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HomeMy WebLinkAbout2017-11-07; City Council; ; Adopt Resolutions authorizing the amendment of a City of Carlsbad Master Service Agreement and authorizing a new one-year Carlsbad Municipal Water District Master Service Agreement with Southwest Strategies, LLCCA Review ..t{5_ ~ JOINT CITY COUNCIL AND ~ s~~ftR~~~~~WATER DISTRICT Meeting Date: To: From: Staff Contact: Subject: Nov. 7, 2017 Mayor/President and City Council/Board Kevin Crawford, City Manager/Executive Manager Craddock Stropes, Senior Management Analyst Craddock.Stropes@carlsbadca.gov or 760-602-2726 Adopt Resolutions authorizing the amendment of a City of Carlsbad Master Service Agreement with Southwest Strategies, LLC for communications and outreach services to reduce the compensation from $300,000 to $200,000; and authorizing the execution of a new one-year Carlsbad Municipal Water District Master Service Agreement with Southwest Strategies, LLC for communications and outreach services in an amount not to exceed $100,000. Recommended Action Adopt Resolutions authorizing the amendment of a City of Carlsbad Master Service Agreement with Southwest Strategies, LLC for communications and outreach services to reduce the compensation from $300,000 to $200,000; and authorizing the execution of a new one-year Carlsbad Municipal Water District (CMWD) Master Service Agreement with Southwest Strategies, LLC for communications and outreach services in an amount not to exceed $100,000. Executive Summary The city's Public Works Department executes master service agreements with consultants when expertise is needed to support projects, or when staff levels are not sufficient. The current three-year master agreement with Southwest Strategies, LLC for communications and outreach services was initially executed in 2015 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 In November 2015, a City of Carlsbad Master Service Agreement was executed for communications and outreach services with Southwest Strategies, LLC for a three-year term period. Communications and outreach services are also needed for CMWD. It is now necessary to amend the original City of Carlsbad Master Service Agreement to reduce the contract amount, and execute a new one-year CMWD Master Service Agreement to apply a portion of the previously awarded funds. The new contract allocations reflect estimated project needs. This allows 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. November 7, 2017 Item #10 Page 1 of 20 Fiscal Analysis The current City of Carlsbad Master Service Agreement with Southwest Strategies, LLC was approved by City Council in November 2015 (Resolution No. 2015-292), and is as follows: Percent of Entity Consultant Amount Funds Per Entity City of Carlsbad Southwest Strategies, LLC $300,000/3-year term 100% After the proposed changes the Master Service Agreements would be as follows: Percent of Entity Consultant Amount Funds Per Entity City of Carlsbad Southwest Strategies, LLC $200,000/3-year term 67% CWMD Southwest Strategies, LLC $100,000/1-year term 33% The agreements are for a not to exceed amount per agreement and will be used as needed. Sufficient funds are available in the approved fiscal year 2017-18 Operating and Capital Improvement Program (CIP) budgets for the current request. Funding will come from the budget for specific projects where the services under these agreements are used. Payments will be made for actual work performed by the contractor based on the fee schedule in the agreements. Payments will be limited by the amounts appropriated by City Council during the annual budget approval process. 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. November 7, 2017 Item #10 Page 2 of 20 Exhibits 1. Resolution authorizing the amendment of a City of Carlsbad Master Service Agreement with Southwest Strategies, LLC for communications and outreach services to reduce the compensation from $300,000 to $200,000. 2. Resolution authorizing the execution of a new one-year Carlsbad Municipal Water District Master Service Agreement with Southwest Strategies, LLC for communications and outreach services in an amount not to exceed $100,000. November 7, 2017 Item #10 Page 3 of 20 RESOLUTION NO. 2017-215 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE AMENDMENT OF A CITY OF CARLSBAD MASTER SERVICE AGREEMENT WITH SOUTHWEST STRATEGIES, LLC FOR COMMUNICATIONS AND OUTREACH SERVICES TO REDUCE THE COMPENSATION FROM $300,000 TO $200,000. EXHIBIT 1 WHEREAS, the City Council of the City of Carlsbad, California awarded a City of Carlsbad Master Service Agreement to Southwest Strategies, LLC for communications and outreach services in the amount of $300,000 in November 2015 via Resolution No. 2015-292; and WHEREAS, it is now necessary to reduce the total contract amount from $300,000 to $200,000, in order to create a one-year Carlsbad Municipal Water District Master Service Agreement for $100,000; and WHEREAS, the City Council approved sufficient funds with fiscal years 2015-16 and 2016-17 Operating and CIP Budgets to cover each 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 Amendment No. 1 to amend the Master Service Agreement for Communications and Outreach Services with Southwest Strategies, LLC attached hereto as Attachment A. November 7, 2017 Item #10 Page 4 of 20 PASSED, APPROVED AND ADOPTED at a Joint Special Meeting of the City Council of the City of Carlsbad and the Carlsbad Municipal Water District Board on the 7th day of November, 2017, by the following vote, to wit: AYES: NOES: M. Hall, K. Blackburn, M. Schumacher, C. Schumacher, M. Packard. None. ABSENT: None. ~ MA TT HALL, Mayor \ ~j\Q_ !?1Zl1JL_, /r'- BARBARA ENGLESON, City Clerk ' (SEAL) November 7, 2017 Item #10 Page 5 of 20 AMENDMENT NO. 1 TO AMEND MASTER AGREEMENT FOR COMMUNICATIONS AND OUTREACH SOUTHWEST STRATEGIES, LLC CA1310 ~ This Amengent No. 1 is e7ed into and effective as of the CttiJ_ day of •>V!Ztn g_A.._. , 20/ , amending the agreement dated Nove'mbe( 17, 2015, (th~greement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Southwest Strategies, LLC, a limited liability corporation, ("Contractor") (collectively, the "Parties") for communications and outreach services. RECITALS A. The Parties desire to alter the Agreement's scope of work to reduce the maximum dollar amount of the Agreement by one hundred thousand dollars ($100,000) for a revised Agreement amount not to exceed two hundred thousand dollars ($200,000). 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 Agreement amount shall not exceed two hundred thousand dollars ($200,000). 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 two hundred thousand dollars ($200,000). 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 November 30, 2018. 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 the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. Ill Ill Ill Ill Ill City Attorney Approved Version 1 /30/13 November 7, 2017 Item #10 Page 6 of 20 CA1310 6. The individuals executing this Amendment and the instruments refe renced 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 Amendment. CONTRACTOR SOUTHWEST STRATEGIES, LLC, a limited liability corpo atio By : (sign ere) Aaron ch nsto~he( Wahl (print na e/title) p rcr;1dent CITY OF CARLSBAD, a municipal corporation of the State of California By : ATTEST: By . . ~Aa.£1111/L ~he~r Barbara Engleson, City Hall ~ Asv11 ~(~~{Zf~~) IC FD 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 fo llowing 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: __ (_(a_~"-=--------'~ Deputy City Attorney City Attorney Approved Version 1 /30/13 2 November 7, 2017 Item #10 Page 7 of 20 RESOLUTION NO. 1586 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD MUNICIPAL WATER DISTRICT BOARD (CMWD), AUTHORIZING THE EXECUTION OF A NEW ONE-YEAR CARLSBAD MUNICIPAL WATER DISTRICT MASTER SERVICE AGREEMENT WITH SOUTHWEST STRATEGIES, LLC FOR COMMUNICATIONS AND OUTREACH SERVICES IN AN AMOUNT NOT TO EXCEED $100,000 PER YEAR. EXHIBIT 2 WHEREAS, the City Council of the City of Carlsbad, California awarded a City of Carlsbad Master Service Agreement to Southwest Strategies, LLC for communications and outreach services in the amount of $300,000 in November 2015 via Resolution No. 2015-292; and WHEREAS, Carlsbad Municipal Water District has a need to access the same quality skills and technical abilities of consultants' staff and proposals for communication and outreach services accepted during a prior competitive bidding process; and WHEREAS, separate agreements for the City of Carlsbad and CMWD are required to allow work to be performed for projects related to CMWD; and WHEREAS, it is now necessary to reduce the total City of Carlsbad Master Service Agreement amount from $300,000 to $200,000, in order to create a one-year Carlsbad Municipal Water District Master Service Agreement for $100,000; and WHEREAS, the City Council approved sufficient funds with the fiscal year 2015-16 Operating and CIP Budgets to cover the 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 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 Agreement, attached hereto as Attachment A, with Southwest Strategies, LLC. November 7, 2017 Item #10 Page 8 of 20 3. That the president of the board is hereby authorized to delegate the responsibility to the executive manager (or a designee) to sign, for and on behalf of CMWD, future project task descriptions and fee allotments issued under this Master Agreement. PASSED, APPROVED AND ADOPTED at a Special Meeting of the Carlsbad Municipal Water District of the City of Carlsbad of the City of Carlsbad on the 7th day of November, 2017, by the following vote, to wit: AYES: NOES: M. Hall, K. Blackburn, M. Schumacher, C. Schumacher, M. Packard. None. ABSENT: None. ~IIJ& MATT HALL, PRESIDENT (SEAL) November 7, 2017 Item #10 Page 9 of 20 MASTER AGREEMENT FOR MASTER AGREEMENT FOR COMMUNICATIONS AND OUTREACH SOUTHWEST STRATEGIES, LLC CA1640 t1 THIS AGbEEMENT is made and entered into as of the C}+6 day of [>o:::€-rr:) 9 .. A .... , 2017, by and between the Carlsbad Municipal Water District, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, hereinafter referred to as "City", and Southwest Strategies, LLC, a limited liability corporation, hereinafter referred to as "Contractor." RECITALS A. CMWD requires the professional services of a communications and outreach consultant that is experienced in communications and outreach. 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 communications and outreach. 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 November 30, 2018. 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. 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 General Counsel Approved Version 9/27 /17 November 7, 2017 Item #10 Page 10 of 20 CA1640 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 one hundred thousand ($100,000) 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 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. 2 General Counsel Approved Version 9/27 /17 November 7, 2017 Item #10 Page 11 of 20 CA1640 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. 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. 3 General Counsel Approved Version 9/27 /17 November 7, 2017 Item #10 Page 12 of 20 CA1640 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 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. 4 General Counsel Approved Version 9/27 /17 November 7, 2017 Item #10 Page 13 of 20 CA1640 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. For City: Name Title Dept Address Phone Craddock Stropes Senior Management Analyst Transportation 1635 Faraday Av Carlsbad, CA 92008 760-602-2726 For Contractor: Name Chris Wahl Title Project Manager Address 401 B Street, Suite 150 San Diego, CA 92101 Phone 858-541-7800 Email cwhal@swspr.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. Yes D No 0 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 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 5 General Counsel Approved Version 9/27 /17 November 7, 2017 Item #10 Page 14 of 20 CA1640 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 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 6 General Counsel Approved Version 9/27 /17 November 7, 2017 Item #10 Page 15 of 20 CA1640 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. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill 7 General Counsel Approved Version 9/27 /17 November 7, 2017 Item #10 Page 16 of 20 CA1640 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 _____ day of __________ , 20 __ . CONTRACTOR SOUTHWEST STRATEGIES, LLC, a limited liability corporation By: (s here) Au1rct1 CJ}rI5:j6fnlt'f U£1}0/ (print n me/title) pi 05:,,a·itn-1 CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsi iary o·s ·ct of the City of I Carlsbad I By: / cutive Manager City Clerk 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. CITY OF CARLSBAD, a municipal corporation of the State of California APPROVED AS TO FORM: CELIA A. BR WER, City Attorney 8 General Counsel Approved Version 9/27 /17 November 7, 2017 Item #10 Page 17 of 20 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 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 5a,n }))ego ) On 0:.tobcc 8() > 26/-;/ before me, -.:(}_~~~.J..1....U!I........L:1...1...1.<1~-\--------!-Ah4..::..:::....'.0.=..!_.,. ~~~~~\ ;--c_'---- Date J Here Insert Name and Title of the fficer personally appeared .,.....A...,..(). ___ m~11~UJ~a.~h_l_a.~· n~o-~A-=.)~h~l _____ t<t\""'+--~Z~i~e=----,-g __ ~~"-::, ___ _ Name(s) of Sig'rter(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Place Notary Seal Above 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 offiw Signature C L Signature of Notary Public ----------------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: ____________________________ _ Document Date: ___________________ Number of Pages: _____ _ Signer(s) Other Than Named Above: _________________________ _ Capacity(ies) Claimed by Signer(s) Signer's Name: ____________ _ Signer's Name: ____________ _ i~ Corporate Officer -Title(s): ______ _ L] Corporate Officer -Title(s): ______ _ 1----:' Partner -[J Limited [[ General [[ Partner -[7 Limited ,-_=: General LJ Individual [J Attorney in Fact [[ Individual D Attorney in Fact [J Trustee [7 Guardian or Conservator [J Trustee ::J Guardian or Conservator D Other: _____________ _ D Other: ______________ _ Signer Is Representing: _________ _ Signer Is Representing: _________ _ ~-g,.~':§K,.~'§,(;.'§,(;.'§,(;.~'§,(;.~'§ls;.'§<;,'§-<;.~~'§ls;.~~~'§,(;.'§,(;.~~~'§,(;.~~'§ls;.-"§%~'§,(;.'! ©2016 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 November 7, 2017 Item #10 Page 18 of 20 EXHIBIT "A" SCOPE OF SERVICES CA1640 Perform a variety of communications and outreach task as outlined in individual Project Task Description & Fee Allotments (PTD&FA#) related to the following: 1. Public Meeting facilitation 2. Design/ development outreach 3. Construction outreach Requests for work not listed above must be contracted under a separate agreement. 9 General Counsel Approved Version 9/27 /17 November 7, 2017 Item #10 Page 19 of 20 CA1640 Fee Schedule Title Hourly Rate Chairman $225 President $225 Vice President $185 Director of Public Affairs $170 Manager of Public Affairs $155 Senior Account Executive $125 Account Executive $110 Graphic Designer $115 Administrative Support $50 Other direct costs will be identified based on the needs of specific public works projects. An example cost for a public meeting would be $10,000 and include collateral materials, signage, planning and coordination. 10 General Counsel Approved Version 9/27/17 November 7, 2017 Item #10 Page 20 of 20