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HomeMy WebLinkAboutMikhail Ogawa Engineering; 2008-06-13; PWENG651PWENG651 AMENDMENT NO. 1 TO EXTEND THE AGREEMENT FOR STORM WATER PROGRAM TRAINING SERVICES (MIKHAIL OGAWA ENGINEERING) This Amendment No. 1 is entered into and effective as of the / day of 2009, extending the agreement dated June 13, 2008 (the "Agreement") 8y and between the City of Carlsbad, a municipal corporation, ("City"), and Mikhail Ogawa Engineering, a sole proprietorship, ("Contractor") (collectively, the "Parties"). RECITALS A. The Parties desire to extend the Agreement for a period of one (1) year. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. The Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on June 13, 2010. 2. All other provisions of the Agreement, as may have been amended from time to time, shall remain in full force and effect. 3. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, shall include coverage for this Amendment. City Attorney Approved Version #05.22.01 4. The individuals executing this Amendment and the instruments referenced 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 hereof of this Amendment. CONTRACTOR MIKHAIL OGAWA ENGINEERING, a sole proprietorshi (sign here) Mikhail Ogawa, Sole Proprietor (print name/title) CITY OF CARLSBAD a municipal corporation of tk^Statefof/California By: City Manager or Mayoror Authorized Signatory *By: (e-mail address) (sign here) (print name/title) (e-mail address) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups. "Group A. Chairman, President, or Vice-President "Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, City Attorney City Attorney Approved Version #05.22.01 AGREEMENT FOR STORM WATER PROGRAM TRAINING SERVICES (Mikhail Ogawa Engineering) THIS AGREEMENT is made and entered into as of the \S day of June, 2008, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and Mikhail Ogawa Engineering, an engineering consultant, ("Contractor"). RECITALS A. City requires the professional services of a engineering consultant that is experienced in providing specialized training in storm water program requirements as described in the City's Jurisdictional Urban Runoff Management Program (JURMP) including training on urban runoff principles, storm water permits and regulations, City Standard Urban Storm Water Management Program (SUSMP), City and County Low Impact Design (LID) principles and requirements, City standards for Storm Water Pollution Prevention Plans (SWPPPs) and hydro-modification principles and practices. B. Contractor has the necessary experience in providing professional services and advice related to the provision of staff training on the City's SUSMP, SWPPP practices, JURMP requirements, LID principles and practices and hydro- modification principles and practices. 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 one year from the date first above written. The City Manager may amend the Agreement to extend it for two additional one year periods or parts thereof in an amount not to exceed thirteen thousand dollars ($13,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds City Attorney Approved Version #05.06.08 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 on a time and materials basis during the initial Agreement term will not exceed thirteen thousand dollars ($13,000). 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 monthly payments will be submitted to the City 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 City Attorney Approved Version #05.06.08 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-:VM". 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 City Attorney Approved Version #05.06.08 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. 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. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to 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. City Attorney Approved Version #05.06.08 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: Name: David Mauser Title: Deputy City Engineer Department: Engineering City of Carlsbad Address: 1635 Faraday Avenue Carlsbad, CA 92008 Phone No.: (760) 602-2739 For Contractor: Name: Title: Address: Phone No.: Mikhail Ogawa Owner 3525 Del Mar Heights Road #429 (619)994-7074 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 #05.06.08 16. CONFLICT OF INTEREST City will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City's Conflict of Interest Code is required of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor's affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 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 #05.06.08 6 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 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 City Attorney Approved Version #05.06.08 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 #05.06.08 8 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 *By:J^ (sign here) CITY OF CARLSBAD, a municipal corporation ot#ie State^ California -.y^LBy City Manager or Mayor or Authorized Signatory (print name/title)ATTEST: (e-mail adaress) By: (sign here)UNE M. City Clerk (print name/title) (e-mail address) If required by City, proper notarial acknowledgment of execution by cofttr/ must be attached. If a Corporation. Agreement must be signed by one corpo'fe officer from each of the following two groups. "Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, City Attorney Deputy City Attorney City Attorney Approved Version #05.06.08 MIKHAIL OGAWA ENGINEERING May 20, 2008 Mr. David Hauser Deputy City Engineer City of Carlsbad 1635 Faraday Avenue Carlsbad, California 92008 SUBJECT: PROPOSAL TO PROVIDE STORMWATER PROGRAM TRAINING SERVICES Dear David: In response to your request, Mikhail Ogawa Engineering (MOE) is pleased to submit this proposal to the City of Carlsbad (City) for providing Stormwater Program Training Services (Project). It is our understanding that the City has a stormwater program,a s required by Order R9-2007-0001 (Permit,) that includes specialized education and training to City staff. This training is described in the City's Jurisdiction Urban Runoff Management Program (JURMP). The City requests that MOE prepare and implement a training program that satisfies the JURMP and permit requirements, specifically related to the land development component of the JURMP. The following is a scope of services for the Project. L SCOPE OF SERVICES Based on our current understanding of the Project, MOE will provide the following professional services for the Stormwater Program Services Project: A. Provide Schedule and Outline of Training Program - This task involves developing a project schedule for the development and implementation of the training program. In addition, an outline consisting of topics covered as well as presenters will be developed to satisfy all JURMP requirements. B. Coordination with City Staff- This task involves coordination with City staff to schedule training dates, the meeting rooms for trainings and other required apparatus as needed to accomplish the training. Additionally, coordination with City staff is anticipated to collect information and materials related to the City's land development processes for inclusion into the training program. 3525 Del Mar Heights Road #429 * San Diego, California 92130 » (619) 994-7074 * Fax (858) 225-0531 Mr. David Hauser May 20, 2008 Page 3 of3 C. Develop Training Materials - This task involves developing PowerPoint presentations for various training sessions and the associated assessment methods for determining effectiveness of the training program. Topics to be covered in the training material may include, but are not limited to the following: • Introduction to Urban Runoff • Laws and Regulations • Requirements of R9-2007-0001 • City's Jurisdictional URMP • Watershed URMP • Regional URMP • Land Development Component • Processing Applications SUSMP Requirements Construction Inspection Frequency Priorities Plan Check Process Low Impact Development Site Planning Site Design Integrated Management Practices Due to specialized elements of the training to be provided, Dan Cloak Environmental Consulting will assist in the development of some of the specialized training materials. It is anticipated that there will be four (4) training sessions developed and presented to successfully complete the above mentioned training topics. D. Deliver Presentation and Training Material - This task involves the presentation of the training materials to City staff. City staff will receive handouts of the trainings and will be evaluated for effectiveness assessment. Due to specialized elements of the project to be delivered, Dan Cloak Environmental Consulting will present some of the training materials. II. CLIENT FURNISHED SERVICES The following services or information will be provided by the City or its consultants: A. Assign one person to serve as the City's project manager who has the authority to represent the City and will serve as the point of interface for all project issues and communications. B. A complete description of all pertinent project information and issues, including all unusual or critical requirements of the City. IE. ADDITIONAL SERVICES If requested by the City, MOE will provide the following Additional Services, beyond the services included in Section I. Scope of Services on a task-by-task basis at the direction of the City: A. Attendance to additional meetings beyond those specifically identified in Section I. Scope of Services. Mr. David Hauser May 20, 2008 Page 3 of3 B. Any additional project related services not specifically included in Section I, Scope of Services. IV. FEES AND CONDITIONS A. The Services described in Section I. Scope of Services, will be provided on a time and materials basis with a not to exceed amount of $13,000. B. The Services described in Section III. Additional Services will be provided on an hourly rate basis in accordance with the MOE Carlsbad Reduced Rate Schedule in effect at the time the services are performed - a copy is attached. We appreciate the opportunity of offering this proposal, and look forward to working with you on this project. If you are in agreement with the above, please incorporate this proposal into your Standard Agreement for Professional Services and return for signature. If you have any questions, please call me at (619) 994-7074. Respectfully submitted, Mikhail Ogawa Principal c: File MOE MIKHAIL OGAWA ENGINEERING CITY OF CARLSBAD REDUCED RATE SCHEDULE EFFECTIVE APRIL 1, 2008 ENGINEERING SERVICES Principal Engineer $114.00 Senior Engineer 105.00 Associate Engineer 90.00 Assistant Engineer 70.00 Engineering Student 50.00 Water Quality Monitoring 65.00 ENVIRONMENTAL SCIENTIST SERVICES Principal Scientist $102.00 Senior Scientist 92.00 Associate Scientist 82.00 Assistant Scientist 72.00 Student Scientist 52.00 Water Quality Monitoring 65.00 ADMINISTRATIVE SERVICES Administrative Assistant $45.00 Administrative Clerk $40.00 EXPENSES AND OUTSIDE SERVICES In addition, identifiable non-salary costs that are directly attributable to the project such as reproduction costs, telephone charges, mileage, postage, etc., are billed at actual cost plus 15 percent to cover overhead and administration plus 3 percent for insurance costs. Fees for litigation and expert witness services will be charged at $450.00 per hour with a 4-hour minimum per day. Fees for subconsultant services provided are billed at actual cost plus 15 percent to cover overhead and administration, plus 3 percent for insurance costs. PAYMENT TERMS A late payment finance charge at a rate of 18 percent per annum will be applied to any unpaid balance commencing 30 days after the date of original invoice. This rate schedule is subject to annual and/or periodic revisions as necessary to accommodate inflationary trends, salary adjustments and the general costs of business. 3525 Del Mar Heights Road #429 • San Diego, California 92130 • (619) 994-7074 • Fax (858) 225-0531