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HomeMy WebLinkAboutPlanning Systems Inc; 2007-09-10;AGREEMENT FOR BIOLOGICAL ASSESSMENT AND CEQA DOCUMENT PREPARATION SERVICES FOR BATIQUITOS SEWER MANHOLE REHABILITATION PROJECT (PLANNING SYSTEMS, INC.) THIS AGREEMENT is made and entered into as of the /* _ day of 2Q*? , by and between the CITY OF CARLSBAD, a municipal corp'oration, ("City"), and PLANNING SYSTEMS, INC., a California corporation, ("Contractor"). RECITALS A. City requires the professional services of an environmental consultant that is experienced in biological assessment and permitting. B. Contractor has the necessary experience in providing professional services and advice related to biological assessment and permitting. 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 (1) year 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 fourteen thousand dollars ($14,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. City Attorney Approved Version #11.28.06 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term shall not exceed fourteen thousand dollars ($14,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. City Attorney Approved Version #11.28.06 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-:V". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liability Insurance. $1.000.000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. City Attorney Approved Version #11.28.06 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. 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. City Attorney Approved Version #11.28.06 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City: For Contractor: Name Mark Biskup Name Greg Evans Title Associate Engineer Dept Public Works-Engineering CITY OF CARLSBAD PLANNING SYSTEMS Address 1635 Faraday Avenue Address 1530 Faraday Avenue, Suite 100 Carlsbad, CA 92008 Carlsbad. CA 92008 Phone No. (760) 602-2763 Phone No. (760)931-0780 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 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. City Attorney Approved Version #11.28.06 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. 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. City Attorney Approved Version #11.28.06 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 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 #11.28.06 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 PLANNING SYSTEMS, INC., a California /(sign hefe)/ CITY OF CARLSBAD, a municipal corporation of thejState^erpCalifornia City Manager or Mayor or Authorized Signatory ATTEST: (print name/title) ' /tp-mail address) 1N**By: (print name/title) ®f> \*V\v\(^t\fbj (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 By:_ Deputy City Attoiey 8 City Attorney Approved Version #11.28.06 PLANNING SYSTEMS LAND USE/COASTAL PLANNING LANDSCAPE ARCHITECTURE • LA3900 POLICY AND PROCESSING ENVIRONMENTAL MITIGATION EXHIBIT "A" 8/6/07 Mr. Mark Biskup City of Carlsbad Engineering Department 163 5 Faraday Ave. Carlsbad, CA 92008 Re: Proposal: Revised Screening Level Biological Assessment, Environmental Impact Assessment Part II, and a Monitoring, Mitigation, and Reporting Program (MMRP) Batiquitos Sewer Manhole Rehabilitation Project Carlsbad California Mr. Biskup, In our meeting of August 3,2007, it was decided that the scope of the Batiquitos Sewer Manhole Rehabilitation Project has been changed, in that a Coastal Development Permit will be prepared and processed, and a full CEQA document (Mitigated Negative Declaration and a Mitigation, Monitoring and Reporting Program) will be prepared. The City staff has requested that Planning Systems prepare the documents in consultation with City staff. Therefore, Planning Systems appreciates the opportunity to propose the following environmental services to the City of Carlsbad for the Batiquitos Sewer Manhole Rehabilitation Project in Carlsbad, California. This proposal describes the services necessary create draft and final CEQA documents. Specifically, the work of this proposal is to 1) address City comments to the Screening Level Biological Assessment Planning Systems, May 14,2007,2) conduct further site investigations, and thoroughly describe proposed project activities, and 3) produce a full CEQA document (EIA Part II), and a MMRP. The tasks identified in this proposal were identified during a meeting with City staff on August 3,2007. The proposed work is necessary to fully address the necessary CEQA standards of review. SCOPE OF WORK The work of this proposal is as follows: 1) Revisions to Screening Level Biological Assessment Initial project investigations as reported in Screening Level Biological Assessment. Planning Systems, May 14,2007, have been reviewed by the City and comments have been provided to Planning Systems. Planning Systems has determined in consultation with the City that due to the fact that the Planning Dept. is requiring a coastal permit for the maintenance project, additional 1530 FARADAY AVENUE • SUITE 100 • CARLSBAD, CA 92008 • (760) 931-0780 • FAX (7160) 931-5744 • info@planningsystems.net CEQA analysis is needed, a more thorough description of the project is necessary, and a more thorough discussion of methods and measures is necessary to avoid significant impacts. Proposed Tasks: a) Conduct site investigations to describe and/or map: proposed access routes to each manhole, locate remote construction zones for sensitively sited manholes, propose measures and procedures to avoid significant impacts to each sensitively sited manhole. b) Formulate and describe at least two general construction methods, 1) construction within non-sensitive environs, 2) construction within sensitive environs. Describe and/or map detailed work procedures at the most sensitively sited manholes. c) Determine likely equipment decibels (dB), and describe parameters for acceptable use. d) Describe acceptable parameters for use of the North Shore Trail. e) Client coordination and meetings f) Pre-contract investigations from March, 2007 and May, 2007 g) City requested revisions 2) Draft EIA Part II Planning Systems shall prepare a draft and final CEQA document. CEQA document will be in the form of a full EIA Part II (for MNP) which will identify existing conditions, environmental evaluation and findings in each of the subject areas of; Project Description, Aesthetics, Agricultural Resources, Air Quality, Biological Resources, Cultural Resources, Geology, Hazards, Hydrology & Water Quality, Land Use, Mineral Resources, Noise, Population and Housing, Public Services, Recreation, Traffic, Utilities, Mandatory Findings, and Mitigation Measures. EIA Part II will be in form and format acceptable to the Planning Dept. 3) MMRP Preparation Planning systems shall prepare a Mitigation. Monitoring and Reporting Program (MMRP) hi form and format acceptable to the Planning Dept. PRODUCTS TO BE PROVIDED It is understood that the City will provide Planning Systems a project description that addresses anything that could impact habitat, including equipment noise, construction time frame, waste disposal, and driving over vegetation as necessary to implement the project. Planning Systems will provide drafts of the Part II CEQA document, the MNDA form, and the revised Screening Level Biological Assessment to the City for comment. Once comments are incorporated, final work will be provided to the City as a hard copy and on a CD with text in Word and exhibits hi pdf. FEES FOR SERVICES Planning Systems fees for the above described Services will not exceed $14,000. Fee Summary 1) Revised Screening Level Biological Assessment 2) CEQA Part II draft 3) MMRPform $8,000 $5,000 $1.000 TOTAL $14,000 Additional meetings or services not anticipated, or changes in the scope of work as presently understood, will necessitate additional charges at comparable rates. If this proposal is acceptable, please provide us with the appropriate contract documents for execution. We are prepared to begin work on this immediately upon your direction. If you have questions, please call me at (760) 931-0780 x!06. Sincerely. Greg Evans Planning Systems PLANNING SYSTEMS Fee Schedule (Effective May 1,2005) PRINCIPAL: $150.00/hr LAND PLANNERS/SCHOOL FACILITY PLANNERS: Director of Planning .... $135.00/hr Land/School Planner .... $ 95.00/hr Land/Environmental Planner ... $ 75.00/hr Planner $ 75.00/hr Planning Technician .... $ 50.00/hr LANDSCAPE ARCHITECT/HABITAT RESTORATION SPECIALIST: Senior Restoration Ecologist . . . $110.00/hr Senior Landscape Architect . . . $110.00/hr Project Manager ..... $100.00/hr Landscape Designer/Habitat Restoration Specialist $ 90.00/hr Biologist/Construction Monitor II. . . $ 90.00/hr Construction Monitor I .... $ 75.00/hr Field Tech I $ 60.00/hr OTHER: Expert Witness/Deposition/Related Attorney Consult $350.00/hr Expert Witness Research .... $250.00/hr Graphic/CAD Operator .... $ 65.00/hr Researcher/Report Editing .... $ 50.00/hr Word Processing .....$ 45.00/hr REIMBURSABLE EXPENSES/BILLING POLICY: Supplies and other direct costs such as printing, reproduction, graphic aids, travel (air fare & meals), photography, postage, fax & delivery will be billed at cost plus, 15%. Invoices will be issued on a monthly basis unless otherwise agreed. Accounts are due and payable within 30 days of the date of invoice. Past due accounts will have a finance charge of 1.25% compounded. Any revisions to the fee schedule will be provided to you in advance of their institution. Revision will not affect fixed-fee, or not-to-exceed contract amount, unless Client temporarily suspends project for more than 90 days.