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CD Biological Consultation Services for Fire Station 57 SiteAGREEMENT FOR PROFESSIONAL BIOLOGICAL CONSL]LTATION SERVICES REQUIRED FOR FIRE STATION 57 SITE (3530 CIVIC CENTER DRIVE) This Agreement is made and entered into this Z'fP day of �i4N ap R y , 20 /& , by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and JAMES. A. MARTIN dba ENVIRONMENTAL COLLABORATIVE (hereinafter "CONTRACTOR"). RECITALS WHEREAS, the CITY has adopted the San Rafael Essential Facilities Strategic Plan, which includes the redevelopment of Fire Station 57 located at the Marin County Civic Center (3530 Civic Center Drive); and WHEREAS, on December 1, 2009, the US Army Corps of Engineers issued Determination of Jurisdictional Waters for Fire Station 57, which confirmed that the site contains 0.25 -acres of willow/scrub wetland. The Corps determination, which was prepared by the CONTRACTOR was valid for five years and expired on December 1, 2014; and WHEREAS, the CITY has determined that per the California Environmental Quality Act (CEQA) Guidelines, the redevelopment of Fire Station 57 is subject to environmental review, which will require an assessment of the jurisdictional wetland; and WHEREAS, the CITY has determined that it is practical and logical to engage the services of the CONTRACTOR to reactivate the Corps jurisdictional determination, complete an assessment of the jurisdictional wetland and to study options for possible mitigation. AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. PROJECT COORDINATION. A. CITY'S Project Manager. The Paul Jensen, Community Development Director is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. CONTRACTOR'S Project Director. CONTRACTOR shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONTRACTOR. James A. Martin, Principal 'is hereby designated as the PROJECT DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONTRACTOR shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF CONTRACTOR. CONTRACTOR shall perform the duties and/or provide services as outlined and scoped in I.t'3 --kJoG I 1Z22 I J did"'A1` AL the letter from CONTRACTOR to the CITY dated December 30, 2015, attached as Exhibit A hereto and incorporated herein by reference. All work shall be completed in accordance with the provisions of the California Environmental Quality Act Guidelines and the wetland policies and regulations set forth in the San Rafael General Plan 2020 and the San Rafael Municipal Code Title 14 (Zoning), Chapter 14.13 (Wetland Overlay District, respectively. 3. DUTIES OF CITY. CITY shall pay the compensation as provided in Paragraph 4, and perform the duties as outlined in attached Exhibit A hereto. 4. COMPENSATION. For the full performance of the services described herein by CONTRACTOR, CITY shall pay CONTRACTOR at rates specified in attached Exhibit A, a not -to -exceed amount of $19,900.00. Payment will be made monthly upon receipt by PROJECT MANAGER of itemized invoices submitted by CONTRACTOR. TERM OF AGREEMENT. The term of this Agreement shall be for one (1) year commencing on the date of execution of this Agreement. Upon mutual agreement of the parties, and subject to the approval of the City Manager the term of this Agreement may be extended for an additional period of up to one (1) year). 6. TERMINATION. A. Discretionary. Either party may terminate this Agreement without cause upon thirty (30) days written notice mailed or personally delivered to the other party. B. Cause. Either party may terminate this Agreement for cause upon fifteen (15) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such fifteen (15) day time period. C. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. D. Return of Documents. Upon termination, any and all CITY documents or materials provided to CONTRACTOR and any and all of CONTRACTOR's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. 7. OWNERSHIP OF DOCUMENTS. The written documents and materials prepared by the CONTRACTOR in connection with the performance of its duties under this Agreement shall be the sole property of CITY. CITY may use said property for any purpose, including projects not contemplated by this Agreement. 8. INSPECTION AND AUDIT. Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONTRACTOR in connection with its performance of its duties under this Agreement. CONTRACTOR shall fully cooperate with CITY or its agent in any such audit or inspection. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. Scope of Coverage. During the term of this Agreement, CONTRACTOR shall maintain, at no expense to CITY, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. 3. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, to cover any claims arising out of the CONTRACTOR's performance of services under this Agreement. Where CONTRACTOR is a professional not required to have a professional license, CITY reserves the right to require CONTRACTOR to provide professional liability insurance pursuant to this section. 4. If it employs any person, CONTRACTOR shall maintain worker's compensation and employer's liability insurance, as required by the State Labor Code and other applicable laws and regulations, and as necessary to protect both CONTRACTOR and CITY against all liability for injuries to CONTRACTOR's officers and employees. CONTRACTOR'S worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against CITY. B. Other Insurance Requirements. The insurance coverage required of the CONTRACTOR in subparagraph A of this section above shall also meet the following requirements: 1. Except for professional liability insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additionally named insureds under the policies. 2. The additional insured coverage under CONTRACTOR'S insurance policies shall be primary with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in CONTRACTOR'S policies shall be at least as broad as ISO form CG20 0104 13. 3. Except for professional liability insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4. The insurance policies shall be specifically endorsed to provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon ten (10) days written notice to the PROJECT MANAGER. 5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured. 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. C. Deductibles and SIR'S. Any deductibles or self-insured retentions in CONTRACTOR's insurance policies must be declared to and approved by the PROJECT MANAGER and City Attorney, and shall not reduce the limits of liability. Policies containing any 4 self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or CITY or other additional insured party. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. D. Proof of Insurance. CONTRACTOR shall provide to the PROJECT MANAGER or CITY'S City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements from CONTRACTOR. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. 11. INDEMNIFICATION. A. Except as otherwise provided in Paragraph B., CONTRACTOR shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by CITY, and hold harmless CITY, its officers, agents, employees and volunteers (collectively, the "City Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to attorney's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS"), only to the extent arising out of CONTRACTOR'S performance of its obligations or conduct of its operations under this Agreement. The CONTRACTOR's obligations apply regardless of whether or not a liability is caused or contributed to by the active or passive negligence of the City Indemnitees. However, to the extent that liability is caused by the active negligence or willful misconduct of the City Indemnitees, the CONTRACTOR's indemnification obligation shall be reduced in proportion to the City Indemnitees' share of liability for the active negligence or willful misconduct. In addition, the acceptance or approval of the CONTRACTOR's work or work product by the CITY or any of its directors, officers or employees shall not relieve or reduce the CONTRACTOR's indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CONTRACTOR'S performance of or operations under this Agreement, CONTRACTOR shall provide a defense to the City Indemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. B. Where the services to be provided by CONTRACTOR under this Agreement are design professional services to be performed by a design professional as that term is defined under Civil Code Section 2782.8, CONTRACTOR shall, to the fullest extent permitted by law, indemnify, release, defend and hold harmless the City Indemnitees from and against any CLAIMS that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONTRACTOR in the performance of its duties and obligations under this Agreement or its failure to comply with any of its obligations contained in this Agreement, except such CLAIM which is caused by the sole negligence or willful misconduct of CITY. C. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by; the insurance obligations contained in this Agreement, and shall survive the termination or completion of this Agreement for the full period of time allowed by law. 12. NONDISCRIMINATION. CONTRACTOR shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. CONTRACTOR shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. CONTRACTOR shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 14. NO THIRD PARTY BENEFICIARIES. CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 15. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY's Project Manager: TO CONTRACTOR's Project Director: Paul Jensen Community Development Director City of San Rafael 1400 Fifth Avenue San Rafael, CA 94901 James A. Martin, Principal Environmental Collaborative 126864 th Street Emeryville, CA 94608 16. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEMENT -- AMENDMENTS. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONTRACTOR and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONTRACTOR and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONTRACTOR agrees that CITY may deduct from any payment due to CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 21. CITY BUSINESS LICENSE / OTHER TAXES. CONTRACTOR shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code CONTRACTOR shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be requircd to pay for any work performed undcr this Agreement, until CONTRACTOR has provided CITY with a completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification). 22. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL bSC UTZ, Ci er A I'I'ES'I': ESTHER C. BEIRNE, City Clerk APPROVED AS TO FORM: �� ? J?. F,- ROBERT F. EPSTEIN, City Attorney CONTRACTOR By: '� 7 Name tv) Title: Exhibit A- Letter from Environmental Collaborative to City of San Rafael; December 30, 2015 PSA.EnvCollab SM57 final 1 12 16 ENVIRONMENTAL COLLABORATIVE Consultation • Documentation • Restoration 1268 64th Street • Emeryville, CA 94608 Phone 510/654-4444 • FAX 510/655-4444 30 December 2015 EXH I BIT A Mr. Paul A. Jensen, AICP Community Development Director City of San Rafael 1400 5th Avenue, 3rd Floor San Rafael, CA 94901 SUBJECT: Biological Consulting/Permit Assistance San Rafael Fire Station #7 San Rafael, California Dear Paul: ENVIRONMENTAL COLLABORATIVE is pleased to submit this proposal to provide biological consulting and permit assistance on the San Rafael Fire Station #7 Project in San Rafael, California. The project involves construction of a new fire station to replace and upgrade the existing Station #7 at 3537 Civic Center Drive at the north end of Golf Avenue. I am intimately familiar with the biological and wetland -related issues associated with the site, having worked on the Environmental Assessment (EA) for the Marin County Emergency Operation Facility (MEOF) that was previously proposed for this site and the surrounding 7.26 acres. As part of my involvement on the proposed MEOF project, I conducted a preliminary biological assessment of the entire site and prepared a draft wetland delineation which was verified by the U.S. Army Corps of Engineers (Corps) on December 1, 2009. The wetland delineation identified 0.25 acre of willow scrub/wetland to the east of the existing fire station, which are federal and State jurisdictional waters. The wetland delineation was valid for a five year period assuming field conditions had not changed, and expired in December 2014. A reverification of the wetland delineation by the Corps will be the first step in confirming existing constraints, but we are assuming field conditions have not changed substantially over the past five years. Below is a description of the proposed scope and cost to provide the biological consulting and permit assistance on this project. SCOPE ENVIRONMENTAL COLLABORATIVE will provide the requested biological consulting and permit assistance directly under contract to the City. Our scope will entail: 1) initial review of existing information on resources occurring in the site vicinity, largely relying on the work performed as part of the EA; 2) a field reconnaissance survey of the site to confirm field conditions haven't changed; 3) submitting a request for reverficiation of the previous wetland delineation for the site to the Corps; 4) preparation of the Biological Resource section for the Mitigated Negative Declaration; 5) completing the agency applications; and 6) preparing a conceptual compensatory wetland mitigation plan for the assumed loss of existing jurisdictional wetlands. The following provides an outline for our scope. Collect and review existing information on biotic resources in the vicinity of the site. Information sources will include: the original EA on the MEOF, updated occurrence records on special -status taxa and sensitive natural communities maintained by the California Natural Diversity Data Base of the California Department of Fish and Wildlife (CDFW). Conduct a field visit of the site. The field effort will be limited to a half-day reconnaissance, which will allow for confirmation of conditions present in 2009 and 2010. No protocol surveys for California red -legged frog or other special -status species are proposed as part of this scope, although there is a remote possibility that the USFWS may request additional field investigation as part of the federal interagency coordination with the Corps during the permitting process. Although considered highly unlikely, if conditions have changed considerably since the previous field work, the need for an expanded survey effort will be discussed with the City. Obtain a reverification of the wetland delineation from the Corps. Our scope includes attendance at a single field verification meeting with a Corps representative, and minor revisions to the original delineation,, if necessary. If extensive revisions or further detailed analysis is requested by the Corps, our scope and cost would have to be expanded. Prepare the Biological Resource section of the Mitigated Negative Declaration on the Project. Questions from the Initial Study checklist will be answered, and any required mitigation identified such as preconstruction surveys for nesting birds and wetland mitigation replacement measures, if necessary. It is assumed as part of our scope that the City will be preparing the remainder of the environmental document for CEQA purposes. Complete agency applications and provide consulting necessary to secure authorizations for implementation of the Project. We will complete draft applications to the CDFW, Regional Water Quality Control Board (RWQCB), and Corps. This would include applications to the Corps for a Nationwide Permit, the RWQCB for 401 Water Quality Certification, and the CDFG for a Streambed Alteration Agreement. A Joint Aquatic Resource Permit Application (JARPA) may be prepared for the Project. Our costs do not include the application fees from the CDFW and RWQCB, which will depend on the magnitude of affected jurisdictional waters. Prepare a Conceptual Compensatory Wetland Mitigation Plan (CCWMP) addressing any required habitat replacement for jurisdictional waters affected by the project. The CCWMP must be included as an attachment to the permit application(s) to demonstrate how impacts on jurisdictional waters will be mitigated. A possible wetland replacement mitigation area was identified on County Civic Center lands on the east side of Lagoon Park during preliminary meetings with the Corps in 2009. Our proposal assumes that this location is still available and acceptable to all of the regulatory agencies for mitigation purposes. Locating and securing an alternative mitigation area can be a challenging exercise and our proposal does not include a scope or cost for this effort. The CCWMP will include conceptual plan and cross-sectional treatments to create replacement wetland habitat, transitioning from willow scrub to brackish and coastal salt marsh habitats found along Gallinas Creek. It is likely that the RWQCB will require up to 2:1 replacement mitigation for wetlands to be filled as part of the project, and it is unlikely that complete in-kind replacement can be achieved at the possible wetland replacement mitigation area given the high salinity levels. 2 Attend up to three project -related meetings to present findings, discuss mapping and refine options for compensatory mitigation. COST The cost for providing biological consulting and permit assistance on the Project is itemized below and is estimated not to exceed $19,990.00. This cost assumes that the field work would be limited to that specified above, with no protocol surveys for California red -legged frog or other special -status species, that the City would complete the environmental document with the exception of the Biological Resource section, and that the location of the required compensatory wetland mitigation remains available and is acceptable to the regulatory agencies. This proposal does not include costs to prepare construction plans for implementing the CCWMP, or to provide any construction supervision and post -construction monitoring and maintenance, which will likely be regulatory agencies. Additional meeting attendance would be billed on a time and materials basis at a rate of $150.00 per hour. Site Resource Review and Consultation (4 hours) $600.00 Field Reconnaissance (4 hours) 600.00 Reverify Wetland Delineation (10 hours) 1,500.00 Biological Resource Section of Mitigated Negative Declaration (18 hours) 2,700.00 Agency Permit Application (40 hours) Conceptual Compensatory Wetland Mitigation Plan Preparation (40 hours) Attendance at Three Meetings (10 hours) 1,500.00 Expenses 1,090.00 Total Estimated Cost $19,990.00 I look forward to the possibility of working with you on the above project, and am available if you have any comments or questions on the scope or cost. I can be reached by phone at (510) 393-0770. Sincerely, ENVIRONMENTAL COLLABORATIVE James A. Martin Principal 3 a=, RECEI\1Ed PROFESSIONAL SERVICES AGREEMENT/CONTRACT 2 COMPLETION CHECKLIST AND ROUTING SLIP P1.WWtAe Bev is the process for getting your professional services agreements/contracts finalized and executed. Please attach this "Completion Checklist and Routing Slip" to the front of your contract as you circulate it for review and signatures. Please use this form for all professional services agreements/contracts (not just those requiring City Council approval). This process should occur in the order presented below. Step Responsible Description Completion Department Date 1 City Attorney Review, revise, and comment on draft agreement. 2 Contracting Department Forward final agreement to contractor for their signature. Obtain at least two signed / originals from contractor. IA / I 3 Contracting Department Agendize contractor -signed agreement for `� (d .� Council approval, if Council approval necessary (as defined by City Attorney/City ` Ordinance*). LGst6�t�:4%< 4 City Attorney Review and approve form of agreement; dK �� IV -- u bonds, and insurance certificates and �'SK endorsements. �., . ^,� �`ecsic 5 City Manager / Mayor / or Agreement executed by Council authorized Department Head official. 6 City Clerk City Clerk attests signatures, retains original agreement and forwards copies to the contracting department. (� To be completed by Contracting Department: Project Manager: _Paul Jensen Project Name: Fire Station 57- consultant services Agendized for City Council Meeting of (if necessary): NA* FPPC: X , check if required If you have questions on this process, please contact the City Attorney's Office at 485-3080. RECEIVED * Council approval is required if contract is over $20,000 on a cumulative basis. JAN 1 Il 2016 PLANNING ",