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HomeMy WebLinkAbout2017-09-12; Municipal Water District; Resolution 1584RESOLUTION 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