Loading...
17-0509_HAMILTON BIOLOGICAL_Letter Agreement32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493.1053 FAx 11 W14' slut%17!!u('(I�7 LCil"(1N0,fu MAY 9, 2017 HAMILTON BIOLOGICAL INC. 316 MONROVIA AVENUE LONG BEACH, CA 90803 Dear Mr. Hamilton: Letter Agreement for Biological Monitoring_ Services MEMBERS OF THE CITY COUNCIL SERGIO FARIAS KERRY K FERGUSON BRIAN L. MARYOTT PAM PATTERSON, ESO. DEREK REEVE This letter shall be our Agreement ("Letter Agreement") regarding the Biological Monitoring Services described below ("Services") to be provided by Hamilton Biological Inc. ("Consultant") as an independent contractor to the City of San Juan Capistrano (the "City") for the City's Riding Park Water & Sanitary Sewer Facilities Project ("Project"). Consultant is retained as independent contractor and is not an employee.of the City. City and Consultant are sometimes referred to herein as "Party" or "Parties." The Services to be provided include the following: The Services to be provided are more particularly described in the Scope of Services attached hereto as Exhibit "A" and are incorporated herein by reference. Services on the Project shall begin immediately and shall be completed by May 15, 2018, unless extended by the City in writing. Consultant shall perform all Services under this Letter Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California, and consistent with all applicable laws. Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Letter Agreement. Consultant has represented to the City that certain key personnel will perform and coordinate the Services under this Letter Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of equal competence upon written approval of the City. In the event that the City and Consultant cannot agree as to the substitution of key personnel, the City shall be entitled to terminate this Letter Agreement for cause. The key personnel for performance of this Letter Agreement are as follows: Robb Hamilton. 61147.02100\24471675.1 Hamilton Biological Inc. May 9, 2017 Page 2 of 5 Compensation shall be based on the actual amount of time spent in adequately performing the Services, and shall be billed at the hourly rate(s) of $80.00. The total compensation shall not exceed $18,220 without written approval of the CITY MANAGER. Consultant's invoices shall include a detailed description of the Services performed. Invoices shall be submitted to the City on a monthly basis as performance of the Services progresses. The City shall review and pay the approved charges on such invoices in a timely manner. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Letter Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. If the Services are being performed as part of an applicable "public works" or "maintenance" project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all sub - consultants performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any sub -consultants, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant's sole responsibility to comply with all applicable registration and labor compliance requirements. Consultant shall provide proof of commercial general liability, and business auto liability insurance to the City in amounts and with policies, endorsements and conditions required by the City for the Services. The City, its elected officials, officers, employees, agents and authorized volunteers shall be named as Additional Insureds on Consultant's policies of commercial general liability and automobile liability insurance. If Consultant is an employer or otherwise hires one or more employees during the term of this Project, Consultant shall also provide proof of workers compensation coverage for such employees, which meets all requirements of State law, with endorsements and conditions required by the City. The City may terminate this Letter Agreement at any time with or without cause. If the City finds it necessary to terminate this Letter Agreement without cause before Project completion, Consultant shall be entitled to be paid in full for those Services adequately completed prior to the notification of termination. Consultant may terminate this Letter Agreement only upon 30 61147.02100\24471675.1 2 Hamilton Biological Inc. May 9, 2017 Page 3 of 5 calendar days' written notice to the City only in the event of City's failure to perform in accordance with the terms of this Letter Agreement through no fault of Consultant. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions of Consultant, its officials, officers, employees, sub -consultants, consultants or agents in connection with the performance of the Consultant's Services, the Project or this Letter Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys' fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. Consultant's obligation to indemnify shall survive expiration or termination of this Letter Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents, or volunteers. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements; all emissions limits and permitting requirements imposed by the California Air Resources Board (GARB) or other governmental agencies; and all water quality laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the City. By executing this Letter Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Consultant shall maintain records of its compliance, including its verification of each employee, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Consultant's compliance with the requirements. To the same extent and under the same conditions as Consultant, Consultant shall require all of its subcontractors, sub -subcontractors and consultants performing any work relating to the Project or this Letter Agreement to make the same verifications and comply with all requirements and restrictions provided herein. Consultant's failure to comply or any material misrepresentations or omissions relating thereto shall be grounds for terminating this Letter Agreement for cause. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. Finally, Consultant represents that it is an equal opportunity employer and it shall not 61147.02100\24471675.1 3 Hamilton Biological Inc. May 9, 2017 Page 4 of 5 discriminate against any subcontractor, employee or applicant for employment in violation of state or federal law. As provided for in the indemnity obligations of this Letter Agreement, Consultant shall indemnify City against any alleged violations of this paragraph, including, but not limited to, any fines or penalties imposed by any governmental agency. This Letter Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Letter Agreement, the action shall be brought in a state or federal court situated in Orange County, State of California. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City. Consultant shall not assign, sublet, or transfer this Letter Agreement or any rights under or interest in this Letter Agreement without the written consent of the City, which may be withheld for any reason. This Letter Agreement may not be modified or altered except in writing signed by both parties. Except to the extent expressly provided for in the termination paragraph, there are no intended third party beneficiaries of any right or obligation of the Parties. This is an integrated Letter Agreement representing the entire understanding of the parties as to those matters contained herein, and supersedes and cancels any prior oral or written understanding or representations with respect to matters covered hereunder. Since the Parties or their agents have participated fully in the preparation of this Letter Agreement, the language of this Letter Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. The captions of the various paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Letter Agreement. Consultant warrants that the individual who has signed this Letter Agreement has the legal power, right and authority to make this Letter Agreement and bind the Consultant hereto. If you agree with the terms of this Letter Agreement, please indicate by signing and dating where indicated below. 61147.02100\24471675.1 4 Hamilton Biological Inc. May 9, 2017 Page 5 of 5 CITY OF SAN JUAN CAPISTRANO Approved 6y; Bein Sie tna Date A B. aria Morris+ i C rk Approved As To Form: QIVO-M-ze�y� 61147,02100\14471675.1 HAMILTON BIOLOGICAL INC. W Fin SIgnature Print ame Title Date Rancho Mission Viejo Riding Park Water & Sanitary Sewer Facilities Project Biological Monitoring — Scope of Work and Fee Task 1— Clearly Delineate the Sensitive Resource Areas. The Rancho Mission Viejo Riding Park is adjacent to "Sensitive Resource Areas" as identified in the sub -regional Habitat Conservation Plan (HCP) as discussed on page 5 of the Initial Study for the project. This task requires that the Sensitive Resource Areas be clearly delineated in the field for compliance with item BR -2 of the Mitigation Monitoring and Reporting Plan (MMRP) for the project (attached for reference). The fee for this task shall include two separate delineations during two separate field visits. This is required because the City's vendor will be digging potholes above the alignments identified in the Initial Study in order to complete the design. This is expected to occur in the next two weeks. The second field visit and delineation will occur prior to construction, which is anticipated to begin in July 2017. This task assumes that all of the original delineations will need to be re-established on the second field visit. If this is not the case, then the consultant shall only charge the City to delineate the areas that are not clearly marked. Hours and Fee for Task 1= 12 hours @ $80 per = $960; $40/day mileage; $20 for materials = $1,060 (6 hours per day x 2 days = 12 hours; $40/day x 2 days = $80; $20 one-time expense) Task 2 — Nesting Bird Survey. The work associated with this project must comply with Mitigation Measure BR -3 of the attached MMRP. This task is for the qualified biologist to perform a nesting bird survey no more than 3 days prior to the start of construction. Mitigation Measure BR -3 also requires the qualified biologist to be present during construction to ensure that nesting birds are not disturbed. It is anticipated that there will be 3 separate mobilizations to complete the work, one for construction of the recycled water line (anticipated duration is 15 days), one for construction of the domestic waterline (anticipated duration = 20 days), and one for construction of the sewer line (anticipated duration = 45 days). This task assumes that spot monitoring the work for two hours per day three times per week will be sufficient to verify that birds are not being disturbed and that the sensitive resource area remains clearly delineated. This task further assumes that the qualified biologist will conduct a "worker environmental awareness program" once for each mobilization, for a total of 3 programs, each with an anticipated duration of 1 hour. Presently each mobilization is anticipated to begin in July, August, and September respectively. Hours and Fee for Task 2, Mobilization 1 = 10 days @ $480 per 6 -hour day + $40/day mileage = $5,200 (One day for nesting bird survey; 9 days of monitoring including Worker Education Program) Hours and Fee for Task 2, Mobilization 2 = 13 days @ $480 per 6 -hour day + $40/day mileage = $6,760 (One day for nesting bird survey; 12 days of monitoring including Worker Education Program) Hours and Fee for Task 2, Mobilization 1 = 10 days @ $480 per 6 -hour day + $40/day mileage = $5,200 (One day for nesting bird survey; 9 days of monitoring including Worker Education Program) Total Hours and Fee for this Scope of Work = $18,220 All work would be completed by personnel experienced in biological monitoring and nest -searching on a time -and -materials basis at an hourly rate of $80, with $40/day allowance for mileage expense and a one- time expense of $20 for flagging or other similar materials to be used to delineate sensitive habitat areas and jurisdictional areas. Hourly rate applies to drive time from Long Beach to/from project site, in addition to time spent on the site and documenting/reporting results. Exhibit A Hamilton Biological, Inc., Hourly Rate Schedule Biological Monitoring, Rancho Mission Viejo Riding Park Water & Sanitary Sewer Facilities Project Position Hourly Rate Nest Searcher/Bio Monitor $80