HomeMy WebLinkAboutMASTER AGREEMENT Gannett Fleming (formerly SAGE) 2019MASTER AGREEMENT
FOR
CONSULTING
THIS AGREEMENT is made and entered into as of the 10 day of June 2019 by and between South Tahoe
Public Utility District, hereinafter referred to as "DISTRICT" and Gannett Fleming, Inc., hereinafter referred to as
"CONSULTANT".
RECITALS
A. DISTRICT periodically makes improvements to its water, wastewater and ancillary facilities, for which it
may require the services of a consultant.
B. DISTRICT proposes to provide a MASTER AGREEMENT for consulting services which will be required
by DISTRICT in general support of projects under separate titles (Task Orders). The general scope of
services outlined in this MASTER AGREEMENT will be further defined by a series of Task Orders which
will set forth the services to be performed (detailed scope), costs, and time for completion.
C. DISTRICT desires to secure professional consulting services for said projects and CONSULTANT
represents that CONSULTANT possesses the professional qualifications to provide such consulting
services.
D DISTRICT and CONSULTANT agree to enter into this MASTER AGREEMENT for the performance of
consulting services on the terms and conditions stated in this MASTER AGREEMENT.
NOW THEREFORE, for and in consideration of their mutual promises and subject to the terms, provisions and
conditions hereinafter set forth, the parties hereto do hereby agree as follows:
ARTICLE I. - CONSULTING SERVICES
A. Upon execution of this agreement and subsequent Task Orders by both parties, and upon receipt of
written authorization from DISTRICT, CONSULTANT at CONSULTANT's sole cost and expense (to be
reimbursed as outlined in ARTICLE IV) and to the satisfaction of DISTRICT, shall perform the services
(Services) set forth in each Task Order and represented by a separate proposal for each Task Order.
The Services shall be assigned to CONSULTANT by DISTRICT for the various projects as planned and
developed by DISTRICT. Each Task Order shall specify the Services to be performed, the time
schedules for completion of the Task Order and for completion of all tasks (Tasks) within the Task Order,
and the cost (Cost Ceiling) including all fees, costs and expenses, both direct and indirect, of the Task
Order, but shall otherwise be governed by the terms and conditions of this Agreement, as modified by the
individual Task Orders. Task Orders shall be in writing, signed by both parties in advance, and shall be
attached to this Agreement as consecutive exhibits beginning with Task Order 1.
CONSULTANT agrees to comply with the schedule as set forth in each Task Order, and to provide
Services in a timely manner to allow DISTRICT's project(s) to be constructed as planned by DISTRICT.
In the event CONSULTANT is not able to comply with the project schedule, a written statement from
CONSULTANT will be required showing CONSULTANT's plan to bring schedule back into compliance to
meet completion date. In the event of delays due to causes beyond the control of CONSULTANT, an
extension to the schedule for performance shall be negotiated.
C. CONSULTANT shall provide DISTRICT with a review of the budget amount when 75% of the Cost Ceiling
of each Task Order has been expended. CONSULTANT shall be entitled to reallocate costs among
subtasks within a Task. DISTRICT shall have the right to transfer Tasks and costs within the same or
other Task Order(s).
CONSULTANT may request a revision in the Cost Ceiling for performance of the Task Order, and will
relate the rationale for the revision to the specific basis of estimate. Such notification will be submitted to
DISTRICT at the earliest possible date. The Cost Ceiling will not be exceeded without approval by
DISTRICT and written amendment to the Task Order.
D. In the case of changes affecting project scope resulting from new findings, unanticipated conditions, or
other conflicts or discrepancies, CONSULTANT shall promptly notify the DISTRICT of the identified
changes and advise the DISTRICT of a recommended solution. Additional Services shall not be
performed without prior written authorization of DISTRICT.
DISTRICT may order, via a written amendment signed by each party's authorized representative,
changes in scope or character of Services, either decreasing or increasing the amount of
CONSULTANT'S services associated with a given Task Order. An order for additional services
constitutes a change to the Task Order and shall be made in writing, dated, and appended to that Task
Order.
Compensation for Additional Services shall be on the basis of Time and Materials or Lump Sum, to be
agreed upon at the time of request for Additional Services. The estimated amount of compensation for
Additional Services will be determined at the time the Additional Services are requested.
A DISTRICT shall furnish to or make available for examination by CONSULTANT, as it may request, all
data and information which DISTRICT may have available, and CONSULTANT may rely upon such data
and information developed exclusively by DISTRICT in the performance of CONSULTANT's services.
B. DISTRICT shall secure and pay for all permits and licenses (other than permits and licenses under any
patent or invention) and furnish all deposits and bonds necessary in connection with the Projects, except
licenses required to permit CONSULTANT to do business at the place where its services are to be
performed. CONSULTANT will assist DISTRICT in procuring necessary licenses or permits if required by
DISTRICT to do so.
In order that DISTRICT may meet its obligations with respect to the technical quality of the services to be
performed under this Master Agreement, the services performed by CONSULTANT under this Agreement
shall be under the general supervision and direction of the DISTRICT's General Manager/Engineer
(DISTRICT REPRESENTATIVE), who shall be Mr. John A. Thiel, P.E., M.B.A. CONSULTANT and its
officers, employees, agents, affiliates, and subcontractors shall act in complete harmony and coordination
with the DISTRICT REPRESENTATIVE. The DISTRICT REPRESENTATIVE shall keep in touch with the
CONSULTANT during the duration of the Task Orders and shall be the authorized medium of
communication for and with District matters pertaining thereto. DISTRICT REPRESENTATIVE may from
time to time delegate any or all of his supervisory responsibility to appropriate staff members, and the
DISTRICT shall so inform CONSULTANT before the effective date of each such delegation.
ARTICLE Ill. - RESPONSIBILITIES OF CONSULTANT
A. In rendering the professional services, CONSULTANT is an independent contractor, the DISTRICT being
interested only in the result obtained, and the manner and means of conducting such professional
services will be under the sole control of CONSULTANT, except that nothing herein shall be deemed to
negate DISTRICT's right to direct the nature of the Services requested and to direct the work in terms of
timing and coordination with the Projects.
B. CONSULTANT shall secure approval of DISTRICT prior to executing contracts with subcontractors and
prior to retaining subcontractors for any portion of services for DISTRICT,
C. CONSULTANT shall be as fully responsible to DISTRICT for the negligent acts, errors, and/or omissions
of its subcontractors, as it is for the negligent acts, errors and/or omissions of persons directly employed
by it. CONSULTANT will be responsible for review and billing accuracy and for the direct payment for
Services completed or equipment/materials supplied by all of its subcontractors.
D. Nothing contained in the Agreement shall create any contractual relationship between any subcontractor
and DISTRICT.
E. Indemnification
CONSULTANT shall perform Services in a manner commensurate with prevailing professional
standards of qualified and experienced personnel in CONSULTANT'S field.
CONSULTANT agrees indemnify and hold DISTRICT and each of its officers,
employees, agents and representatives harmless from any claims, damage, liability or costs
(including reasonable attorney's fees and costs of defense) stemming from Services under this
Agreement to the extent such claims, damage, liability or costs are caused by CONSULTANT'S
negligence, recklessness or willful misconduct or by the negligence, recklessness or willful
misconduct of CONSULTANT'S subconsultants, agents, or anyone acting on behalf of or at the
direction of CONSULTANT.
DISTRICT agrees to defend, indemnify and hold CONSULTANT and each of its officers,
employees, agents and representatives harmless from any claims, damage, liability or costs
(including reasonable attorney's fees and costs of defense) stemming from Services under this
Agreement to the extent such claims, damage, liability or costs are caused by DISTRICT'S
negligence, recklessness or willful misconduct or by the negligence, recklessness or willful
misconduct of the DISTRICT'S subconsultants, agents, or anyone acting on behalf of or at the
direction of the DISTRICT.
The provisions of this section survive the completion of services under or the termination of this
Agreement.
Comm
ent (SGI
Insurance: The following are the basic requirements that CONSULTANT shall be responsible for at
CONSULTANT's sole cost and expense and for the full term of this Agreement and before
commencement of services hereunder:
i. CONSULTANT shall carry or require that there be carried Worker's Compensation Insurance for
all of its employees and those of its subcontractors in accordance with the laws of the State of
California.
2. CONSULTANT shall carry or require that there be carried Commercial Liabifity Insurance
including Automobile Coverage, in an amount not less than $5.000.000 for each person, in an
amount of not less than $5,000,000 on account of one accident, and Pro arty Damage Insurance
in an amount not less than $5,000,000 single limit Bodily Injury and Property Damage Insurance
per occurrence.
3. CONSULTANT shall carry Errors and Omissions Insurance in an amount not less than
$5,000,000 with a deductible of not more than $500,000 for the life of the Agreement which shall
include one year beyond completion of Services.
4 Before commencing services, CONSULTANT shall submit evidence of the coverage required to
DISTRICT for review and approval. All such coverage shall be subject to approval by DISTRICT;
approval of which shall not be unreasonably withheld. Such insurance shall be carried with
financially responsible insurance companies, licensed in the State of California, and approved by
DISTRICT; approval of which shall not be unreasonably withheld. Evidence of coverage shall
insure that such policies will not be canceled without 30 days prior written notice to DISTRICT.
Commercial Liability policies, including Automobile Coverage and Property Damage Insurance,
shall name DISTRICT, its officers, officials, volunteers, and employees as Additional Insured and
as such persons, shall be Primary coverage.
5. It is the responsibility of the CONSULTANT to provide to the DISTRICT updated insurance
certificates within 30 days after renewal or 6r� qes!,c'+tr p Fx .t ja i `,I:r _ni aleri 9 t rFt, f w .,C
Comment [SG2]: TNII IAI
6. CONSULTANT shall grant to the DISTRICT a waiver of any right to subrogation which any
insurer of said CONSULTANT may acquire against the DISTRICT by virtue of the payment of any
loss under such insurance. CONSULTANT agrees to obtain any endorsement that may be
necessary to affect this waiver of subrogation, but this provision applies regardless of whether or
not the DISTRICT has received a waiver of subrogation endorsement from the insurer.
7, CONSULTANT shall require and verify that all subcontractors maintain insurance meeting all the
requirements stated herein, and the DISTRICT shall be named as an additional insured on
insurance required from subcontractors.
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G. CONSULTANT shall comply with all applicable laws, ordinances and codes of the Federal, State of
California, and local governments. CONSULTANT shall hold DISTRICT harmless with respect to any
damages to the extent arising from any tort committed in the performance of any of the services
embraced by this AGREEMENT due to CONSULTANT's negligence.
H. CONSULTANT is responsible for the health and safety of its employees, subconsultants, agents or
anyone working on behalf or direction of CONSULTANT in the course of Services. CONSULTANT shall
ensure that its employees, subconsultants, agents or anyone working on behalf of or under the direction
of CONSULTANT shall have experience and knowledge of Federal, State and local Health and Safety
regulations and requirements.
1 CONSULTANT and its associates and employees involved in projects covered under this Master
Agreement covenant that they presently have no interest and that they will not acquire any interest, direct
or indirect, during the term of this Agreement which would conflict in any manner or degree with the
performance of services required under this Agreement.
J. CONSULTANT will name the supervisory and staffing levels in the performance of CONSULTANT's
services for each Task Order. CONSULTANT shall not replace supervisory or staffing levels without the
prior written consent of DISTRICT. In the event a change is required by reason of resignation or similar
circumstance, DISTRICT shall not deny consent to a change, but shall have the right to review and
approve or disapprove the particular person proposed as a replacement. Any proposed replacement
shall have substantially the same experience and qualifications as the person being replaced.
K. CONSULTANT shall furnish, at its own expense, all labor, materials, equipment, tools, transportation and
services necessary for the successful completion of the services to be performed under this Agreement.
CONSULTANT shall give its full attention and supervision to the fulfillment of the provisions of this
Agreement and each Task Order by its employees and subcontractors and shall be responsible for the
timely performance of the Services required by this Agreement.
L. CONSULTANT shall furnish DISTRICT with reasonable opportunities from time to time to ascertain
whether the Services of CONSULTANT are being performed in accordance with this Agreement. All work
done and materials furnished shall be subject to final review and approval by DISTRICT. DISTRICT's
review and approval of the Services shall not, however, relieve CONSULTANT of any of its obligations
under this Agreement.
M. The DISTRICT participates in the CalPERS retirement system. It is the responsibility of CONSULTANT to
ensure that staff working on DISTRICT projects and receiving CalPERS pension benefits do so in
accordance with CalPERS rules and regulations. DISTRICT shall incur no cost associated with pension
benefits of a person receiving pension benefits from CalPERS.
ARTICLE IV. - CONSULTANT'S FEES
A. CONSULTANT is employed to render professional services only, and any payments made to it are
compensation only for such Services as it may render and recommendations it may make in carrying out
the Services.
CONSULTANT shall submit to DISTRICT an estimate of costs for the authorized Task Order. Said
estimate shall include a breakdown of estimated job classification with corresponding man hours, hourly
rate, and estimated fee, together with estimated expenses. Upon approval by DISTRICT, said total
estimate shall become a Cost Ceiling, and total compensation for said Services shall not exceed said
amount without further authorization by DISTRICT. DISTRICT shall be obligated to pay only such hourly
rates and expenses as are actually incurred by CONSULTANT subject to the Cost Ceiling.
The rates of compensation in the Task Order are agreed to in anticipation of the orderly and continuous
progress of the Project through completion of the Services contained therein. CONSULTANT'S obligation
to render services thereunder will extend for the period set forth in the associated schedule, and required
extensions thereto. If such dates are exceeded through no fault of CONSULTANT, then all rates,
measures and amounts of compensation provided in the Task Order shall be subject to equitable,
negotiated adjustment, but not otherwise.
B DISTRICT agrees to pay CONSULTANT for and in consideration of the faithful performance of all
services and duties set forth in this Master Agreement and subsequent Task Orders, and agreed to be
performed by CONSULTANT. CONSULTANT agrees to accept payment from DISTRICT as and for full
compensation for the faithful performance of all said services and duties as the amount set forth for
consulting services for each Task Order.
C The DISTRICT will not approve any additional compensation unless a change in the scope of the
Services has occurred due to conditions that the parties could not have reasonably anticipated at the time
entering into this Agreement. CONSULTANT shall notify DISTRICT immediately if the scope of services
under the lump sum Task Order is changed substantially, as required in Article I, Paragraph D.
D. CONSULTANT shall submit to DISTRICT a monthly, itemized invoice for services completed during the
preceding month. The invoice should also include the purchase order number and task order number for
each Task Order. Payment by DISTRICT to CONSULTANT shall be made within 45 days after receipt
and approval by DISTRICT of CONSULTANT's hereinabove described invoice.
E Should the DISTRICT dispute any portion of any bill, the DISTRICT shall pay the undisputed portion
within the time frame stated above and, at the same time, advise the CONSULTANT in writing of the
disputed portion. The DISTRICT shall promptly notify CONSULTANT of the dispute and request
clarification and/or remedial action. After any dispute has been settled, CONSULTANT shall provide a
special invoice that accounts for the resolution of the disputed item.
F. The costs for professional services and direct expenses shall be in accordance with the rates and
amounts set forth in the applicable Task Order. In addition, the DISTRICT reserves the right to request
from the CONSULTANT a breakdown of costs associated with the rates for professional services,
including but not limited to direct salary, total overhead, and profit.
G CONSULTANT shall be solely responsible for the payment of all federal, state or local income tax, social
security tax, worker's compensation insurance, state disability insurance and any other taxes or insurance
which CONSULTANT is responsible for paying as an independent contractor under federal, state or local
law. CONSULTANT shall procure and maintain all licenses necessary for the performance of the
Services, all at the sole cost of CONSULTANT. All of the above shall not be reimbursable under the
Agreement.
ARTICLE V. - MISCELLANEOUS PROVISIONS
A. Any Services subcontracted hereunder shall be specified by written contract or agreement and shall be
subject to each provision of this Agreement.
M.
B. Notice to Proceed - CONSULTANT will not begin services on any Task Order until DISTRICT directs it in
writing to proceed.
C. Submittal of Work Product and Written Notice - All reports and documents which CONSULTANT is
required to furnish to DISTRICT (Work Product) and any other writing which CONSULTANT desires to
give DISTRICT shall be delivered to DISTRICT or by depositing same in the United States mail, postage
prepaid, addressed to:
General Manager
South Tahoe Public Utility District
1275 Meadow Crest Drive
South Lake Tahoe, CA 96150
Any legally operative documents shall be copied to:
Brownstein Hyatt Farber Schreck, LLC
21 E. Carrillo Street
Santa Barbara, CA 93101-2782
Any notices or other writing which DISTRICT desires or is required to give or furnish to CONSULTANT
shall be delivered to CONSULTANT by delivering in person or by depositing same in the United States
mail, postage prepaid, addressed to:
Gannett Fleming, Inc.
P.O. Box 829160
Philadelphia, PA 19182-9160
The effective date of such written notice shall be the date of personal delivery of such notice or the receipt
of same in the United States mail. The address to which any notice or other writing may be delivered may
be changed upon written notice by such party as above provided.
Ownership of Documents - All documents prepared by CONSULTANT and required to be furnished to
DISTRICT in electronic and hard copy format, shall be the property of DISTRICT after payment to
CONSULTANT. All electronic documents shall be provided to the District in an editable format. Any use
of Work Product for other projects andfor any use of uncompleted documents without specific written
risk and wlon from ithout liability or legal exposure to CONSULTANT and DI tTrulg T will be at DISTRICT'S sole
d DISTRICT shall indemnify and hold
harmless CONSULTANT from all claims, damages, losses and expenses, including attorney's fees arising
out of or resulting therefrom.
E. Audit of CONSULTANT's Records - The books, papers, records, and accounts of CONSULTANT or any
other consultants retained by CONSULTANT insofar as they relate to charges for services, or are in any
way connected with the work herein contemplated, shall be open at all reasonable times to inspection and
audit by the agents and authorized representatives of DISTRICT. Said records shall be retained for a
minimum of five (5) years after completion of services on the individual Task Orders.
Discrimination - During the term of this Agreement, CONSULTANT agrees in accordance with Section
1735 of the Labor Code of the State of California not to discriminate against any employee or applicant for
employment because of race, religious creed, color, national origin, ancestry, physical handicap, medical
condition, sex, or marital status. CONSULTANT will take affirmative action to the limits prescribed by law
to ensure that applicants are employed, and that employees are treated during employment, without
Comment [SG4]: INITIAL
regard to their race, religious creed, color, national origin, ancestry, physical handicap, medical condition,
sex, or marital status.
G. Assianment - Neither party shall assign any interest in this Agreement, nor transfer any interest in the
same (whether by assignment or novation), without the prior written consent of the other party; provided,
however, that claims for money due or to become due CONSULTANT from DISTRICT under this
Agreement may be assigned to a bank, trust company or other financial institution without such approval.
Notice of any such assignment or transfer shall be furnished promptly to DISTRICT.
Attorney's Fees - If any legal proceeding is brought to enforce or interpret the provisions of the
Agreement, the prevailing party shall be entitled to recover actual attorneys' fees and costs, which may be
determined by the court in the same action or in a separate action brought for that purpose. The
attorneys' fees award shall be made as to fully reimburse for all attorneys', paralegal and experts' fees,
costs and expenses actually incurred in good faith, regardless of the size of the judgment, it being the
intention of the parties to fully compensate for all attorneys', paralegal and experts' fees, costs and
expenses paid or incurred in good faith.
Confidential Information - During and after the term of this Agreement, CONSULTANT shall not, directly
or indirectly, use, exploit, disclose or divulge to anyone, except appropriate representatives of DISTRICT,
any of CONSULTANT'S engineering Work Product, except as otherwise authorized with DISTRICT's
express consent.
Authorization - All officers and individuals executing this and other documents on behalf of the respective
parties certify and warrant that they have the capacity and have been duly authorized to execute said
documents on behalf of the entities indicated.
Time of the Essence. Time is of the essence in the performance of this Agreement and each Task Order.
Any breach of any time deadline or schedule by CONSULTANT is agreed by the parties to be a material
breach of this Agreement, providing DISTRICT with termination rights under this Agreement, in addition to
its rights to recover damagesN,•€4;4m. errs:.Yz s ra.€i I € c41s €rA` .r. The failure on the part of
CONSULTANT to perform the Services within such time deadline or schedule when such failure is
caused by acts beyond the control of CONSULTANT shall not be considered a breach of this Agreement
and CONSULTANT shall be entitled to an extension of such time deadline or schedule accordingly,
This Master Agreement and/or subsequent Task Orders may be terminated in whole or in part in writing
by either party for any reason, providing that no such termination may be effected unless the other party
is given not less than thirty (30) calendar days written notice (delivered by certified mail, return receipt
requested) of intent to terminate.
Comment [SGS]: INMAL
This Master Agreement and/or subsequent Task Orders may bmterminated inwhole minpart inwriting
byDISTRICT for cause, effective immediately upon written notice of such termination to CONSULTANT,
based upon the occurrence ofany of the following events:
1) Material breach ufthis Agreement, Task Order orTask byCONSULTANT;
2) Cessation ofCONSULTANT tobelicensed, mxrequired bylaw;
3) Failure of CONSULTANT to substantially comply with any applicable federal,
state orlocal law orregulation;
4) Filing byuragainst CONSULTANT ufany petition under any law for the relief of
debtors; and,
5) Conviction of CONSULTANT's principal representative or personnel of any crime
other than minor traffic offenses.
C In the event the Master Agreement terminated iowhole minpart,
CONSULTANT is to be fairly compensated for all approved Services performed under the terminated
Task Order as of the termination date, provided that the total amount ofcompensation paid to
CONSULTANT does not exceed the Cost Ceiling set forth inthe Task Order, and provided that the
CONSULTANT delivers to the District all Work Product due for the Services completed through the
termination date.
DUpon receipt of a Termination Notice by CONSULTANT from DISTRICT, an equitable adjustment shall be
negotiated to id t toCONSULTANT for termination settlement costs reasonably incurred by
CONSULTANT relating to obligations and commitments as a result of entering into this Master Agreement
and the affected Task Order.
EUpon receipt of a Termination Notice, CONSULTANT shall (1) promptly discontinue all services affected
(unless the Notice directs otherwise), and (2) deliver or otherwise make available to DISTRICT, copies of
data, design calculations, drawings, specifications, reports, estimates, summaries, and such other
information and materials as may have been accumulated by CONSULTANT in performing the services
under the affected Task Order,
ARTICLE \8|._DISPUTES
A. All disputes arising out of or relating to this Agreement or subsequent Task Orders, or the professional
services rendered hereunder, shall be determined by arbitration in El Dorado County, California, before a
sole arbitrator, inaccordance with the laws ofthe State ofCalifornia,
& The arbitration shall be administered by JAMS@ pursuant to its Comprehensive Arbitration Rules and
Procedures. Judgment onthe Award may beentered inany court having jurisdiction.
C Costs and attorneys fees in said arbitration shall be borne in accordance with the terms set forth in Article
A. If any provision of this Agreement is held to be invalid and unenforceable, the remainder of this
Agreement shall be valid and binding upon the parties, provided that the remainder of the Agreement can
be interpreted to give effect to the intentions of the parties.
Any waiver at any time by either party hereto of its rights with respect to a breach or default, or any other
matter arising in connection with this Agreement, shall not invalidate this Agreement or be deemed to be
a waiver with respect to any subsequent breach, default or matter.
ARTICLE I. - ENTIRE AGREEMENT
This Master Agreement and the subsequent Task Orders contain the entire understanding between the
parties with respect to the subject matter herein. This Agreement may not be amended except pursuant
to a written instrument signed by all parties.
This Master Agreement is to be binding on the heirs, successors, and assigns of the parties hereto and is
not to be assigned by either party without first obtaining the written consent of the other party, subject to
the terms of Article V.G.
C. The term of this Agreement shall commence upon the date first written above and shall continue in full
force and effect for a period no longer than 10 years, unless sooner terminated as provided herein. Any
subsequent Task Orders that are scheduled to exceed the aforementioned duration shall require that this
Agreement be renegotiated and executed prior to adoption of the Task Order.
IN WITNESS WHEREOF, the parties hereto each herewith subscribe the same in duplicate on the effective date
first writteff above.
Jchn'A_ T5,
let,
hiel. P.E., TM.,A,, General Manager/Engineer
South Tahoe Public Utility District
r tkVion?
MOM
Gannett Fleming, Inc.
By
Darren Mack, C ief �eotechnical Engineer
& Vice President