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HomeMy WebLinkAbout2017-09-12; City Council; ; Adopt Resolutions authorizing the amendment of a City of Carlsbad Master Service Agreement with Infrastructure Engineering Corporation for horizontal construction management and inspection services to reduce the annual compensaCA Review ffS JOINT CITY COUNCIL ANO CARLSBAD MUNICIPAL WATER DISTRICT Staff Report Meeting Date: To: From: Staff Contact: Subject: Sept. 12, 2017 Mayor/President and City Council/Board Kevin Crawford, City Manager/Executive Manager Fred Gaines Jr., Management Analyst Fred.GainesJr@carlsbadca.gov or 760-602-7557 Adopt Resolutions authorizing the amendment of a City of Carlsbad Master Service Agreement with Infrastructure Engineering Corporation for horizontal construction management and inspection services to reduce the annual compensation from $800,000 to $500,000, and extend by one year; and authorizing the execution of a new Carlsbad Municipal Water District Master Service Agreement with Infrastructure Engineering Corpe.ration for horizontal construction management and inspection services in an amount not to exceed $300,000 per year. Recommended Action Adopt a City Council Resolution authorizing the amendment of a Master Service Agreement with Infrastructure Engineering Corporation for horizontal construction management and inspection services to reduce the annual compensation from $800,000 to $500,000, and extend by one year; and, adopt a Carlsbad Municipal Water District Resolution authorizing the execution of a new Master Service Agreement with Infrastructure Engineering Corporation for horizontal construction management and inspection services in an amount not to exceed $300,000 per year. 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 City of Carlsbad and the Carlsbad Municipal Water District (CMWD). The agreements were initially executed via the City of Carlsbad legal entity only. It has been determined that separate agreements for the City of Carlsbad and CMWD are required to allow work to be performed for projects related to CMWD. Discussion On May 23, 2017, City Council approved Resolution No. 2017-094, which amended three of four existing City of Carlsbad Master Service Agreements for horizontal construction management and inspection services to reduce the contract amounts. A portion of the previously awarded funds were applied to three new Master Service Agreements executed with CMWD. A fourth Master Service Agreement with Infrastructure Engineering Corporation was not amended at that time to allow closure of pending work. The current agreement with Infrastructure Engineering Corporation expires Sept. 29, 2017, and now needs to be amended. Page 341 #13 A separate Master Service Agreement with Infrastructure Engineering Corporation for CMWD is needed to allow CMWD to access the same quality skills and technical abilities of consultants' staff and proposals accepted by the city during a prior competitive bidding process. The existing City of Carlsbad Master Service Agreement will be amended to reduce the contract amount and apply a portion of the previously awarded funds to CMWD projects. The new contract allocations reflect estimated project needs. The existing City of Carlsbad Master Services Agreement will also be extended for an additional year. Fiscal Analysis The current City of Carlsbad agreement with Infrastructure Engineering Corporation approved by City Council in September 2016 (Resolution No. 2016-194) is as follows: Percent of Entity Consultant Amount Funds Per Entity City of Carlsbad Infrastructure Engineering Corporation $800,000/year 100% After the proposed changes the agreements would be as follows: Percent of Entity Consultant Amount Funds Per Entity City of Carlsbad Infrastructure Engineering Corporation $500,000/year 63% CWMD Infrastructure Engineering Corporation $300,000/year 37% The agreements are 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. Sufficient funds are available in the approved fiscal year 2017-18 budget for the current request. Payments will be made for actual work performed by the contractor based on the fee schedule in each agreement. Work performed for CIP projects 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 provided in each agreement. Payments associated with private development will be limited by the amounts appropriated by City Council during the annual Operating Budget process. Extensions of all agreements will be based on a satisfactory review of the contractor's performance per the terms and conditions of the agreement, city needs, and appropriation of funds by City Council to CIP projects and the Operating Budget. Page 342 Next Steps After the city agreement is amended and the new CMWD agreement is executed, task orders will be issued 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 a City of Carlsbad Master Service Agreement with Infrastructure Engineering Corporation for horizontal construction management and inspection services to reduce the annual compensation from $800,000 to $500,000, and extend by one year. 2. Resolution authorizing the execution of a new Carlsbad Municipal Water District Master Service Agreement with Infrastructure Engineering Corporation for horizontal construction management and inspection services in an amount not to exceed $300,000 per year. Page 343 RESOLUTION NO. 2017-184 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE AMENDMENT OF A CITY OF CARLSBAD MASTER SERVICE AGREEMENT WITH INFRASTRUCTURE ENGINEERING CORPORATION FOR HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES TO REDUCE THE ANNUAL COMPENSATION FROM $800,000 TO $500,000, AND EXTEND BY ONE YEAR. Exhibit 1 WHEREAS, the City Council of the City of Carlsbad, California awarded a City of Carlsbad Master Service Agreement (Agreement) for horizontal construction management and inspection services to Infrastructure Engineering Corporation in the amount of $800,000 on Sept. 29, 2016 via Resolution No. 2016-194; and WHEREAS, it is now necessary to reduce the total Agreement amount from $800,000 to $500,000, in order to create a Carlsbad Municipal Water District Master Service Agreement for $300,000; and WHEREAS, it is desired to extend the existing Agreement for a period of one year; and WHEREAS, City Council approved sufficient funds with the fiscal year 2017-18 Operating and Capital Improvement Program budgets to cover the first Agreement year; and WHEREAS, expenditures for these professional services in subsequent fiscal years are subject to availability of City 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 Agreement attached hereto with Infrastructure Engineering Corporation (Attachment A). 3. That the city manager is hereby authorized to execute amendments to extend the agreement for two additional one-year periods or parts thereof in an amount not to exceed $500,000 per year. Exhibit 1 PASSED, APPROVED AND ADOPTED at a Joint Special Meeting of the City Council of the City of Carlsbad and the Carlsbad Municipal Water Board District on the 12th day of September, 2017, by the following vote, to wit: AYES: NOES: ABSENT: M. Hall, K. Blackburn, M. Schumacher, C. Schumacher, M. Packard. None. None. (SEAL) TRAN1475 AMENDMENT NO. 1 TO EXTEND AND AMEND MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (INFRASTRUCTURE ENGINEERING CORPORATION) ~ Amendment No. 1 is entered into and effective as of the I ;tv\ day of ~~ , 20J.]_, extending and amending the agreement dated September 29,2016 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Infrastructure Engineering Corporation, a California corporation, ("Contractor") (collectively, the "Parties") for construction management and inspeciton. 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 desire to extend and fund the Agreement for a period of one ( 1) year. 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. That the Agreement, as may have been amended from time to time, is hereby extended and funded for a period of one (1) year ending on September 29, 2018 , on a time and materials basis not-to-exceed five hundred thousand dollars ($500,000). 3. 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. 4. Contractor will complete all work described in Exhibit "A" by September 29, 2018. 5. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 6. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. 7. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual City Attorney Approved Version 1 /30/13 TRAN1475 authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR INFRASTRUCTURE ENGINEERING CORPORATION, a California corporation By: ~Mb--r= 7 (sign here) ~4/ ffe4, )tMJ/d¼V-- (print ham~/title) By: f. '-/0~ I (sign here) y, ~ s t-..J, ~ <!.<.,y~ (prirlt name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By: ATTEST: If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY:(/o~ 'Deputy City Attorney City Attorney Approved Version 1 /30/13 2 TRAN1475 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%. crrv OF CARLSBAD RFQ No. 16~10 AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT ANO INSPECTION SERVICES HOURLY CHARGE RATE AND EXPENSE REIMBURSEMENT SCHEDULE Constryq:ion .Manuement and lnspectioJLServlces Construction Inspector .......... ,. ............... ., .. $ 128 Senior Construction Inspector .................... $ 140 Resident Engineer ...................................... $ 145 Construction Manager .............................. ,,$ 160 Construction CM Coordinator .................... $ 115 Principal Engineer ............. ., ........................ $ 205 Asst CM Coordinator .................................. $ 95 City Attorney Approved Version 1/30/13 3 Page 348 ACTION BY UNANIMOUS WRJTTEN CONSENT OF THE BOARD OF DIRECTORS OF INFRASTRUCTURE ENGINEERING CORPORATION A CALIFORNIA CORPORATION The undersigned, constituting all of the directors of Infrastructure Engineering Corporation, acting pursuant to the authority of Section 307(b) and any other applicable section of the California General Corporation Law, hereby adopt the following recitals and resolutions, effective August 1, 2016: WHEREAS, in order to enter into contracts and other agreements, Infrastructure Engineering Corporation. (the "Corporation") desires to designate the authority of its officers and selected employees to sign on behalf of the Corporation; and WHEREAS, the Board of Directors of the Corporation considers it to be in the best interest of the Corporation to designate Robert Weber, President/Treasurer, Scott Hwnphrey, Vice President, Preston Lewis, Past President/Director and Amy Czajkowski, Director to have sole signing authority on matters up to $1 million, requiring a second signature above that amount: and For any contract having a value greater than $1 million, the signature of either Robert Weber, President/Treasurer, Scott Humphrey, Vice President, Preston Lewis, Past President, Amy Czajkowski, Director and the signature ofany one of the Secretary, Vicki Shaw or one of the designated employees listed below; and NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of Infrastructure Engineering Corporation the following officers and employees are designated to act on behalf of the Corporation with limited authority to enter into contracts and other agreements that do not exceed the following amounts: Officer/Employee Title Limit Officer/Employee Title Limit Vicki Shaw Secretary $300,000 Charley McKinley Sr. Project $300,000 Manager Anders Egense Sr. Project $300,000 George Elaro Flow Services $300,000 Manager Group Manager Scott Adamson Construction $300,000 Abraham Philip Sr. Project $300,000 Manager Manager Group Manager Scott Humphrey Sr. Project $300,000 Richard Kennedy Sr. Project $300,000 Manager Manager Section 4: This resolution is effective immediately and shall continue as to each individual until said individual shall leave the employ of the Company or until revoked by the Board of Directors, whichever shall first occur. RESOLVED FURTHER, that the officers of this corporation are authorized and directed to ta1ce any other actions necessary to carry out the purpose and intent of these resolutions, including the exec/tion, acknowledgement, and filing of any documents, certificates, writings, or book entries rt ay be required J ;9 c tthpse reJolutions. / 1 E_f!_b1« {,t,~:e/fj117& ~ w1,rQ(~~ ___ l: _ .. ----- Ro}¢£~~v-ebef~ Scott Humphrey-~, Amy C,zajkowski ,/_/-.. ,,/,,,,.-"----:;L--/_,,/' ~ .. ~ ( .,·=·------~-/ / _.,-::_·_;&_~~. /~, ()..6Kci_cr:-J-~--- 11resto~.e-wi~--/~:/ .. -·--. Anders Eghi\e \J Page 349 MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT . AND INSPECTION SERVICES (INFRASTRUCTURE ENGINEERING CORPORATION) THIS AGREEMENT is made and entered into as of the '9·~ day of ~~ , 20.)lp_, by and between the CITY OF CARLSBAD, a municipal corporion,hereinafter referred to as "City", and INFRASTRUCTURE ENGINEERING CORPORATION,'a California Corporation, hereinafter referred to as "C<;>ntractor." RECITALS A. City requires the professional services of an engineering firm that is experienced in inspection and construction management for civil engineering/horizontal projects. B. Contractor has the necessary experience in providing professional services and advice related to inspection and construction management of private as well as municipal projects. C. Contractor has submitted a proposal to City and has affirmed its willingness and . ability to perform such work. NOW, THEREFORE, ih consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor fo 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. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 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 year from the date first above written. The City Manager may amend the Agreement to extend it for three additional one year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 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 City 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 City Manager or the Division Director as authorized by the City Manager ("Director"). The City Manager or Director 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 City City Attorney Approved Version 6/9/15 Page 350 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 eight hundred thousand dollars ($800,000) per Agreement year. If the City elects to extend the Agreement, the amount shall not exceed eight hundred thousand dollars ($800,000) 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, City shall prepare a Project Task Description and Fee Allotment {the "Task Description") which, upon signature by Contractor and for City, the City Manager or Director, will be considered a part of this Agreement. The Task Description wm 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 wa·y as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full. and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' c;ompensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. · 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subc;ontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services.- 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any willful misconduct 2 City Attorney Approved Version 6/9/15 Page 351 '\ 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 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 amendment~. 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 Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the. City 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 damag.e. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 · Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation· limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professiona~ 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 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 3 City Attorney Approved Version 6/9/15 Page 352 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due.on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to ol)tain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain. and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all. work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to C.ity. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement are: For City: ~~;· @~w~ 121 riAk- 4 For Contractor: Name Title 506£~, w k':Bhl\ City Attorney Approved Version 6/9/15 Page 353 Dept. Address Phone Email 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 accorqance 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 9ontractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not' limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City rnay terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City at the address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of 5 City Attorney Approved Version 6/9/15 Page 354 work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or .person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or 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 City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with. litigation. Contractor .acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et 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 City seeks to recover penalties pursuant to the False Claims Act, it is entitled to · recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement 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 City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 6 City Attorney Approved Version 6/9/15 Page 355 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. Executed by Contractor this 2 q..f:l-1 day of ,Sep±ern~ , 20k. CONTRACTOR (sign here) .Ao4e7TS' [#bt11· /~./5/&~if . (print name/title t' CITY OF CARLSBAD, a municipal corporation of the State of California By: [INS RT E O PERSON AUTHORIZED TO SIGN €City Meruiger eF- Mayor oc Dhtisioi:i Qireeter as authorized by the City Manager)] ATTEST: City Clerk 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. CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY:~ ~sistant City Attorney ~pu.~. MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES (INFRASTRUCTURE ENGINEERING CORPORATION) 7 City Attorney Approved Version 6/9/15 Page 356 ,,,.. .. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 ~·· County of S 4-kl DI J?: G; 0 } State of California On At/G;Vsr 1. rP{)J{, before me, NPrAllJi JV}. v+MB«A, AIOT!trtfe f't/Bl,lo Date I re lnserl Name and Title of the Offi er . personally appeared 5 u B£rf T b/£8£1\. Place Notary Seal Above Name(s) of s;gner(s) who proved to me on the basis of satisfactory evidence to be the perso~) whose namefs) is/~ subscribed to the within instrument and acknowledged to me that he/sh@'they executed the same in his/.her/tneir authorized capacity~). and that by . his/l=ren4heir signature(Bt on the instrument the personts), or the entity upon behalf of which the person(s)-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 ~~--~~~~~~~~~~~~-OPTIONAL~~~~----~~~~~~~~~- Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended 'document. Description of Attached Document Title or Type of Document: ___________ _ Number of Pages: __ _ Capacity{ies) Claimed by Signer{s) Signer's Name:-------------,..= D Corporate Officer -Title(s): -----7""~- D Partner -D Limited D General D Individual D Attorney in t D Trustee · lJ Guardi or ConseNator D Other:----~--------- Signer's Name: ___________ _ D Corporate Officer -Title(s): ______ _ · D Partner -D Limited D General D Individual D Attorney in Fact D Trustee D Guardian or Conservator D Other: _____________ _ Signer Is Representing: -. ________ _ © 2013 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 Page 357 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 ~· State of California } County of ~/+/\) DJf:{h 0 onAUGJuST 1 )./)//:; betore me, A/PdJ9!j lv1. CA-JV/BlfA J.J~mt<y fuJ3~/c Date1 , . Here Insert Name and Title 6f the Office personally appeared VICKI SJIA-vt/ · Place Notary Seal Above Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the perso~ whose name(s) is.tafe. subscribed to the within instrument and acknowledged to me that he/..sl:l-efthey executed the same in his/her(their authorized capacity~), and that by his/-1:!er/their signature~) on the instrument the person~), or the entity upon behalf of which the person{s-) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California tt}at the foregoing paragraph is true and correct. ~--~~~~~~~...---~~--~OPTIONAL--~~~--~~~--~---~--~~ Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: ___________ _ Number of Pages: ___ .Signer(s) Other Than Named Above:.~------------ Capacity(ies) Claimed by Signer{s) Signer's Name:-------------_,., ·gner's Name: ___________ _ D Corporate Officer -Title(s): [l Corporate Officer -Title(s): ______ _ 0 Partner -D Limited D General D Partner -D Limited D General D Individual D Attorney in Fa [J Individual D Attorney in Fact D Trustee D Guardian onservator D Trustee D Guardian or Conservator n Other: D Other: _____________ _ Signer Is Repr Signer Is Representing: ________ _ © 2013 National Notary Association• www.NationalNotary.org • 1-800-US NOTARY (1°800-876-6827) Item #5907 Page 358 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 LJse of subcontractors is approved by the City, they shall be billed at cost plus 10%. . CITY OF CARLSBAD RFQ No. 16-10 As-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES HOURLY CHARGE RATE ANO EXPENSE REIMBURSEMENT SCHEDULE ~~mstruction Management and ln~g~ctton Sen.,;_,;:~~ Construction Inspector ............................. $ 128 Senior Com.truction Inspector .................... $ 140 Resident Engineer ...................................... $ 145 Construction Manager .............................. $ 160 Con~"trtiction CM Coordinator ..................... $ 115 Principal Engineer. .................................... $ 205 A~~t CM Coordinator .................................. $ 95 8 City Attorney Approved Version 6/9/15 Page 359 ACTION BY UNANIMOUS WRITTEN CONSENT OF THE BOARD OF DIRECTORS OF INFRASTRUCTURE ENGINEERING CORPORATION A CALIFORNIA CORPORATION The undersigned, constituting all of the directors of Infrastructure Engineering Corporation, acting pursuant to the authority of Section 307(b) and any other applicable section of the California General Coiporation Law, hereby adopt the following recitals and resolutions, effective January l, 2016: WHEREAS, in order to enter into contracts and other agreements, Infrastructure Engineering Corporation. (the "Corporation") desires to designate the authority of its officers and selected employees to sign on behalf of the Corporation; and ' ' ' WHEREAS, the Board of Directors of the Corporation considers it to be in the best interest of the Corporation to designate the President, Vice President/CFO and the Past President to have sole signing authority on matters up to $1 million, requiring a second signature above that amount; and WHEREAS, the Board .of Directors also desires to designate Amy Czajkowski, Anna Buising, Anders Egense and George Elaro to act on behalf of the Corporation with limited authority to enter into contracts or other agreements and to sign on behalf of the Corporation as resolved below. NOW, 1HEREFORE, BE IT RESOLVED by the Board of Directors of Infrastructure Engineering Corporation as follows: Section l; The President/Treasurer, Robert Weber, the Vice President, Scott Humphrey, the Past President, Preston Lewis, each one acting alone, be and they are hereby authorized, without further authorization of the Board, to enter into and execute on behalf of the Corporation such contracts and other instruments as are necessary and appropriate for the Corporation, having a value of One Million Dollars or less; and Section 2: For any transaction having a value greater than One Million Dollars, the signature of either of the President/Treasurer, Robert Weber, or the Vice President, Scott Humphrey, or the Past President, Preston Lewis, and the signature of any one of the Secretary, Vicki Shaw, Amy Czajkowski, Anna Buising, Anders Egense, George Elaro or Scott Adamson; and I Page 360 Section 3: The following officers and employees are designated to act on behalf of the Corporation with limited authority to enter into contracts and other agreements that do not exceed the following amounts: Officer Title Limit Amy Czajkowski Sr. Project Manager $750,000 Secretary $300,000 Vicki Shaw Anders Egense Sr. Project Manager . $300,000 Anna Buising Principal, $300,000 Environmental Seivices Flow Services · · $300,000 George Elaro Group Manager Construction Manager $300,000 Scott Adamson Group Manager Section 4: This resolution is effective immediately and shall continue as to each individual until said individual shall leave the employ of the Company or until revoked by the Board of Directors, whichever shall first occur. RESOLVED FURTHER, that the officers of this corporation are authorized and directed to take any other actions necessary to carry out the purpose and intent of these resolutions~ including the execution, acknowledgement, and filing of any documents, V?itings, or book entries that may b:; to carry out these resolutions. Robert_S . .Weber: .. .,. .~-.,, ..... -. . --___ ..-~,., 2 Page 361 RESOLUTION NO. 1584 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD MUNICIPAL WATER DISTRICT BOARD (CMWD), AUTHORIZING THE EXECUTION OF A NEW CARLSBAD MUNICIPAL WATER DISTRICT MASTER SERVICE AGREEMENT WITH INFRASTRUCTURE ENGINEERING CORPORATION FOR HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES IN AN AMOUNT NOT TO EXCEED $300,000 PER YEAR. Exhibit 2 WHEREAS, the City Council of the City of Carlsbad, California awarded a Master Service Agreement (Agreement) for horizontal construction management and inspection services to Infrastructure Engineering Corporation in the amount of $800,000 per year on Sept. 29, 2016 by adopting Resolution No. 2016-194; and WHEREAS, it is now necessary to reduce the annual Agreement amount from $800,000 to $500,000, in order to fund a Carlsbad Municipal Water District Master Service Agreement for $300,000 per year; and WHEREAS, City Council approved sufficient funds with the fiscal year 2017-18 Operating and Capital Improvement Program budgets to cover the first Agreement year; and WHEREAS, expenditures for these professional services in subsequent fiscal years are subject to availability of City Council approved funding from the Public Works Operating Budget and the city's Capital Improvement Program. NOW, THEREFORE, BE IT RESOLVED 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 Agreement attached hereto with Infrastructure Engineering Corporation in an amount not to exceed $300,000 per year (Attachment A). 3. That the executive manager is hereby authorized to execute amendments to extend the agreement for two additional one-year periods or parts thereof in an amount not to exceed $300,000 per year. Exhibit 2 PASSED, APPROVED AND ADOPTED at a Special Meeting of the Carlsbad Municipal Water District of the City of Carlsbad on the 12th day of September, 2017, by the following vote, to wit: AYES: NOES: ABSENT: M. Hall, K. Blackburn, M. Schumacher, C. Schumacher, M. Packard. None. None. (SEAL) TRAN1610 MASTER AGREEMENT FOR AS-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES INFRASTRUCTURE ENGINEERING CORPORATION THIS AGREEMENT is made and entered into as of the I?,~ day of ~~\-9e,v', 201], by and between the Carlsbad Municipal Water District, a Public Agency~dunder the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, hereinafter referred to as "CMWD", and INFRASTRUCTURE ENGINEERING CORPORATION, a California Corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of a construction management and inspection consultant that is experienced in civil engineering/horizontal construction management and inspection projects. B. The professional services are required on a non-exclusive, project-by-project basis. C. Contractor has the necessary experience in providing professional services and advice related to construction management and inspection of private as well as municipal projects. D. 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. Contractor's obligations with respect to any project granted to Contractor under this Agreement will be as specified in the Task Description for the project (see paragraph 5 below). 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 from the date first above written to September 29, 2018. The Executive Manager of CMWD ("Executive Manager") may amend the Agreement to extend it for two (2) additional one (1) year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, CMWD needs, and appropriation of funds by the CMWD Board of Directors. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. General Counsel Approved Version 9/1/15 TRAN1610 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 directly employed by Contractor. Nothing contained in this Agreement will create any contractual 2 General Counsel Approved Version 9/1/15 Page 365 TRAN1610 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 Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to 'be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City 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. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 3 General Counsel Approved Version 9/1/15 Page 366 TRAN1610 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. 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 4 General Counsel Approved Version 9/1/15 Page 367 TRAN1610 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. 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 Scott Adamson Title Project Manager Address 14271 Danielson St. Poway, CA 92064 Phone 858-413-2400 Email sadamson@iecorporation.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 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. 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 5 General Counsel Approved Version 9/1/15 Page 368 TRAN1610 both parties. The representative rece1v1ng 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 City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, 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 at the 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 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 6 General Counsel Approved Version 9/1/15 Page 369 TRAN1610 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. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill 7 General Counsel Approved Version 9/1/15 Page 370 Executed by Contractor this \ :> ~ day of CONTRACTOR INFRASTRUCTURE ENGINEERING CORPORATION, a California Corporation 1 (sign here) V1~ St...-J Js~~ = (print ~ame/title) ~;J TRAN1610 ~-epA:e,Mbe\r . 20U. 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: 1.t~ ATTEST: 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 Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, General Counsel BY:f/Je,~ eiruti General Council 8 General Counsel Approved Version 9/1 /15 TRAN1610 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 OF CARLSBAD RFQ No. 16-10 As-NEEDED HORIZONTAL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES HOURLY CHARGE RATE AND EXPENSE REIMBURSEMENT SCHEDULE Constryction Management and lnmection Services Construction Inspector ............................... $ 128 Seniot Construction Inspector .................. ,,$ 140 Resident Engineer ...................................... $ 145 Construction Manager ................................ $ 160 Construction CM Coordrnator .................... $ 115 Principal Engineer. ....... ,, .......... ., ................. $ 20.5 Asst CM Coordinator .................................. $ 95 9 General Counsel Approved Version 9/1/15 Page 372 ACTION BY UNANIMOUS WRlTTEN CONSENT OF THE BOARD OF DIRECTORS OF INFRASTRUCTURE ENGINEERING CORPORATION A CALIFORNIA CORPORATION The undersigned, constituting all of the directors oflnfrastructure Engineering Corporation, acting pursuant to the authority of Section 307(b) and any other applicable section of the California General Corporation Law, hereby adopt the following recitals and resolutions, effective August 1, 2016: WHEREAS, in order to enter into contracts and other agreements, Infrastructure Engineering Corporation. (the "Corporation") desires to designate the authority of its officers and selected employees to sign on behalf of the Corporation; and WHEREAS, the Board of Directors of the Corporation considers it to be in the best interest of the Corporation to designate Robert Weber, President/Treasurer, Scott Hwnphrey, Vice President, Preston Lewis, Past President/Director and Amy Czajkowski, Director to have sole signing authority on matters up to $1 million, requiring a second signature above that amount: and For any contract having a value greater than $1 million, the signature of either Robert Weber, President/Treasurer, Scott Humphrey, Vice President, Preston Lewis, Past President, Amy Czajkowski, Director and the signature of any one of the Secretary, Vicki Shaw or one of the designated employees listed below; and NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of Infrastructure Engineering Corporation the following officers and employees are designated to act on behalf of the Corporation with limited authority to enter into contracts and other agreements that do not exceed the following amounts: Officer/Employee Title Limit Officer/Employee Title Limit Vicki Shaw Secretary $300,000 Charley McKinley Sr. Project $300,000 Manager Anders Egense Sr. Project $300,000 George Elaro Flow Services $300,000 Manager Group Manager Scott Adamson Construction $300,000 Abraham Philip Sr. Project $300,000 Manager Manager Group Manager Scott Humphrey Sr. Project $300,000 Richard Kennedy Sr. Project $300,000 Manager Manager Section 4: This resolution is effective immediately and shall continue as to each individual until said individual shall leave the employ of the Company or until revoked by the Board of Directors, whichever shall first occur. RESOLVED FURTHER, that the officers of this corporation are authorized and directed to take any other actions necessary to carry out the purpose and intent of these resolutions, including the exec/tion, acknowledgem. ent,. and filing of any documents, certificates, writings, or book entries ~at ay be required f;,J. c /''. ryo]utions. . /J ~ _~t t/·t<:e:/r A ~aJJ~~--___ v: .----··-----·· _ Roj?.eJ.tg,,JJi~ber~ Scott Humphrev~, Amy (fzajkowski _ •. ~"-/ __ .-------::;/--__ .,~ ~ l'' ' // -· /"'~-~ /~ ~'(),:/,)<z?t .J--~:.~= r~sto~m'l,i;r=---::...--/ ·-·~-. Anders Eg~~ Page 373 THIS PAGE WAS INTENTIONALLY LEFT BLANK Page 374