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HomeMy WebLinkAboutLSA Associates Inc; 2015-06-26; TRAN12271/ TRAN 1227 AGREEMENT FOR ENVIRONMENTAL SERVICES LSA ASSOCIATES, INC. THIS AGREEMENT is made and entered into as of the ^ ^ day of I/JA//^ 2015, by and between the CITY OF CARLSBAD, a municipal cp^oration, ("City"), and LSA ASSOCIATES, INC., a California corporation, ("Contractor"). RECITALS A. City requires the professional services of a contractor that is experienced in environmental permit compliance. B. Contractor has the necessary experience in providing professional services and advice related to preparing reports and required documentation for environmental permit compliance. 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. 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 ofthe extended Agreement. 4. TIME IS OF THE ESSENCE Time is ofthe 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 twenty nine thousand nine hundred fifty nine dollars ($29,959). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed thirty thousand dollars ($30,000) per Agreement year. 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 4/1/15 TRAN 1227 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election. City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VH"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating City Attorney Approved Version 4/1/15 TRAN1227 in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the 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. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liabilitv Insurance. $2,000,000 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. 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 ofthe 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 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. City Attorney Approved Version 4/1/15 TRAN 1227 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, 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 ofthree (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 ofthe persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City For Contractor Name Sherri Howard Name Jaime Morales Title Associate Engineer Title Project Manager/Biologist Department Public Works Address 703 Palomar Airport Road Ste 260 City of Carlsbad Carlsbad CA 92011 Address 635 Faraday Avenue Phone No. 760-931-5471 Carlsbad CA 92008 Email Jaime.morales(glsa-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. 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. City Attorney Approved Version 4/1/15 TRAN 1227 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 Services the following procedure will be used to resolve any questions of fact or interpretation not othenwise 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 ofthe 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 City Attorney Approved Version 4/1/15 5 TRAN 1227 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 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 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 seq., 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. JURISDICTION 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 nor 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 4/1/15 TRAN 1227 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 By: (sign here) Les Card / Chairman CITY OF CARLSBAD, a municipal corporation of the State of California Patrick A. Thomas /^tl^icjWorks Director (as authorized by the olty Manager) (print name/title) 5ign nere; 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 Assistant City City Attorney Approved Version 4/1/15 TRAN 1227 EXHIBIT "A" SCOPE OF SERVICES Biological Resources Task Bl: Preparation of Mitigation Planting Plan Sheets LSA will prepare draft plan sheets for all three mitigation sites for review and signature by the City and submittal to the Corps Regulatory Division and CDFW. The plan sheets will include key components of the Mitigation Plan and will refer to the Mitigation Plan or to specific regulatory permit conditions when appropriate. The plan sheets will include the specified plant palette, seed mixes, container plant and cuttings quantities, seeding rates, success criteria milestones, general notes, irrigation system notes, planting and seeding procedures, maintenance requirements, and a summary and schedule of maintenance, monitoring, and reporting. The plan sheets will incorporate as much ofthe Mitigation Plan and permit requirements as practical, with emphasis on the technical specifications for plant and seed material installation and maintenance; however, where appropriate, the plan sheets will refer to other documents. All plan sheets will be signed dated, and submitted on paper no larger than 11x17 inches. Task 82: Mitigation Installation Completion Memoranda Preparation and Submittal LSA will prepare two memoranda to document the completion of installation of plant and seed material for all three mitigation locations. One memorandum will include information for the two off-site mitigation locations. The status ofthe off-site mitigation locations will be combined in one memorandum because the installations have been completed; the installation of the Lake Calavera site was completed approximately four years ago, and the installation ofthe Lake Boulevard site was completed on March 24, 2015. The other memorandum will include information for the on-site mitigation location (installation for this component has not yet begun). Each memorandum will describe installation activities and plant material installed; the schedule for future mitigation monitoring and maintenance; a summary of compliance with the special conditions ofthe Corps permit; color photographs taken at the project site before and after construction for those aspects directly associated with impacts to water of the United States; and one copy of as-built drawings for the for the entire project, including the mitigation sites. Each memorandum is to be submitted to the Corps within 45 days of complete installation; therefore, to allow for revisions prior to agency submittal, each memorandum will be provided in draft form for City review and comment within one month of mitigation installation completion at the on-site mitigation location. Upon receipt of one consolidated set of comments from the City, LSA will finalize each memorandum and provide it to the City and the Corps. Task 83: Corps Preconstruction Notification LSA will prepare and submit a preconstruction notification letter to the Corps. The letter will include the City's contact information, the location of the project, the purpose and description of the project, the jurisdictional delineation report prepared by LSA, and any listed species or critical habitat in the vicinity ofthe project area. The letter will be provided in draft form for City review and comment. Upon receipt of one consolidated set of comments, LSA will finalize the letter and provide it to the City and the Corps. LSA will prepare the notification letter in May 2015. City Attorney Approved Version 4/1/15 TRAN 1227 Task 84: United States Fish and Wildlife Service (USFWS) Preconstruction Notification Per HMP 09-03 condition BIO - 1, LSA will prepare and submit a preconstruction notification letter to the USFWS at least seven days before commencement of clearing and grubbing. Task 85: Project Construction Biological Monitoring LSA will monitor activities periodically during all phases of construction, including the demarcation ofthe limits of work priorto the commencement of construction. LSA will inspect and observe for compliance with the resource agency permits, the HMP, and the Mitigation Plan. LSA will conduct up to 50 hours of biological monitoring. Task 86: Annual Progress Report for RWQCB LSA will prepare one Annual Progress Report for submittal to the RWQCB. The report will summarize construction activities conducted during the year, a description of Best Management Practice (BMP) implementation for the project, and compliance with the RWQCB permit. An annual progress report is due to the RWQCB by March 1 of each year following permit issuance; therefore, to allow for revisions prior to RWQCB submittal, LSA will provide a draft report to the City for review and comment no later than February 12, 2016. Upon receipt of one consolidated set of comments from the City, LSA will finalize the report and provide it to the City and the RWQCB. If construction is delayed or extended and a second Annual Progress Report is necessary, additional budget will be required. Task 87: Final Project Completion Report for RWQCB LSA will prepare one Final Project Completion Report for submittal to the RWQCB. The report will include the dates of construction initiation and completion, a description of BMP implementation forthe project, as-built drawings (no bigger than 11x17 inches), and photo documentation of implemented postconstruction BMPs in accordance with the RWQCB photo documentation guidelines. The report is due to the RWQCB within 30 days of completion of construction; therefore, to allow for revisions prior to RWQCB submittal, LSA will provide a draft report to the City for review and comment no later than two weeks after completion of construction. Upon receipt of one consolidated set of comments from the City, LSA will finalize the report and provide it to the City and the RWQCB. Task 88: Mitigation Site Preparation and Plant Installation Monitoring LSA will review grading and irrigation system plans and will conduct up to 32 hours of monitoring during specified site preparation and plant installation activities at the on-site mitigation location. Task 89: As-8uilt Report Preparation and Submittal LSA will prepare an as-built report documenting site preparation and planting efforts. The as-built report also will note and explain any deviations from mitigation plan specifications. LSA will provide a draft report to the City for review and comment, and will finalize the report upon receipt of one consolidated set of comments for submittal to the Corps, RWQCB, and the CDFW. Task 810: Project Management and Meetings LSA has included budget for coordination with the City and with resource agency staff as needed. This coordination may include telephone calls and/or emails and possibly attendance at one or more meetings. LSA has allocated up to 10 hours for this task. City Attorney Approved Version 4/1/15 TRAN 1227 Cultural Resources Task Cl: Preconstruction Meeting Attendance A qualified LSA archaeologist will attend one preconstruction meeting to finalize plans for construction monitoring. LSA will submit a monitoring exhibit that identifies the areas to be monitored. Task C2: Project Construction Monitoring and Reporting LSA will coordinate, monitor, and report regarding all excavation within undisturbed deposits as needed for the duration of construction. LSA will be available and on call as necessary during the duration of construction. LSA has budgeted for up to four eight-hour days of monitoring. Upon completion of all cultural resources monitoring activities, LSA will prepare a final monitoring report that will include a summary of monitoring activities and observations made during construction. The report will be provided in draft form for City review and comment. Upon receipt of one consolidated set of comments, LSA will finalize the report and provide it to the City. Negative results are anticipated. If cultural resources are discovered, additional budget will be required in order to address them in accordance with the HMP. Budget for this task does not include Native American monitoring services. ESTIMATED BUDGET LSA proposes to conduct the services described above on a time and materials basis. LSA estimates the cost for labor and other direct costs at $29,959.00 (see budget table below for task by task cost breakdown). Task Cost Biological Resources Task Bl: Preparation of Mitigation Planting Plan Sheets $5,500 Task B2: Mitigation Installation Completion Memoranda Preparation and $2,630 Task B3: Corps Preconstruction Notification $958 Task B4: United States Fish and Wildlife Service Preconstruction Notification $200 Task B5: Project Construction Biological Monitoring $5,220 Task B6: Annual Progress Report for RWQCB $1,515 Task B7: Final Project Completion Report for RWQCB $1,715 Task B8: Mitigation Site Preparation and Plant Installation Monitoring $3,620 Task B9: As-Built Report Preparation and Submittal $2,630 Task BIO: Project Management and Meetings $1,000 Subtotal $24,988 Cultural Resources TaskCl: Preconstruction Meeting Attendance $630 TaskC2: Project Construction Monitoring and Reporting $4,341 Subtotal $4,971 Grand Total $29,959 10 City Attorney Approved Version 4/1/15 Donna Heraty From: Donna Heraty Sent: Thursday, July 02, 2015 3:11 PM To: 'rlucera@mbakerintl.com' Cc: Shelley Collins; Rhonda Gasper-Heather Subject: Form 700 - Conflict of Interest Dear Consultant: Regarding your agreement with the City of Carlsbad for professional services, TRAN1224 - // your agreement states: 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 interest in all four categories. It has been determined by the City Clerk's Office that you are not required to file a Conflict of Interest Statement for this agreement with the City of Carlsbad. A copy of this email will be added to your file memorializing this decision. Should you have any questions, please do not hesitate to contact me. Kindest regards, Ccityof Carlsbad Shelley Collins, CMC Assistant City Clerk City Clerk's Office City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008-1949 www.carlsbadca.gov 760-434-2917 I Shellev.Collins(S)carlsbadca.gov Connect„^f/, ,^5 Facebook | Twitter | You Tube | Flickr | Pinterest | Enews