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HomeMy WebLinkAboutLSA Associates Inc; 2015-01-05; TRAN1165TRAM 165 AGREEMENT FOR ENVIRONIVIENTAL SERVICES LSA ASSOCIATES, INC. THIS AGREEMENT is made apd entered into as of the ^3 day of /^(^////'.a^^/^y , 20/<5Tbv and between the CITY OF CARLSBAD, a municipal /p^fp5)ration, ('^>rty''), and LSA ASSOCIATES, INC., a California corporation, ("Contractor"). ^ RECITALS A. City requires the professional services of a firm that is experienced in resource agency permitting, permit compliance, native habitat creation, restoration and enhancement. B. Contractor has the necessary experience in providing professional services and advice related to environmental services. 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 five (5) years from the date first above written. The City Manager may amend the Agreement to extend it for two (2) additional one (1) year periods or parts thereof in an amount not to exceed thirty thousand dollars ($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. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be seventy nine thousand one hundred forty dollars ($79,140) per the attached yearly cost breakdown shown in Table B of Exhibit "A." 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 1/30/13 TRAN 1165 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 ofthis 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 with a surplus City Attorney Approveci Version 1/30/13 TRAN 1165 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 ofthe 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. 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 ofthis 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 maintain City Attorney Approved Version 1/30/13 TRAN 1165 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 Sherri Howard Name Jaime Morales Title Associate Engineer Title Biologist department Public Works Address 703 Palomar Airport Road, Ste. 260 City of Carlsbad Carlsbad, CA 92011 address 1635 Faraday Ave. PhoneNo. (760) 931-5471 Carlsbad, CA 92008 Email iaime.morales@lsa-assoc.com phone no. (760) 602-2756 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 1/30/13 TRAN 1165 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 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 withinten (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 ofthe percentage ofwork 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 ofthe 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. City Attorney Approved Version 1/30/13 TRAN 1165 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 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 ofthe 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 1/30/13 TRAN 1165 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 LSA ASSOCIATES, INC., a California corporation CITY OF CARLSBAD, a municipal corporation of the State of California (sign here) Les Card / Chairman as authorized Dy the City Manager Patrick Thomas (print name/title) (si^in^) ^ Firoz Jamal/ CFO (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 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: Assistant City Attorr)ey City Attorney Approved Version 1/30/13 LSA LSA ASSOCIATES. INC. 703 PALOMAR AIRPORT ROAD BERKELEY PALM SPRINGS SUITE 260 760.931.5471 TEL FRESNO PT. RICHMOND ROCKLIN CARLSBAD, CALIFORNIA 9201 1 7 60. 91 8. 2*5 8 FAX IRVINE RIVERSIDE S AN LU IS O BI SPO December 8,2014 Ms. Sherri Howard City of Carlsbad 1635 Faraday Avenue Carlsbad, California 92008-73145 Subject: Romeria Street Drainage Improvements Project Habitat Restoration Monitoring Proposal (LSA Proposal No. ZZZ428J1) Dear Ms. Howard: LSA Associates, Inc. (LSA) is pleased to submit this proposal for environmental consulting services. Specifically, this proposal addresses monitoring the progress of the project's mitigation site as specified in the Mitigation and Monitoring Plan and Technical Specifications, Romeria Street Drainage Improvement Project, Carlsbad, Califomia (LSA, September 2011). Implementation of the Mitigation and Monitoring Plan and Technical Specifications (Mitigation Plan) is required by the conditions of the Federal Clean Water Act (CWA) Section 404 Authorization issued by the United States Army Corps ofEngineers (Corps), the CWA Section 401 Certification of Water Quality issued by the San Diego Regional Water Quality Control Board (RWQCB), the Streambed Alteration Agreement issued by the California Department of Fish and Wildlife (CDFW), and the City of Carlsbad Habitat Management Plan (HMP) for construction of the subject project. SCOPE OF SERVICES Task 1: As-Built Report Preparation LSA will prepare a report documenting as-built conditions. The report will also note and explain any deviations from the Mitigation Plan specifications. LSA will require information (e.g., plant palette, plant quantities and sizes, planting locations, and irrigation system specifics) from the City and landscape contractor to accurately describe the condition of the site at installation. LSA will prepare a draft report for City review and comment, and will finalize the report upon receipt of one consolidated set of comments for submittal to the Corps, RWQCB, and CDFW. Task 2: General Monitoring Events LSA will conduct up to 40 monitoring site visits (eight monitoring site visits per year for five years) as specified in the Mitigation Plan. During these monitoring site visits, LSA will conduct qualitative assessments of the mitigation areas, characterizing the vegetative cover and species distribution, the health of plant species, the presence of nonnative species, pest problems, indications of maintenance compliance or noncompliance, signs of overwatering or drought stress, and the need for any remedial measures. The results of each monitoring site visit will be summarized in a field memorandum that 12/8/2014 (L;\PROPOSAL\ZZZ428Jl - Romeria Street Compliance\ZZZ428Jl-Romeria_Mitigation_Monitoring_Proposal_Revised.docx) PLANNINO I ENVIKONllENTAL SCIENCES | DESIGN LSA ASSOCIATES. INC. will be provided to the City and the landscape contractor. The field memoranda, in conjunction with the results of quantitative assessments (described below), will be incorporated into requisite annual reports (also described below). Task 3: Annual Quantitative Assessments As specified in the Mitigation Plan, LSA will conduct an annual quantitative assessment in April or May of each year during the maintenance and monitoring period to determine survivorship of the planted materials, relative and total cover by species, and species composition and diversity. All observed floral and faunal species will be noted and lists will be included in the annual reports. The quantitative assessment will include a visual assessment and transect data collection sampling. Data recorded will include vegetative cover of desired native species, vegetative cover of nonnative species, total area of bare ground, and total area of litter and debris. LSA will establish permanent photo stations (Global Positioning System data will be recorded at each station and a figure displaying their locations on an aerial photo will be included in the annual report described below in Task 4), and photos will be captured during each annual quantitative assessment and included in the respective year's annual report. Task 4: Annual Report Preparation Following collection and processing of quantitative data, LSA will prepare one annual report for each year ofthe maintenance and monitoring period pursuant to the Mitigation Plan. Each annual report will document the mitigation and maintenance activities performed during the year, site performance relative to the performance standards, results of qualitafive and quantitative performance assessments, frequency and volume of irrigation watering, weed and pest problems, discussion of the general health of the vegetation, photographs and graphic exhibits, and recommendations for remedial measures, if needed. LSA will prepare draft reports for City review and comment, and will finaUze the reports upon receipt of one consolidated set of comments for submittal to the Corps, RWQCB, and CDFW. Task 5: Project Management LSA has allowed for 1 hour per month for project management efforts, such as, but not limited to, coordination with the City regarding status updates and with the landscape contractor regarding site performance and potential remedial measures. Additionally, LSA has allotted 2 hours per year to Principal oversight of the project. Task 6: Meetings/Agency Coordination/Preservation Mechanism Coordination LSA is allowing budget under this task to address additional site visits for meetings and coordination with the City and resource agency officials for release of the site at the completion of the maintenance and monitoring period. This task includes budget for the preparation of a preservation mechanism document. 12/8/2014(L:\PROPOSAL\ZZZ428Jl - Romeria Street CompUance\ZZZ428Jl-Romeria_Mitigation_Monitoring_ProposaI_Revised.docx) LSA ASSOCIATES. INC. ESTIMATED BUDGET LSA proposes to conduct the services described above on a time and materials basis in accordance with the attached standard contract provisions. As shown in Tables A and B below, LSA estimates the cost for labor and other direct costs at $79,140. Table A: 5-Year Cost Estimate Task (5-Year Period) Cost Task 1: As-Built Report Preparation $5,810.00 Task 2: General Monitoring Events $25,420.00 Task 3: Annual Quantitative Assessments $11,760.00 Task 4: Annual Report Preparation $22,750.00 Task 5: Project Management $8,100.00 Task 6: Meetings/Agency Coordination/Preservation Mechanism Coordination $5,300.00 Grand Total $79,140.00 Table B: Approximate Cost Breakdown per Year (5-year period)* Year Total Year 1 $ 20,872.00 Year 2 13,242.00 Year 3 13,242.00 Year 4 13,242.00 Year 5 18,542.00 Total $ 79,140.00 *Approximate cost per year. Budgets for Tasks 2 ttirougli 5 were divided almost equally over the 5 years. Year 1 budget includes all of Task 1 budget. Year 5 budget includes all of Task 6 budget. LSA will not exceed this amount without prior written authorization. If you are in agreement with the terms and conditions of this proposal, please provide written authorization to proceed. Sincerely, LSA ASSOCIATES, INC. ( \ JainjeMOT^les Biologist 12/8/2014(L:\PROPOSAL\ZZZ428Jl - Romeria Street CompIiance\ZZZ428Jl-Romeria_Mitigation_Monitoring_Proposal_Revised.docx)