HomeMy WebLinkAboutChang Consultants; 2012-06-06;AGREEMENT FOR ENVIRONMENTAL AND ENGINEERING SERVICES
(CHANG CONSULTANTS)
IHIS AGREEMENT is made and entered into as of tlie day of
. I h/^ (J ^ , 20by and between tiie CITY OF CARLSBAD, a municipal
corporationVfCity"), and CHANG CONSULTANTS, ("Contractor").
RECITALS
A. City requires the professional services of an environmental and civil engineer firm
that is experienced in hydromodification requirements, identifying & determining
hydromodification exemptions, and l<nowledge of channel screening analyses as described in
San Diego Regional Water Quality Control Board Order 2007-001 and in the Final
Hydromodification Plan prepared by Brown & Caldwell, dated March 25, 2011.
B. Contractor has the necessary experience in providing professional services and
advice related to the identification of exempt water bodies and other areas/facilities that could
be exempt from hydromodification requirements.
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 year from the date first above
written.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the Agreement term will be in an
amount not to exceed thirtv thousand dollars ($30,000). No other compensation for the
Services will be allowed except for items covered by subsequent amendments to this
Agreement. Compensation shall be paid to Contractor based on total percentage of progress
made on work as described in Exhibit "A", in 25% increments. On each invoice, Contractor shall
provide a cost breakdown, summary and overall percentage of work completed (environmental,
civil engineering, expenses) as described in Exhibit "A".
City Attorney Approved Version 2/17/12
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 attorneys
fees arising out of the performance of the work described herein caused by any negligence,
recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense 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.
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-:VH". OR
City Attorney Approved Version 2/17/12
with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers
(LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X".
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.
10.1.1 Commercial General Liabilitv Insurance. $1.000.000 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 Liabilitv (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' Comoensation and Emplover's Liabilitv. 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 Liabilitv. 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.
I I If box is checked. Professional Liability
City's Initials Contractor's Initials Insurance requirement is waived.
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.
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
City Attorney Approved Version 2/17/12
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. Citv 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 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 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 copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written notice
on behalf of City and on behalf of Contractor under this Agreement.
For Citv For Contractor
Name Glen K. Van Peski Name Wayne W.Chang
Title Engineering Manager Title CHANG Consultants
Department Land Development Eng. Address P O Box 9496
Rancho Santa Fe. CA 92067-4496
Address 1635 Faraday Ave. Phone No. 858-692-0760
Carlsbad CA 92008 Email wayne@changconsultants.com
Phone No. 760-602-2783
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 2/17/12
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.
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 othen/vise 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 fon^/arded
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 performed to the termination date; however, the total will not exceed the lump sum fee
City Attorney Approved Version 2/17/12
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 othen/vise recover, the full
amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS u ^ * ^ K
Bv 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 Califomia Govemment Code sections 12650 etseg,,
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 junsdiction
is grounds for City to terminate this Agreement.
23. JURISDICTIONS AND VENUE x * Kf
Any action at law or in equity brought by either of the parties for the purpose of enforcing a nght
or rights provided for by this Agreement will be tried in a court of competent junsdiction in the
County of San Diego, State of Califomia, 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 or any part of it nor any
monies due or to become due under it may be assigned by Contractor without the pnor consent
of City, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT ... * i t^n KX, it
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.
///
///
City Attorney Approved Version 2/17/12
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 CITY OF CARLSBAD, a municipal
CHANG CONSULTANTS corporation of the State of California
By:
as authorized by the City Manager
Wayne W. Chang / f^jAltjpjjl^
(print name/title j
ail Addres
By:
Email Address: ^^i^f/g^llM^r/fe/^ff/ri
(sign here)
(print name/title)
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 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:
RONALD R. BALL, City Attorney
BY:
Assistant City Attorney
City Attorney Approved Version 2/17/12
EXHIBIT "A"
SCOPE OF SERVICES
Civil engineering and environmental consulting services will be performed to determine if
existing storm drain systems that outlet into Buena Vista Lagoon, Agua Hedionda Lagoon, and
Batiquitos Lagoon are exempt from hydromodification. The following drainage outlet locations
and their associated storm drain systems will be analyzed:
Buena Vista Lagoon
• East side of Carlsbad Boulevard on south side of lagoon
• West side of Interstate 5 on south side of lagoon
• West side of Jefferson Street on south side of lagoon
Agua Hedionda Lagoon
• West end of Date Avenue on north side of lagoon
• East side of railroad tracks on north side of lagoon
• South end of Marina Drive on north side of lagoon
Batiquitos Lagoon
• East side of Carlsbad Boulevard on north side of lagoon
The following describes the biological assessment under this scope of work:
Merkel & Associates, Inc. (M&A) will prepare a biological assessment of the effects of
changes in storm flow that could result from future hydromodification of existing storm
drain watersheds at Batiquitos and Agua Hedionda Lagoons, in the context of the
County's Final Hydromodification Management Plan. Each of the four drains selected by
City of Carlsbad staff on April 2. 2012 will be investigated: one in the west basin of
Batiquitos Lagoon and one in each of the three basins of Agua Hedionda Lagoon. M&A
staff will conduct a site visit to the four outfall locations with Chang Consultants to
evaluate, photograph, and document vegetation and biological communities of concern
in the vicinity of the outfall. It is assumed all sites can be visited in one field day. The
work will focus on the potential effects of altering the freshwater/saltwater balance at
each individual outfall, based on current and projected discharge rates provided by
Chang Consultants. The observations will be incorporated into a master report authored
by Chang Consultants that will integrate the physical and biological data to evaluate
whether each location could qualify for an exemption from hydromodification controls,
per the Final Hydromodification Management Plan. Although this analysis will take into
consideration the receiving waters of the lagoons as a whole, the primary focus will be
on the individual outfall regions.
M&A will attend one meeting with City staff and Chang Consultants to convey results of
the biological assessment.
City Attorney Approved Version 2/17/12
The following are the civil engineering tasks for each system drain system:
• Perform research on the City of Carlsbad's document management system to obtain as-
built drawings for each of the storm drain systems. The storm drain locations will be
obtained from the City's GIS database.
• Perform a site investigation to verify the storm drain locations, identify natural drainages
within the storm drain systems, and review the outlet conditions. The storm drain
locations will be discussed with City staff to identify in-situ conditions that are not
reflected in GIS or the as-built drawings. The study reach within each storm drain system
will extend from its outfall to the upstream end of the main line and laterals. However, if a
natural drainage course occurs within the main line or laterals, the study reach will
terminate at the downstream end of the natural drainage course.
• Since Buena Vista Lagoon is not subject to tidal influences, its three outfalls will only
qualify for an exemption if Buena Vista Lagoon is a rehabilitated stream system or
stabilized conveyance to the Pacific Ocean. Hydrologic and hydraulic analyses for
Buena Vista Lagoon will be obtained and reviewed to determine if it is a stabilized
system. Normal depth analyses may also be performed to support the conclusions. If it is
a stabilized system, then the three outfalls and their storm drain systems will be
analyzed. If it is not a stabilized system, they will not be analyzed.
• Determine if the existing storm drain systems have capacity for the 10-year flows. The
determination could be made from the as-built plan information (hydraulic grade lines,
etc.) or the City of Carlsbad's Drainage Master Plan. Where sufficient infonnation is not
available on the as-built plans or Drainage Master Plan, the following analyses will be
performed:
o Determine the watershed area tributary to relevant locations within the storm
drain systems. The City's Drainage Master Plan shows major drainage basin
boundaries tributary to the storm drain systems. It is anticipated that some of
these will need to be subdivided to better define the flow rates within the
systems. This scope of work assumes that the Drainage Master Plan data will be
available electronically.
o Determine the 10-year flow rate within the relevant storm drain reaches. The flow
rates will be estimated from the 100-year hydrologic results in the Drainage
Master Plan. The ratio of the 10- to 100-year rainfall intensities will be used to
adjust the 100-year flow rates to 10-year flow rates. The flow rates in the
subdivided drainage basins will be estimated by interpolating the tributary areas.
A simple rational method analysis might also be performed in some locations.
o Perform normal depth analyses to verify the storm drain system capacity for 10-
year flows. Where normal depth analyses show that a system is near or just
above capacity, a detailed hydraulic analysis (WSPGW. etc.) may be performed
to verify that the hydraulic grade line does not extend above the ground level. If
the HGL does extend above ground level, then the surface conveyance (street
system, etc.) will also be reviewed for erosion potential.
• Perform an outfall analysis on the seven storm drain outlets. This will include a site
investigation and measurements, as needed, to verify the condition and size of the
outlets and energy dissipation systems as well as to identify evidence of scour and/or
City Attorney Approved Version 2/17/12
erosion. The field conditions will be compared with the as-built drawings. Tidal influences
will be considered in the analyses. A limited hydraulic analysis of each outfall will be
performed, as needed, to determine the flow velocities. Recommendations for enhancing
the outfalls will be provided for outfalls that are substandard.
• Perform analyses to estimate the increase in 10-year flow volumes to the Agua
Hedionda and Batiquitos Lagoon outfalls associated with future development. The future
development areas and land uses will be obtained from the City's GIS data.
• Prepare a report and exhibits outlining the storm drain systems that qualify for an HMP
exemption.
• Attend up to two meetings with City staff to discuss the study progress and results.
Schedule: 3 months
Environmental Estimate: $9,073.00
Civil Engineering Estimate: $20,000.00
Expenses: $500.00
City Attorney Approved Version 2/17/12
10