all projects allowed pursuant to this Agreement will not exceed three hundred thousand dollars ($300,000) per Agreement year. If the City elects to extend the Agreement, the amount shall not exceed three hundred thousand dollars ($300,000) per Agreement year. Fees will be paid on a project-by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A". Prior to initiation of any project work by Contractor, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which, upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, will be considered a part of this Agreement. The Task Description will include a detailed scope of services for the particular project being considered and a statement of Contractor's fee to complete the project in accordance with the specified scope of services. The Task Description will also include a description of the method of payment and will be based upon an hourly rate, percentage of project complete, completion of specific project tasks or a combination thereof. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. CMWD will not make any federal or state tax 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 2 General Counsel Approved Version 9/1/15 Page 292 TRAN1560 the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and CMWD. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by CMWD. 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carlsbad 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 willful misconduct or negligent act or omission 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 CMWD'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-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the Risk Manager or Executive Manager for CMWD 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. The full limits available to the named insured shall also be available and applicable to CMWD as an additional insured. 10.1.1 Commercial General Liability Insurance. $2,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies 3 General Counsel Approved Version 9/1/15 Page 293 TRAN1560 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 CMWD). $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 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. 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 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 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. 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 4 General Counsel Approved Version 9/1/15 Page 294 TRAN1560 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 notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement are: ForCMWD: Name Elaine Lukey Title Public Works Director Dept Public Works Carlsbad Municipal Water District Address 1635 Faraday Ave. Carlsbad, CA 92008 Phone 760-602-2751 For Contractor: Name Michalle Beringhaus Title Project Controls Specialist Address _5_7_6_1_C___,op._l_ey.__D_r._S_t_e_. _1 o_o __ _ Phone Email San Diego, CA 92111 858-223-8466 mberinghaus@Kleinfelder.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 Clerk for the City of Carlsbad 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 5 General Counsel Approved Version 9/1/15 Page 295 TRAN1560 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 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. 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 6 General Counsel Approved Version 9/1/15 Page 296 TRAN1560 discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any agreement claim submitted to CMWD must be asserted as part of the agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to CMWD, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If CMWD seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon CMWD and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of CMWD, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 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. 7 General Counsel Approved Version 9/1/15 Page 297 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego On April 24, 2017 before me, Sherry Balmer, Notary Public (insert name and title of the officer) personally appeared _C_a_r_l_D_._L_o_w_m_a_n __________________ ~-- who proved to me on the basis of satisfactory evidence to be the person(4 whose name(2Jd§flare s,ubscribed to the within instrument and acknowle?~d to me that§)s~y executed the same in @thet=ftheir authorized capacity~S), and that by ~~.@r/thoir signature~--on the instrument the person_(sY.or the entity upon behalf of which the person~cted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ~ Signature ~/JA._.A___; (Seal) ,.. ........... _ ....... ' '·"' . . ...... " "!l , "' .. \\'.:<~-S. BALMER . . u :at,O'i:\1~~'.::\ Com1rnssion No. 2040055 z ~ !1,'. "' ··1' .,°· ·c;' NO" I\RY f'UBL IC -CALIFORNIA 8 ,.,.).,,. ·-· ~ L ·.-:--'\l ~; SM, DIEGO COUNTY ~- '· ...... My Comm E,p,res SEPTEMBER 1. 2017 ...._...--··--·---.-.... ..... Page 299 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego on April 25, 2017 before me, Terri London, Notary Public (insert name and title of the officer) personally appeared Marc McIntyre , who proved to me on the basis of satisfactory evidence to be the personM' whose nam~ subscribed to the within instrument and acknowledged to me that ~she/they executed the same in ~-Ref/#leirauthorized capacit~ and that by t@t'her/their signaturekSfon the instrument the person(sr, or the entity upon behalf of which the perso~ acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ~ 'a·-··," TERRI LYNN LONDON) 0 : , /7;,\ C::;mm1ssion No .2148247 ~ ~ e a , ' NOT AR " ,"LJBLIC-CALIFORNIA ~ I · SAN DIEGO COUNTY ' My Come Exµ,rE:s APRIL 2, 2020 .. _ -------·--·---- (Seal) Page 300 Exhibit A MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (KLEINFELDER-SIMON WONG ENGINEERING) EXHIBIT "A" SCOPE OF SERVICES Contractor shall perform as-needed horizontal construction management and inspection services in accordance with the city's Request for Qualifications with Fee Proposal dated April 20, 2016. The agreed upon billing rates for services outlined in said proposal are attached hereto. Any rate increases are subject to negotiation and approval by city staff. If the use of subcontractors is approved by the City, they shall be billed at cost plus 10%. 9 General Counsel Approved Version 9/1/15 Page 301 ~ KLEINFELDER ~ B.rlgh: ~oJ:I~ RighrSofuriom. /V/\V\ Simon Wong Engineering 2016 BILLING RATES CITY OF CARLSBAD AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (NON-PREVAILING WAGE) Exhibit A Straight Time Overtime Rate Double Time Rate Field Staffing Position ($/Hr Range) ($/HR Range) ($/HR Range) Project Manager $192 $192 $192 Safety Inspector $120 $155 $120 $155 $120 $155 Construction Manager $165 $190 $165 $190 $165 $190 Schedule Engineer $110 $168 $110 $168 $110 $168 Resident Engineer $138 $185 $138 $185 $138 $185 Senior Inspector $112 $148 $126 $178 $149 $210 -Office Engineer $85 $143 $85 $143 $85 $143 Structures Representative $133 $156 $133 $156 $133 $156 Special Inspector $128 $143 $156 $175 $185 $207 Materials Tester* $59 $97 $89 $146 $119 $194 Materials Testing Engineer• $180 $180 $180 (PREVAILING WAGE} Field Staffing Position ($/Hr Range) ($/HR Range) ($/HR Range) Project Manager $192 $192 $192 Safety Inspector $120 $155 $120 $155 $120 $155 Construction Manager $165 $190 $165 $190 $165 $190 .?_~hed!;i_!e Engineer S.!10 $168 $110_ -~168 .. $110 __ _$168 Resident Engineer $138 $185 $138 $185 $138 $185 Senior Inspector $138 $160 $216 $268 Office Engineer $85 $143 $85 $143 $85 $143 Structures Representative $133 $156 $133 $156 $133 $156 Specia I Inspector $143 $216 $268 Materials Tester~ $178 $182 $263 $326 Materials Testing Engineer* $180 $180 $180 Hourly charges include provisions for normal overhead costs such as fringe benefits, insurance, clerical services, equipment, normal supplies and materials. Field personnel are equiped with work trucks, cell phone/radios, laptop computers and basic tools. All other direct costs shall be reimbursed at a rate of costs plus 10%. Kleinfelder/Simon Wong Engineering r.ites will increase annually at a rate equal to the San Diego Consumer Price Index. Prevailing Wage rates based on California DIR SD County Determination No. SD-23-63-3-2015-lD. * -Rates shown for Kleinfelder Materials Testing Staff. Labo ratory testing rate sheets are attached. 5761 Copley Drive, Suite 100, San Diego, CA 92111 pf 858.223.8500 f I 858.874.6997 10 General Counsel Approved Version 9/1/15 Page 302