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9 AGREEMENT WITH WRA INC.
FOR PROFESSIONAL CONSULTANT SERVICES
FOR
MARINA LAGOON OPERATIONS AND MAINTENANCE PERMIT ASSISTANCE This Agreement, made and entered into this day of ____________________, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California (“CITY”), and WRA Inc., a CORPORATION, (“CONSULTANT”), whose address is 2169-G East San Francisco Blvd, San Rafael, CA 94901.
RECITALS:
A. CITY desires certain professional services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these professional services by reason of its qualifications and experience for performing such services and CONSULTANT has offered to provide the required services on the terms and in the manner set forth herein.
NOW, THEREFORE, IT IS AGREED as follows:
SECTION 1 - SCOPE OF SERVICES
The scope of services to be performed by CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT agrees to comply with the City’s minimum wage ordinance as codified in Municipal Code Chapter 5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.
SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
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9 CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence on August 1, 2026, and be completed by June 30, 2032.
SECTION 5 - PAYMENT
Payment shall be made by CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONSULTANT a fee in an amount of $259,460, pursuant to the cost table included as Exhibit B to this Agreement, attached and incorporated by reference. CONSULTANT’s hourly billing rates may be increased each January based on the 12-month national CPI-U (all items) as of the preceding December, but such increase shall not exceed three percent (3%).
SECTION 6 - TERMINATION
Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend work on the Project for any reason, upon ten (10) days' written notice to CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.
SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
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9 SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.
SECTION 10 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, volunteers, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT’s performance of this Agreement, except those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, volunteers, and agents against any such claims. The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in accordance with the degree of skill and care ordinarily used by competent practitioners of the same professional discipline under similar circumstances and in similar localities, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT from said obligation.
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9 SECTION 15 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance.
SECTION 16 - 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.
SECTION 17 - COSTS AND ATTORNEY FEES
Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.
SECTION 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
SECTION 19 - MEDIATION
Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the State Mediation and Conciliation Service, or other agreed-upon service. The mediator shall be selected by a blind draw.
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.
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9 SECTION 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Gustavo Lopez
City of San Mateo
1949 Pacific Blvd
San Mateo, CA 94403
To CONSULTANT: WRA Inc.
Attn: Leslie J. Allen
2169-G East San Francisco Blvd
San Rafael, CA 94901
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instrument, signed by both CITY and CONSULTANT.
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9 SECTION 23 - CONFLICTS
In the event of any conflict between the provisions of this Agreement and any other referenced exhibit or document attached to this Agreement, the language and terms of this Agreement shall control.
SECTION 24 - AUTHORITY TO ENTER INTO 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 make this Agreement and to bind each respective party.
SECTION 24 - GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo.
[SIGNATURE PAGE FOLLOWS]
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9 IN WITNESS WHEREOF, CITY OF SAN MATEO and WRA INC.
have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Matt Fabry, PE
Public Works Director
Date Leslie J. Allen
Its Authorized Agent
Principal-in-Charge
Date
APPROVED AS TO FORM
Linh P. Nguyen
Assistant City Attorney
Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Budget and Fee Schedule
Exhibit C: Insurance Requirements
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9 EXHIBIT A
SCOPE OF SERVICES
Consultant shall provide the City of San Mateo (City) with professional services to obtain all required permits and agreements that will allow the City to conduct their routine maintenance activities at the Marina Lagoon. Permitting agencies shall include, but not limited to, the U.S. Army Corps of Engineers (USACE), the Regional Water Quality Control Board (RWQCB), and California Fish and Wildlife (CDFW).
The Scope of Services is comprised of six tasks:
Task 1: Project Management
Task 2: Prepare Technical Reports and Documentation for CEQA (if necessary) Task 3: Prepare Permit Applications and Coordinate with Agencies Task 4: Update Dock Application Package
Task 5: Annually: Provide Permit Support and Prepare Annual Reports Task 6: Update Operation and Maintenance (O&M) Manual for Marina Lagoon At a minimum, all Proposers shall submit a proposal responding to the entire Scope of Services.
However, Proposers may recommend changes and include alternatives to the Scope of Services if (1) additional tasks are required by laws or regulations, (2) tasks below are not specifically required by laws or regulations, or (3) tasks below can be modified to meet the City’s above-stated objectives.
Task 1: Project Management
This task includes but is not limited to:
Developing and maintaining a master project schedule, including timelines for review of major deliverables
Leading a kick-off meeting as well as regularly scheduled meetings, including preparation of agendas and meeting minutes, to introduce the project strategy and schedule, and update the City on progress for key milestones
Preparing monthly progress reports and invoices
Coordinating the project team, including staff and subconsultant firms, and managing all work Monitoring all project activities and implementing quality assurance and quality control protocols and standards
Assembling and maintaining project files within a file sharing service that includes, all documentation and data resulting from, or related to, the Consultant’s services for the project, including, but not limited to, survey files, documented assumptions, working drawings, meeting minutes, all correspondence, video libraries, etc.
Attending meetings with regulatory agencies, as necessary, to introduce or resolve items related to permitting
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9 Anticipated Deliverables:
Project Schedule
Progress Reports
Meeting Minutes
Task 2: Prepare Technical Reports and Documentation for CEQA (as necessary) This task includes but is not limited to:
Preparing Environmental Assessments and Studies as required for the California Environmental Quality Act (CEQA) determination including but not limited to:
I. Biological Resources Study
II. Mitigation Plan
III. Cultural Resource Assessment (if needed)
Preparing a draft Project Description, consistent with the requirements of CEQA Guideline Section 15124, which will form the basis from which to engage resource agencies, initiate impact evaluations, and to prepare permit applications.
Preparing a draft Initial Study/Mitigated Negative Declaration (IS/MND) or Environmental Impact Report (EIR), depending upon what may be appropriate based on consultant’s review of the intended maintenance work discussed in Appendices C.
Anticipated Deliverables:
Draft and Final Project Description
Draft and Final Biological Resources Study and any other Technical Studies as may be required as supporting documents to support the regulatory permitting.
Task 3: Prepare Permit Applications and Coordinate with Agencies This task includes preparation of permit applications and on-going coordination with applicable regulatory agencies for, but not limited to, the following permits:
Regional Water Quality Control Board (RWQCB) Section 401 Water Quality Certification permit US Army Corps of Engineers (USACE) Section 404 permit
California Department of Fish and Wildlife (CDFW) 1602 Lake and Streambed Alteration (LSA) Agreement
Others as may be identified by the consultant which are necessary to permit routine maintenance work.
Additional agencies may need to be contacted to confirm they do not have interests or jurisdiction for these projects (e.g. Bay Conservation & Development Commission, State Tidelands Commission, and the United States Fish and Wildlife Service). Consultant will prepare a draft permit package for City review for each of the above listed permits and agreements.
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9 Anticipated Deliverables:
Draft and Final RWQCB Section 401 permit package
Draft and Final USACE Section 404 permit package
Draft and Final CDFW 1602 LSA permit package
Others as may be identified by the consultant which are necessary to permit routine maintenance work.
Task 4: Update Dock Application Package
The consultant shall simplify the dock construction application package to improve clarity and usability for property owners while ensuring full compliance with applicable agency requirements.
Anticipated Deliverables:
Update the Dock Construction Permit Application in compliance with Lagoon Permit requirements Draft and final packet after RWQCB, USACE, and CDFW feedback Task 5: Annually: Provide Permit Support and Prepare Annual Reports.
Notify agencies at the beginning of each year of the planned activities expected. During the year, provide support in interpreting permit conditions for staff, and at the end of the year, prepare summary reports of all activities completed in the past year.
Expected Duties:
Notify agencies of maintenance activities planned at the beginning of each year of the permit. Prepare and submit an annual report to each agency after the City has reviewed a draft copy beforehand.
Task 6: Update Operation and Maintenance (O&M) Manual for Marina Lagoon Following the successful completion of the permitting process, the consultant will update the existing O&M Plan. The current manual was developed and last revised in August 2016; much of its content is now outdated and requires a comprehensive update.
Anticipated Deliverables:
Revise/Update Manual
On-call support for questions
Provide updates/revisions as necessary during the 5-year permit term Professional Consultant Services Page 10 of 14
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9 Professional Consultant Services Page 11 of 14
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9 EXHIBIT B
BUDGET AND FEE SCHEDULE
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9 EXHIBIT C
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1.Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an “occurrence” basis, including products-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2.Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if CONSULTANT has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3.Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4.Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate.
If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its elected and appointed officials, employees, volunteers, and agents are to be covered as insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the CONSULTANT’s insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this contract, the CONSULTANT’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, volunteers, and agents.
Any insurance or self-insurance maintained by the City, its elected and appointed officials, employees, volunteers, or agents shall be excess of the CONSULTANT’s insurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except after thirty (30) days’ prior written notice (10 days for non-payment) has been given to the City.
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9 Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
CONSULTANT shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the CONSULTANT’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.