Loading...
HomeMy WebLinkAboutD-Max Engineering; 2012-04-05; PEM867PEM867 AGREEMENT FOR MUNICIPAL FACILITY STORM WATER COMPUANCE INSPECTION SERVICES (D-MAX ENGINEERING, INC.) AGREEMENT is made and entered into as of the ^^5^Zy ^jgy of 2012, by and between the CITY OF CARLSBAD, a municipal corpbration, ("City"), and D-Max Engineering, Inc., a California corporation, ("Contractor") for Municipal Facility Storm Water Compliance Inspection Services. RECITALS A. City requires the professional services of a consulting firm that is experienced in municipal storm water compliance inspections. B. Contractor has the necessary experience in providing professional services and advice related to municipal storm water compliance 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) year 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 in an amount not to exceed twenty thousand dollars ($20,000) per Agreement year. 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 fourteen thousand seven hundred and thirty dollars ($14,730). 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 2/17/12 1 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 earty 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 iine 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' Compensation 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. Q 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 Cartsbad 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 cleariy 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 James Wood Jr. Name Arsalan Dadkhah, Ph.D., P.E. Title Senior Environmental Specialist Title Principal Property & Environmental Department Management Address 7220 Trade Street, Suite 119 City of Carisbad San Diego, CA 92121 Address 1635 Faraday Ave. Phone No. 858-586-6600 Cartsbad, CA 92008 Email arsalan@dmaxinc.com PhoneNo. 760-602-7584 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 Cartsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or 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 City Attorney Approved Version 2/17/12 work 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 seg.. 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. JURISDICTIONS 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 or 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. /// 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 D-MAX ENGINEERING, INC., a California corporation CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) (print name/title) Gity Manager or Mayor or Division Director as authorized by the City Manager David Hauser. Director Property & Environmental Management (print name/titlej 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: RONALD R. BALL, City Attorney Assistant City AttornejA City Attorney Approved Version 2/17/12 D-MAX Engmeering, Inc. Consultants in Water & Environmental Sciences Exhibit "A" March 21,2012 Project No. 20121 IW James Wood, Jr. City of Carlsbad Department of Public Works 1635 Faraday Avenue Carlsbad, CA 92008 Re: Municipal Facilities Storm Water Compliance Inspection Program City of Carlsbad, California Dear Mr. Wood: D-MAX Engineering, Inc. (D-MAX) is pleased to submit this proposal to assist the City of Carisbad (City) in conducting compliance inspections of the City's high priority municipal facilities. The facilities to be inspected are grouped into three tiers: 21 Tier I, 13 Tier II, and 9 Tier III facilities. Work will be conducted in accordance with the San Diego Regional Water Quality Control Board (RWQCB) Municipal National Pollutant Discharge Elimination System (NPDES) Permit, Order No. R9-2007-0001 (Municipal Permit). Project Approach Inspection Coordination We will schedule inspection appointments with all Tier I facility contacts, as well as Tier II facilities requiring City assistance for access. Contact information will be provided to us by the City. Other facilities will not be notified prior to inspection; inspectors will conduct unannounced visits to evaluate the day-to-day conditions that are in place. Site Inspection The site inspection procedure involves a thorough examination of the facility and all outdoor activities that have the potential to generate urban runoff pollution. We will use the inspection forms that were used during last year's inspection program, which are attached to this submittal. Note that the inspection form for the Tier III sites is somewhat shorter than the form for the Tier I and Tier II sites. The site inspection includes the following steps. Pre-lnspection Prior to beginning the site inspection, our inspector will complete Section A. "Contact Information"oi the inspection form using information in the municipal facilities list provided by the City. This information includes facility name, address, telephone number, and the name of the responsible party (if available). Initial observations will also be conducted at this time and documented in Section C. "Initial Observations." The inspector will identify the nearest water bodies, approximate distance to water bodies, and the sensitivity and pollutants of concern. Observations of surface runoff drainage pattern and the 7220 Trade Street • Suite 119 • San Diego, CA 92121 • (858) 586-6600 • Fax (858) 586-6644 James Wood, Jr. City of Carlsbad March 21, 2012 Page 2 approximate area of pervious and impervious surface will also be recorded. The City will be notified if the site visit results in recommended changes to the municipal inventory. Meet With Responsible Party Our inspectors will visit sites during normal business hours. D-MAX personnel will have company-issued photo identification, which will be worn during inspections. Upon meeting the responsible party, our inspector will re-introduce the storm water program and the purpose of the inspection. We will use this opportunity to provide education to the responsible party regarding storm water compliance. The re-introduction to the program will recap a brief overview of the federal and state water quality laws, local requirements, impacts of urban runoff, the concept of Best Management Practices (BMPs), and a description of the local water bodies and pollutants of concern. SWPPP Assessment After the introductory meeting, if the facility has a Storm Water Pollution Prevention Plan (SWPPP), our inspector will review the document. The following components of the SWPPP will be assessed: Overview of Site Map, Site Description, and Objectives Storm Water Pollution Prevention Team Potential Sources of Pollutants Best Management Practices (Structural and Non-Structural) Record Keeping and Reporting Any recommended changes to the SWPPP will be included in Section D of the inspection form, "SWPPP Review." BMP Assessment During the next portion of the inspection process, our inspector will conduct a thorough walk-through of the facility, preferably accompanied by the manager/responsible party, to inspect all areas exposed to storm water and evaluate existing BMPs and their effectiveness. Typical areas of activity assessed during this phase of the inspection include material storage areas, processing areas, loading and unloading areas, waste storage or disposal areas, vehicle maintenance and washing areas, and parking areas. If specific BMPs are not implemented or are found to be ineffective, additional BMPs will be recommended. The BMP evaluation and summary of observations will be recorded on the inspection form in Section E, "BMP Assessment." Photographs will be taken to document BMP deficiencies. If conditions at the site warrant immediate action (e.g., an active illegal discharge or storm water ordinance violation is observed), the City will be promptly notified via the Storm Water Hotline (760-602-2799). All other corrective actions will be summarized in Section G of the inspection form. BMP and Knowledge Assessments The criteria used to assess facility contacts storm water knowledge and BMP implementation is described on the following page. James Wood, Jr. City of Carlsbad March 21, 2012 Pages Knowledge Score 1. Individual has never heard of the storm water program, requirements, or BMPs. This individual does not know what BMPs are or understand how to implement them. 2. Individual has a general awareness of water quality issues, but does not understand the requirements of the storm water program, BMPs, or pollution prevention. 3. Individual has a general understanding of storm water issues (I've heard something about that"), but not specific storm water requirements or BMPs required for the facility. 4. Individual has a clear understanding of BMPs but may not have a clear awareness of the connection between pollution prevention and water quality. 5. Individual demonstrated an in depth knowledge of the storm water program and BMPs consistent with the facility's activities and operations. BMP Score 1. An illegal discharge was noted during the inspection. Follow-up actions required. 2. BMPs have not been implemented. Several violations were noted during the inspection; however, an illegal discharge was not observed. A detailed inspection report and/or written warning was issued. 3. BMPs have been implemented throughout the site, but not properiy or adequately maintained. Violations were noted during the inspection and a verbal warning was issued. A detailed inspection report or written Warning Notice may follow. 4. BMPs implemented effectively; however, minor violations associated with communal areas or good housekeeping practices (i.e. dumpsters open, leaves in the parking lot, etc.) were noted during the inspection. 5. All BMPs implemented effectively. Storm Water Quality Inspection Summary and Conclusion At the completion of the walk-through, the inspector will summarize the recommended corrective actions and/or violations listed on the last page of the inspection form and discuss the feasibility of any recommendations with the responsible party. Final Documentation Inspection forms will be reviewed by office staff and a scanned copy will be e-mailed to the City's storm water account (stormwater0>carlsbadca.gov) within two business days of the inspection. Relevant photographs of BMP deficiencies will be attached to the e-mail. Within 10 business days of the program's completion, a final inspection report will be prepared. The report will include an overall program summary and site-specific inspection summaries. James Wood, Jr. City of Carlsbad March 21, 2012 Page 4 Schedule D-MAX will conduct the inspection services described above according to the following schedule: • We anticipate commencing the inspection program within two weeks of receiving the Notice to Proceed from the City. • Within two business days of completing each inspection, scanned copies of inspection forms will be e-mailed to the storm water account. • The City's Storm Water Hotline will be contacted immediately if any active illegal discharges are observed, or if any storm water conditions are considered to be a threat to human or environmental health. • For compliance purposes, inspections will be completed within one month of receiving the Notice to Proceed from the City. • A final inspection summary report will be submitted within 10 business days of completing inspections. Cosf Estimate We propose to conduct the above scope of services on a time and materials basis, not to exceed $14,730, in accordance with the attached Schedule of Fees. Costs per inspection are $428.00 for Tier I, $335.00 for Tier II, and $154.11 for Tier III facilities. This cost includes coordination with the City, site inspections, mileage, review of the data by office staff, and report preparation. Please feel free to contact us with any questions regarding this submittal. Sincerely, D-MAX Engineering, Inc. Arsalan Dadkhah, Ph.D., P.E. Principal SCHEDULE OF FEES January 1, 2012 This Schedule of Fees will be adjusted periodically. The new fee schedule will apply to all existing and new work. LABOR Classification Drafter Technician Senior Technician Staff Scientist/Engineer I Staff Scientist/Engineer II Hourlv Rate 65 65 75 85 92 Assistant Project Scientist/Engineer 100 Project Scientist/Engineer 110 Senior Scientist/Engineer 120 Principal Scientist/Engineer 140 Field and hourly services will be charged portal to portal from our office, with a two-hour minimum. Appearance as expert witnesses at court trials, mediation, arbitration hearings and depositions will be charged at $200/hour. Time spent preparing for such appearances will be charged at the above standard hourly rates. OTHER CHARGES Subcontracted services, such as sub consultants, outside testing, drilling, and surveyors, will be charged at cost plus 15%. Other project-specific costs, such as rentals, expendable or special supplies, special project insurance, permits and licenses, shipping, subsistence, tolls and parking, outside copying/printing, etc., will be charged at cost plus 15%. Mileage will be charged at a rate of $0.57 per mile. Client will be responsible for any applicable taxes in addition to the fees due for Services. SF-1