HomeMy WebLinkAboutWeston Solutions Inc; 2012-11-29; UTIL957UTIL957
AGREEMENT FOR ENVIRONMENTAL IMPACT REPORTS/STUDIES SERVICES
(WESTON SOLUTIONS, INC.)
THIS AGREEMENT is made and entered into as of the day of
NaJMXb^r' 20 ISL, by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and WESTON SOLUTIONS, INC., a Pennsylvania corporation,
("Contractor").
RECITALS
A. City requires the emergency professional services of a specialized company
experienced in the field of writing environmental impact reports/studies.
B. Contractor has the necessary specialization and experience in providing
emergency professional services and advice related to writing environmental impact
reports/studies
C. Contractor has submitted a proposal to City and has affirmed its willingness and
ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this reference in
accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and
skill customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California Area, and will use reasonable diligence and best judgment
while exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of one (1) year from the date first above
written. The City Manager may amend the Agreement to extend it for one (1) additional one (1)
year period or parts thereof 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.
6. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term will be
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".
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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 City. Contractor will be
under control of City only as to the result to be accomplished, but will consult with City as
necessary. The persons used by Contractor to provide services under this Agreement will not
be considered employees of City for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. City will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be
required to pay any workers' compensation insurance or unemployment contributions on behalf
of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within
thirty (30) days for any tax, retirement contribution, social security, overtime payment,
unemployment payment or workers' compensation payment which City may be required to
make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work
done under this Agreement. At the City's election, City may deduct the indemnification amount
from any balance owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of City.'
If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the
acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly
employed by the subcontractor, as Contractor is for the acts and omissions of persons directly
employed by Contractor. Nothing contained in this Agreement will create any contractual
relationship between any subcontractor of Contractor and City. Contractor will be responsible for
payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of
a subcontractor by the terms of this Agreement applicable to Contractor's work unless
specifically noted to the contrary in the subcontract and approved in writing by City.
8- OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees
and volunteers from and against all claims, damages, losses and expenses including attorneys
fees arising out of the performance of the work described herein caused by any negligence,
recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or
makes to or on behalf of an injured employee under the City's self-administered workers'
compensation is included as a loss, expense or cost for the purposes of this section, and that
this section will survive the expiration or early termination of this Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may
arise out of or in connection with performance of the services by Contractor or Contractor's
agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The
insurance carrier is required to have a current Best's Key Rating of not less than "A-:VH". OR
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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 Emplover'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.
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
replacement insurance or pay the premiums that are due on existing policies in order to
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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.
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 For Contractor
Name Clayton Dobbs Name Bill Isham
Title Utilities supervisor Title Aquatic Ecologist
Department Utilities Address 5817 Dryden PI. Suite 101
Citv of Carlsbad Carlsbad California 92008
Address 5950 El Camino Real Phone No. 760-795-6928
Carlsbad, CA 92008 Email bill.isham@westonsolutions.com .
Phone No. 760-438-2722
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.
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16. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report
investments or interests in all four categories.
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 othen/vise 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 fon/varded 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 ^
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 fon/varded
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
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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 othenA/ise 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 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 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.
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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. \ \iJ
CONTRACTOR CITY OF CARLSBAD, a municipal V| ^ '
WESTON SOLUTIONS, INC., a corporation of the State of Califomia
Pennsylvania corporation
By:
Peter
(sign here)
Ceribelli, Sr VP & COO
l>cyy. City Maftager or Mayor or Diviaion Dircetor
' SiZ authorinod by the City ManagcM"
(print name/title)
(sign here)
Donald B. Bauer, Assistant Secretary
(print name/title)
If required by City, proper notarial acknowledgment of execution by contractor must b^
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:
Assistant City Attorney ^
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COMMONWEALTH OF PENNSYLVANIA )
) SS
COUNTY OF CHESTER )
Before me, the undersigned notary public, this day, personally appeared Peter A.
Ceribelli, Sr Vice President and COO of Weston Solutions, Inc. and Donald B. Bauer,
Assistant Secretary of Weston Solutions, Inc., to me known to be the persons whose
names are subscribed to the attached instrument and they acknowledged that they
executed the same for the purposes therein contained.
In witness whereof, I hereunto set my hand and official seal.
Dated: November 14, 2012
COMMONWEALTH OF PENNSYLVANIA
Notary Public
Notarial seal
Gina Vaughn, Notaiy Public
West WhitBland 1Vvp., Chester County
My Commission Bcplres June 15,2014
i^ber^ Pennsylvania Asse^atien of Notaries
(NOTARY SEAL)
EXHIBIT "A"
SCOPE OF SERVICES
Please see attachment for exhibit 'A"
• Initial fee for term of contract not to exceed $30,000
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EXHIBIT A
ATFACHMENT • v^l^SOL U l IONS
Restoring Resource Efficiency
October 23,2012
Attention: Mr. Don Wasko, City of Carlsbad
Subject: Scope of Work and Cost Proposal for a Sewage Spill Biological Impact Survey in
Batiquitos Lagoon
Dear Mr. Wasko:
This memorandum is in response to a request to provide costing for a benthic invertebrate and
marsh vegetation survey and analysis in response to a sewage spill that affected the receiving
waters of Batiquitos Lagoon. The enclosed cost proposal covers the Scope of Work for the
monitoring requirements provided to Weston Solutions (Weston), but due to the rapid response
of this project, some modification and/or refinement to the proposed tasks may be necessary.
Costs for this Scope of Work cover the first survev performed after the spill (conducted in
October, 2012). An additional cost estimate will be provided for the second survey (anticipated
in January, 2013). Table 1 provides an overview of estimated individual tasks and total project
costs.
Task 1: Benthic Invertebrate Field Collections and Marsh Vegetation Surveys
This task describes the costs associated with the collection of benthic invertebrates to
characterize species biodiversity and help to gauge impacts to the marsh following the sewage
spill. Samples will be collected at two impact monitoring sites and one reference site. A total of
three replicate samples will be collected within the lower intertidal/subtidal zone at each of the
three sites, as well as a fourth sample in the mid-intertidal zone. Thus a total of 12 samples will
be collected. Benthic samples will be collected using a 6 inch (15 cm) diameter core to a depth of
approximately six to eight inches (15-20 cm) and will be passed through a 1.0-mm sieve.
Material retained on the sieve will be transferred to sample containers, labeled, preserved in 10%
formalin, and retumed to the laboratory for processing.
Marsh vegetation surveys will be conducted using using the Califomia Native Plant Society
(CNPS) Releve Protocol (CNPS Vegetation Committee, 2000) at the same general areas as the
invertebrate sampling sites. Quadrats will be established every two meters on transect lines from
the upper delineation of marsh vegetation to the edge of the upper intertidal mudflat. For the odd
number transects, quadrats will be placed on even numbered meter marks (i.e., transects 1, 3, 5
will be sampled at meter marks 2, 4, 6, etc.). For the even numbered transects, quadrats will be
placed on the odd numbered meter marks. Staggering even and odd meter marks prevents
systematic sampling at a given elevation profile. The number of transects will be determined
during site reconnaissance. All species within quadrats will be identified. Cover will be
estimated visually by percentage and using the Braun Blanquet (1964) cover classes. Average
cover within the impact areas will be compared to reference site conditions.
Assumptions: Field surveys will be conducted on two separate days, one for invertebrates and
one for vegetation. Field crews will consist of two people. All sampling gear and supplies are
included in the costs.
EXHIBIT A
ATTACHMENT Restoring Resource Efficiency
Cost for Task 1 Field Surveys $3,200
Task 2: Laboratory Analysis of Benthic Invertebrate Samples
This task describes the costs associated with laboratory sorting and taxonomic identifications of
the benthic invertebrate samples. All invertebrates in the samples will be removed and sorted
into major taxonomic groups. Invertebrates will be identified to the lowest practicable taxon
(usually species) by experienced taxonomists.
Cost for Task 2
Per sample
Per 12 samples
$385
$4,620
Task 3: Data Management
All data collected in the surveys, including bacteria, invertebrates, and marsh vegetation will be
compiled, tabulated, and analyzed. Comparisons will be made between the impacted sites and
reference or non-impacted areas using standard statistical analyses and benthic community
indices. The information will be presented in tables and figures that best illustrate the results in a
clear, easily interpretable format.
Cost for Task 3 $2,400
Task 4: Reporting
Reporting will consist of two reports:
• An initial water quality data report will be produced summarizing the water
quality/bacteria sampling results. Deliverables will include submission of electronic files
to the City of Carlsbad to include in a response report to be submitted to the San Diego
Regional Water Quality Control Board.
• A full report of the benthic invertebrate and vegetation surveys will be produced.
Deliverables will include a summary of the incident, methods for biological surveys, and
a discussion and interpretation of results. All relevant maps, tables and figures will also
be included. All raw data data collected will be included as appendix tables.
Cost for Task 4 $7,500
Task 5: Meetings
Three stakeholder meetings are anticipated, with two Weston staff in attendance. Costs assume
up to three hours of meeting time plus travel. Only meetings attended will be invoiced.
Cost for Task 5 per Meeting $ 1,800
Cost for Three Meetings $5,400
Task 6: Project Management and Administration
Costs for this task include efforts for contract setup, billing, and miscellaneous communications.
Cost for Project Management $ 1,200
Total Project Cost $24,320
EXHIBIT A
ATTACHMENT iMifiiTm 1 tSMk mm*
Restoring Resource Efficiency
These cost estimates are summarized below in Table 1
Table 1: Estimated Task and Total Project Costs.
Task Description Unit Cost
Task 1: Biological field surveys $3,200
Task 2: Laboratory sample analysis $4,620
Task 3: Data management $2,400
Task 4: Reporting $7,500
Task 5: Meetings $5,400
Task 6: Project management and information $1,200
Total Fixed-Price Cost $24,320
If you have any follow-up questions or concems, please contact Bill Isham at (760) 795-6928.
Sincerely,
Bill Isham
Aquatic Ecologist
Weston Solutions, Inc.
5817 Dryden PI. Ste. 101
Carlsbad, CA 92008