HomeMy WebLinkAboutWater Systems Consulting Inc; 2022-06-09; PSA22-1842UTILPSA22-1842UTIL
General Counsel Approved Version 6/12/18
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AGREEMENT FOR DOWNTOWN AND TERRAMAR SMALL DIAMETER WATER MAIN
REPLACEMENT
WATER SYSTEMS CONSULTING, INC.
THIS AGREEMENT is made and entered into as of the ______________ day of
___________________, 2022, by and between the Carlsbad Municipal Water District, a Public
Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of
Carlsbad, ("CMWD"), and Water Systems Consulting, Inc., a California corporation,
("Contractor").
RECITALS
A. CMWD requires the professional services of a consultant that is experienced in
water engineering and design services.
B. Contractor has the necessary experience in providing professional services and
advice related to water engineering and design services.
C. Contractor has submitted a proposal to CMWD and has affirmed its willingness
and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, CMWD and Contractor agree as follows:
1. SCOPE OF WORK
CMWD retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this reference in
accordance with this Agreement’s terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and skill
customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California Area and will use reasonable diligence and best judgment while
exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of two (2) years from the date first above
written.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the Agreement term shall not exceed
thirty nine thousand nine hundred ninety dollars ($39,990). No other compensation for the
Services will be allowed except for items covered by subsequent amendments to this Agreement.
CMWD reserves the right to withhold a ten percent (10%) retention until CMWD has accepted the
work and/or Services specified in Exhibit "A".
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".
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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.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless CMWD and the City of Carlsbad, their officers,
officials, employees and volunteers from and against all claims, damages, losses and expenses
including attorneys’ fees arising out of the performance of the work described herein caused by
any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone
directly or indirectly employed by any of them or anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney’s fee, costs or expense CMWD or the
City of Carlsbad incurs or makes to or on behalf of an injured employee under their self-
administered workers’ compensation is included as a loss, expense or cost for the purposes of
this section, and that this section will survive the expiration or early termination of this Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may
arise out of or in connection with performance of the services by Contractor or Contractor’s
agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The insurance
carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus
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line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating
in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by
the National Association of Insurance Commissioners (NAIC) latest quarterly listings report.
10.1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below, unless the
Risk Manager or Executive Manager approves a lower amount. These minimum amounts of
coverage will not constitute any limitations or cap on Contractor's indemnification obligations
under this Agreement. CMWD, its officers, agents and employees make no representation that
the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are
adequate to protect Contractor. If Contractor believes that any required insurance coverage is
inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems
adequate, at Contractor's sole expense. The full limits available to the named insured shall also
be available and applicable to CMWD as an additional insured.
10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an
“occurrence” basis, including personal & advertising injury, with limits no less than $2,000,000 per
occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply
separately to this project/location or the general aggregate limit shall be twice the required
occurrence limit.
10.1.2 Automobile Liability (if the use of an automobile is involved for Contractor's
work for CMWD). $2,000,000 combined single-limit per accident for bodily injury and property
damage.
10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation
limits as required by the California Labor Code. Workers' Compensation will not be required if
Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this.
10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor’s
profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a
period of five years following the date of completion of the work.
10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
10.2.1 CMWD will be named as an additional insured on Commercial General
Liability which shall provide primary coverage to CMWD.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability,
which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and any
extensions of it and will not be canceled without thirty (30) days prior written notice to CMWD sent
by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then CMWD will have the option to declare Contractor in breach or may purchase
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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 any time,
complete and certified copies of any or all required insurance policies and endorsements.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of CMWD
during normal business hours to examine, audit, and make transcripts or copies of records and
any other documents created pursuant to this Agreement. Contractor will allow inspection of all
work, data, documents, proceedings, and activities related to the Agreement for a period of three
(3) years from the date of final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant
to this Agreement is the property of CMWD. In the event this Agreement is terminated, all work
product produced by Contractor or its agents, employees and subcontractors pursuant to this
Agreement will be delivered at once to CMWD. Contractor will have the right to make one (1) copy
of the work product for Contractor’s records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in CMWD and
Contractor relinquishes all claims to the copyrights in favor of CMWD.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written notice
on behalf of CMWD and on behalf of Contractor under this Agreement.
For CMWD For Contractor
Name Keri Martinez Name Jeroen Olthof
Title Senior Engineer Title Vice President
Carlsbad Municipal Water District Address 9815 Carroll Canyon Rd, Ste 2054
Address 5950 El Camino Real San Diego, CA 92131
Carlsbad, CA 92008 Phone 858-397-2617
Phone 442-339-2354 E-mail jolthof@wsc-inc.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.
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16. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report
investments or interests in all categories.
Yes ☒ No ☐
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and regulations
which in any manner affect those employed by Contractor, or in any way affect the performance
of the Services by Contractor. Contractor will at all times observe and comply with these laws,
ordinances, and regulations and will be responsible for the compliance of Contractor's services
with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants that the services required
by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not otherwise settled by agreement
between the parties. Representatives of Contractor or CMWD will reduce such questions, and
their respective views, to writing. A copy of such documented dispute will be forwarded to both
parties involved along with recommended methods of resolution, which would be of benefit to
both parties. The representative receiving the letter will reply to the letter along with a
recommended method of resolution within ten (10) business days. If the resolution thus obtained
is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the
Executive Manager. The Executive Manager will consider the facts and solutions recommended
by each party and may then opt to direct a solution to the problem. In such cases, the action of
the Executive Manager will be binding upon the parties involved, although nothing in this
procedure will prohibit the parties from seeking remedies available to them at law.
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, CMWD may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
termination. If CMWD decides to abandon or indefinitely postpone the work or services
contemplated by this Agreement, CMWD may terminate this Agreement upon written notice to
Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any
documents owned by CMWD and all work in progress to CMWD address contained in this
Agreement. CMWD will make a determination of fact based upon the work product delivered to
CMWD and of the percentage of work that Contractor has performed which is usable and of worth
to CMWD in having the Agreement completed. Based upon that finding CMWD will determine the
final payment of the Agreement.
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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 CMWD 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.
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27. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR, CARLSBAD MUNICIPAL WATER
DISTRICT, a Public Agency organized under
the Municipal Water Act of 1911, and a
Subsidiary District of the City of Carlsbad
WATER SYSTEMS CONSULTING, INC.,
a California corporation
By: By:
(sign here) Vicki V. Quiram, General Manager, as
authorized by the Executive Manager Jeffery Mitchell Szytel,
President & Secretary
(print name/title)
By:
(sign here)
(print name/title)
If required by CMWD, proper notarial acknowledgment of execution by contractor must be
attached. If a corporation, Agreement must be signed by one corporate officer from each of the
following two groups.
Group A 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: _____________________________
Assistant General Counsel
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EXHIBIT “A”
SCOPE OF SERVICES
ITEM
NO. DESCRIPTION PRICE
1 Project Management $5,840
2 Final Design $16,440
3 Bid Phase Support $2,050
4 Construction Phase Support $15,660
TOTAL* $39,990
*Includes taxes, fees, expenses and all other costs.
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May 19, 2022
Carlsbad Municipal Water District
Keri L. Martinez, PE
Utilities Senior Engineer
Public Works
5950 El Camino Real
Carlsbad, CA 92008-8802
Reference: CIP 3904 for the Downtown and Terramar Small Diameter Water Main
Replacement Project
Subject: Final Design, Bid Phase Support, and Construction Phase Support Scope and
Fee Letter
Dear Ms. Martinez
Water Systems Consulting, Inc. (WSC) is requesting a budget amendment for the referenced
project. This budget amendment covers the out of scope work performed to get the project
through final design and additionally includes an estimate of time for providing as needed bid and
construction phase support.
If you have any questions or would like additional information, please don’t hesitate to ask.
Sincerely,
Water Systems Consulting, Inc.
Christopher Deiter, PE
Project Manager
EXHIBIT "A"
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Scope of Work
TASK 0.0 PROJECT MANAGEMENT
0.1 Project Administration & Coordination
Provide project administration and coordination
Prepare and review monthly invoices with project status updates describing the work
performed during the previous month
Provide comprehensive quality control reviews of deliverables by WSC senior technical
staff prior to submittal to the City for review
TASK 1.0 FINAL DESIGN
WSC will incorporate City comments and requested revisions to prepare final design documents
for bidding purposes. Final design documents will include the following:
Design Plans
(1) WSC will incorporate City comments on the 90% and 100% drawings to prepare a
Bid Set of the design plans. Revisions include alignment changes, high line
considerations, connection detail re-work and renumbering, standard drawing
changeout and renumbering, etc.
Cost Opinion
(1) WSC will prepare a final construction cost opinion based on the final quantities in
the Bid Set Design Plans
TASK 2.0 BID PHASE SUPPORT
WSC services during bidding and construction will be limited to engineering and design-related
services at the request of the City. We anticipate the following tasks will be needed to support
the City during bidding:
Technical design and specification clarifications
General Assistance as requested by City
The budget contains an estimate of hours that may be needed to support the City during bidding
but will only be utilized at the request and direction of the City.
TASK 3.0 CONSTRUCTION PHASE SUPPORT
3.1 Conformed Construction Documents Preparation
WSC will generate conformed plans and specifications based on any addenda prepared
and the executed contract. WSC will provide a digital copy (pdf), suitable for full size
(22”x34”) reproduction by a local printer for distribution to the contractor, of the signed
conformed plans and specifications.
3.2 General Construction Support
Additional engineering design services through project completion to be provided on a time
and materials basis up to budget identified in fee breakdown. Support services to be provided
by WSC upon CMWD request may include the following:
EXHIBIT "A"
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Respond to requests from City for clarification
Review special design-related submittals and shop drawings
Provide responses to design related RFIs
Construction meetings, conference calls
The budget contains an estimate of hours that may be required to support the City during
Construction but will only be utilized at the request and direction of the City.
3.3 Prepare Final Record Drawings
Based on changes noted on the redline As-Built drawings maintained by the Contractor
and the Resident Project Representative, WSC will prepare final As-Built Record Drawings
in AutoCAD. Provide As-Builts as a PDF files suitable for full size (22”x34”) reproduction
by a local printer. WSC will also provide a copy of the AutoCAD files for the Final Record
Drawings.
ASSUMPTIONS
WSC understands that the City will handle all CEQA and encroachment permitting efforts,
including fees.
WSC understands that the City will handle Bid Advertisement, including fees.
City will provide construction observation and inspection.
City will provide construction phase materials testing.
Construction staking will be required to be provided by the Contractor.
City does not desire a geotechnical investigation. Soil conditions are generally known to be
paralic deposits and design will be based on assumed soil strength parameters.
EXHIBIT "A"
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Budget Principal in ChargeProject ManagerProject EngineerCivil DesignerAdministrative SupportWSC Labor HoursWSC Labor FeeExpensesWSC FeeTotal FeeKirsten PlonkaChristopher DeiterAdam DonaldChristopher DurbinKay MerrillBilling rates, $/hr$320 $240 $195 $160 $1600 Project Management0.1 Project Administration & Coordination 2 1510275,840$ -$ 5,840$ 5,840$ SUBTOTAL2 15 0 0 10 275,840$ -$ 5,840$ 5,840$ 1 Final Design1.1 Final Design24 40 1882 16,440$ -$ 16,440$ 16,440$ SUBTOTAL0 24 40 18 0 82 16,440$ -$ 16,440$ 16,440$ 2 Bid Phase Support2.1 Bid Phase Support1 6 4112,050$ -$ 2,050$ 2,050$ SUBTOTAL0 1 6 4 0 112,050$ -$ 2,050$ 2,050$ 3 Construction Phase Support3.1 Conformed Construction Document Preparation 1 8 8173,080$ -$ 3,080$ 3,080$ 3.2 General Construction Support9 24 4377,480$ -$ 7,480$ 7,480$ 3.3 Prepare Final Record Drawings2 4 24305,100$ -$ 5,100$ 5,100$ SUBTOTAL0 12 36 36 0 84 15,660$ -$ 15,660$ 15,660$ COLUMN TOTALS2 52 82 58 10 204 39,990$ -$ 39,990$ 39,990$ ALL FIRMSTask No.Task DescriptionWSCEXHIBIT "A"DocuSign Envelope ID: D7098680-8716-4081-855A-C14847AF187D
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