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HomeMy WebLinkAboutStearns, Conrad and Schmidt Consulting Engineers; 2014-07-02; PEM1099PEM1099 AGREEMENT FOR ENVIRONMENTAL DUE-DILIGENCE ASSESSMENT SERVICES (STEARNS, CONRAD AND SCHMIDT CONSULTING ENGINEERS, INC., dba SCS ENGINEERS) ^-TTHIS AGREEMENT is made and entered into as of the /6 day of C V/y / \/ , 2014, by and between the CITY OF CARLSBAD, a municipal c^mefation,/city''), and STEARNS, CONRAD AND SCHMIDT CONSULTING ENGINEERS, l1$CVdba SCS ENGINEERS, a Virginia corporation, ("Contractor"). RECITALS A. City requires the professional services of an environmental consulting company that is experienced in environmental due diligence assessments. B. Contractor has the necessary experience in providing professional services and advice related to environmental engineenng. 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 three (3) additional one year periods or parts thereof in an amount not to exceed thirty thousand dollars ($30,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance. City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5 COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be in an amount not to exceed thirty thousand dollars ($30,000). 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". City Attorney Approved Version 1/30/13 PEM1099 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 contnbutions 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 indirect y 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 attomeys 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 eariy 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 Contractors agents representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of Califomia. The insurance City Attorney Approved Version 1/30/13 PEM1099 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 Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits 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 City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10 1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. I I if box is checked. Professional Liability City's Initials Contractor's Initials Insurance requirement is waived. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10 2 3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions 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 City Attorney Approved Version 1/30/13 PEM1099 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 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 cleariy identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For Citv Name Joe Garuba Title Municipal Property Manager Department PW -PEM For Contractor Name Daniel Johnson Title Vice President City of Carisbad Address 405 Oak Avenue Carisbad, CA 92008 Phone No. (760) 434-2893 Address 8799 Balboa Avenue, Suite 290 San Diego, CA 92123 Phone No. Email (858) 571-5500 ext. 234 diohnson@scsengineers.com Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. City Attorney Approved Version 1/30/13 PEM1099 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. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not 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 ofthe Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable City Attorney Approved Version 1/30/13 PEM1099 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 elseg.. 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 attomey'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 junsdiction 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 nght or rights provided for by this Agreement will be tried in a court of competent junsdiction 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 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. /// /// City Attorney Approved Version 1/30/13 PEM1099 /// 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 STEARNS, CONRAD AND SCHMIDT CONSULTING ENGINEERS, INC., dba SCS ENGINEERS, a Virginia corpojation By (sign he /print name/title) CITY OF CARLSBAD, a municipal corporation ofthe State of California lager or lyfaybr or Divisiot{^irector^ uthorizea by the City Manager Jim Howell By: (sign here) (print name/titie) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: MI OL- Assistant City Attorn^ City Attorney Approved Version 1/30/13 PEM1099 EXHIBIT "A" SCOPE OF SERVICES SCS Engineers will conduct a Phase I Environmental Site Assessment in general accordance with the following: • Environmental Protection Agency (EPA), 40 CFR Part 312, Standards and Practices for All Appropriate Inquiries (AAI); Final Rule • ASTM Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process E 1527-13 • The scope, conditions, and limitations of this Exhibit. The scope will assess the likelihood that recognized environmental conditions are present at the properties from the current or historical site land use or from a known and reported off-site source. The scope will include all items referenced in SCS Engineers Proposal 010575214 dated June 5, 2014. TASK 1: SITE AND SITE VICINITY RECONNAISSANCE AND INTERVIEWS A Site and Site vicinity reconnaissance will be conducted by a professional site reconnaissance team from SCS. The purpose of the reconnaissance will be to observe and document existing Site and Site vicinity conditions. In particular, SCS personnel will note evidence of present or past land uses that may have involved the storage, use, or disposal of hazardous materials or wastes. SCS personnel will note the obvious presence of indicators of hazardous materials/wastes at the Site and the immediate Site vicinity that could impact the Site. For example: Aboveground and underground storage tanks Hazardous materials/wastes Active and inactive landfills Fuel dispensers Chemicals and raw materials Transformers and other sources of polychlorinated biphenyls Pits, sumps, dry wells, and catch basins Drums Large areas of staining or discolored soil or concrete Stressed or dead vegetation. Readily available personnel (past and present owners, operators, and occupants of the Site) will be interviewed to gather information regarding the potential for contamination at the Site. An Environmental Questionnaire and Disclosure Statement will be submitted to the available personnel, and information from the questionnaire will be included in the report of findings. Color photographs will be taken to document Site and Site vicinity conditions. TASK 2: REGULATORY AGENCY RECORD REVIEW Readily available regulatory agency records will be reviewed to assess the possible impacts to the Site from on- and off-site sources of hazardous materials. These records are from the California Regional Water Quality Control Board (RWQCB), California Integrated Waste Management Board, local hazardous waste enforcement agency, Cal-EPA, EPA, tribal records, and local fire departments. We will contract with an outside vendor to provide us with a regulatory City Attorney Approved Version 1/30/13 PEM1099 database report (Database Report) covering the Site. The Database Report will be prepared in general accordance with the ASTM guidance and AAI Final Rule and will include a review for the following: Permitted and leaking underground storage tanks Hazardous materials storage and waste generation (detailed review for Site and adjacent properties only) Landfills "Superfund" sites (state and federal) Precursor Superfund sites (CAL-Sites and CERCLIS listings) Hazardous waste and substance sites (HWSSL) Tribal records Activity use limitations (please see Task IV) Environmental clean-up liens (please see Task IV) Review of the above-referenced records will be augmented by a review of our in-house databases Regulatory agency personnel will be interviewed and files reviewed, as necessary, to further evaluate possible hazardous waste impacts to the Site. In order to complete the Assessment, it may be necessary to review regulatory agency or Client-provided files (e.g., leaking tanks or releases) for the Site or facilities in the immediate Site vicinity. TASK 3. HISTORICAL SITE LAND USE REVIEW AND WATER QUALITY SURVEY To assess possible historical sources of introduction of hazardous materials/wastes to the Site, readily available historical resources will be reviewed. Such resources may include, but are not limited to: Historical aerial photographs Historical United States Geological Survey (USGS) topographic maps Historical city directories Sanborn fire insurance maps Building department records Fire department records Chain-of-title reports provided by the Client Other reports and maps as made available by the Client. Appropriate personnel will be interviewed, as necessary, to obtain additional information on the historical use of the Site. Also, as part of this task we will review readily available information regarding the topography, geology, hydrogeology, and soils of the Site vicinity. This information may include, but is not limited to USGS topographic maps, California Division of Mines and Geology geologic surveys, RWQCB designation of surface and groundwater uses, available USGS groundwater reports, and available United States Soil Conservation reports. Available information on the flow direction and depth of groundwater within the Site vicinity will also be reviewed. City Attorney Approved Version 1/30/13 PEM1099 TASK 4. DATA EVALUATION, FIGURE PREPARATION, AND ASSESSMENT REPORT After completing the Site and Site vicinity reconnaissance and data review, this information will be evaluated and formatted for inclusion into a letter report (Report). The Report will include: • An assessment of the likelihood that a recognized environmental condition exists at the Site from current or historical Site land use, or from a known and reported off-site source • Figures and color photographs depicting current Site and Site vicinity conditions and items of potential concern • Opinions, conclusions, and recommendations, if appropriate. As required by the EPA and ASTM standards, the results of the Assessment will be reported by an Environmental Professional. The Report will be peer reviewed and signed by appropriately registered professionals. Note: The above proposed scope of work will be completed for an amount not to exceed three thousand dollars ($3,000). If a determination is made by the City of Cartsbad project manager that additional work is required, an amendment to the agreement will be issued forthe additional scope of work and fee schedule. City Attorney Approved Version 1/30/13 10 PEM1099 SCS ENGINEERS FEE SCHEDULE Rate/Hour Clerical 72 Administrative/Secretarial 74 Technician 80 Senior Engineering Technician 82 CADD Drafter 86 Designer/Drafter 88 Office Services Manager/Project Administrator 88 Technical Editor 92 Associate Staff Professional 92 Staff Professional 1 105 Staff Professional II 113 Project Professional I 120 Project Professional II 128 Construction Superintendent 123 Laboratory Manager 133 Senior Project Professional 1 146 Senior Project Professional II 156 Certified Safety Professional 169 Certified Environmental Manager 169 Certified Industrial Hygienist 169 Project Manager 1 169 Project Manager II 179 Senior Project/Technical Manager 198 Senior Project Advisor 198 Project Director 217 General Terms • Scheduled labor rates include overhead, administration, and profit. • Houriy Rates for Principals will be $241/hour for Vice Presidents and other Principals and $285/hour for Senior Vice Presidents and Senior Executives. • Expert witness testimony (depositions and trial) will be negotiated on a case by case basis. Preparation for testimony and general litigation support will be charged at normal houriy rates. • Direct project expenses (such as field equipment, subcontracted services including drilling, laboratory analyses, etc., permits, supplies, etc.) will be charged at cost plus 15 percent. Company trucks are charged at $50 for up to a half day (4 hours) of use, and $100 for up to a full day (company cars at $40/$80). These charges incorporate an allowance of 100 miles per job per day; additional miles will be charged at the Federal mileage rate then in effect. • Per diem will be charged on all projects requiring overnight stays from our office. The per diem rate is $175.00 per day per person or the federal per diem rate for the area, whichever is greater. • Overtime will be charged at 125 percent of standard rates for weekday work in excess of 8 hours. Work performed on holidays and weekends will be charged at 150 percent of standard rates. City Attorney Approved Version 1/30/13 11