HomeMy WebLinkAboutID# 15-782 First Amendment VCS EnvironmentalREPORT TO CITY COUNCIL
TO: Honorable Mayor and
Members of the City Council
FROM: Grant Yates
City Manager
DATE: October 13, 2015
SUBJECT: Change Order for Professional Services Agreement with VCS
Environmental for MSHCP, Back Basin and Regulatory Permit
Assistance on an On -Call Basis
Recommendation
Authorize the City Manager to execute the First Amendment to the Professional
Services Agreement with VCS Environmental for MSHCP, Back Basin and Regulatory
Permit Assistance on an on -call basis in an amount not to exceed $30,000; in
substantially the form attached and in such final form as approved by the City Attorney.
Background
A number of areas within the City of Lake Elsinore, including the Lake and the Back
Basin area are regulated under the Western Riverside County Multiple Species Habitat
Conservation Plan (MSHCP) and /or under the jurisdiction of the California Department
of Fish & Wildlife (CDFW), the U.S. Army Corps of Engineers (ACOE) and the Santa
Ana Regional Water Quality Control Board (RWQCB).
In order to obtain the technical assistance necessary for the City to address these
regulations; the City has determined that it is appropriate to contract with a consultant
with experience in working with the regulatory agencies and in Lake Elsinore for on -call
services.
Discussion
On November 5, 2012, the City entered into a Professional Services Agreement with
VCS Environmental (VCS) for the provision of MSHCP and Back Basin conservation
area assistance, and additional on -call services related to regulatory permits,
wetlands /waters delineations, and habitat mitigation monitoring and reporting services.
CITY COUNCIL STAFF REPORT
Professional Service Contract with VCS Environmental
October 13, 2015
Page 2 of 2
An
updated agreement with VCS for the same
services
was entered into on November
171
2014. The original and revised agreements
were for
a total of
$30,000.
Services provided by VCS to date have reached the maximum authorized under the
previously executed agreements. In order to continue to utilize VCS' expertise, an
amendment to the November 17, 2014 Professional Services Agreement is required.
The subject request would authorize the City Manager to execute an amendment of the
agreement for an additional $30,000.
Fiscal Impact
Sufficient funds were approved in the fiscal year 2015 -2016 operating budget for this
agreement.
Prepared by: Richard J. MacHott, LEED Green Associate
Planning Manager
Reviewed by: Grant Taylor
Community Development Director
Approved by: Grant Yates
City Manager
Attachments:
1.
VCS
Environmental
On -Call Services Agreement - First Amendment 10
-13
-15
2.
VCS
Environmental
Agreement for Regulatory Permit Assistance dated
11 -17
-14
FIRST AMENDMENT TO AGREEMENT
BETWEEN THE CITY OF LAKE ELSINORE
AND VCS ENVIRONMENTAL
FOR MSHCP, BACK BASIN AND REGULATORY PERMIT ASSISTANCE
THIS FIRST AMENDMENT is made and entered into as of October 13, 2015 by and
between the City of Lake Elsinore ( "City) a municipal corporation, and VCS Environmental
( "Consultant'). In consideration of the mutual covenants and conditions set forth herein, the
parties agree as follows:
This Amendment is made with the respect to the following facts and purposes:
a. On November 17, 2014 the City and Consultant entered into that certain
agreement entitled "Agreement for Professional Services ", in the amount of $20,194.16.
b. The parties now desire to increase the payment for services in the amount
of $30,000 and amend the Agreement as set forth in this Amendment.
2. Section 3. Compensation of the Agreement is hereby amended to read
as follows:
City hereby agrees to pay Consultant a sum not to exceed a total of $30,000
(Thirty Thousand Dollars and no cents) for the First Amendment and bringing the
total agreement amount to $50,194.16 (Fifty Thousand Dollars, One Hundred
Ninety Four Dollars and Sixteen Cents). City shall pay Consultant for services
rendered pursuant to this Agreement at the time and in the manner set forth
herein. Any terms in Exhibit A other than the payment rates and schedule of
payment are null and void.
3. Except for the changes specifically set forth herein, all other terms and conditions
of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first
set forth above, which date shall be considered by the Parties to be the effective date of this
Agreement.
CITY OF LAKE ELSINORE CONSULTANT
rant Yates — City Manager Julie Beeman, President
VCS Environmental
Date:
Attest:
Diana Giron, Acting City Clerk
Date:
Approved as to Form:
Barbara Leibold, City Attorney
Date:
Date:
AGREEMENT FOR PROFESSIONAL SERVICES
VCS ENVIRONMENTAL
MSHCP, BACK BASIN AND REGULATORY PERMIT ASSISTANCE
This Agreement for Professional Services (the "Agreement ") is made and entered into as
of November 17, 2014, by and between the City of Lake Elsinore, a municipal corporation
( "City ") and VCS Environmental, a California corporation ( "Consultant ").
RECITALS
A. The City has determined that it requires the following professional services:
Environmental, Habitat Monitoring, Mitigation and Reporting and Regulatory Permitting Matters.
B. Consultant has submitted to City a proposal, dated November 24, 2014, attached
hereto as Exhibit A ( "Consultant's Proposal ") and incorporated herein, to provide professional
services to City pursuant to the terms of this Agreement.
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to perform the services described in this Agreement on the terms and conditions
described herein.
D.
City
desires to
retain Consultant
to perform
the
services as
provided herein and
Consultant
desires
to provide
such professional
services as
set
forth in this
Agreement.
AGREEMENT
1. Scope of Services. Consultant shall perform the services described in
Consultant's Proposal (Exhibit A). Consultant shall provide such services at the time, place, and
in the manner specified in Consultant's Proposal (Exhibit A), subject to the direction of the City
through its staff that it may provide from time to time.
Time of Performance.
a. Time of Essence. Time is of the essence in the performance of this
Agreement. The time for completion of the professional services to be performed by Consultant
is an essential condition of this Agreement. Consultant shall prosecute regularly and diligently
the professional services contemplated pursuant to this Agreement according to the agreed
upon performance schedule in Consultant's Proposal (Exhibit A).
b. Performance Schedule. Consultant shall commence the services
pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all
services within the time period(s) established in the Consultant's Proposal (Exhibit A). When
requested by Consultant, extensions to the time period(s) specified may be approved in writing
by the City Manager.
Revised Prof ServAgreemcnt - VCS - 11 -24 -14 Page 1
G. Tenn.
3. Compensation. Compensation to be paid to Consultant shall be in accordance
with the fees set forth in Consultants' Proposal (Exhibit A), which is attached hereto and
incorporated herein by reference. In no event shall Consultant's compensation exceed Twenty
Thousand, One Hundred and Ninety -Four dollars and Sixteen Cents ($20,194.16) without
additional written authorization from the City. Notwithstanding any provision of Consultant's
Proposal to the contrary, out of pocket expenses set forth in Exhibit A shall be reimbursed at
cost without an inflator or administrative charge. Payment by City under this Agreement shall
not be deemed a waiver of defects, even if such defects were known to the City at the time of
payment.
4. Method of Pavment. Contractor shall promptly submit billings to the City
describing the services and related work performed during the preceding month to the extent
that such services and related work were performed. Contractor's bills shall be segregated by
project task, if applicable, such that the City receives a separate accounting for work done on
each individual task for which Contractor provides services. Contractor's bills shall include a
brief description of the services performed, the date the services were performed, the number of
hours spent and by whom, and a description of any reimbursable expenditures. City shall pay
Contractor no later than forty -five (45) days after receipt of the monthly invoice by City staff.
5. Reserved.
6. Suspension or Termination.
a. The City may at any time, for any reason, with or without cause, suspend
or terminate this Agreement, or any portion hereof, by serving upon the Consultant at least thirty
(30) days prior written notice. Upon receipt of such notice, the Consultant shall immediately
cease all work under this Agreement, unless the notice provides otherwise. If the City suspends
or terminates a portion of this Agreement such suspension or termination shall not make void or
invalidate the remainder of this Agreement.
b. In the event this Agreement is terminated pursuant to this Section, the
City shall pay to Consultant the actual value of the work performed up to the time of termination,
provided that the work performed is of value to the City. Upon termination of the Agreement
pursuant to this Section, the Consultant will submit an invoice to the City, pursuant to Section
entitled "Method of Payment" herein.
7. Ownership of Documents. All plans, studies, documents and other writings
prepared by and for Consultant, its officers, employees and agents and subcontractors in the
course of implementing this Agreement, except working notepad internal documents, shall
become the property of the City upon payment to Consultant for such work, and the City shall
have the sole right to use such materials in its discretion without further compensation to
Consultant or to any other party. Consultant shall, at Consultant's expense, provide such
reports, plans, studies, documents and other writings to City upon written request. City
acknowledges that any use of such materials in a manner beyond the intended purpose as set
forth herein shall be at the sole risk of the City. City further agrees to defend, indemnify and
Page 2
The term of this Agreement
shall commence upon execution of this
Agreement and shall
continue
until the services and
related work are completed in accordance
with the Consultant's
Proposal
(Exhibit A).
3. Compensation. Compensation to be paid to Consultant shall be in accordance
with the fees set forth in Consultants' Proposal (Exhibit A), which is attached hereto and
incorporated herein by reference. In no event shall Consultant's compensation exceed Twenty
Thousand, One Hundred and Ninety -Four dollars and Sixteen Cents ($20,194.16) without
additional written authorization from the City. Notwithstanding any provision of Consultant's
Proposal to the contrary, out of pocket expenses set forth in Exhibit A shall be reimbursed at
cost without an inflator or administrative charge. Payment by City under this Agreement shall
not be deemed a waiver of defects, even if such defects were known to the City at the time of
payment.
4. Method of Pavment. Contractor shall promptly submit billings to the City
describing the services and related work performed during the preceding month to the extent
that such services and related work were performed. Contractor's bills shall be segregated by
project task, if applicable, such that the City receives a separate accounting for work done on
each individual task for which Contractor provides services. Contractor's bills shall include a
brief description of the services performed, the date the services were performed, the number of
hours spent and by whom, and a description of any reimbursable expenditures. City shall pay
Contractor no later than forty -five (45) days after receipt of the monthly invoice by City staff.
5. Reserved.
6. Suspension or Termination.
a. The City may at any time, for any reason, with or without cause, suspend
or terminate this Agreement, or any portion hereof, by serving upon the Consultant at least thirty
(30) days prior written notice. Upon receipt of such notice, the Consultant shall immediately
cease all work under this Agreement, unless the notice provides otherwise. If the City suspends
or terminates a portion of this Agreement such suspension or termination shall not make void or
invalidate the remainder of this Agreement.
b. In the event this Agreement is terminated pursuant to this Section, the
City shall pay to Consultant the actual value of the work performed up to the time of termination,
provided that the work performed is of value to the City. Upon termination of the Agreement
pursuant to this Section, the Consultant will submit an invoice to the City, pursuant to Section
entitled "Method of Payment" herein.
7. Ownership of Documents. All plans, studies, documents and other writings
prepared by and for Consultant, its officers, employees and agents and subcontractors in the
course of implementing this Agreement, except working notepad internal documents, shall
become the property of the City upon payment to Consultant for such work, and the City shall
have the sole right to use such materials in its discretion without further compensation to
Consultant or to any other party. Consultant shall, at Consultant's expense, provide such
reports, plans, studies, documents and other writings to City upon written request. City
acknowledges that any use of such materials in a manner beyond the intended purpose as set
forth herein shall be at the sole risk of the City. City further agrees to defend, indemnify and
Page 2
hold harmless Consultant, its officers, officials, agents, employees and volunteers from any
claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including
any and all costs and expenses in connection therein), arising out of the City's use of such
materials in a manner beyond the intended purpose as set forth herein.
a. Licensing of Intellectual Property. This Agreement creates a
nonexclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and
all copyrights, designs, and other intellectual property embodied in plans, specifications, studies,
drawings, estimates, and other documents or works of authorship fixed in any tangible medium
of expression, including but not limited to, physical drawings or data magnetically or otherwise
recorded on computer diskettes, which are prepared or caused to be prepared by Consultant
under this Agreement ( "Documents & Data "). Consultant shall require that all subcontractors
agree in writing that City is granted a nonexclusive and perpetual license for any Documents &
Data the subcontractor prepares under this Agreement. Consultant represents and warrants
that Consultant has the legal right to license any and all Documents & Data. Consultant makes
no such representation and warranty in regard to Documents & Data which were prepared by
design professionals other than Consultant or provided to Consultant by the City. City shall not
be limited in any way in its use of the Documents & Data at any time, provided that any such
use not within the purposes intended by this Agreement shall be at City's sole risk.
b. Confidentiality. All ideas, memoranda, specifications, plans, procedures,
drawings, descriptions, computer program data, input record data, written information, and other
Documents & Data either created by or provided to Consultant in connection with the
performance of this Agreement shall be held confidential by Consultant. Such materials shall
not, without the prior written consent of City, be used by Consultant for any purposes other than
the performance of the services under this Agreement. Nor shall such materials be disclosed to
any person or entity not connected with the performance of the services under this Agreement.
Nothing furnished to Consultant which is otherwise known to Consultant or is generally known,
or has become known, to the related industry shall be deemed confidential. Consultant shall not
use City's name or insignia, photographs relating to project for which Consultant's services are
rendered, or any publicity pertaining to the Consultant's services under this Agreement in any
magazine, trade paper, newspaper, television or radio production or other similar medium
without the prior written consent of City.
8. Consultant's Books and Records.
a. Consultant shall maintain any and all ledgers, books of account, invoices,
vouchers, canceled checks, and other records or documents evidencing or relating to charges
for services, or expenditures and disbursements charged to City for a minimum period of three
(3) years, or for any longer period required by law, from the date of final payment to Consultant
to this Agreement.
b. Consultant shall maintain all documents and records which demonstrate
performance under this Agreement for a minimum period of three (3) years, or for any longer
period required by law, from the date of termination or completion of this Agreement.
C. Any records or documents required to be maintained pursuant to this
Agreement shall be made available for inspection or audit, at any time during regular business
hours, upon written request by the City Manager, City Attorney, City Auditor or a designated
representative of these officers. Copies of such documents shall be provided to the City for
inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually
Page 3
agreed upon, the records shall be available at Consultant's address indicated for receipt of
notices in this Agreement.
d. Where City has reason to believe that such records or documents may be
lost or discarded due to dissolution, disbandment or termination of Consultant's business, City
may, by written request by any of the above -named officers, require that custody of the records
be given to the City and that the records and documents be maintained in City Hall. Access to
such records and documents shall be granted to any party authorized by Consultant,
Consultant's representatives, or Consultant's successor -in- interest.
9. Independent Contractor. It is understood that Consultant, in the performance of
the work and services agreed to be performed, shall act as and be an independent contractor
and shall not act as an agent or employee of the City.
10. PERS Eligibility Indemnification. In the event that Consultant or any employee,
agent, or subcontractor of Consultant providing services under this Agreement claims or is
determined by a court of competent jurisdiction or the California Public Employees Retirement
System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant
shall indemnify, defend, and hold harmless City for the payment of any employee and /or
employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or
subcontractors, as well as for the payment of any penalties and interest on such contributions,
which would otherwise be the responsibility of City.
Notwithstanding any other federal, state and local laws, codes, ordinances and
regulations to the contrary, Consultant and any of its employees, agents, and subcontractors
providing service under this Agreement shall not qualify for or become entitled to, and hereby
agree to waive any claims to, any compensation, benefit, or any incident of employment by City,
including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to
any contribution to be paid by City for employer contribution and /or employee contributions for
PERS benefits.
11. Interests of Consultant. Consultant (including principals, associates and
professional employees) covenants and represents that it does not now have any investment or
interest in real property and shall not acquire any interest, direct or indirect, in the area covered
by this Agreement or any other source of income, interest in real property or investment which
would be affected in any manner or degree by the performance of Consultant's services
hereunder. Consultant further covenants and represents that in the performance of its duties
hereunder no person having any such interest shall perform any services under this Agreement.
Consultant is not a designated employee within the meaning of the Political Reform Act
because Consultant:
a. will conduct research and arrive at conclusions with respect to his /her
rendition of information, advice, recommendation or counsel independent of the control and
direction of the City or of any City official, other than normal agreement monitoring; and
b. possesses no authority with respect to any City decision beyond rendition
of information, advice, recommendation or counsel. (FPPC Reg. 18700(a)(2).)
12, Professional Ability of Consultant. City has relied upon the professional training
and ability of Consultant to perform the services hereunder as a material inducement to enter
Page 4
into this Agreement. Consultant shall therefore provide properly skilled professional and
technical personnel to perform all services under this Agreement. All work performed by
Consultant under this Agreement shall be in accordance with applicable legal requirements and
shall meet the standard of quality ordinarily to be expected of competent professionals in
Consultant's field of expertise.
13. Compliance with Laws. Consultant shall use the standard of care in its
profession to comply with all applicable federal, state and local laws, codes, ordinances and
regulations.
14. Licenses. Consultant represents and warrants to City that it has the licenses,
permits, qualifications, insurance and approvals of whatsoever nature which are legally required
of Consultant to practice its profession. Consultant represents and warrants to City that
Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the
term of this Agreement, any licenses, permits, insurance and approvals which are legally
required of Consultant to practice its profession. Consultant shall maintain a City of Lake
Elsinore business license.
15. indemnity. Consultant shall indemnify, defend, and hold harmless the City and
its officials, officers, employees, agents, and volunteers from and against any and all losses,
liability, claims, suits, actions, damages, and causes of action arising out of any personal injury,
bodily injury, loss of life, or damage to property, or any violation of any federal, state, or
municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or
negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts
for which they could be held strictly liable, or by the quality or character of their work. The
foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to
property, or violation of law arises from the sole negligence or willful misconduct of the City or its
officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees,
subcontractor, or agents have contributed in no part to the injury, loss of life, damage to
property, or violation of law. It is understood that the duty of Consultant to indemnify and hold
harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code.
By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this
Section and that it is a material element of consideration.
16. Insurance Requirements.
i. Workers' &ompensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability Insurance for his /her
employees in accordance with the laws of the State of California. In addition, Consultant
shall require each subcontractor to similarly maintain Workers' Compensation Insurance
and Employer's Liability Insurance in accordance with the laws of the State of California
for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by the City at least thirty (30) days
prior to such change. The insurer shall agree to waive all rights of subrogation against
City, its officers, agents, employees and volunteers for losses arising from work
performed by Consultant for City. In the event that Consultant is exempt from Worker's
Compensation Insurance and Employer's Liability Insurance for his /her employees in
Page 5
a. Insurance. Consultant, at Consultant's own cost
and
expense, shall
procure and
maintain, for the duration of the contract, unless modified
by
the City's Risk
Manager, the
following insurance policies.
i. Workers' &ompensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability Insurance for his /her
employees in accordance with the laws of the State of California. In addition, Consultant
shall require each subcontractor to similarly maintain Workers' Compensation Insurance
and Employer's Liability Insurance in accordance with the laws of the State of California
for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by the City at least thirty (30) days
prior to such change. The insurer shall agree to waive all rights of subrogation against
City, its officers, agents, employees and volunteers for losses arising from work
performed by Consultant for City. In the event that Consultant is exempt from Worker's
Compensation Insurance and Employer's Liability Insurance for his /her employees in
Page 5
accordance with the laws of the State of California, Consultant shall submit to the City a
Certificate of Exemption from Workers Compensation Insurance in a form approved by
the City Attorney.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million dollars ($1,000,000) per
occurrence for bodily injury, personal injury and property damage. If a commercial
general liability insurance form or other form with a general aggregate limit is used,
either the general aggregate limit shall apply separately to the work to be performed
under this Agreement or the general aggregate limit shall be at least twice the required
occurrence limit. Required commercial general liability coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form CG
0001 (ed. 11/88) or Insurance Services Office form number GL 0002 (ed. 1173) covering
comprehensive General Liability and Insurance Services Office form number GL 0404
covering Broad Form Comprehensive General Liability. No endorsement may be
attached limiting the coverage.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile liability insurance covering bodily injury and property damage for all activities
of the Consultant arising out of or in connection with the work to be performed under this
Agreement, including coverage for owned, hired and non -owned vehicles, in an amount
of not less than one million dollars ($1,000,000) combined single limit for each
occurrence. Automobile liability coverage must be at least as broad as Insurance
Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 1 ( "any auto'). No
endorsement may be attached limiting the coverage.
iv. Professional Liability Coverage. Consultant shall maintain
professional errors and omissions liability insurance appropriate for Consultant's
profession for protection against claims alleging negligent acts, errors or omissions
which may arise from Consultant's services under this Agreement, whether such
services are provided by the Consultant or by its employees, subcontractors, or sub
consultants. The amount of this insurance shall not be less than one million dollars
($1,000,000) on a claims -made annual aggregate basis, or a combined single limit per
occurrence basis.
b. Endorsements. Each general liability and automobile liability insurance
policy shall be with insurers possessing a Best's rating of no less than AM and shall be
endorsed with the following specific language.
i. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insured with respect to liability
arising out of work performed by or on behalf of the Consultant, including materials,
parts or equipment furnished in connection with such work or operations.
ii. This policy shall be considered primary insurance as respects the
City, its elected or appointed officers, officials, employees, agents and volunteers.
Any insurance maintained by the City, including any self - insured retention the City may
have, shall be considered excess insurance only and shall not contribute with it.
Page 6
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with respect to the limits of
liability of the insuring company.
iv. The insurer waives all rights of subrogation against the City, its
elected or appointed officers, officials, employees or agents.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to the City, its elected or appointed officers, officials,
employees, agents or volunteers.
vi. The insurance provided by this Policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits except after thirty (30) days written
notice has been received by the City.
C. Deductibles and-Self-Insured Retentions. Any deductibles or self - insured
retentions must be declared to and approved by the City. At the City's option, Consultant shall
demonstrate financial capability for payment of such deductibles or self- insured retentions.
d. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance coverage required
herein. Certificates of such insurance shall be filed with the City on or before commencement of
performance of this Agreement. Current certification of insurance shall be kept on file with the
City at all times during the term of this Agreement.
17,
Notices.
Any notice required to be given under this
Agreement shall be
in writing
and either served personally or sent
prepaid, first class mail.
Any such notice
shall be
addressed to the other party at the
address set forth below.
Notice shall be
deemed
communicated within 48 hours from the
time of mailing if mailed as
provided in this section.
If to City: City of Lake Elsinore
Attn: City Manager
130 South Main Street
Lake Elsinore, CA 92530
With a copy to: City of Lake Elsinore
Attn: City Clerk
130 South Main Street
Lake Elsinore, CA 92530
If to Consultant: VCS Environmental, a California corporation
Attn: Julie Vandermost Beeman
30900 Rancho Viejo Road, Suite 100
San Juan Capistrano, CA 92675
18, Entire Agreement. This Agreement constitutes the complete and exclusive
statement of Agreement between the City and Consultant. All prior written and oral
communications, including correspondence, drafts, memoranda, and representations, are
superseded in total by this Agreement.
Page 7
19. Amendments. This Agreement may be modified or amended only by a written
document executed by both Consultant and City and approved as to form by the City Attorney.
20. Assignment and Subcontracting. The parties recognize that a substantial
inducement to City for entering into this Agreement is the professional reputation, experience
and competence of Consultant and the subcontractors listed in Exhibit B. Consultant shall be
fully responsible to City for all acts or omissions of any subcontractors. Assignments of any or
all rights, duties or obligations of the Consultant under this Agreement will be permitted only with
the express consent of the City. Consultant shall not subcontract any portion of the work to be
performed under this Agreement except as provided in Exhibit B without the written
authorization of the City. If City consents to such subcontract, Consultant shall be fully
responsible to City for all acts or omissions of those subcontractors. Nothing in this Agreement
shall create any contractual relationship between City and any subcontractor nor shall it create
any obligation on the part of the City to pay or to see to the payment of any monies due to any
such subcontractor other than as otherwise is required by law.
21. Waiver. Waiver of a breach or default under this Agreement shall not constitute
a continuing waiver of a subsequent breach of the sarne or any other provision under this
Agreement.
22. Severability. If any term or portion of this Agreement is held to be invalid, illegal,
or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
23. Controlling Law Venue, This Agreement and all matters relating to it shall be
governed by the laws of the State of California and any action brought relating to this
Agreement shall be held exclusively in a state court in the County of Riverside.
24, Litigation Expenses and Attorneys' Fees. If either party to this Agreement
commences any legal action against the other party arising out of this Agreement, the prevailing
party shall be entitled to recover its reasonable litigation expenses, including court costs, expert
witness fees, discovery expenses, and attorneys' fees.
25. Mediation. The parties agree to make a good faith attempt to resolve any
disputes arising out of this Agreement through mediation prior to commencing litigation. The
parties shall mutually agree upon the mediator and a cap on the costs of mediation. If the
parties are unable to agree upon a mediator, the dispute shall be submitted to JAMS or its
successor in interest. JAMS shall provide the parties with the names of five qualified mediators.
Each party shall have the option to strike two of the five mediators selected by JAMS and
thereafter the mediator remaining shall hear the dispute. The costs of mediation shall be shared
equally; provided, however, if the parties are unable to agree on a maximum cost of mediation
or if the dispute remains unresolved after mediation, either party may commence litigation.
26. Execution. This Agreement may be executed in several counterparts, each of
which shall constitute one and the same instrument and shall become binding upon the parties
when at least one copy hereof shall have been signed by both parties hereto. In approving this
Agreement, it shall not be necessary to produce or account for more than one such counterpart.
27. Authority to Enter Agreement. Consultant has all requisite power and authority to
conduct its business and to execute, deliver, and perform the Agreement. Each party warrants
that the individuals who have signed this Agreement have the legal power, right, and authority to
Page 8
make this Agreement and to bind each respective party. The City Manager is authorized to
enter into an amendment or otherwise take action on behalf of the City to make the following
modifications to the Agreement: (a) a name change; (b) grant extensions of time; (c) non -
monetary changes in the scope of services; and /or (d) suspend or terminate the Agreement.
28. Prohibited Interests. Consultant maintains and warrants that it has not employed
nor retained any company or person, other than a bona fide employee working solely for
Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid
nor has it agreed to pay any company or person, other than a bona fide employee working
solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other
consideration contingent upon or resulting from the award or making of this Agreement. For
breach or violation of this warranty, City shall have the right to rescind this Agreement without
liability. For the term of this Agreement, no member, officer or employee of City, during the term
of his or her service with City, shall have any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising therefrom.
29. Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee or
applicant for employment because of race, religion, color, national origin, handicap, ancestry,
sex or age. Such non - discrimination shall include, but not be limited to, all activities related to
initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff
or termination.
30. Prevailing Wages. 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. Consultant agrees to fully comply with all applicable federal and state labor laws
(including, without limitation, if applicable, the Prevailing Wage Laws). It is agreed by the parties
that, in connection with the Work or Services provided pursuant to this Agreement, Consultant
shall bear all risks of payment or non - payment of prevailing wages under California law, and
Consultant hereby agrees to defend, indemnify, and hold the City, and its officials, officers,
employees, agents, and volunteers, free and harmless from any claim or liability arising out of
any failure or alleged failure to comply with the Prevailing Wage Laws. The foregoing indemnity
shall survive termination of this Agreement.
31, Execution. This Agreement may be executed in several counterparts, each of
which shall constitute one and the same instrument and shall become binding upon the parties
when at least one copy hereof shall have been signed by both parties hereto. In approving this
Agreement, it shall not be necessary to produce or account for more than one such counterpart.
[Signatures on next page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the date first written above.
"CITY"
CITY OF LAKE ELSINORE, a municipal
corporation
£ l
Grant�Yatbs, City Manager
r
ATTI3ST:
ji VL
City Clerk f
APPROVED AS TO FOR
I*
Attachments: Exhibit A — Consultant's Proposal
"CONSULTANT"
VCS Environmental, California corporation
By: Julie Vandermost Beeman
Its: President
Page 10
Exhibit "A"
Scope of Services
VCS shall provide the City of Lake Elsinore on -call environmental services as directed
by the City which may include the following:
MSHCP and BACK BASIN CONSERVATION AREAS
• Assist City in memorializing Back Basin Conservation Areas in context of MSHCP and in
coordination with federal, state and local regulatory agencies
• Assist City in evaluating MSHCP costs, benefits, and performance since adoption to date
REGULATORY PERMITS AND WETLANDS/ WATERS DELINEATIONS /BIOLOGICAL
STUDIES
• Delineation of wetlands and Waters of the U.S. and State
Y Preparation of Hydro- modification and California Rapid Assessment Methods
Y Preparation and processing of U.S. Army Corps of Engineers Section 404 Permits
• Preparation and processing of California Department of Fish and Game Section 1602
Streambed Alteration Agreements
G Preparation and processing of Regional Water Quality Control Board Section 401 Water
Quality Certifications
a Preparation and processing of U.S. Fish and Wildlife Service Section 7 Consultations and
Biological Opinions
• Preparation of U.S. Environmental Protection Agency 404(b)(1) Alternatives Analyses
C Focus Surveys for Burrowing Owls
Migratory Bird Treaty Act Nesting Bird Surveys
• Special Status Plant Surveys
HABITAT MITIGATION, MONITORING AND REPORTING
• Habitat Mitigation and Monitoring Plans (HMMP)
Mitigation Site Design
• Biological Monitoring
• Construction Monitoring
• Coordination with the landscape architect to prepare plans for mitigation sites
• Coordination with landscape maintenance contractors
Preparation of annual reports required by the regulatory agencies
CEQA /NEPA
• Preparation
of
CEQA
documents
• Preparation
of
CEQA
biotechnical reports
• Preparation
of
NEPA
documents
EXHIBIT A November 24, 2014
Exhibit A (cont.)
VCS Environmental Fee Schedule
President
Vice President
Senior Environmental Manager
Senior Biologist
Biologist
Senior Project Manager
Project Manager
Assistant Project Manager
Project Coordinator
Field Assistant
$225 /hour
$215 /hour
$190 /hour
$190 /hour
$180 /hour
$190 /hour
$180 /hour
$170 /hour
$150 /hour
$75 /hour
Office AssistantMlord Processing $65 /hour
REIMBURSABLE
EXPENSES. Expenses incurred directly for
the Client's
project will be billed at the actual cost and are
not included in
the original
contract amount.
Expenses include, but are
not limited to, reprographics,
Federal Express,
necessary transportation
costs including
mileage by
automobile at the
IRS reimbursement rate, toll
road fees, meals
and lodging,
computer services
and photocopying.
PAYMENT DUE. Invoices are due upon presentation and shall be
considered past due if not paid within 30 (thirty) calendar days of the due
date. Finance charges, computed by a "Periodic Rate" of 1 -1/2% per month,
will be charged on all past due amounts.
CHANGE ORDERS. Change Orders may be subject to future fee schedule
increases.
EXHIBIT A November 24. 2014