HomeMy WebLinkAboutDudek; 2014-04-24; TRAN1078TRAN 1078
AGREEMENT FOR CONSTRUCTION MONITORING SERVICES FOR
THE LIGHT-FOOTED CLAPPER RAIL FOR THE COASTAL RAIL TRAIL
REACH 1 PROJECT - PROJECT NO. 4012
(DUDEK)
jREEMENT is made and entered into as of the ^ /</"^-^ day of
2014, by and between the CITY OF CARLSBAD, a municipal
corpe^ation, ("City"), and DUDEK, a California corporation, ("Contractor").
RECITALS
A. City requires the professional sen/ices of a consultant that is experienced clapper
rail biology and ecology, and approved by the California Fish and Wildlife Office (CFWO), to
oversee compliance with the conservation measures outlined in item 4 of the CWFO Section 7
Consultation, FWS-SDG-09B0336-1310356.
B. Contractor has the necessary experience in providing professional services and
advice related to the required construction management of capital improvement projects.
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 six (6) months from the date first
above written. The City Manager may amend the Agreement to extend it for one (1) additional
three (3) month period or parts thereof in an amount not to exceed twelve thousand dollars
($12,000) 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
paid on a time and materials basis not to exceed seventeen thousand nine hundred sixty dollars
($17,960). No other compensation for the Sen/ices will be allowed except for items covered by
subsequent amendments to this Agreement. The City reserves the right to withhold a ten
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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 Sen/ices 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 Sen/ices 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 ofthis 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 sen/ices by Contractor or Contractor's
agents, representatives, employees or subcontractors. The insurance will be obtained from an
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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-:VII". 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 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 linnits of not less than $1,000,000 per claim. Coverage must be
maintained for a period of five j^ars following the date of completion of the work.
I I If box is checked, Professional Liability
City's Initials CMifr^dJ* 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.
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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 Citv For Contractor
Name John Maashoff Name Anita Hayworth
Title Construction Manager Title Project Manager
Department Public Works/Tran Address 605 Third Street
City of Carlsbad Encinitas, CA 92024
Address 5950 El Camino Real Phone No. (760) 479-4239
Carlsbad, CA 92008 Email ahavworth@dudek.com
Phone No. (760) 602-2780
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.
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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 ofthe requirements ofthe 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 Sen/ices 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 fon/varded 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 fonwarded
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
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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 othenwise recover, the full
amount ofthe 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 ofthe false information or in reckless disregard ofthe 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.
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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
DUDEK, a California corporation
(print name/title)
Frank Dudek
President
CITY OF CARLSBAD, a municipal
corporation of the State of California
ion Director
authorized by the City Manager
Jim Howell
(sign here)
(print name/title)
June Gellins
Secretary
Dudek
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:
CELIA A. BREWER, City Attorney
BY:
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EXHIBIT A
DUDEK
March 27, 2014
Jonathan Schauble P.E.
Public Works Department
City of Carlsbad
1635 Faraday Ave
Carlsbad, CA 92008
Subject: Construction Monitoring for the Light-footed Clapper Rail for the Coastal
Rail Trail Reach 1, Cities of Oceanside and Carlsbad, San Diego County
California
Dear Mr. Schauble:
Dudek is pleased to provide the City of Carlsbad with this proposal for a construction monitoring
for the light-footed clapper rail (clapper rail), a federally listed endangered species. The
monitoring will be conducted as required by the U.S. Fish and Wildlife Service (PWS) for the
Coastal Rail Trail Reach 1 project within the Cities of Oceanside and Carlsbad. Dudek has
reviewed the Informal Section 7 Consultation letter from the PWS and has outlined the costs and
tasks below as itemized in Item 4 of the letter. Because of the uncertainty of the duration of
construction, Dudek has assume a 6-week construction period during which construction would
need to be monitored each day by a FWS approved biologist. PWS approved biologist have
undergone the scrutiny of the PWS and have had previous experience with the clapper rail as
well as previous experience conducting construction monitoring for the species. Dudek proposes
to provide PWS approved clapper rail monitors on a daily basis and will use John Konecny as a
subconsultant to provide the protocol survey task (Task 1).
SCOPE OF WORK AND COST ESTIMATE
This section describes the tasks that Dudek will perfonn to accomplish the requested scope of
work as outlined in the PWS Informal Section 7 Consultation.
Task 1 Pre-construction Clapper Rail Protocol Survey
The following addresses Items 4 a, b, and c of the PWS Informal Section 7 Consultation.
Dudek's subconsultant, John Konecny, will conduct a pre-construction clapper rail survey within
300 feet of the project footprint before project construction that may occur during the nesting
season. At least three surveys will be conducted prior to April 1. The protocol per the FWS
requires a total of six surveys. The visits that cannot be made prior to April 1 will be conducted
W.W, OyD£K COM
Mr. Jon Schauble
Subject: Construction Monitoring for the Light-footed Clapper Rail for the Coastal Rail Trail
Reach 1, Cities of Oceanside and Carlsbad, San Diego County California
during the month of April as part of a monitoring visit. The survey requires notification of the
pending survey to the PWS and the preparation of a 45-day report upon completion of the
survey. Mr. Konecny wili notify the city of any nests detected. Nests located within the impact
footprint will require that woric be suspended. Nests located within the buffer area will require
establishing a 50-foot buffer. Monitoring of the nest itself would also be required. Currentiy,
Dudek has assumed that no nest monitoring will be needed since that requires specific permitting
and expertise. We will discuss this with the City if the need arises.
TASK 1 COST $4,100
Task 2 Daily Monitoring for Clapper Rail
The following addresses Items 4 d, e, and fof the PWS hiformal Section 7 Consultation. Dudek
will provide daily visits to the work site to determine if clapper rails have entered the project
footprint. If clapper rails are foimd within the footprint, Dudek biologists will direct the
construction crew to work elsewhere and the biologist will flush the clapper rail away firom the
area. PWS approved biologists will conduct the daily monitoring task and that task has aheady
been addressed and the PWS has approved a defined list of Dudek biologists. Dudek will be
onsite during the work effort to ensure compliance with the conservation measures outlined
within the Consultation letter. For project activities that are not in compliance, Dudek will report
to the PWS within 24 hours and confer on proper measures to implement. Dudek has assumed
that this will not occur and thus those coordination costs have not been included.
Based on the expertise and approval required for the monitoring biologists, the Staff Type
proposed for this project is an Enviromnental Specialist III and the hourly bilUng rate is $140 for
this staff type.
TASK 2 COST $13,860
Assumptions:
• Construction will take place over a 6 week period. If construction ends before 6 weeks,
the contract will end and no charges will be made to the project.
• Exclusion fencing will be in place at the onset of the construction monitoring.
• No meeting attendance is required and no write up is required other than that outiined in
Tasks 1 and 2.
DUDEK 2 March2014
Mr. Jon Schauble
Subject: Construction Monitoring for the Light-footed Clapper Rail for the Coastal Rail Trail
Reach 1, Cities of Oceanside and Carlsbad, San Diego County California
• This proposal does not include nesting monitoring which is a constant task and would
occur if a nest was in close proximity to the current work area.
The total cost not to exceed, based on time and materials is $17,960 which includes any direct
costs such as mileage.
Should you have any questions or require additional information, please do not hesitate to
contact me at 760.479.4239. Dudek appreciates the opportunity to submit this proposal and I
look forward to working with you on this project.
Sincerely,
Anita Hayworth
Senior Project Manager/Senior Biologist
Alt: Dudek 2014 Fee Schedule
DUDEK 3 Mar(ai2014