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HomeMy WebLinkAbout1990-11-20; City Council; 10914; APPROVE CONSULTANT AGREEMENT FOR LA COSTA AVENUE MITIGATION MONITORING-I CIYOF CARLSBAD - AGENWBILL ‘I.i;pi3 ,. / b AB#* DEPTE I TITLE: APPROVE CONSULTANT AGREEMENT FOR ..J MTG. 11/20/90 CITY M DEPT. ENG:MP CITY A’ LA COSTA AVENUE MITIGATION MONITORING I I I L RECOMMENDED ACTION: Adopt Resolution No.?/- $479 approving a consultant agreement wi ERC Environmental Company, Incorporated for the monitoring of Costa Avenue wetland mitigation. ITEM EXPLANATION: As conditions of project permits issued in 1987 by the Califorr Coastal Commission and the United States Army Corps of Engineel the City was required to design, install, monitor, and maintz offsetting wetland and riparian mitigation for impacts resultj from the construction of the intersection improvements to La Cos along the north side of La Costa Avenue west of El Camino Real I provided to offset anticipated impacts from the future widening La Costa Avenue between 1-5 and El Camino Real. In other worc the Agency’s requirements for mitigation for offsetting impac included both the intersection improvements and the future widen: project . Avenue and El Camino Real. Additionally, the mitigation install i The California Coastal Commission also conditioned the Cit! Coastal Development Permit with a five (5) year maintenance i monitoring program. Although this five (5) year period will I conclude until 1992, it is evident that some minor revegetat: work will be required to ensure the viability of the mitigation 0 0 9 tE 2 2 0 .. 6 a 6 z 3 Staff recommends that the attached agreement with ERC Environmenl Company, Incorporated be approved which will enable an evaluat. of the existing state of the revegetation plan and recommc alternatives. With the Batiquitos Lagoon Enhancement Projc scheduled to begin work in 1992, it may be possible to coordin; a City revegetation effort along the north side of La Costa Ave: with the larger Lagoon Enhancement plan. Staff recommends appro of the attached agreement. FISCAL IMPACT: Funds in the amount of $428,890 are available in the La Co; Avenue/El Camino Real Intersection Project Account No. 311-8 1840-3215 to fund the total mitigation monitoring cost of $53,0 ERC will return with a detailed evaluation report and a series recommendations regarding potential revegetation of this area. EXHIBITS : I 1, Resolution No. j@-.dO 9 approving a consultant agreement w ERC Environmental Company, Incorporated for the monitoring La Costa Avenue wetland mitigation. - 0 0 2. Consultant Agreement. I f 0 0 1 RESOLUTION NO. 90-409 2 3 4 5 6 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT BETWEEN THE CITY OF CARLSBAD AND ENVIRONMENTAL AND ENERGY SERVICES COMPANY (ERCE) FOR THE MITIGATION MONITORING OF LA COSTA AVENUE WHEREAS, proposals have been received by the C 7 Carlsbad for the mitigation monitoring of La Costa Avenue: I1 8 I/ WHEREAS, the firm of Environmental and Energy SE 9 Company (ERCE) has been selected to perform the required mitj 10 monitoring; and 11 WHEREAS, funds are currently available in Accou 12 NOW, THEREFORE, BE IT RESOLVED by the City Council 13 311-820-1840-3215 for the mitigation monitoring. 1, That the above recitations are true and cor] 15 City of Carlsbad, California, as follows: 14 16 accepted. 18 ERCE for the mitigation monitoring of La Costa Avenue is 17 2. That an agreement between the City of Carlsl 19 3. That the Mayor of the City of Carlsbad is 20 of the City of Carlsbad. 21 authorized and directed to execute said agreement for and on 22 /// 24 /// 23 /// 25 /// 26 /// /// 28 /// 27 0 0 1 4. That following the Mayor's signature of 2 copies of the signed contract documents to (ERCE), attenti 3 contract, the City Clerk is authorized and directed to f 4 Steve Lacey, 5510 Morehouse Drive, San Diego, California, 92: 5 6 the Municipal Projects Department. AYES : Council Members Lewis, Larson, Mamaux and Pettint 9 by the following vote, to wit: 8 Carlsbad City Council held on the 20th day of November i 7 PASSED, APPROVED AND ADOPTED at a regular meeting 10 NOES : None 11 12 ABSENT: Council Member 13 l4 11 ATTEST: 15 16 AWTHA L. RAUTENKRANZ, City Cldrk %L *d4 li " 17 18 (SEAL) 19 20 21 22 23 I 24 25 26 27 28 e 0 b AGREEMENT FOR LA COSTA AVENUE MITIGATION THIS AGREEMENT, made and entered into as of the - day of > 1990, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and ENVIRONMENTAL AND ENERGY SERVICES (ERCE), hereinafter referred to as "Consultant". RECITALS City requires the services of Environmental and Energy Sei-vices Co. (ERCE) consultant to provide the necessary biological mitigation monitoring services for La Costa Avenue mitigation; and Consultant possesses the necessary skills and qualifications to provide the services required by the City; NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Consultant agree as follows: 1. CONSULTANT'S OBLIGATIONS a. Provide biological mitigation monitoring as outlined on Exhibit "A". b. Consultant shall perform any or all City's selected tasks as outlined in Exhibit "A". 1 Rev. 8/27/90 0 e 2. CITY OBLIGATIONS The City shall: a. Provide the consultant with copies of the original mitigation plans and specifications as were constructed previously. b. Provide copies of State Fish and Game and Coastal Commission requirements. 3. PROGRESS AND COMPLETION The work under this contract will begin within ten (10) days after receipt of notification to proceed by the City and be completed within 3 (three) years of that date. Extensions of time may be granted if requested by the Consultant and agreed to in writing by the Consultant. The City will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of the Consultant, or delays caused by City inaction or other agencies' lack of timely action. 4. FEES TO BE PAID TO CONSULTANT The fees will be payable according to Paragraph 6, "Payment of Fees," shall be per Exhibit "A". No other compensation for services will be allowed except those items covered by supplemental agreements per Paragraph 7, "Changes in Work." 2 Rev. 8/27/90 e 0 5. DURATION OF CONTRAm This agreement shall extend for a period of 3 years from date thereof. The contract may be extended for an additional one (1) year period or parts thereof, based upon satisfactory performance and the City's needs. 6. PAYMENT OF FEES Payment of fees shall be upon completion of appropriate tasks, as outlined on Exhibit "A". 7. FINAL SUBMISSIONS Within fifteen (15) days of completion of each task the Consultant shall deliver to the City the following items: a. First monitoring report shall be delivered to the City within thirty (30) days of Notice to Proceed. b. Subsequent monitoring reports shall be performed and delivered to the City annually for the remaining two (2) years. 8. CHANGES IN WORK If, in the course of the contract, changes seem merited by the Consultant or the City, and informal consultations with the other party indicate that a change in the conditions of the contract is warranted, the Consultant or the City may request a change in contract. Such changes shall be processed by the City in the following 3 Rev. 8/27/90 0 a manner: A letter outlining the required changes shall be forwarded to the City by Consultant to inform them of the proposed changes along with a statement of estimated changes in charges or time schedule. A supplemental agreement shall be prepared by the City and approved by the City according to the procedures described in Carlsbad Municipal Code Section 3.28.172. Such supplemental agreement shall not render ineffective or invalidate unaffected portions of the agreement. 9. COVENANTS AGAINST CONTINGENT FEES The Consultant warrants that their firm has not employed or retained any company or person, other a bona fide employee working for the Consultant, to solicit or secure this agreement, and that Consultant 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, the City shall 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 such fee, commission, percentage, brokerage fees, gift, or contingent fee. 4 Rev. 8/27/90 0 0 10. NONDISCRIMINATION CLAUSE The Consultant shall comply with the state and federal laws regarding nondiscrimination. 11. TERMINATION OF CONTRACT In the event of the Consultant's failure to prosecute, deliver, or perform the work as provided for in this contract, the City may terminate this contract for nonperformance by notifymg the Consultant by certified mail of the termination of the Consultant. The Consultant, thereupon, has five (5) working days to deliver said documents owned by the City and all work in progress to the . The shall make a determination of fact based upon the documents delivered to City of the percentage of work which the Consultant has performed which is usable and of worth to the City in having the contract completed. Based upon that finding as reported to the City Manager, the Manager shall determine the final payment of the contract. 12. DISPUTES If a dispute should arise regarding the performance of work under this agreement, the following procedure shall be used to resolve any question of fact or interpretation not otherwise settled by agreement between parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this contract, shall be reduced to writing by the principal of the 5 Rev. 8/27/90 0 0 Consultant or the City . A copy of such documented dispute shall be forwarded to both parties involved along with recornended methods of resolution which would be of benefit to both parties. The City or principal receiving the letter shall reply to the letter along with a recommended method of resolution within ten (10) days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to the City Council for their resolution through the Office of the City Manager. The City Council may then opt to consider the directed solution to the problem. In such cases, the action of the City Council shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties seeking remedies available to them at law. 13. SUSPENSION OR TERMINATION OF SERVTCES This agreement may be terminated by either party upon tendering thirty (30) days written notice to the other party. In the event of such suspension or termination, upon request of the City, the Consultant shall assemble the work product and put same in order for proper filing and closing and deliver said product to City. In the event of termination, the Consultant shall be paid for work performed to the termination date; however, the total shall not exceed the lump sum fee payable under paragraph 4. The City shall make the final determination as to the portions of tasks completed and the compensation to be made. 6 Rev. 8/27/90 0 e 14. STATUS OF THE CONSULTANT The Consultant shall perform the services provided for herein in Consultant’s own way as an independent contractor and in pursuit of Consultant’s independent calling, and not as an employee of the City. Consultant shall be under control of the City only as to the result to be accomplished, but shall consult with the City as provided for in the request for proposal. The Consultant is an independent contractor of the City. The payment made to the Consultant pursuant to the contract shall be the full and complete compensation to which the Consultant is entitled. The City shall not make and federal or state tax withholdings on behalf of the Consultant. The City shall not be required to pay any workers’ compensation insurance on behalf of the Consultant. The Consultant agrees to indemnify the City for any tax, retirement contribution, social security, overtime payment, or workers’ compensation payment which the City may be required to -make on behalf of the Consultant or any employee of the Consultant for work done under this agreement. The Consultant shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that are included in this agreement. 7 Rev. 8/27/90 e 0 15. CONFORMITY TO LEGAL REQUIREMENTS The Consultant shall cause all dra&gs and specXcat;ons to conform to all applicable requirements of law: federal, state and local. Consultant shall provide all necessary supporting documents, to be filed with any agencies whose approval is necessary. The City will provide copies of the approved plans to any other agencies. 16. OWNERSHIP OF DOCUMENTS All plans, studies, sketches, drawings, reports, and specifications as herein required are the property of the City, whether the work for which they are made be executed or not. In the event this contract is terminated, all documents, plans, specifications, drawings, reports, and studies shall be delivered forthwith to the City. Consultant shall have the right to make one (1) copy of the plans for his/her records. 17. REPRODUCTION RIGHTS The Consultant agrees that all copyrights which arise from creation of the work pursuant to this contract shall be vested in City and hereby agrees to relinquish all claims to such copyrights in favor of City. Consultant shall add the following notation to each and every drawing, plan, sheet, and other document pursuant to this agreement: "Copyright 1990, City of Carlsbad." 8 Rev. 8/27/90 e e 18. HOLD HARMLESS AGREEMENT The City, its officers, and employees shall not be liable for any claims, liabilities, penalties, fines, or any damage to goods, properties, or effects of any person whatever, not for personal injuries or death caused by, or claimed to have been caused by, or resulting from, any intentional or negligent acts, errors or omission of Consultant or Consultant's agents, employees, or representatives. Consultant agrees to defend, indenmfy, and save free and harmless the City and its officers and employees against any of the foregoing liabilities or claims of any kind and any cost and expense that is incurred by the City on account of any of the foregoing liabilities, including liabilities or claims by reason of alleged defects in any plans and specifications. 19. ASSIGNMENT OF CONTRACI' The Consultant shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the City. 20. SUBCONTRACTING If the Consultant shall subcontract any of the work to be performed under this contract by the Consultant, Consultant shall be fully responsible to the City for the acts and omissions of Consultanfs subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Consultant is for the acts and omissions of persons directly employed by consultant. Nothing contained in 9 Rev. 8/27/90 0 0 this contract shall create any contractual relationship between any subcontractor of Consultant and the City. The Consultant shall bind every subcontractor and every subcontractor of a subcontractor by the terms of this contract applicable to Consultant’s work unless specifically noted to the contrary in the subcontract in question approved in writing by the City. 21. PROHIBITED INTEREST No official of the City who is authorized in such capacity on behalf of the City to negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or approving of this agreement, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer or employee of the City who is authorized in such capacity and on behalf of the City to exercise any executive, supervisory, or similar functions in connection with the performance of this contract shall become directly or indirectly interested personally in this contract or any part thereof. 22. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of the City, either before, during or after the execution of this contract, shall affect or modify any of the terms or obligations herein contained nor entitle the Consultant to any additional payment whatsoever under the terms of this contract. 10 Rev. 8/27/90 e 8 23. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 18, "Hold Harmless Agreement," all terms, conditions, and provisions hereof shall insure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. 24. EFFECmTE DATE This agreement shall be effective on and from the day and year first above written. 25. CONFLICI' OF JNTEREST The Consultant 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 Consultant shall report investments or interests in real property. 26. INSURANCE The Consultant shall obtain and maintain policies of general liability insurance, automobile liability insurance, and a combined policy of worker's compensation and employers liability insurance fiom an insurance company authorized to do business in the State of California which meets the requirements 11 Rev. 8/27/90 0 e of City Council Resolution No. 90-96 in an insurable amount of not less than one million dollars ($1,000,000) each, unless a lower amount is approved by the City Attorney or the City Manager. This insurance shall be in force during the life of this agreement and shall not be canceled without thirty (30) days prior written notice to the City sent by certified mail. The City shall be named as an additional insured on these policies. The Consultant shall furnish certificates of insurance to the City before commencement of work. .... .... .... .... .... .... .... .... .... .... .... .... .... .... 12 Rev. 8/27/90 0 e Executed by Consultant this day of 9 1990. CONSULTANT: CITY OF CARLSBAD, a municipal ERC Environmental and corporation of the State of California Energy Services Co., Inc. (name of Consultant) c&//’J/ By: && .A. /A* City Manager or Mayor By: (sign here) ATTEST: Thomas M. Larkin (print name here) Vice President ALETHA L. RAUTENKRANZ (title and organization of signatory) City Clerk (Proper notarial acknowledgment of execution by CONSULTANT must be attached.) (President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: VINCENT F. BIONDO, JR. City Attorney BY Deputy City Attorney 13 Rev. 8/27/90 e Page EXHIBIT A SCOPE OF WORK LA COSTA AVENUE WIDENING PROJECT BIOLOGICAL MONITORING SEPTEMBER 25, 1990 General ERC Environmental and Energy Services, Co. (ERCE) will provide biological mitigation monitoring services to the City of Carlsbad for their wetland mitigation areas associated with the widening of La Costa Avenue. Specifics The following tasks will be completed: Project Management/Contracting. Cost Estimate (3 years): $6,538.00 Task 1: Conduct a reconnaissance of the mitigation areas to reassess the current conditions relative to the proposed revegetation program. Cost Estimate: $1,827.00 Task2 Develop a remedial revegetation program to put the mitigation program on track to meeting the goals of the regulatory permits (Corps of Engineers 404 Permit, Coastal Permit). Cost Estimate: $7,622.00 Task 3: Monitor the implementation of revegetation program to insure proper installation, species types, and irrigation systems as appropriate. Cost Estimate: $3,011.00 Task 4: Conduct annual quantitative/qualitative monitoring to assess vegetation coverage, growth and overall program success for remaining three years of required five year program Cost Estimate: $20,634.00 Task 5: Prepare annual monitoring reports including data analysis and results to be submitted to the City for forwarding to the Corps of Engineers, Coastal Commission, and wildlife agencies. Cost Estimate: $13,443.00 As part of this mitigation monitoring program, ERCE biologists will work closely with the City's Municipal Projects Manager, John Cahill, and his designated staff to assure effective coordination and resolution of all issues. Cost Estimate and Schedule Our total cost to completed the above tasks is estimated at $53,075.00. Task 1 would be conducted within three weeks of the initiation of the contract. Completion of Task 2 and 3 would be predicated on the need to develop a remedial plan, plant availability and planting schedule and the involvement by the City in producing construction drawings. Task 4 will be conducted twice the first year and once each of the remaining two years. Task 5 will be conducted annually for three years. EXHIBIT "A" a e Page 2 Additional Work Any work necessary beyond the five year program (as initiated in September 1987) to complete additional remedial programs to satisfy the regulatory agencies would be scoped at a future date and covered by a mutually acceptable supplemental agreement. Our work program also does not include preparation of construction drawings. These are the responsibility of the city with detailed input from ERCE or by subcontract agreement to be authorized by the City.