HomeMy WebLinkAboutPlanning Systems; 2015-03-11; UTIL1184UTIL1184
AGREEMENT FOR BIOLOGICAL MONITORING SERVICES
PLANNING SYSTEMS
\\S AGREEMENT is made and entered into as of the //-/^ day of
2015, by and between the CARLSBAD MUNICIPAL WATER DISTRICT, a
Publip Agency organized under the Municipal Water Act of 1911, and a Subsidiary District ofthe
City of Carisbad, ("CMWD"), and PLANNING SYSTEMS, a California corporation ("Contractor")
a California corporation.
RECITALS
A. CMWD requires the professional services of a Biologist that is experienced in
Biological Monitoring.
B. Contractor has the necessary experience in providing professional services and
advice related to Biological Monitoring.
C. Contractor has submitted a proposal to CMWD and has affirmed its willingness
and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, CMWD and Contractor agree as follows:
1. SCOPE OF WORK
CMWD 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 Executive Manager may amend the Agreement to extend it for one (1) year additional
year thereof in an amount not to exceed twenty nine thousand six hundred dollars ($29,600) per
Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance,
CMWD needs, and appropriation of funds by the CMWD Board of Directors. 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 six hundred dollars ($29,600). No other compensation for the Services will
be allowed except for items covered by subsequent amendments to this Agreement. CMWD
reserves the right to withhold a ten percent (10%) retention until CMWD has accepted the work
and/or Services specified in Exhibit "A".
Incremental payments, if applicable, should be made as outiined in attached Exhibit "A".
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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 CMWD. Contractor will
be under control of CMWD only as to the result to be accomplished, but will consult with CMWD
as necessary. The persons used by Contractor to provide services under this Agreement will not
be considered employees of CMWD for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. CMWD will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD
and the City of Carisbad within thirty (30) days for any tax, retirement contribution, social security,
overtime payment, unemployment payment or workers' compensation payment which CMWD
may be required to make on behalf of Contractor or any agent, employee, or subcontractor of
Contractor for work done under this Agreement. At CMWD's election, CMWD 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
CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to
CMWD for the acts and omissions of Contractor's subcontractor and ofthe persons either directly
or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons
directiy employed by Contractor. Nothing contained in this Agreement will create any contractual
relationship between any subcontractor of Contractor and CMWD. 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 CMWD.
8. OTHER CONTRACTORS
CMWD reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless CMWD and the City of Carisbad, their 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 ofthe 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 CMWD or the
City of Carisbad incurs or makes to or on behalf of an injured employee under the their 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
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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 the
Risk Manager or Executive 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. CMWD, its officers, agents and employees make no representation that
the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are
adequate to protect Contractor. If Contractor believes that any required insurance coverage is
inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems
adequate, at Contractor's sole expense.
10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per
occurrence for bodily injury, personal injury and property damage. If the submitted policies contain
aggregate limits, general aggregate limits will apply separately to the work under this Agreement
or the general aggregate will be twice the required per occurrence limit.
10.1.2 Automobile Liabilitv (if the use of an automobile is involved for Contractor's
work for CMWD). $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 CMWD'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
CMWD'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 CMWD will be named as an additional insured on Commercial General
Liability which shall provide primary coverage to CMWD.
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 CMWD sent
by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of
this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then CMWD 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 CMWD
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to obtain or maintain insurance and CMWD 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. CMWD 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 Carisbad 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 CMWD
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 CMWD. 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 CMWD. 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 CMWD and
Contractor relinquishes all claims to the copyrights in favor of CMWD.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written notice
on behalf of CMWD and on behalf of Contractor under this Agreement.
For CMWD
Name David Ahles
For Contractor
Name Paul Klukas
Title
Address
Phone
Senior Civil Engineer
Carisbad Municipal Water District
5950 El Camino Real
Carisbad, CA 92008
760-603-7350
Title
Address
Phone
E-mail
Director of Planning
1530 Faraday Ave., Suite 100
Carisbad, CA 92008
760-931-0780
info@planningsystems.net
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. CONFUCT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report
investments or interests in all four categories.
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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 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 othenA/ise settled by agreement
between the parties. Representatives of Contractor or CMWD will reduce such questions, and
their respective views, to writing. A copy of such documented dispute will be fon^/arded to both
parties involved along with recommended methods of resolution, which would be of benefit to
both parties. The representative receiving the letter will reply to the letter along with a
recommended method of resolution within ten (10) business days. If the resolution thus obtained
is unsatisfactory to the aggrieved party, a letter outlining the disputes will be fonwarded to the
Executive Manager. The Executive 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 Executive 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 ofthe Contractor's failure to prosecute, deliver, or perform the Services, CMWD may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
termination. If CMWD decides to abandon or indefinitely postpone the work or services
contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this
Agreement. CMWD will make a determination of fact based upon the work product delivered to
CMWD and ofthe percentage of work that Contractor has performed which is usable and of worth
to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product
and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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
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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, CMWD will have the right to annul this Agreement without liability, or, in its
discretion, to deduct from the Agreement price or consideration, or othenA/ise 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 CMWD 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 CMWD, 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 CMWD seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its lifigation 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 CMWD 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 CMWD 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 CMWD, 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
ofthe Agreement supersede the purchase order. Neither this Agreement nor any of its provisions
may be amended, modified, waived or discharged except in a writing signed by both parties.
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26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR
PLANNING SYSTEMS, a California
corporation ^
By:
(sign here
Thomas Hageman / President
(print name/title)
CARLSBAD MUNICIPAL WATER
DISTRICT, a Public Agency organized under
the Municipal Water Act of 1911, and a
Subsidiary District of the City of Carisbad
By:
President oi^,gxocutivo Manogor
«r Division Director as authorized by the
Executive Manager
Patrick Thomas
By:
(sign here)
Paul J. Klukas / Secretary
(print name/title)
If required by CMWD, 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, General Counsel
Assistant General Cis^nsel
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PLANNING
SYSTEMS •
LAND USE/COASTAL PLANNINtJ
LANDSCAPE ARCIUTECrURK • LA3900
l»OLICY AND PROCE.SSING
ENVIRONMENTAL MrriG APION
EXHIBIT "A"
Februarys, 2015
Mr. David Ahles
CARLSBAD MUNICiPAL WATER DISTRICT
5950 Bl Camino Real
Carlsbad, CA 92008
RE PROPOSAL TO PROVIDE BIOLOGICAL MONITORING SERVICES
LA COSTA RECYCLED WATER PIPELINE PROJECT
Dear Mr. Ahles:
Per vour reauest. PLANNING SYSTEMS hereby submits a Scope of Work and Cost to provide biological
field survey and monitoring services to the CARLSBAD MUNICIPAL WATER DISTRICT for their proposed
installation ofthe La Costa Recycled Water Pipeline project. The subject project is situated adjacenl lo
protected upland and wetland habitats and open spaces. The Final EIR for the project included mitigation
measures which require verification of sensitive species and avoidance of nesting birds and raptors during the
construction effort. This proposal involves field monitoring by qualified biologists to vcnfy biological
resources and confinn compliance with the mitigation measures.
SCOPE OF WORK
A qualified biologist from PLANNING SYSTEMS will conduct the following activities as required in the
Final EIR Mitigation Measures.
Task Times Each Weeks
Honrs
each
time S per hour Totai
if^-t P/<.« / —
Verify tlie adjacent biological
resources and confinn no species
of special status I N/A N/A 12 $ 100.00 $ 1,200.00
Conduct pre-construction surveys
for raptors and nests within 500-ft. 1 Week 16 6 $ 100.00 $ 9,600.00
Report writing and meeting
attendance 8 N/A N/A 4 S 100.00 $ 3,200.00
Woik Plan 1 Total
iFnrt Plan 7 /Ifiiestinn birds observed witliin 500 fl ofcomtructiou)_
$ 14,000.00
Biological and noise monitoring of
construction activities if nests are
fnund 3 Week 13 4 $ 100.00 $ 15,600.00
Work Plan 2 Total $ 15,600.00
Grand Total $ 29,600.00
1530 FARADAY AVENUE • SUITE IM • CARt>SBA», CA 92m • (760) 931-078<l« FAX (7f,0) 9.^t.5744 »info@pluniiin}>s)stemsjicl
COST
PLANNING SYSTEMS estimates that thc biological monitoring required to comply with the referenced
mitigation measures will nol exceed:
WorkPlan I-$14,000.00
WnrkPlHn2-SlS.600.00
Grand Tolal-$29,600.00
Tliis cosl is based on PLANNING SYSTEMS' slandard schedule of fees and calculated rales for biological
survey and monitoring services. Billing will occur on a time and inalraials basis only for hours spent m the
above effort. Any additional costs beyond thc amouni estimated above will require additional authonzation
prior to completton ofthe services.
Ifthe provisions of this proposal are acceptable, pleasc mail us Ihe appropriate documentation for execution.
Sincerely,
Paul J. Klukas
Director of Planning
PLANNING
SYSTEMS
Donna Heratjr^
From: Donna Heraty
Sent: Monday, March 16, 2015 11:58 AM
To: 'info@planningsystems.net'
Cc: Rhonda Gasper-Heather; Shelley Collins; Sherry Freisinger
Subject: Form 700 - Conflict of Interest
Dear Consultant:
Regarding your agreement with the City of Carlsbad for surveying services for biological monitoring services, UTIL1184 -
// 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 as
mentioned in your agreement with the City of Carisbad. 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,
Carlsbad
Shelley Collins, CMC
Assistant City Clerk
City Clerk's Office
City of Carisbad
1200 Carisbad Village Drive
Carlsbad, CA 92008-1949
www.carisbadca.gov
760-434-2917 I Shellev.Collins@carisbadca.gov
Cor\mawitii
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