HomeMy WebLinkAboutPure Technologies Inc; 2018-07-17; UTIL1693UTIL 1693
AGREEMENT FOR SEWER FORCE MAIN CONDITION ASSESSMENT SERVICES
PURE TECHNOLOGIES U.S., INC.
is made and entered into as of the \ rfj-day of
---!'---=~.........,-----' 2018, by and between the CITY OF CARLSBAD, a municipal
ity"), and PURE TECHNOLOGIES U.S. INC., a Delaware corporation,
RECITALS
A. City requires the professional services of a consultant that is experienced in sewer
force main inspections.
B. Contractor has the necessary experience in providing professional services and
advice related to sewer force main inspections.
C. Contractor has submitted a proposal to City and has affirmed its willingness and
ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City 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 one (1) years from the date first above
written. The City Manager may amend the Agreement to extend it for one (1) additional one (1)
year period or parts thereof. Extensions will be based upon a satisfactory review of Contractor's
performance, City needs, and appropriation of funds by the City Council. The parties will prepare
a written amendment indicating the effective date and length of the extended Agreement.
4. 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 initial Agreement term will be
two hundred seventeen thousand nine hundred eighty four dollars ($217,984). No other
compensation for the Services will be allowed except for items covered by subsequent
amendments to this Agreement. The City reserves the right to withhold a ten percent (10%)
retention until City has accepted the work and/or Services specified in Exhibit "A".
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".
City Attorney Approved Version 9/27/17
July 17, 2018 Item #3 Page 6 of 40
UTIL 1693
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 City. Contractor will be
under control of City only as to the result to be accomplished, but will consult with City as
necessary. The persons used by Contractor to provide services under this Agreement will not be
considered employees of City for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. City will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be
required to pay any workers' compensation insurance or unemployment contributions on behalf
of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty
(30) days for any tax, retirement contribution, social security, overtime payment, unemployment
payment or workers' compensation payment which City may be required to make on behalf of
Contractor or any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City's election, City may deduct the indemnification amount from any balance
owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of City.
If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the
acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly
employed by the subcontractor, as Contractor is for the acts and omissions of persons directly
employed by Contractor. Nothing contained in this Agreement will create any contractual
relationship between any subcontractor of Contractor and City. Contractor will be responsible for
payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of
a 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 City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees
and volunteers from and against all claims, damages, losses and expenses including attorney's
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 City incurs or
makes to or on behalf of an injured employee under the City's self-administered workers'
compensation is included as a loss, expense or cost for the purposes of this section, and that this
section will survive the expiration ·or early termination of this Agreement.
Notwithstanding anything herein to the contrary, neither party hereto will be liable to the
other for any consequential, indirect, incidental, or special loss or damage suffered by the
other party or any third party, or for any punitive damages, even if advised of the possibility
thereof.
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
City Attorney Approved Version 9/27/17
2
July 17, 2018 Item #3 Page 7 of 40
UTIL 1693
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 Coverage and Limits.
Contractor will maintain the types of coverage and minimum limits indicated below, unless the
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 City'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 The City will be named as an additional insured on Commercial General Liability
which shall provide primary coverage to the City.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which
will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and any extensions
of it and will not be canceled without thirty (30) days prior written notice to City sent by certified
mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
City Attorney Approved Version 9/27/17
3
July 17, 2018 Item #3 Page 8 of 40
UTIL 1693
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach, or may purchase
replacement insurance or pay the premiums that are due on existing policies in order to maintain
the required coverages. Contractor is responsible for any payments made by City to obtain or
maintain insurance and City may collect these payments from Contractor or deduct the amount
paid from any sums due Contractor under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete
and certified copies of any or all required insur_ance policies and endorsements.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of City
during normal business hours to examine, audit, and make transcripts or copies of records and
any other documents created pursuant to this Agreement. Contractor will allow inspection of all
work, data, documents, proceedings, and activities related to the Agreement for a period of three
(3) years from the date of final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All Work Product produced by Contractor or its agents, employees, and subcontractors and
delivered to City pursuant to this Agreement is the property of City. In the event this Agreement
is terminated, all Work Product produced by Contractor or its agents, employees and
subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have
the right to make one (1) copy of the work product for Contractor's records. ·
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City and
Contractor relinquishes all claims to the 9opyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notice or to receive written notice on
behalf of City and on behalf of Contractor under this Agreement
For City
Name David Hull
Title Assistant Engineer
Department Public Works
City of Carlsbad
Address 5950 El Camino Real
Carlsbad, CA 92008
Phone No. 760-603-7322
For Contractor
Name Carl Sharkey
Title Project Manager
Address 600 W Broadway, Suite 500
San Diego, CA 92101
Phone No. 530-379-5633
Email carl.sharkey@puretechltd.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.
City Attorney Approved Version 9/27 /17
4
July 17, 2018 Item #3 Page 9 of 40
UTIL 1693
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 four categories.
Yes D No IZJ
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 City will reduce such questions, and their
respective views, to writing. A copy of such documented dispute will be forwarded to both parties
involved along with recommended methods of resolution, which would be of benefit to both
parties. The representative receiving the letter will reply to the letter along with a recommended
method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The
City Manager will consider the facts and solutions recommended by each party and may then opt
to direct a solution to the problem. In such cases, the action of the City Manager will be binding
upon the parties involved, although nothing in this procedure will prohibit the parties from seeking
remedies available to them at law.
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
termination. If City decides to abandon or indefinitely postpone the work or services contemplated
by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon
notification of termination, Contractor has five (5) business days to deliver any documents owned
by City and all work in progress to City address contained in this Agreement. City will make a
determination of fact based upon the work product delivered to City and of the percentage of work
that Contractor has performed which is usable and of worth to City in having the Agreement
completed. Based upon that finding City will determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may terminate this
Agreement. In this event and upon request of City, Contractor will assemble the work product and
put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work
City Attorney Approved Version 9/27/17
5
July 17, 2018 Item #3 Page 10 of 40
UTIL 1693
performed to the termination date; however, the total will not exceed the lump sum fee payable
under this Agreement. City will make the final determination as to the portions of tasks completed
and the compensation to be made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
Contractor has not paid or agreed to pay any company or person , other than a bona fide
employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration
contingent upon, or resulting from, the award or making of this Agreement. For breach or violation
of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion,
to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the
fee, commission, percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must
be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation
of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is
submitted to City, it may be considered fraud and Contractor may be subject to criminal
prosecution. Contractor acknowledges that California Government Code sections 12650 et seq.,
the False Claims Act applies to this Agreement and , provides for civil penalties where a person
knowingly submits a false claim to a public entity. These provisions include false claims made
with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement for
a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is
grounds for City to terminate this Agreement.
23. 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 City and Contractor
and their respective successors. Neither this Agreement nor any part of it nor any monies due or
to become due under it may be assigned by Contractor without the prior consent of City, which
shall not be unreasonably withheld. ·
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it, along
with the purchase order for this Agreement and its provisions, embody the entire Agreement and
understanding between the parties relating to the subject matter of it. In case of conflict, the terms
of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions
may be amended, modified, waived or discharged except in a writing signed by both parties.
Ill
Ill
City Attorney Approved Version 9/27 /17
6
July 17, 2018 Item #3 Page 11 of 40
UTIL 1693
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.
CONTRACTOR
PURE TECHNOLOGIES U.S., INC., a
Delaware corporation
By:
John J. Galleher J , Vice President -West Region
(print name/title)
By:
(sign here)
(print name/title)
CITY OF CARLSBAD, a municipal
corporation of the State of California
By #;£
MATT~
Mayor
ATTEST:
City Clerk
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a corporation, Agreement must be signed by one corporate officer from each of the following
two groups.
Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
BY:-~-----"-~-.-..,.::.--
Deputy City Attorney
City Attorney Approved Version 9/27/17
7
July 17, 2018 Item #3 Page 15 of 40
March 26, 2018
David Hull
Assistant Engineer
City of Carlsbad
5950 El Camino Real
Carlsbad, California 92008
RE: Force Main Prioritization and Condition Assessment
Dear Mr. Hull,
Pure Technologies U.S. Inc. (Pure Technologies) is a recognized industry leader in the inspection and
assessment of pressurized pipelines and has built a reputation of providing state-of-the-art innovative
solutions for our clients. We have a strong team of more than 500 engineers and scientists dedicated to
condition assessment and proactive management of pressure pipe that would be available to the City of
Carlsbad (City -Client). As a result, we have taken leadership roles in the industry's recent initiatives to
assess pressurized pipelines across the nation. This is demonstrated by the following highlights of our
team:
• Experience: Pure Technologies has managed the condition assessment of over 16,000 miles of
pressure pipe including over 600 miles of wastewater force mains. In addition to individual force
main condition assessment projects Pure Technologies has developed or managed system wide
force main condition assessment programs for Metropolitan St. Louis Sewer District, City of Belmont
and the Baltimore County Bureau of Utilities. No other firm has more experience in managing
wastewater force mains.
• Expertise: Our engineers and scientists have written national standards on condition assessment of
force mains, pressurized water mains, numerous technical papers, and involvement on national
committees including the 2010 Water Environment Research Foundation Report Condition
Assessment of Wastewater Force Mains. This will enable our project team to provide the City with
state-of-the-art assessment solutions that address specific pipeline needs.
Innovation: Our engineers and scientists are actively involved in research and development to
provide new and innovative technologies and methods for pipeline assessment. This knowledge
allows Pure Technologies to develop assessments that provide utilities with actionable information
in order to successfully manage their critical pressure pipeline infrastructure.
Inspection Toolbox: Pure Technologies has developed a suite of condition assessment tools and
technologies for collecting critical data on pipelines. The environments our tools operate in are
pressurized, at times adverse and often lack redundancy. These unique operational challenges have
pushed Pure Technologies' research and development efforts to refine our technology platforms to
Page 2 of 24
San Diego, CA I 600 West Broadway, Suite 500 I San Diego, CA, USA 92101 I Tel: +1 (619) 272-7040 I
puretechltd.com
July 17, 2018 Item #3 Page 17 of 40