HomeMy WebLinkAboutHabitat West Inc; 2010-12-30; UTIL799UTIL799
AGREEMENT FOR ENVIRONMENTAL SERVICES
HABITAT WEST, INC.
-> -/ATHIS AGREEMENT is made and entered into as of the 3O day of
20 (O . by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and HABITAT WEST, INC., a California corporation, ("Contractor").
RECITALS
A. City requires the professional services of an environmental consultant that is
experienced in vegetation restoration and erosion control.
B. Contractor has the necessary experience in providing professional services and
advice related to vegetation restoration and maintenance.
C. Selection of Contractor is expected to achieve the desired results in an expedited
fashion.
D. Contractor has submitted a proposal to City and has affirmed its willingness and
ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this reference in
accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and
skill customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California Area, and will use reasonable diligence and best judgment
while exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of one (1) year from the date first above
written. The City Manager may amend the Agreement to extend it for one (1) additional one (1)
year period or parts thereof in an amount not to exceed twelve thousand nine hundred eighty
five dollars ($12,985) 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
twelve thousand nine hundred eighty five dollars ($12,985). 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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1
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-:VII". OR
City Attorney Approved Version 9.22.10
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 City
Attorney or City Manager approves a lower amount. These minimum amounts of coverage will
not constitute any limitations or cap on Contractor's indemnification obligations under this
Agreement. City, its officers, agents and employees make no representation that the limits of
the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to
protect Contractor. If Contractor believes that any required insurance coverage is inadequate,
Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense.
10.1.1 Commercial General Liability Insurance. $1,000,000 combined single-limit
per occurrence for bodily injury, personal injury and property damage. If the submitted policies
contain aggregate limits, general aggregate limits will apply separately to the work under this
Agreement or the general aggregate will be twice the required per occurrence limit.
10.1.2 Automobile Liability (if the use of an automobile is involved for
Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and
property damage.
10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation
limits as required by the California Labor Code. 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.
10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
10.2.1 The City will be named as an additional insured on General Liability.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and any
extensions of it and will not be canceled without thirty (30) days prior written notice to City sent
by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach, or may purchase
replacement insurance or pay the premiums that are due on existing policies in order to
maintain the required coverages. Contractor is responsible for any payments made by City to
obtain or maintain insurance and City may collect these payments from Contractor or deduct the
amount paid from any sums due Contractor under this Agreement.
City Attorney Approved Version 9.22.10
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 City For Contractor
Name Mark Biskup Name Gigi Hurst
Title Associate Engineer Title President/CEO
Department Utilities Address 2067 Wineridge Place, Suite B
City of Carlsbad Escondido, CA 92029
Address 1635 Faraday Avenue Phone No. 760-735-9378
Carlsbad, CA 92008
Phone No. 760-602-2763
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
City will evaluate Contractor's duties pursuant to this Agreement to determine whether
disclosure under the Political Reform Act and City's Conflict of Interest Code is required of
Contractor or any of Contractor's employees, agents, or subcontractors. Should it be
determined that disclosure is required, Contractor or Contractor's affected employees, agents,
City Attorney Approved Version 9.22.10
or subcontractors will complete and file with the City Clerk those schedules specified by City
and contained in the Statement of Economic Interests Form 700.
Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and
consultants warrants that by execution of this Agreement, that they have no interest, present or
contemplated, in the projects affected by this Agreement. Contractor further warrants that
neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have
any ancillary real property, business interests or income that will be affected by this Agreement
or, alternatively, that Contractor will file with the City an affidavit disclosing this interest.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way affect the
performance of the Services by Contractor. Contractor will at all times observe and comply with
these laws, ordinances, and regulations and will be responsible for the compliance of
Contractor's services with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants that the services required
by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not otherwise settled by agreement
between the parties. Representatives of Contractor or City will reduce such questions, and their
respective views, to writing. A copy of such documented dispute will be forwarded to both
parties involved along with recommended methods of resolution, which would be of benefit to
both parties. The representative receiving the letter will reply to the letter along with a
recommended method of resolution within ten (10) business days. If the resolution thus
obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded
to the City Manager. The City Manager will consider the facts and solutions recommended by
each party and may then opt to direct a solution to the problem. In such cases, the action of the
City Manager will be binding upon the parties involved, although nothing in this procedure will
prohibit the parties from seeking remedies available to them at law.
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
termination. If City decides to abandon or indefinitely postpone the work or services
contemplated by this Agreement, City may terminate this Agreement upon written notice to
Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any
documents owned by City and all work in progress to City address contained in this Agreement.
City will make a determination of fact based upon the work product delivered to City and of the
percentage of work that Contractor has performed which is usable and of worth to City in having
the Agreement completed. Based upon that finding City will determine the final payment of the
Agreement.
City Attorney Approved Version 9.22.10
Either party upon tendering thirty (30) days written notice to the other party may terminate this
Agreement. In this event and upon request of City, Contractor will assemble the work product
and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for
work performed to the termination date; however, the total will not exceed the lump sum fee
payable under this Agreement. City will make the final determination as to the portions of tasks
completed and the compensation to be made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
Contractor has not paid or agreed to pay any company or person, other than a bona fide
employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration
contingent upon, or resulting from, the award or making of this Agreement. For breach or
violation of this warranty, City will have the right to annul this Agreement without liability, or, in
its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full
amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must
be asserted as part of the Agreement process as set forth in this Agreement and not in
anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false
claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal
prosecution. Contractor acknowledges that California Government Code sections 12650 et seq.,
the False Claims Act applies to this Agreement and, provides for civil penalties where a person
knowingly submits a false claim to a public entity. These provisions include false claims made
with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement
for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction
is grounds for City to terminate this Agreement.
23. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the
County of San Diego, State of California, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
Contractor and their respective successors. Neither this Agreement or any part of it nor any
monies due or to become due under it may be assigned by Contractor without the prior consent
of City, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it,
along with the purchase order for this Agreement and its provisions, embody the entire
Agreement and understanding between the parties relating to the subject matter of it. In case of
conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor
any of its provisions may be amended, modified, waived or discharged except in a writing
signed by both parties.
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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
HABITAT WEST, INC., a California
corporation
(print name/title)
*By:
>^//^»-x<>1
v
r ; ; n •(sign here)
(print name/title)
CITY OF CARLSBAD, a municipal
corporation of the State of California
City Manager or Mayor or Di
ATTEST:
LORRAINE M. WOOD
City Clerk
If required by City, proper notarial acknowledgment of execution by contractor must be
attached. If a Corporation, Agreement must be signed by one corporate officer from each of the
following two groups.
*Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
By:_
Deputy City Attorne
City Attorney Approved Version 9.22.10
RESOLUTIONS ADOPTED BY UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS OF
HABITAT WEST, INC.
A CALIFORNIA CORPORATION
THE undersigned, being all the directors of Habitat West, Inc., a California Corporation,
by this writing approve the following resolutions and consent to their adoption:
WHEREAS, THE Board of Directors of this Corporation, desires to grant to the
Officers of this Corporation, the power to execute all corporate instruments and
documents, or to sign the corporate name without limitation, each acting alone
and without approval of signature of any other corporate officer.
NOW, THEREFORE, BE IT RESOLVED, that Georgia L. Hurst is hereby
authorized and directed to act alone in signing any and all corporate documents of
any kind or nature, and/or related instruments, for the benefit of the Corporation, on such
terms and conditions as GEORGIA L HURST, in her sole discretion, deems advisable
in the best interest of the corporation.
This consent is executed pursuant to subdivision (b) of Section 307 of the California
Corporations Code, and is to filed with the Minutes of Board proceedings.
Executed effective December 3, 2010
"(K . 14-U/UA
Georgia L. Hurst
President
Georgia L. Hurst
CEO
_
Georgia L. Hurst
S ecretary/Treasurer
California Corporations Code Section 307 - California Attorney Resources - California L... Page 1 of 3
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(a) Unless otherwise provided in the articles or, subject to paragraph (5) of
subdivision (a) of Section 204, in the bylaws, all of the following apply:
(1) Meetings of the board may be called by the chair of the board or the president or
any vice president or the secretary or any two directors.
(2) Regular meetings of the board may be held without notice if the time and place of
the meetings are fixed by the bylaws or the board. Special meetings of the board
shall be held upon four days' notice by mail or 48 hours' notice delivered personally
or by telephone, including a voice messaging system or by electronic transmission by
the corporation (Section 20). The articles or bylaws may not dispense with notice of a
special meeting. A notice, or waiver of notice, need not specify the purpose of any
regular or special meeting of the board.
(3) Notice of a meeting need not be given to a director who provides a waiver of
notice or a consent to holding the meeting or an approval of the minutes thereof in
writing, whether before or after the meeting, or who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to that director.
These waivers, consents and approvals shall be filed with the corporate records or
made a part of the minutes of the meeting.
(4) A majority of the directors present, whether or not a quorum is present, may
adjourn any meeting to another time and place. If the meeting is adjourned for more
than 24 hours, notice of an adjournment to another time or place shall be given prior
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to the time of the adjourned meeting to the directors who were not present at the time
of the adjournment.
(5) Meetings of the board may be held at a place within or without the state that has
been designated in the notice of the meeting or, if not stated in the notice or there is
no notice, designated in the bylaws or by resolution of the board.
(6) Members of the board may participate in a meeting through use of conference
telephone, electronic video screen communication, or electronic transmission by and
to the corporation (Sections 20 and 21). Participation in a meeting through use of
conference telephone or electronic video screen communication pursuant to this
subdivision constitutes presence in person at that meeting as long as all members
participating in the meeting are able to hear one another. Participation in a meeting
through electronic transmission by and to the corporation (other than conference
telephone and electronic video screen communication), pursuant to this subdivision
constitutes presence in person at that meeting if both of the following apply:
(A) Each member participating in the meeting can communicate with all of the other
members concurrently.
(B) Each member is provided the means of participating in all matters before the
board, including, without limitation, the capacity to propose, or to interpose an
objection to, a specific action to be taken by the corporation.
(7) A majority of the authorized number of directors constitutes a quorum of the board
for the transaction of business. The articles or bylaws may not provide that a quorum
shall be less than one-third the authorized number of directors or less than two,
whichever is larger, unless the authorized number of directors is one, in which case
one director constitutes a quorum.
(8) An act or decision done or made by a majority of the directors present at a
meeting duly held at which a quorum is present is the act of the board, subject to the
provisions of Section 310 and subdivision (e) of Section 317. The articles or bylaws
may not provide that a lesser vote than a majority of the directors present at a
meeting is the act of the board. A meeting at which a quorum is initially present may
continue to transact business notwithstanding the withdrawal of directors, if any
action taken is approved by at least a majority of the required quorum for that
meeting.
(b) An action required or permitted to be taken by the board may be taken without a
meeting, if all members of the board shall individually or collectively consent in writing
to that action. The written consent or consents shall be filed with the minutes of the
proceedings of the board. The action by written consent shall have the same force
and effect as a unanimous vote of the directors.
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(c) This section applies also to committees of the board and incorporators and action
by those committees and incorporators, mutatis mutandis.
(d) This section shall become operative on January 1, 2011.
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EXHIBIT A
HABITAT WEST
NATIVE HABITAT RESTORATION
December 6,20201 via Email: mark.biskup@carlsbadca.gov
To: MarkBiskup
Associate Engineer
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008-7314
Subject: Agua Hedionda
Re: Cost Proposal for hydroseeding Hoover Street & the Center Shaft Area
and Second Year Maintenance
Mark,
As per your request I have the following cost proposal:
SCOPE OF WORK:
1. Weed whip tall weeds @ Hoover Street & the Center Shaft Area.
Dispose of legally.
Labor: $ 325.00
Dump Fees $ 15.00
Subtotal: $ 340.00
2. Hydroseed 54,450 s.f. at Hoover Street & the Center Shaft Area.
Seed Cost: $ 610.00
Hydroseed $2.290.00
Subtotal: $2,900.00
3. Maintain BMP's for four areas totaling 79,850 square feet. $5,145.00
a. 2nd Year Maintenance: Monitor regularly, repair and
maintenance of silt fence and straw wattles as needed:
b. Remove chain link fence (if requested): $1,500.00
c. Remove and dispose of BMP's legally: $3,100.00
Subtotal $9,745.00
2067 Wineridge Places Suite B, Esoondido, CA 92029 (760) 735-9378 Fax (760) 735-9351
•% •" ^5* "IR License #6702030 SWBE #021941 www.HabitatWest.com
ORIGINAL
HABITAT WEST
NATIVE HABITAT RESTORATION
Replacement Rates:
a. Silt fence: $1.60 per linear foot
b. 8" straw wattles: $3.45 per linear foot
c. Inspection rate: $42.50 per hour
TOTAL COST S12.985.00
Please contact me with any questions or comments.
Sincerely
GigfHurst
President/CEO
GH/dh
2067Wineridge Hace, Suite B, Escondido, CA 92029 (760)735-9378 Fax (760) 735-9351
CA License #6702030 SWBE #021941 www.HabilatWest.com