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HomeMy WebLinkAboutLive Oak Associates, Inc.AGREEMENT THIS AGREEMENT is made and entered into on the 17th day of July, 2020 by and between the TOWN OF LOS ALTOS HILLS (hereinafter referred to as "TOWN") and Live Oak Associates, Inc. (hereinafter referred to as "CONTRACTOR"). In consideration of their mutual covenants, the parties hereto agree as follows: CONTRACTOR. Shall provide or furnish the following specified services and/or materials: Complete a biological evaluation and jurisdictional waters analysis for the construction of an off-road pedestrian pathway segment between La Paloma Road and Robleda Road in the Town of Los Altos Hills 2. EXHIBITS. The following attached exhibits are hereby incorporated into and made a part of this Agreement: Proposal from CONTRACTOR dated June 24, 2020 3. TERMS. The services and/or materials furnished under this Agreement shall commence July 17, 2020 and shall be completed by July 17, 2021, unless terminated pursuant to Section 5(f). 4. COMPENSATION. For the full performance of this Agreement: a. TOWN shall pay CONTRACTOR an amount not to exceed fifteen thousand dollars and zero cents ($15,000.00) within thirty (30) days following receipt of invoice and completion/delivery of services/goods as detailed in Sections 1, 2, and 3 of this Agreement and only upon satisfactory delivery/completion of goods/services in a manner consistent with professional/industry standards for the area in which CONTRACTOR operates. TOWN is not responsible for paying for any work done by CONTRACTOR or any subcontractor above and beyond the not to exceed amount. b. Town shall not reimburse for any of CONTRACTOR's costs or expenses to deliver any services/goods. Town shall not be responsible for any interest or late charges on any payments from Town to CONTRACTOR. c. CONTRACTOR is responsible for monitoring its own forces/employees/agents/ subcontractors to ensure delivery of goods/services within the terms of this Agreement. TOWN will not accept or compensate CONTRACTOR for incomplete goods/services. Town of Los Altos Hills Page 1 of 4 Short form Updated 4/23/10 5. GENERAL TERMS AND CONDITIONS. a. HOLD HARMLESS. CONTRACTOR agrees to indemnify, defend and hold harmless the TOWN, its officers, agents and employees from any and all demands, claims or liability of personal injury (including death) and property damage of any nature, caused by or arising out of the performance of CONTRACTOR under this Agreement. With regard to CONTRACTOR'S work product, CONTRACTOR agrees to indemnify, defend and hold harmless the TOWN, its officers, agents and employees from any and all demands, claims or liability of any nature to the extent caused by the negligent performance of CONTRACTOR under this Agreement. b. INSURANCE. CONTRACTOR shall file with the TOWN a certificate of insurance before commencing any services under this Agreement as follows: WORKERS COMPENSATION INSURANCE: Minimum statutory limits. COMMERCIAL GENERAL LIABILITY AND PROPERTY DAMAGE INSURANCE: General Liability and Property Damage Combined. $1,000,000.00 per occurrence including comprehensive form, personal injury, broad form personal damage, contractual and premises/operation, all on an occurrence basis. If an aggregate limit exists, it shall apply separately or be no less than two (2) times the occurrence limit. iii. AUTOMOBILE INSURANCE: $1,000,000.00 per occurrence. iv. ERRORS AND OMISSIONS INSURANCE: $1,000,000.00 aggregate. v. NOTICE OF CANCELLATION: The City requires 30 days written notice of cancellation. Additionally, the notice statement on the certificate should not include the wording "endeavor to" or "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives." vi. CERTIFICATE OF INSURANCE: Prior to commencement of services, evidence of insurance coverage must be shown by a properly executed certificate of insurance and it shall name "The Town of Los Altos Hills, its elective and appointed officers, employees, and volunteers" as additional insureds. vii. To prevent delay and ensure compliance with this Agreement, the insurance certificates and endorsements must be submitted to: Town of Los Altos Hills 26379 Fremont Road Los Altos Hills, CA 94022 Town of Los Altos Hills Page 2 of 4 Short form Updated 4/23/10 c. NON-DISCRIMINATION. No discrimination shall be made in the employment of persons under this Agreement because of the race, color, national origin, age, ancestry, religion or sex of such person. d. INTEREST OF CONTRACTOR. It is understood and agreed that this Agreement is not a contract of employment and does not create an employer-employee relationship between the TOWN and CONTRACTOR. At all times CONTRACTOR shall be an independent contractor and CONTRACTOR is not authorized to bind the TOWN to any contracts or other obligations without the express written consent of the TOWN. In executing this Agreement, CONTRACTOR certifies that no one who has or will have any financial interest under this Agreement is an officer or employee of TOWN. e. CHANGES. This Agreement shall not be assigned or transferred without advance written consent of the TOWN. No changes or variations of any kind are authorized without the written consent of the City Manager. This Agreement may only be amended by a written instrument signed by both parties. f. TERMINATION. This Agreement may be terminated by TOWN upon seven (7) days written notice to CONTRACTOR. Monies owed for work satisfactorily completed shall be paid to CONTRACTOR within 14 days of termination. g. RECORDS. All reports, data, maps, models, charts, studies, surveys, calculations, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that are prepared or obtained pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the TOWN. CONTRACTOR hereby agrees to deliver those documents to the TOWN at any time upon demand of the TOWN. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the TOWN and are not necessarily suitable for any future or other use. Failure by CONTRACTOR to deliver these documents to the TOWN within a reasonable time period or as specified by the TOWN shall be a material breach of this Agreement. TOWN and CONTRACTOR agree that until final approval by TOWN, all data, plans, specifications, reports and other documents are preliminary drafts not kept by the TOWN in the ordinary course of business and will not be disclosed to third parties without prior written consent of both parties. All work products submitted to the TOWN pursuant to this Agreement shall be deemed a "work for hire." Upon submission of any work for hire pursuant to this Agreement, and acceptance by the TOWN as complete, non- exclusive title to copyright of said work for hire shall transfer to the TOWN. The compensation recited in Section 4 shall be deemed to be sufficient consideration for said transfer of copyright. CONTRACTOR retains the right to use any project records, documents and materials for marketing of their professional services. Town of Los Altos Hills Page 3 of 4 Short form Updated 4/23/10 h. ENTIRE AGREEMENT. This Agreement represents the entire agreement between the Parties. Any ambiguities or disputed terms between this Agreement and any attached Exhibits shall be interpreted according to the language in this Agreement and not the Exhibits. 6. INVOICING. Send all invoices to the contract coordinator at the address below. This Agreement shall become effective upon its approval and execution by TOWN. In witness whereof, the parties have executed this Agreement the day and year first written above. CONTRACT COORDINATOR and representative for TOWN: CONTRACTOR: Zachary Dahl Planning Director_s_� Town of Los Altos Hills By: 'Signa�ture _ o�C) 26379 Fremont Road Date Los Altos Hills, CA 94022 �} 4--d k1Ar Print name, Tit TOWN OF LOS ALTOS HILLS: Ob ,j pro . Town of Los Altos Hills Page 4 of 4 Short form Updated 4/23/10 June 24, 2020 Steve Padovan 26379 Fremont Road Los Altos Hills, CA 94022 an Ecological Consulting Firm Subject: Scope and budget to complete a biological evaluation and jurisdictional waters analysis for the construction of a pedestrian pathway for the Town of Los Altos Hills, Santa Clara County, California Dear Mr. Padovan: Per your request, Live Oak Associates, Inc. (LOA), has prepared this scope and budget to complete a biological evaluation report and jurisdictional waters analysis for the construction of an off-road pedstrian pathway in the Town of Los Altos Hills, Santa Clara County, California. As we understand it, the proposed pathway alignment is near Atherton Court and Robleda Road, running parallel to and crossing a tributary to Adobe Creek. In addition to the biological evaluation and jurisdictional waters analysis, this proposal includes assistance with regulatory permitting and mitigation monitoring. LOA proposes to approach the project in three phases. Phase 1 will consist of preparing the biological evaluation report and completing the jurisdictional waters analysis. Completion of this work will allow us to understand the extent of project impacts in order to develop a permitting strategy. LOA proposes to complete Phase 1 work for a time -and -materials cost not to exceed $12,521. The second phase of work will commence once the extent of impacts is known and an appropriate permitting strategy been developed and approved by the Town. This second phase will consist of preparing and submitting permit applications to the appropriate regulatory agencies. The third phase will commence following the issuance of regulatory permits and the determination of necessary mitigation monitoring. The scope of work for Phases 2 and. 3 are dependent upon the outcome of Phases 1 and 2, respectively. Because of the uncertainty related to Phases 2 and 3 at this time, the cost of tasks for these phases are estimates only and will be finalized once the preceding phases are completed (see discussion below). Following is a detailed discussion of the proposed tasks. Phase 1 Task 1. Background Review. LOA will review available data and reports for the Los Altos Hills region to ensure that all potential issues relating to biotic resources are identified prior to preparing a report of findings. San Jose: 6840 Via Del Oro, Suite 220 ® San Jose, CA 95119 o Phone: (408) 224-8300 o Fax: (408) 224-1411 Oakhurst: P.O. Box 2697 0 33930 Sierra Way, Suite B ® Oakhurst, CA 93644 o Phone: (559) 642-4880 0 (559) 642-4883 Truckee: 11050 Pioneer Trail, Suite 203 o Truckee, CA 96161 o Phone: (530) 214-8947 iNOP w,lo inc.com Other sources of information relevant to the project vicinity will include aerial photographs of the project site, USGS topographic maps, U.S. Fish and Wildlife Service National Wetland Inventory Maps, the California Natural Diversity Database, other technical literature related to the biotic resources of the project vicinity, regional planning documents (e.g., general plan policies), species data compiled by the California Native Plant Society, the National Audubon Society, or other public interest groups, and resource agency data (e.g., U.S. Fish and Wildlife Service, California Department of Fish and Game, etc.). Task 2. Biological Evaluation. Task 2a. Field survey. LOA will conduct a field survey of the site to identify habitats present on the site (i.e., instream wetlands) and to determine if the site supports potentially suitable habitat for any special status plant or animal species that are known to occur regionally. Issues related to any special status habitats or species will be identified. This survey will also include an assessment of the potential for the site to support regulated habitats (e.g., wetlands or riparian areas) or for these habitats to occur immediately adjacent to the site (Task 3). Except for the wetland delineation (Task 3), we are not proposing to conduct any species- or habitat -specific surveys. Any additional surveys that may be necessary if particular habitats are present on the site will be covered under a separate scope and budget. Task 2b. Report preparation. The results of the background review and field survey will be compiled in a biological evaluation report, which will include relevant maps (e.g., special status species occurrences), to be prepared by LOA. This report will identify existing habitats on the site, discuss the suitability of the site to support special status plant and animal species or regulated habitats, identify potential impacts to biotic resources of the site and region resulting from the proposed project, provide guidance on mitigation measures that would be appropriate for any project impacts, and, if appropriate, recommend additional surveys that would be needed as part of site protection measures. Task 3. Waters of the U.S. Analysis. Task 3a. Field survey. The site is adjacent and crosses an unnamed tributary to Adobe Creek, a known water of the U.S. LOA will conduct a detailed field survey of the reach of the unnamed tributary to map the extent of jurisdictional waters and to gather the information necessary to identify any other potentially jurisdictional waters of the U.S. (i.e., adjacent wetlands). Vegetation, soil, and hydrology data will be collected at selected observation locations following the standard delineation methodology developed for use by the U.S. Army Corps of Engineers (USAGE). Color photographs will be taken at each observation location. The ordinary high water of the unnamed tributary and all wetland boundaries will be mapped using a global position system in accordance with guidelines acceptable to the USACE (including the established Minimum Standards). This field work will occur concurrently with the field work described in Task 2. Task 3b. Waters of the U.S. report. A technical report of findings will be prepared classifying the onsite waters and documenting their boundaries. This report will include a detailed map at a minimum scale of 1" = 200'. All sample points will be identified on the map and keyed to the data sheets. Data sheets will be incorporated into the technical report as an appendix. This information will be collected and compiled in sufficient detail for submittal to the USACE. HVE O1K ASS0(1A'1'KS, I1'C. ., a.mgi.m C.—Irmo e.m Task 3c. USACE field verification visit. Time has been allocated for an onsite field visit with USACE staff to verify the wetland delineation. If changes to the waters map are required by USACE staff, these will be billed on a time -and -charges basis. ADDITIONAL TASKS Only after the jurisdictional waters analysis has been completed (Task 3) will we be able to determine which regulatory agencies will need to permit the project. Therefore, while additional tasks that may be required depending on the project scope are included in Phases 2 and 3 below, the costs for completing these tasks are conceptual in nature only. One of the outcomes of Phase 1 will be to ascertain the best strategy and precise cost for permitting the project. Phase 2 — Regulatory Permitting Assistance The following tasks provide a general estimate of the cost of obtaining regulatory permits from the California Dept. of Fish and Wildlife (CDFW), USACE, and Regional Water Quality Control Board (RWQCB), the three agencies likely to have regulatory authority over the unnamed tributary. Depending upon the outcome of Phase 1, a permit may be needed from one or all of these agencies. Task 4. CDFW Permit Coordination. LOA will prepare and submit a notification package to the CDFW for a section 1602 Streambed Alteration Agreement for constriction of the stream crossings. Also included in this task is a modest amount of time to follow up with the agency after application submittal. Completion of this task would cost approximately $3,500. This task assumes that no trees will be removed to construct the proposed project. Should the project require tree removal, a tree survey will need to be completed, and tree impact information will need to be provided to the CDFW. Tree survey -related efforts will be scoped out separately from this proposal. The Streambed Alteration Agreement has a separate, associated notification fee due to the CDFG at the time of package submittal. Task 5. USACE Nationwide Permit Coordination. LOA will prepare a Clean Water Act section 404 nationwide permit application to be submitted to the USACE for construction of the stream crossing. The application will outline details of the project, including a detailed project description, extent of jurisdictional waters, and an assessment of the biological value of the habitat to be impacted. Also included in this task is a modest amount of time to follow up with the agency after application submittal Completion of this task would cost approximately $3,000. Task 6. RWQCB Permit Coordination. LOA will prepare a Clean Water Act section 401 water quality certification application to be submitted to the RWQCB for construction of the stream crossing. Also included in this task is a modest amount of time to follow up with the agency after application submittal. Completion of this task would cost approximately $3,800. HVE Odle ASSUIXITS, L1�C �n f.olagicnl <onsulln9 Firm The Water Quality Certification has a separate, associated application fee due to the RWQCB at the time of package submittal. Task 7. Preparation of Mitigation and Monitoring Plan. This task includes development of a basic mitigation and monitoring plan (e.g., planting of trees, hydroseeding of the creek bank, etc.) to be included with the application package. If any of the permitting agencies requires the development of a detailed mitigation plan with a multi-year monitoring component, then preparation of this plan will be completed under a budget amendment or separate scope of work. Also included in this task is a modest amount of time to follow up with the agency after application submittal. Completion of this task would cost approximately $3,800. Phase 3 — Mitigation Monitoring The full extent of permit -related mitigation measures requiring monitoring will be known once permits have been obtained by the regulatory agencies. Depending on the outcome of Phase 2, mitigation monitoring may be required. Task S. Annual Mitigation Monitoring. This task assumes a 5 -year monitoring requirement by the permitting agencies. Monitoring efforts typically consist of one site visit per year and could include a tree/shrub survivorship count and health assessment, herbaceous cover monitoring, and photo documentation. LOA will prepare an annual report for the five years of monitoring and will include photo documentation of the creek channel. The annual monitoring reports will be submitted to the client for review prior to being submitted to the regulatory agencies. Completion of this task would cost approximately $13,000. Meetings and Hearings. We have not allowed time for meetings or hearings beyond time budgeted in task 3 for the USACE site verification visit. Any additional, necessary attendance at meetings or hearings will be billed on a time -and -charges basis. We thank you for considering our firm and look forward to providing ecological services to you on this project. If you have any questions or concerns regarding this proposal, please contact me at (408) 281-5886 or via email at dohlson@lloainc.com at your convenience. Sincerely, Davinna Ohlson, M.S. Senior Project Manager Plant/Wildlife Ecologist IAVI- IIAKASSIICUCES, INC. �n F<oa9lcnl Canfullinq flim Proposal Acceptance If you approve this proposal's scope of work, cost, Standard Terms and Conditions, please sign and return one copy of this proposal to our office at your earliest convenience. Accepted By: Printed Name: Date: Title: LIVE OR IMSOCLUES, IM". �n E<olagi<nl Can��lt�n9 Ff— STANDARD TERMS AND CONDITIONS The following are LOA's standard contract terms and conditions, to be incorporated into the agreement. by and between Live Oak Associates, Inc. (hereinafter referred to as "LOA") and Town of Los Altos Hills (hereinafter referred to as "Client"). APPLICABLE LAWS. Contractor is obligated by professional codes of ethics and applicable laws to report observed violations of federal, state, and local codes for protection of natural resources and the environment. ADDITIONAL SERVICES. Should Client, or any public body or inspector direct any modification or addition to the Services covered by this Contract, the payment for Services as set forth in Section 4 shall be adjusted accordingly. Client agrees to reimburse LOA for any additional hours for requested additional work not described in the Contract at an applicable hourly fee schedule rate. INDEPENDENT CONTRACTOR STATUS. It is understood by the parties that in performing the above- described Services, LOA shall act as an independent contractor with respect to Client. PAYMENT FOR SERVICES. In consideration for the Services to be performed by LOA under this Contract, Client agrees to pay to LOA for work performed upon receipt of monthly invoices. Monthly invoices will reflect work performed at the respective hourly rates of individuals providing Services on behalf of LOA. Payments are due upon receipt of monthly invoice. Accounts more than 30 days past due shall accrue interest at the rate of ten percent (10%) per annum. Additionally, accounts more than 30 days past due shall be subject to a service charge of eight percent (8%) per annum. In the event that collection is required on past due accounts or litigation is required to resolve a dispute arising under this Contract, it is further agreed that the prevailing party in any such action shall be entitled to receive reasonable attorney's fees in addition to costs. TERM. This Contract shall become effective on the date of its execution and shall continue in force and effect until the Services provided for herein have been fully and completely performed, unless otherwise terminated as set forth in Section 6 below. RIGHT TO STOP WORK. LOA shall have the right to stop performance of the Services until all payments due are received if any payment shall not be made, when due, to LOA under this Contract. Failure to make payment, within thirty (30) days of the date due, is a material breach of this Contract and shall entitle LOA to cease any further Services under the Contract. TERMINATION. If a party defaults by failing to substantially perform any provision, term or condition of this Contract, the other party may terminate this Contract by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 30 days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Contract. USE OF INFORMATION. Upon completion of the Project, LOA shall have the right to use relevant information gathered during the Project investigation on future projects. LOA shall have the right to use illustrations, charts, graphs, maps and other visual materials developed by LOA in connection with the Project, but will omit references to Client's name. LOA shall have the right to reference the Project and LIPI", &11USSINIXFES, - F11109101 Consulting Firm client's name when preparing literature, proposals and conducting interviews for obtaining future consulting jobs. LCA's reports shall be used by Client only in connection with the Project. OBLIGATIONS OF CLIENT. Client agrees to comply with all reasonable requests of LOA necessary for the performance of LOA's obligations under this Contract. Client agrees to furnish space on Client's property for use by LOA while performing the Services. WARRANTY. LOA shall provide its Services and meet its obligations under this Contract in a timely and workmanlike manner, and shall provide a standard of care equal to, or superior to, care used by service providers similar to LOA on similar projects. INDEMNIFICATION. Client shall indemnify and hold LOA harmless from any liability, claims, demands, loss, damages or expense, including any reasonable attorney fees and costs, asserted against or suffered by LOA resulting from: (i) any breach by Client of this Agreement; (ii) any liability of the Client with respect to the Client's Property and/or Client's Project or otherwise; or (iii) the accuracy or breach of any of the representations, warranties or covenants made by Client. LOA shall indemnify and hold Client or its directors, officers, and employees harmless from any liability, claims, demands, loss, damages or expense, including any reasonable attorney fees and costs, asserted against or suffered by Client resulting from the acts, errors or omissions of LOA or its directors, officers, employees, and sub -consultants in performance of this Agreement, except for injuries and damages caused by the sole negligence of the Client. SUBCONTRACTORS. LOA may subcontract to other qualified personnel such portions of the work required by Client as LOA deems necessary. ASSIGNMENT. Neither party may assignor transfer its rights or obligations under this Contract without the prior written consent of the non -assigning party. MEDIATION. LOA and Client agree to mediate any dispute or claim arising between them out of this Contract, or any resulting transaction, before resorting to court action. Mediation fees, if any, shall be divided equally among the parties involved. If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action. ATTORNEY'S FEES. If either party institutes a court action arising from this Contract or the performance of it, the prevailing party in such action or litigation shall, in addition to such other relief as the court may grant, be entitled to an award of reasonable costs and expenses of litigation, including expert witness fees and attorney fees. ENTIRE AGREEMENT. This Contract contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Contract. This Contract supersedes any prior written or oral agreements between the parties. SEVERABILITY. If any provision of this Contract will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Contract is invalid or unenforceable, but that by limiting such provision it would LIVE, 0,11( V SI 1TVITS, I1'I', �n f.ola9lcnl Consulln� F4m become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited. AMENDMENT. This Contract may be modified or amended in writing, if the writing is signed by the party obligated under the amendment. GOVERNING LAW. This Contract shall be construed in accordance with the laws of the State of California. BINDING EFFECT. The terms and provisions of this Contract shall be binding and inure to the benefit of the successors and assigns of the parties hereto. DESCRIPTIVE HEADINGS. The descriptive headings used and inserted into this Contract are for convenience only and shall not be deemed to affect the meaning or construction of any provision herein. COUNTERPARTS. This Contract may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Contract shall become effective upon the execution of a counterpart hereof by each of the parties hereto. NOTICES. All notices and communications hereunder shall be in writing and shall be deemed given and delivered personally when mailed by registered or certified mail, postage prepaid, addressed as follows if to LOA: Live Oak Associates, Inc. P.O. Box 2697 Oakhurst, CA 93644 and addressed as follows if to Client: Steve Padovan 26379 Fremont Road Los Altos Hills, CA 94022 LIVE 0AI( 01)(LVP413. I11', in Ecologic.,! 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