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HomeMy WebLinkAboutDudek Inc; 2011-05-13;AGREEMENT FOR ENVIRONMENTAL SUPPORT SERVICES FOR WETLAND PERMITS FOR THE LAKE CALAVERA BOARDWALK TRAIL DUDEK, INC. THIS AGREEMENT is made and entered into as of the /3 day of 20 M . by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and DUDEK Inc., a corporation, ("Contractor"). RECITALS A. City requires the professional services of an environmental services firm that is experienced in wetland permit applications with resource agencies in southern California and the City of Carlsbad Habitat Management Plan permitting. B. Contractor has the necessary experience in providing professional services and advice related to wetland habitat planning and preparation of mitigation plans for resource agencies, wetland permit applications and landscape architectural services. C. Selection of Contractor is expected to achieve the desired results in an expedited fashion. D. 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 1 year from the date first above written. The City Manager may amend the Agreement to extend it for three (3) additional one (1) year periods or parts thereof in an amount not to exceed thirty thousand ($ 30.000) 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. City Attorney Approved Version 2.18.11 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term shall not exceed twenty three thousand dollars ($23.000 ). 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". 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' City Attorney Approved Version 2.18.11 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-:VIP. OR 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 City Attorney 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 Liability 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 Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 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 General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. City Attorney Approved Version 2.18.11 3 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 off 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 maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at 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 City For Contractor Name Liz Ketabian Name John Minchin Title Park Planner Title Project Manager City Attorney Approved Version 2.18.11 Department Parks and Recreation Address 605 Third St. City of Carlsbad Address 799 Pine Ave., Suite 200 Carlsbad, CA 92008 Encinitas, CA 92024 Phone No. 760-4279 Phone No. 760-434-2978 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. 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 that the services 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. City Attorney Approved Version 2.18.11 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 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 sea.. 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. City Attorney Approved Version 2.18.11 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 2.18.1 1 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 corporation of the State of California ity Manager or Mayor or Director Dudek (print name/fiteQmk Dudek President ATTEST: une Collins LORRAINE M. WOOD City Clerk If required by City, proper notarial acknowledgment of execution by contractor 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: RONALDJHf^ET^City Attorney IL^ ^r^^^rC^ By: ittorney 8 City Attorney Approved Version 2.18.11 ACKNOWLEDGMENT State of California County of J ss. On r\\-h before me,Notary Public, personally appeared <r <T a t/i \L who proved to me on the basis of satisfactory evidence to be the person^ whose name(£) is/jj^ subscribed to the within instrument and acknowledged to me that he/skeltftgy executed the same in his/t>ef/their authorized capacity(ie£), and that by his/bertlbetr signatures(XT on the instrument the person^, or the entity upon behalf of which the person(£j acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. i/lc^ Signature PAMELA J.BRISTOW Commission No. 1774575 NOTARY PUBLIC - CALIFORNIA SAN DIEGO COUNTY My Comm Expires October 21,2011 (seal) ACKNOWLEDGMENT State of California County of San (n } ss. On 0/)r' (f( before me,rA 57" d <J , Notary (Le> ( I ] n S>Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(g) whose name(g) is/are' subscribed to the within instrument and acknowledged to me that Jse7she/tb^y executed the same in j>i^/her/th«tf authorized capacity(ie€j, and that by J)&/her/Jke1r signatures^) on the instrument the person($, or the entity upon behalf of which the person^) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. PAMELA J.BRISTOW Commission No. 1774575 NOTARY PUBLIC - CALIFORNIA SAN DIEGO COUNTY My Comm. Expires October 21,2011 Signature (seal) EXHIBIT "A" SCOPE OF SERVICES This scope of work specifically addresses landscape architecture and wetland mitigation and habitat restoration plans and consulting services for the Lake Calavera Boardwalk Trail. Task 1: Preparation of Final Mitigation Monitoring and Maintenance Plan Work to be completed for the final Wetland Mitigation Monitoring and Maintenance Plan shall include the following: - Preparation of a written document including supportive graphics/figures, to address the final wetland impacts and wetland mitigation/re-vegetation measures necessary to mitigate for the boardwalk improvements. Dudek will submit this report for review and approval by the City and for use in submittal to the resource agencies as part of the wetland permit application process for the project. - The Final Wetland Mitigation Plan will address the mitigation/re-vegetation requirements necessary to satisfy the resource agencies utilizing the biological resources evaluation and re-vegetation guidelines previously established in the Lake Calavera Trails - Biological Resources Report (Merkel, Rev. Jan 28, 2009), and will provide specific mitigation/re-vegetation information related to the boardwalk project only. - The document will outline the final impacts, design guidelines, installation and maintenance requirements and long-term maintenance and monitoring guidelines. - The required wetland mitigation/re-vegetation areas will be located on-site in close proximity to the impact areas and would likely include a combination of wetland creation, restoration and enhancement. - Off-site mitigation for this work will not be required and is not included in this scope of services. Services will include one round of revisions to the Final Wetland Mitigation Plan to address appropriate responses to City and resource agency review comments. Any additional review/revision cycles with the City and/or resource agencies, would be considered an additional service. Task 2: Wetland Permitting Assistance - Dudek permitting staff will provide limited consulting assistance (i.e., based upon an hourly allotment of 16 hours) to assist the City with the finalization of the wetland permit City Attorney Approved Version 2.18.11 9 applications and coordination with the resource agencies during the wetland permit application process. City will complete and submit the actual permit applications. Task 3: Preparation off Final Boardwalk and Re-vegetation Construction Documents (Plans, Details, Notes and Specifications) - Dudek will prepare a set of re-vegetation construction documents (i.e., plans, details, notes and specifications) for the boardwalk and the mitigation/re-vegetation areas. The construction documents will conform to the design intent for the mitigation program as outlined in the previously prepared biological resources report prepared by Merkel Assoc., the final Mitigation Plan, as well as the CEQA and permitting documents prepared by the City. - This scope of work will include project management coordination with the City and Dudek staff, for consistency with the mitigation guidelines and for compliance with the resource agency permit requirements. - The boardwalk and re-vegetation construction documents (i.e., plans, details, notes and specifications) shall include the following: - Boardwalk Construction Plans o City will provide all surveying and hydrology information that would be used as the base information for the drawings. o No additional engineering grading plans or improvement plans are covered under this work. o Boardwalk will be placed over existing ground surface elevations, and elevated sufficiently above these areas to allow for surface water flow conveyance under and around the boardwalks. o The construction plans will show the plan view layout of the boardwalk areas, with dimensions provided to define the horizontal layout of the boardwalk areas. The vertical alignment of the boardwalks would be defined through the construction details and notes for the boardwalk construction and included in the plan set. o No formal grading plans would be prepared as part of this work. If this becomes necessary it would be considered an additional service. City Attorney Approved Version 2.18.11 10 o The construction plans will also show locations for temporary construction fencing and project signage as directed by the City. Site Demolition and Site Preparation Plans o Site preparation plans will outline all site demolition and site preparation work necessary to prepare the areas to receive the boardwalks and resultant re- vegetation treatments. o The plans will show plant materials to be removed and all necessary site work required prior to the installation of the boardwalks and the re-vegetation treatments. The plans would also specify all soil amending recommendations (i.e. based upon soils analysis recommendations) in order to prepare the soil for planting. Planting Plans & Seeding Plans o These plans shall include: planting legends, notes and details, re-vegetation planting plans showing the locations for all container plants and/or cuttings within the wetland mitigation/re-vegetation areas. Planting notes and details will be included on the planting legend sheet. Specifications for container plants and/or cuttings will also be included on the plan sheets. o The re-vegetation seeding plans shall indicate the locations for the various seed treatments within the wetland re-vegetation areas. Seed mix installation notes will be included on the plan legend sheet. Specifications for re-vegetation seeding will also be included on the plan sheets. Notes: Technical specifications in plan format will be included on the plan sheets and are included in the scope of work. Preparation of booklet formatted specifications and/or other bid documents are not included in this scope of services and would be considered an additional service. It is assumed that all planting would be done in a non-irrigated condition. All planting and seeding would be timed to take advantage of seasonal moisture and natural rainfall. Preparation of irrigation plans for the wetland habitat restoration sites are not included in this scope of services. City Attorney Approved Version 2.18.11 11 Costs for Outlined Scope of Services: Task 1 Preparation of Final Mitigation Monitoring & Maintenance Plan $7,200.00 Task 2 Resource Agency Permitting Assistance/Consulting (16-Hour Allotment)$2,500.00 Task 3 Preparation of Final Boardwalk & Reveaetation Construction Documents$12,800.00 Total Tasks 1 - 3 $22,500.00 Direct/Reimbursable Costs (Phase 99). $500.00 Direct/reimbursable costs associated with Tasks 1-3, such as mileage for site visits, reprographics, delivery costs, and other miscellaneous direct costs for the above scope of work are estimated to be $500.00. These direct costs will be billed at cost plus 15%, not to exceed this amount. TOTAL AMOUNT (TASK 1-3 AND DIRECT COSTS) $23,000.00 All services, Tasks 1 -3, plus direct/reimbursable charges will be invoiced monthly on a time-and- materials basis according to the Dudek 2011 Standard Schedule of Charges, up to an estimated total amount of $23,000.00. This total would not be exceeded without client approval. All additional services beyond this current scope of work would be negotiated accordingly with the City. City Attorney Approved Version 2.18.11 12