Contract - Kleinfielder, Inc. - 2023-03-27CONSULTANT AGREEMENT
(For Project 341 Elden PS Forcemain Professional Engineering Services)
This Agreement is made and effective as of March 27, 2023, between the Costa
Mesa Sanitary District, a sanitary district ("District") and Kleinfelder, Inc., a corporation
("Consultant"). In consideration of the mutual covenants and conditions set forth herein,
the parties agree as follows:
Recitals
WHEREAS, District requires professional engineer consulting services to design
a redundant sewer forcemain that includes installing new pipeline and rehabilitating or
replacing an existing out -of -service pipeline, and connecting to the existing forcemain
system with the goal of creating a redundant forcemain system for the District; and
WHEREAS, Consultant is experienced in performing and qualified to conduct the
required services to clients; and
WHEREAS, Consultant is knowledgeable about California legal requirements for
local government entities and is competent to provide services required hereby.
WHEREAS, the District has determined that the Consultant possesses the
knowledge, skills, ability, staffing and is competent to provide said services;
NOW, THEREFORE, the parties hereto do hereby agree as follows:
TERM
This Agreement shall commence on April 3, 2023 and shall remain and continue
in effect until tasks described herein are completed as stated in the Request for Proposal,
dated October 12, 2022, the Kleinfelder Proposal, dated November 17, 2022, and as
negotiated and outlined in the revised Fee Summary, dated February 21, 2023, unless
sooner terminated pursuant to the provisions of this Agreement.
2. SERVICES
Consultant shall provide professional engineering services described and set forth
in Exhibit A, Scope of Work and Request for Proposal, dated October 12, 2022. These
services shall meet the requirements of State law and shall be performed in accordance
with the Consultant's Proposal(s), dated November 17, 2022, and Fee Summary, dated
February 21, 2023, as set forth in Exhibit B.
3. PERFORMANCE
Consultant shall, at all times faithfully, competently, and to the best of its ability,
experience, and talent perform all tasks described herein. Consultant shall employ, at a
minimum, generally accepted standards and practices utilized by persons engaged in
providing similar services as are required of Consultant hereunder in meeting its
obligations under this Agreement.
4. PAYMENT/COMPENSATION+
(a) The District agrees to pay Consultant on a time and material basis, not to
exceed Six -hundred, eighty four thousand, two hundred and two dollars and
three cents ($684,202.03) to provide the required professional services. The
payment shall identify the tasks performed and deliverables and shall
correspond to the scope of work and associated Fee Proposal Task 1 through
6 and Tasks 8 through Task 10, excluding Task 7 — Geotechnical Evaluation,
set forth in Exhibit B.
(b) Labor, Overhead, and Profit: Include labor, overhead and benefits, and profit
in the hourly rates or reimbursable costs.
(c) Extra Work: Consultant shall not be compensated for any services rendered
in connection with its performance of this Agreement that are in addition to
those set forth herein, unless such additional services are requested in a
written change order and are approved in advance and in writing by District.
The written change order requirement cannot be waived.
The District Engineer may approve time extensions, if required, and may
reallocate the incremental amounts constituting the total compensation,
provided the total compensation is not increased.
The General Manager may approve change orders for additional work not to
exceed the cumulative value of ten percent (10%) of the total contract sum.
Any additional work in excess of this 10% cumulative amount must be
approved by the Board of Directors.
(d) Payment and Invoicing: Consultant will submit invoices monthly or upon task
completion unless otherwise agreed. Payment shall be made within thirty (30)
days of receipt of each invoice as to all non -disputed fees. If District disputes
any of Consultant's fees, District shall give written notice to Consultant within
thirty (30) days of receipt of an invoice of any disputed fees contained in the
invoice.
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(e) Direct Costs: The District shall pay to Consultant and Subconsultants the
actual costs of permits, associated fees, among other direct costs for an
amount not to exceed the sum set forth in Fee Proposal Form. The District
shall also pay actual costs for equipment rentals, leases, or purchases with
prior approval of the District. The Consultant shall provide to the District
receipts and other documentary records to support Consultant's request for
reimbursement of these amounts, see Exhibit D, Allowable Direct Costs. All
incidental expenses shall be included in overhead pursuant to
Payment/Compensation, subsection (b), Labor, Overhead, and Profit, above.
(f) Reimbursable Direct Cost: The District will reimburse the Consultant for
reasonable travel and business expenses as described in this section and
further described in Exhibit D, Allowable Direct Costs, to this Agreement. The
reimbursement of the above -mentioned expenses will be based on an
"accountable plan" as considered by Internal Revenue Service (IRS). The
plan includes a combination of reimbursements based upon receipts and a
per diem" component approved by IRS. The most recent schedule of the per
diem rates utilized by the District can be found on the U.S. General Service
Administration website at http://www.gsa.gov/portal/category/104711#.
Travel Meals and Per Diem rates as approved by IRS shall be utilized for
travel meals reimbursements. Per diem rates shall be applied to meals that
are appropriate for travel times. Receipts are required to demonstrate
compliance with allowed meal items.
Additional details related to the reimbursement of the allowable direct costs
are provided in the Exhibit D, Allowable Direct Costs of this Agreement.
The Consultant shall be responsible for the most economical and practical
means of management of reimbursable costs inclusive but not limited to
travel, lodging and meals arrangements. The District shall apply the most
economic and practical method of reimbursement which may include
reimbursements based upon receipts and/or "per diem" as deemed the most
practical.
Travel and travel arrangements involving airfare or overnight stay must be
approved in advance by the District.
Local and regional travel includes Imperial, Kern, Los Angeles, Orange,
Riverside, San Bernardino, San Diego, and Ventura Counties. Automobile
mileage is reimbursable if Consultant is required to utilize personal vehicle for
local travel. Consultant staff must carpool to the District whenever practical to
do so.
Lodging or overnight stays will not be approved for local or regional travel.
However, under certain circumstances overnight stay may be allowed at the
discretion of District based on reasonableness of meeting schedules and the
amount of time required for travel by the Consultant. Such determination will
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be made on a case -by -case basis and at the discretion of the District.
5. SUSPENSION OR TERMINATION OF AGREEMENT
(a) Either party may terminate the Agreement without cause by giving 30 days'
notice. In the event of such termination, Consultant shall be entitled to be paid
for work performed up until the time of termination provided the work product
is produced for District's use.
(b) In the event of default, no compensation shall be paid, and the Agreement
may be terminated in 5 days provided an opportunity to cure is provided in
that time period.
6. OWNERSHIP OF DOCUMENTS
(a) Consultant shall maintain complete and accurate records with respect
to the project and such other information required by District that relate to the performance
of services under this Agreement. Consultant shall maintain adequate records of services
provided in sufficient detail to permit an evaluation of services. All such records shall be
maintained in accordance with generally accepted accounting principles and shall be
clearly identified and readily accessible. Consultant shall provide free access to the
representatives of District or its designees at reasonable times to such books and records;
shall give District the right to examine and audit said books and records; shall permit
District to make transcripts therefrom as necessary; and shall allow inspection of all work,
data, documents, proceedings and activities related to this Agreement. Such records,
together with supporting documents, shall be maintained for a period of three (3) years
after receipt of final payment.
(b) Upon completion, termination or suspension of this Agreement all other
documents prepared in the course of providing the services to be performed pursuant to
this Agreement shall become the sole property of the District and may be used, reused
or otherwise disposed of by the District without the permission of the Consultant.
7. INDEMNIFICATION
(a) Indemnification for Professional Liability. When the law establishes a
professional standard of care for Consultant's Services, to the fullest extent permitted by
law, Consultant shall indemnify, protect, defend and hold harmless District and any and
all of its officials, employees and agents ("Indemnified Parties") from and against any and
all losses, liabilities, damages, costs and expenses, including attorney's fees and costs
to the extent the same are caused in whole or in part by any negligent or wrongful act,
error or omission of Consultant, its officers, agents, employees or subconsultants (or any
entity or individual that Consultant shall bear the legal liability thereof) in the performance
of professional services under this Agreement. Should the parties later obtain a
determination (before or after judgement) that liability was not caused by professional
negligence orwrongful act or omission of the Consultant, Consultant's liability for defense
cost shall be limited to the percentage of fault its negligent or wrongful act caused the
damages in relation to other parties' fault.
(b) Indemnification for Other Than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Consultant
shall indemnify, defend and hold harmless District, and any and all of its employees,
officials and agents from and against any liability (including liability for claims, suits,
actions, arbitration proceedings, administrative proceedings, regulatory proceedings,
loses, expenses or costs of any kind, whether actual, alleged or threatened, including
attorney's fees and costs, court costs, interest, defense costs and expert witness fees),
where the same arise out of, are a consequence of, or are in any way attributable to, in
whole or in part, the performance of this Agreement by Consultant or by any individual or
entity for which Consultant is legally liable, including but not limited to officers, agents,
employees or subconsultants of Consultant.
8. INSURANCE
In addition to Professional Liability Insurance, Consultant shall maintain prior to the
beginning of and for the duration of this Agreement general insurance and automobile
coverage as specified in Exhibit C1 and C2, District Insurance and Certificate of Liability
and Additional Insured, respectively, attached to and part of this Agreement. Such
insurance shall include commercial general liability, and current automotive and worker's
compensation. A certificate of insurance shall be submitted.
9. INDEPENDENT CONSULTANT
(a) Consultant is and shall at all times remain as to the District a wholly
independent Consultant. The personnel performing the services under this Agreement on
behalf of Consultant shall at all times be under Consultant's exclusive direction and
control. Neither District nor any of its officers, employees, or agents shall have control
over the conduct of Consultant or any of Consultant's officers, employees, or agents,
except as set forth in this Agreement.
(b) No employee benefits shall be available to Consultant in connection with the
performance of this Agreement. Except for the fees paid to Consultant as provided in the
Agreement, District shall not pay salaries, wages, or other compensation to Consultant
for performing services hereunder for District. District shall not be liable for compensation
or indemnification to Consultant for injury or sickness arising out of performing services
hereunder. In addition to the indemnity provisions in Paragraph 7, Consultant shall
indemnify District for any claims that any officer, agent or employee of Consultant is
eligible for pension or other fringe benefits provided to District's employees.
10. LEGAL RESPONSIBILITIES
The Consultant shall keep itself informed of State and Federal laws and
regulations, which in any manner affect those employed by it or in any way affect the
performance of its service pursuant to this Agreement. The Consultant shall at all times
observe and comply with all such laws and regulations. The District, and its officers and
employees, shall not be liable at law or in equity occasioned by failure of the Consultant
to comply with this Section.
11. UNDUE INFLUENCE
Consultant declares and warrants that no undue influence or pressure has been
used against or in concert with any officer or employee of the Costa Mesa Sanitary District
in connection with the award, terms or implementation of this Agreement, including any
method of coercion, confidential financial arrangement or financial inducement. No officer
or employee of the Costa Mesa Sanitary District will receive compensation, directly or
indirectly, from Consultant, or from any officer, employee or agent of Consultant, in
connection with the award of this Agreement or any work to be conducted as a result of
this Agreement. Violation of this Section shall be a material breach of this Agreement
entitling the District to any and all remedies at law or in equity.
12. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of District, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to any project
during his/her tenure or for one year thereafter, shall have any interest, direct or indirect,
in any agreement or sub -agreement, or the proceed thereof, for work to be performed in
connection with the project performed under this Agreement.
13. RELEASE OF INFORMATION / CONFLICTS OF INTEREST
(a) All information gained by Consultant in performance of this Agreement shall be
considered confidential and shall not be released by Consultant without District's prior
written authorization. Consultant, its officers, employees, agents or subconsultants, shall
not without written authorization from the General Manager or unless requested by the
District Counsel, voluntarily provide declarations, letters of support, testimony at
depositions, response to interrogatories, or other information concerning the work
performed under this Agreement or relating to any project or property located within the
District. Response to a subpoena or court order shall not be considered "voluntary"
provided Consultant gives District notice of such court order or subpoena.
(b) Consultant shall promptly notify District should Consultant, its officers,
employees, agents or subconsultants be served with any summons, complaint,
subpoena, notice of deposition, request for documents, interrogatories, requests for
admissions, or other discovery request, court order, or subpoena from any person or party
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regarding this Agreement and the work performed thereunder or with respect to any
project or property located within the District. District retains the right, but has no
obligation, to represent Consultant and/or be present at any deposition, hearing, or similar
proceeding. Consultant agrees to cooperate fully with District and to provide the
opportunity to review any response to discovery requests provided by Consultant.
However, District's right to review any such response does not imply or mean the right by
District to control, direct, or rewrite said response.
14. NOTICES
Any notices which either party may desire to give to the other party under this
Agreement must be in writing and may be given either by (i) personal service, (ii) delivery
by a reputable document delivery service, such as but not limited to, Federal Express,
which provides a receipt showing date and time of delivery, or (iii) mailing in the United
States Mail, certified mail, postage prepaid, return receipt requested, addressed to the
address of the party as set forth below or at any other address as that party may later
designate by notice:
To District: Costa Mesa Sanitary District
290 Paularino Avenue
Costa Mesa, California 92626
Attn: Clerk of the Board
To Consultant: Simon Wong, P.E., S.E.
Vice Presiden, Major Accounts
Kleinfelder, Inc.
770 First Street, Suite 400
San Diego, California 92101
15. ASSIGNMENT
The Consultant shall not assign the performance of this Agreement, nor any part
thereof, nor any monies due hereunder, without prior written consent of the District.
16. LICENSES
At all times during the term of this Agreement, Consultant shall have in full force
and effect, all licenses required of it by law for the performance of the services described
in this Agreement.
17. GOVERNING LAW
The District and Consultant understand and agree that the laws of the State of
California shall govern the rights, obligations, duties and liabilities of the parties to this
Agreement and also govern the interpretation of this Agreement. Any litigation concerning
this Agreement shall take place in the municipal, superior or federal district court with
jurisdiction over the Costa Mesa Sanitary District.
18. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to
the obligations of the parties described in this Agreement. All prior or contemporaneous
agreements, understandings, representations, and statements, oral or written, are
merged into this Agreement and shall be of no further force or effect. Each party is
entering into this Agreement based solely upon the representations set forth herein and
upon each party's own independent investigation of any and all facts such party deems
material.
19. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant warrants
and represents that he/she has the authority to execute this Agreement on behalf of the
Consultant and has the authority to bind Consultant to the performance of its obligations
hereunder.
20. INTERPRETATION
In the event of conflict or inconsistency between this Agreement and any other
document, including any proposal or Exhibit hereto, this Agreement shall control unless
a contrary intent is clearly stated.
21. NO ORAL MODIFICATION
This Agreement may not be modified orally, but only by a writing signed by persons
having the legal authority to bind their clients.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
COSTA MESA SANITARY DISTRICT
Boar resident
APPROVED AS TO FORM:
District Counsel
CONSULTANT: KLEINFELDER, INC.
Signature
John Moossazadeh Senior Vice President
Name/Title
Date
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Board Secretary
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
COSTA MESA SANITARY DISTRICT
Board President
ATTEST:
Distri rk/ lic I ormation Officer
APPROVE AS TO FORM:
District Counsel
CONSULTANT: KLEINFELDER, INC.
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Signature
John Moossazadeh, Senior Vice President
Name/Title
3/23/2023
Date
Board Secretary