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HomeMy WebLinkAbout2007/02/20 Item 7 CITY COUNCIL AGENDA STATEMENT .\v/ .:s - ~ CITY OF -"...-- CHULA VISTA ITEM TITLE: SUBMITTED BY: REVIEWED BY: FEBRUARY 20, 2007, Item--,:, RESOLUTION APPROPRIATING $151,000 FROM THE AVAILABLE BALANCE OF THE GENERAL FUND AND ESTABLISHING NEW CAPITAL IMPROVEMENT PROJECT NO. DR174 (DRAINAGE FACILITIES ENVIRONMENTAL STUDY AND PERMITS); AWARDING THE CONTRACT TO WHITNEY ENVIRONMENTAL CONSULTING, INC. (DBA FOOTHILL ASSOCIATES) TO PERFORM THE ENVIRONMENTAL SERVICES RELATED TO OBT AINING PERMITS FOR THE MAINTENANCE ACTIVITIES ASSOCIATED WITH SEVERAL OF THE CITY'S DRAINAGE FACILITIES; AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT DIRECTOR OF PUBLIC WO~OPERATION~ INTERIM CITY MANAGER t I 4/5THS VOTE: YES ~ NO D BACKGROUND Several drainage facilities in the City are in need of maintenance. These activities require authorizations from various state and federal agencies. The item before the City Council is a request to create a new capital improvement project to fund the processing of the state and federal authorizations and preparation of the supporting environmental studies and to approve the proposed contract with Foothill Associates for an amount not to exceed $151,000 to provide environmental services related to obtaining the necessary authorizations. Various detention basins and an open channel will be the focus of the maintenance activities. These facilities have been identified by Public Works Operations as the most critically impacted storm drainage facilities within the City. Currently the City is precluded from equipment-assisted activities until the required environmental permits and mitigations are first in place. Until such time as the required authorization are approved these facilities will continue to gather sediment and excessive native and 7-1 FEBRUARY 20, 2007, Iteml Page 2 of 4 invasive vegetative growth leading to an increase in flooding potential with the passage of each storm event if these maintenance activities are not initiated as soon as possible. As a part of the environmental documentation, the consultant will be conducting plant and wildlife surveys in accordance with state and federal protocols. In order to survey during the appropriate seasons the consultant must begin the field surveys in early March, or risk missing this survey period resulting in a possible delay of one year for obtaining the required authorizations for the maintenance activities. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity, which is adoption of the resolution establishing the Capital Improvement Project and approving a consultant contract only, is not a "Project" as defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section 15060( c )(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION That the City Council adopt the Resolution appropriating $151,000 from the available balance of the general fund; establish a new Capital Improvement Project (Drainage Facilities Environmental Study and Permits); approve a two-party agreement between the City of Chula Vista and Foothill Associates for consulting services related to obtaining state and federal authorize for the maintenance of various drainage facilities in the City; and, authorizing the Mayor to execute said agreement. BOARDS/COMMISSION RECOMMENDATION Not Applicable DISCUSSION Today, maintenance of the City's storm drain systems serves two key functions - (I) flood control to prevent loss of life or property damage and (2) water quality management. These functions are interrelated, but the attainment of both flood control and water quality management functions can be difficult in lined and unlined open channels, as well as detention basins, due to environmental constraints and sometimes conflicting environmental regulations. The removal of trash, debris, invasive plants, and sediment, as required under the City's NPDES Municipal Stormwater Discharge Permit, supports water quality and ensures proper flood control functioning within open channels and basins. Although the Regional Water Quality Control Board has allowed municipalities to remove trash, debris, and dead vegetation by hand from these flood control facilities without an environmental permit, the City is precluded from equipment-assisted activities or removing native wetland and riparian plant materials and sediment unless the proper, and costly, environmental permits and mitigations (i.e., streambed mitigation, wetland and riparian 7-2 FEBRUARY 20,2007, ItemL Page 3 of 4 habitat mitigation, etc.) are first in place. In addition, if threatened or endangered species are present, channel and detention basin cleaning, and maintenance activities in most cases must take place during a narrow time window - September through February, five months of which are within the official rainy season. As a result, the eight detention basins and one major flood control channel segment to be surveyed by the environmental consultant have continued to gather sediment and excessive native and invasive vegetative growth over the past several years, thereby leading to an increase in flooding potential with the passage of each storm event. Fortunately, the region has not experienced severe weather conditions for several years. This includes the 2004-05 rainy season in which the San Diego region received the third highest rainfall total on record, but flooding did not occur because rainfall was not intense and occurred over extended periods of time. The detention basins and open channel to be surveyed have been identified by Public Works Operations as the most critically impacted storm drainage facilities within the City; staff is in the process of identifying and prioritizing additional facilities for future environmental assessment and permitting. It is imperative that the environmental assessment process for these facilities occur now because the biological survey season starts in March - failure to perform these surveys now will result in a minimum one-year delay in obtaining environmental permits and commencing full flood control maintenance activities. Staff had originally planned to recommend a project for this work in the 2006-07 Capital Improvement Program (CIP) budget. However, because staff could not accurately predict consultant service costs without soliciting proposals and because General Funds are needed to perform the work, staff decided to seek a mid-year budget appropriation to avoid unnecessarily tying-up excess General Funds or having to seek additional funding mid-year. As Council may recall, when the Department of Public Works Operations' presented its Strategic Plan to the City Council on June 13,2006, the City Council was informed of this effort and that staff would request funding for it at a future time. Consultant Services Selection Process A Request for Qualifications (RFQ) for these services was circulated to all consulting firms with the necessary expertise listed on the City's list of Qualified Environmental Consultants. A total of 11 firms submitted proposals. A Selection Committee was established pursuant to Section 2.56.110 of the Municipal Code to review the proposals and conduct interviews of the most qualified firms based on established evaluation criteria. The Selection Committee reviewed and ranked the proposals based on company experience, quality of management team, capacity to perform the work, project understanding, proposal quality and clarity, local experience, and competitive billing rates. Three firms were selected to be interviewed by the Selection Committee; however one firm dropped out prior to the interview. Therefore, the Selection Committee interviewed two firms and recommended Foothill Associates to perform the required servIces. 7-3 FEBRUARY 20, 2007, Item~ Page 4 of 4 Foothill Associates is uniquely qualified to serve as the Environmental Consultant for this contract based on their familiarity with the protocols for surveying and the processing for obtaining the state and federal authorizations for the maintenance work. Foothill Associates represents that they are experienced and staffed in a manner such that they can prepare and deliver the required services to the City of Chula Vista. Scope of Work Foothill Associates will perform the required services at the direction of City staff under a two-party agreement. The responsibilities of the Environmental Consultant will include the following: . Conducting focused plant and animal species surveys; . Preparing an appropriate environmental document in accordance with the California Environmental Quality Act (CEQA); . Preparing related technical documents (biological resources reports, survey reports, wetland delineation reports, and mitigation planning documents); . Obtaining permits from the various regulatory agencies; . Preparing a mitigation monitoring and reporting program; and, . Preparing a wetlands mitigation and monitoring plan Contract Pavment The total cost of the contract for consulting services is $151,000, including a 20% contingency ($30,000) for additional services to cover unforeseen issues that may arise during the process of obtaining state and federal authorization for the maintenance work and if determined to be necessary by the Director of Public Works Operations. The City Attorney's Office has reviewed and approved the form of the contract. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the properties which are the subject of this action. FISCAL IMP ACT The impact to the General Fund is $151,000. As of the First Quarter Fiscal Status Report the General Fund reserves were projected at $14.3 million for the year ending June 2007. Approval of this resolution would reduce the projected General Fund reserve level to $14.2 million or 8.3%. ATTACHMENTS: I. Two-Party Agreement between the City ofChula Vista and Foothill Associates 2. Location Map of Drainage Facilities Prepared by: Marilyn Ponseggi Environmental Special Projects Manager. Public Works 7-4 RESOLUTION NO. RESOLUTION APPROPRlATING $151,000 FROM THE A V AILABLE BALANCE OF THE GENERAL FUND AND ESTABLISHING NEW CAPITAL IMPROVEMENT PROJECT NO. DRI74 (DRAINAGE FACILITIES ENVIRONMENTAL STUDY AND PERMITS); AWARDING THE CONTRACT TO WHITNEY ENVIRONMENTAL CONSULTING, INC. (DBA FOOTHILL ASSOCIATES) TO PERFORM THE ENVIRONMENTAL SERVICES RELATED TO OBTAINING PERMITS FOR THE MAINTENANCE ACTIVITIES ASSOCIATED WITH SEVERAL OF THE CITY'S DRAINAGE FACILITIES; AND AUTHORlZING THE MAYOR TO EXECUTE THE AGREEMENT WHEREAS, several drainage facilities in the City are in need of maintenance; and WHEREAS, the maintenance activities require authorizations from various state and federal agencies; and, WHEREAS, a new capital improvement project must be established in order to fund the processing of the state and federal authorizations and preparation of the supporting environmental studies for the state and federal authorization; and, WHEREAS, Sufficient funds are available in the available balance of the General Fund to fund this new capital improvement proj ect and for this appropriation; WHEREAS, staff does not have the expertise to prepare the environmental technical studies and documents necessary for the processing of the state and federal authorization; and, WHEREAS, the City solicited and received eleven proposals in June 2006 to perform environmental services related to the maintenance of eight detention facilities and a segment of one storm drainage channel located within the City; and WHEREAS, a Selection Committee was established pursuant to Section 2.56.110 of the Municipal Code to review the qualifications of each firm based on established evaluation criteria; and WHEREAS, the City evaluated each proposal based on clarity, approach, cost, qualifications, and completeness; and WHEREAS, the Selection Committee interviewed the top two firms and recommended Foothill Associates to perform the required services for the City; and WHEREAS, Foothill Associates was selected based upon their proposed approach and demonstrated qualifications to perform the services outlined in the detailed scope of work; and 7-5 WHEREAS, Foothill warrants and represents that they are experienced and staffed in a manner such that they can prepare and deliver the services required of Consultant to City within the time frames specified in the Agreement in accordance with the terms and conditions of the Agreement; WHEREAS, the proposed contract with Foothill Associates to provide consultant services in an amount not to exceed $120,600 with an additional $30,000 for additional services if deemed necessary at the discretion of the Director of Public Works Operations; NOW, THEREFORE, BE IT RESOLVED that the City of the City of Chula Vista does hereby appropriate $151,000 from the available balance of the General Fund and establish a new Capital Improvement Project No. DRI74 (Drainage Facilities Environmental Study and Permits); and, BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista does hereby award the contract to Foothill Associates to perform the environmental servIces BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said Agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by David C. Byers Director of Public Works Operations ~\llKS\ \'1C\'~fu\\ Ann Moore City Attorney 7-6 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALL Y SIGNED UPON APPROVAL BY THE CITY COUNCIL ~~~~\\ Ann Moore City Attorney Dated: YO"",<\)~~ \ -+ ) 1..001 Agreement between the C ty ofChula Vista And Whitney Environmental Consulting, Inc. (dba Foothill Associates) 7-7 Parties and Recital Page(s) Agreement between City ofChula Vista and Whitney Environmental Consulting, Inc. (dba Foothill Associates) for environmental services related to tasks that consist of conducting focused plant and animal species surveys, preparing an appropriate environmental document in accordance with the California Environmental Quality Act (CEQA) and related technical documents, obtaining permits from the various regulatory agencies, preparing a mitigation monitoring and reporting program and preparing a wetlands mitigation and monitoring plan for a maintenance project that involves eight stormwater detention facilities and a segment of a storm drainage channel This agreement ("Agreement"), dated February 20,2007 for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph I, is between the City-related entity as is indicated on Exhibit A, Paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, Paragraph 3, and the entity indicated on the attached Exhibit A, Paragraph 4, as Foothill, whose business form is set forth on Exhibit A, Paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, Paragraph 6 ("Consultant"), and is made with reference to the following facts: Recitals WHEREAS, the City solicited and received eleven proposals in June 2006 to perform environmental services related to the maintenance of eight storm water detention facilities and a segment of one storm drainage channel located within the City; and WHEREAS, the City evaluated each proposal based on clarity, approach, cost, qualifications, and completeness; and WHEREAS, Foothill Associates was selected based upon their proposed approach and demonstrated qualifications to perform the services outlined in the detailed scope of work; and WHEREAS, Foothill warrants and represents that they are experienced and staffed in a manner such that they can prepare and deliver the services required of Foothill to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement; Page 1 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-8 Obligatory Provisions Pages NOW, THEREFORE, BE IT RESOLVED that the City and Foothill do hereby mutually agree as follows: 1. Foothill's Duties A. General Duties Foothill shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Foothill shall also perform all of the services described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth, time being of the essence of this Agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Foothill, from time to time reduce the Defined Services to be performed by the Foothill under this Agreement. Upon doing so, City and Foothill agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with the reduction of services. D. Additional Services In addition to performing the Defined Services set forth in this Agreement, City may require Foothill to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Foothill, Foothill shall perform the additional services on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 10(e), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. E. Standard of Care Foothill, in performing any Services under this Agreement, whether Defined Services or Additional Services, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. Page 2 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-9 F. Insurance Foothill must procure insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under the contract and the results of that work by Foothill, its agents, representatives, employees or subcontractors and provide documentation of insurance prior to commencement of work. The insurance must be maintained for the duration of the Agreement. Minimum Scope of Insurance Coverage must be at least as broad as: (I) Insurance Services Office Commercial General Liability coverage (occurrence Form CGOOOl). (2) Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code I (any auto). (3) Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (4) Professional Liability or Errors & Omissions Liability insurance appropriate to the Foothill's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. Minimum Limits of Insurance Foothill must maintain limits no less than: I. General Liability: (Including operations, products and completed operations, as applicable) 2. Automobile Liability: 3. Workers' Compensation Employer's Liability: 4. Professional Liability or Errors & Omissions $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance with a general aggregate limit is used, either the general aggregate limit must apply separately to this project/location or the general aggregate limit must be twice the required occurrence limit. $1,000,000 per accident for bodily injury and property damage. Statutory $1,000,000 each accident $1,000,000 disease-policy limit $1,000,000 disease-each employee $1,000,000 each occurrence Page 3 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-10 Liability: Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or Foothill will provide a financial guarantee satisfactory to the City, guaranteeing payment oflosses and related investigations, claim administration, and defense expenses. Other Insurance Provisions The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: (1) The City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of Foothill, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of Foothill, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the contractor's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. (2) Foothill's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of Foothill and in no way relieves the Foothill from its responsibility to provide insurance. (3) The insurance policy required by this clause must be endorsed to state that coverage will not be canceled by either party, except after thirty (30) days' prior written notice to the City by certified mail, return receipt requested. (4) Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. (5) Foothill's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage during the life of this contract. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: Page 4 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-11 (1) The "Retro Date" must be shown, and must be before the date of the Agreement or the beginning of the Agreement work. (2) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract work. (3) If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the contract effective date, Foothill must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. (4) A copy of the claims reporting requirements must be submitted to the City for review. Acceptability of Insurers Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers ("LESLI") with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. Verification of Coverage Foothill shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the contract requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. Subcontractors Foothill must include all sub consultants as insureds under its policies or furnish separate certificates and endorsements for each subconsultant. All coverage for subconsultants are subject to all of the requirements included in these specifications. G. Security for Performance (1) Performance Bond In the event that Exhibit A, at Paragraph 18, indicates the need for Foothill to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Foothill shall provide to the City a performance bond in the form prescribed by the City and by such sureties which are authorized Page 5 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-12 to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, htto://www.fins.treas.gov/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the agreement, and which also satisfY the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the limits so required. Form must be satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Exhibit A, Paragraph 18. (2) Letter of Credit In the event that Exhibit A, at Paragraph 18, indicates the need for Foothill to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Foothill shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that Foothill is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit", in said Exhibit A, Paragraph 18. (3) Other Security In the event that Exhibit A, at Paragraph 18, indicates the need for Foothill to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Foothill shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. H. Business License Foothill agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. 2. Duties of the City A. Consultation and Cooperation City shall regularly consult Foothill for the purpose of reviewing the progress of the Defined Services and Schedule contained in this Agreement, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, files and records by Foothill throughout the term of the agreement. In addition, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 9, and with the further understanding that delay in the provision of these materials beyond thirty (30) days after Page 6 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-13 authorization to proceed, shall constitute a basis for the justifiable delay in Foothill's performance of this Agreement. B. Compensation Upon receipt of a properly prepared billing from Foothill submitted to the City periodically as indicated in Exhibit A, Paragraph 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Foothill for all services rendered by Foothill according to the terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkrnark" next to the appropriate arrangement, subj ect to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Foothill for out of pocket expenses as provided in Exhibit A, Paragraph II. All billings submitted by Foothill shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the amount due and payable thereunder is proper, and shall specifically contain the City's account number indicated on Exhibit A, Paragraph 17(C) to be charged upon making such payment. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 12, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. 4. Term This Agreement shall terminate when the Parties have complied with all executory provisions hereof. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, Foothill shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 ("Liquidated Damages Rate"). Page 7 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-14 Time extensions for delays beyond Foothill's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions oftime, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. 6. Financial Interests of Foothill A. Foothill is Designated as an FPPC Filer If Foothill is designated on Exhibit A, Paragraph 14, as an "FPPC filer", Foothill is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if none are specified, then as determined by the City Attorney. B. Decline to Participate Regardless of whether Foothill is designated as an FPPC Filer, Foothill shall not make, or participate in making or in any way attempt to use Foothill's position to influence a governmental decision in which Foothill knows or has reason to know Foothill has a financial interest other than the compensation promised by this Agreement. C. Search to Determine Economic Interests Regardless of whether Foothill is designated as an FPPC Filer, Foothill warrants and represents that Foothill has diligently conducted a search and inventory of Foothill's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Foothill does not, to the best of Foothill's knowledge, have an economic interest which would conflict with Foothill's duties under this agreement. D. Promise Not to Acquire Conflicting Interests Regardless of whether Foothill is designated as an FPPC Filer, Foothill further warrants and represents that Foothill will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests Regardless of whether Foothill is designated as an FPPC Filer, Foothill further warrants and represents that Foothill will immediately advise the City Attorney of City if Foothill learns of an economic interest of Foothill's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated there under. Page 8 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-15 F. Specific Warranties Against Economic Interests Foothill warrants and represents that neither Foothill, nor Foothill employees' immediate family members, nor Foothill's employees or agents ("Foothill Associates") presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 14. Foothill further warrants and represents that no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Foothill or Foothill Associates in connection with Foothill's performance of this Agreement. Foothill to advise City of any such promise that may be made during the Term of this Agreement, or for twelve months thereafter. Foothill agrees that Foothill Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for twelve months after the expiration of this Agreement, except with the written permission of City. Foothill may not conduct or solicit any business for any party to this Agreement, or for any third party that may be in conflict with Foothill's responsibilities under this Agreement, except with the written permission of City. 7. Hold Harmless Foothill shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) arising out of or alleged by third parties to be the result of the negligent acts, errors or omissions or the willful misconduct of Foothill, and Foothill's employees, subcontractors or other persons, agencies or firms for whom Foothill is legally responsible in connection with the execution of the work covered by this Agreement, except only for those claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of Foothill, its employees, agents or officers, or any third party. With respect to losses arising from Foothill's professional errors or omissions, Foothill shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) except for those claims arising from the negligence or willful misconduct of City, its officers or employees. Page 9 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-16 Foothill's indemnification shall include any and all costs, expenses, attorneys fees and liability incurred by the City, its officers, agents or employees in defending against such claims, whether the same proceed to judgment or not. Foothill's obligations under this Section shall not be limited by any prior or subsequent declaration by Foothill. Foothill's obligations under this Section shall survive the termination of this Agreement. For those professionals who are required to be licensed by the state (e.g. architects, landscape architects, surveyors and engineers), the following indemnification provisions should be utilized: (I) Indemnification and Hold Harmless Agreement With respect to any liability, including but not limited to claims asserted or costs, losses, attorney fees, or payments for injury to any person or property caused or claimed to be caused by the acts or omissions of Foothill, or Foothill's employees, agents, and officers, arising out of any services performed involving this project, except liability for Professional Services covered under Section 7.2, Foothill agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, or employees from and against all liability. Also covered is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of Foothill, its employees, agents or officers, or any third party. Foothill's duty to indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees. This section in no way alters affects or modifies Foothill's obligation and duties under Section Exhibit A to this Agreement. (2) Indemnification for Professional Services. As to Foothill's professional obligation, work or services involving this Project, Foothill agrees to indemnify, defend and hold harmless the City, its agents, officers and employees from and against any and all liability, claims, costs, and damages, including but not limited to, attorneys fees, that arise out of, or pertain to, or relate to the negligence, recklessness or willful misconduct of Foothill and its agents in the performance of services under this agreement, but this indemnity does not apply liability for damages for death or bodily injury to persons, injury to property, or other loss, arising from the sole negligence, willful misconduct or defects in design by City or the agents, servants, or independent contractors who are directly responsible to City, or arising from the active negligence of City. 8. Termination of Agreement for Cause If, through any cause, Foothill shall fail to fulfill in a timely and proper manner Foothill's obligations under this Agreement, or if Foothill shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Foothill of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials Page 10 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-17 prepared by Foothill shall, at the option ofthe City, become the property of the City, and Foothill shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused City by Foothill's breach. 9. Errors and Omissions In the event that the City Contract Administrator determines that Foothills' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted ifthere were no such negligence, errors, omissions, Foothill shall reimburse City for any additional expenses incurred by the City. Nothing in this Agreement is intended to limit City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City City may terminate this Agreement at any time and for any reason, by giving specific written notice to Foothill of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Foothill shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Foothill hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. II. Assignability The services of Foothill are personal to the City, and Foothill shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 to the subconsultants identified thereat as "Permitted Subconsultants". 12. Ownership, Publication, Reproduction and Use of Material All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Foothill in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. Page II Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-18 13. Independent Contractor City is interested only in the results obtained and Foothill shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Foothill's work products. Foothill and any of the Foothill's agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Foothill shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this Agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth in this Agreement, and such policies and procedures used by the City in the implementation of same. Upon request by City, Foothill shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 15. Attorney's Fees Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 16. Statement of Costs In the event that Foothill prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Foothill shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. Page 12 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-19 17. Miscellaneous A. Foothill not authorized to Represent City Unless specifically authorized in writing by City, Foothill shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. B. Foothill is Real Estate Broker and/or Salesman If the box on Exhibit A, Paragraph 15 is marked, Foothill and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Foothill represents that neither Foothill, nor their principals are licensed real estate brokers or salespersons. C. Notices All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. D. Entire Agreement This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. E. Capacity of Parties Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F. Governing LawlVenue This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. (End of page. Next page is signature page.) Page 13 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-20 Signature Page to Agreement between City of Chula Vista and Foothill Associates for environmental services related to tasks that consist of conducting focused plant and animal species surveys, preparing an appropriate environmental document in accordance with the California Environmental Quality Act (CEQA) and related technical documents, obtaining permits from the various regulatory agencies, preparing a mitigation monitoring and reporting program and preparing a wetlands mitigation and monitoring plan for a maintenance project that involves eight stormwater detention facilities and a segment of a storm drainage channel IN WITNESS WHEREOF, City and Foothill have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: City of Chula Vista Dated: By: Cheryl Cox, Mayor Attest: Susan Bigelow, City Clerk Approved as to form: Ann Moore, City Attorney Page 14 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-21 Dated: :>j I '21 01-'" Exhibit List to Agreement ( ) Exhibit A. Whitney Environmental Consulting, Inc. dba Foothill Associates BY:~~/~ Kathlee . .C. Kirsh, ASLA Vice-President By: Page 15 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-22 Exhibit A to Agreement between City of Chula Vista and Foothill Associates 1. Effective Date of Agreement: February 20,2007 2. City-Related Entity: (x )City ofChula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City ofChula Vista, a political subdivision of the State of California ( ) Industrial Development Authority of the City ofChula Vista, a ( ) Other: , a [insert business form] ("City") 3. Place of Business for City: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Consultant: Whitney Environmental Consulting, Inc. dba Foothill Associates ("Foothill") 5. Business Form of Foothill: ( ) Sole Proprietorship ( ) Partnership (X ) Corporation 6. Place of Business, Telephone and Fax Number of Foothill: 10509 Vista Sorrento Parkway, Suite 120 San Diego, California 92121 Voice Phone: (858) 552-8885 Fax Phone: (858) 552-8886 Page 16 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-23 7. General Duties: Foothill shall provide environmental services related to tasks that consist of conducting focused plant and animal species surveys, preparing an appropriate environmental document in accordance with the California Environmental Quality Act (CEQA) and related technical documents (biological resources reports, survey reports, wetland delineation reports, and mitigation planning documents), obtaining permits from the various regulatory agencies, preparing a mitigation monitoring and reporting program and preparing a wetlands mitigation and monitoring plan for a maintenance project that involves eight stormwater detention facilities and a segment of a storm drainage channel 8. Scope of Work and Schedule: A. Detailed Scope of Work: Foothill will provide environmental services related to tasks that consist of conducting focused plant and animal species surveys, preparing an appropriate environmental document in accordance with the California Environmental Quality Act (CEQA) and related technical documents (biological resources reports, survey reports, wetland delineation reports, and mitigation planning documents), obtaining permits from the various regulatory agencies, preparing a mitigation monitoring and reporting program and preparing a wetlands mitigation and monitoring plan. The maintenance project involves eight stormwater detention facilities and a segment of a storm drainage channel described as: 1. North of Otay Rio Road and the Coors Amphitheater parking lot, 1.00 acre (Otay River Tributary) 2. Southeast corner of Sweetwater Road and Willow Road, 1.14 acres (Sweetwater River Tributary) 3. North Rancho Del Rey, between Terra Nova and Del Rey Boulevard, 1.00 acre (Bonita Canyon Basin) 4. North of East H Street, between Terra Nova and Del Rey Boulevard, 6.62 acres (Rice Canyon Basin 5. South of200 Block Rancho Drive, 0.61 acres (Poggi Canyon Basin) 6. Northeast corner of Oleander Avenue and East Palomar Street, 2.24 acres (Palm Basin) 7. Willow Street Bridge area, south side of the bridge, 0.50 acre (Sweetwater River Tributary) 8. Telegraph Canyon Road, east of Rutgers Avenue, box culvert inlet north side of Telegraph Canyon Road, outlet south side of Telegraph Canyon Road, 1.60 acres (Telegraph Canyon Basin) 9. North side of Telegraph Canyon Road beginning from the edge of the concrete lined channel then easterly to Paseo Ladera (approximately 23,650 square feet) Detailed Scope of Work: Foothill shall perform the following tasks: Task 1 - Kickoff Meetinl!. City staff will arrange and Foothills staff shall attend a kickoff meeting between the City's project management staff and key members of the Foothill's project Page 17 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-24 team. The meeting will provide an opportunity for the City and Foothill staff to become acquainted, exchange relevant project information, and provide clarifications for the scope of work. Task 2: - Focused Biolo2ical Surveys. Task 2.1 Wildlife Survev. Based on information in the Biological Constraints Analysis for the City ofChula Vista 12 Detention Facilities Maintenance Project, dated June 2006, ("Constraints Analysis") Foothill's biologist will conduct protocol presence/absence surveys for California gnatcatcher (Polioptila californica), least Bell's vireo (Vireo bellii pusillus), and southwestern willow flycatcher (Empidonax traillii extimus) at all facility sites where suitable habitat exists. A biologist with the necessary permits from the state and federal agencies will conduct surveys according to the u.s. Fish and Wildlife Service (USFWS) protocol. Foothill will submit a survey notification to the USFWS 10 days prior to conducting surveys, as required. In addition to protocol surveys for listed species, the Foothill biologist will conduct presence/absence western burrowing owl (Speotyto cunicularia) surveys according to the accepted Burrowing Owl Consortium Survey Protocol at all facility sites where suitable habitat exists. All detected locations will be mapped and occurrence information recorded. Foothill will document the results of each survey in technical letter reports, which will be submitted to the City for review. These technical letter reports will serve as the required 45-day reports to be submitted to the USFWS following the completion of the surveys. The surveys will occur during the corresponding nesting seasons in 2007. Task 2.2 Plant Survevs & Habitat Mappin2. Based on information in the "Constraints Analysis", Foothill's biologists will conduct focused surveys for specific sensitive plant species at all facility sites where suitable habitat exists. Plant species to be surveyed include San Diego thommint (Acanthomintha ilicifolia) San Diego bur-sage (Ambrosia chenopodifolia), San Diego ambrosia (Ambrosia pumila), Dean's milk vetch (Astragalus deanei), south coast saltscale (A triplex pacifica), Otay tarplant (Deinandra conjugens), variegated dudleya (Dudleya variegata), San Diego goldenstar (Muilla clevandii), and mud nama (Nama stenocarpum). All locations will be mapped with population estimates according to accepted standard survey protocols. Foothill will document the results of the surveys in a technical letter report, which will be submitted to the City for review. Based on the blooming periods for the specific species, Foothill will survey each site twice, once in early spring (April) to capture the early bloomers and once in late spring/early summer (June) to capture the late bloomers. All surveys will occur in 2007. Task 2.3 Wildlife/Plants Survevs and Habitat Mappin2 for the Concrete Lined Channel. Foothill biologists will map the habitats in areas in the concrete lined channel that were not a part of the "Constraints Analysis". Mapping of the locations of surveyed plant populations and habitat in the unlined storm drain channel will be completed with a Trimble ProXRS GPS (Global Positioning System) unit and integrated with mapping completed by Dudek for the other sites. Page 18 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-25 Task 2.4 Wetland Delination. Task 2.4.1 Potential Mitieation Site Wetland Delination. Concurrent with completion of the focused biological surveys and, and if determined necessary by City staff, wetland delineation of all potential mitigation sites will be re-evaluated based on direction received from the state and federal agencies and City staff. This phase will be completed during the wet-season in order to review sites and hydrology under these wet conditions. Observations will be recorded and organized with dry-season information and provided to City staff. The delineation of potential wetland sites does not necessarily need to conform to U.S. Army Corps of Engineers delineation standards, but does need to be adequate to effectively characterize the general extent and type of wetlands present. Task 2.4.2 Concrete Channel Wetland Delineation (Ootional). The "Constraints Analysis" included Wetlands Delineation for those sites covered in the report. If authorized by the City, Foothill's biologists will map the drainages and wetland features in the concrete lined channel that were not covered in the Biological Constraints Analysis. Mapping will be prepared according to the methodologies of the California Department ofFish and Game and U.S. Army Corps of Engineers. In addition, if it is determined by the City that an updated wetlands delineation is required for the sites covered in the Biological Constraints Analysis, City will authorize Foothill to update the previously prepared wetlands delineation for the drainage facilities addressed in the Constraints Analysis. Boundary and attribute information of wetlands and other features will be recorded using a Trimble ProXRS GPS unit and integrated with other project mapping. All information will be compiled into a jurisdictional features map (ACOE and CDFG) and report. Task 3 - Preoare IS! MND - Foothill's Sub-Consultant David Evans and Associates (DEA) will complete an Initial Study in accordance with California Environmental Quality Act (CEQA) Guidelines Section 15063 and Initial Study Checklist (CEQA Guidelines Appendix G). The Initial Study will form the basis for the Environmental Analysis discussion in the Mitigated Negative Declaration and will provide the necessary background for determining the potential for significant environmental effects associated with the proposed project. One Initial Study will be prepared for all of the drainage structures. The Initial Study document will address any potential impact under all environmental issues. The specific purpose ofthe analysis in the Initial Study will be to identifY all potential significant adverse environmental impacts and incorporate mitigation measures to reduce or eliminate any adverse consequences. DEA will prepare a draft Initial Study!MND document to include the following sections: . Introduction. . Environmental Setting. . Project Description. . Environmental Analysis. . Mandatory Findings of Significance per CEQA . Findings for a Habitat Loss and Incidental Take Permit (HUT) in accordance with the City's MSCP Subarea Plan . Appendix. . Mitigation Monitoring and Reporting Program Page 19 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-26 At this time it is anticipated that preparation of an MND would adequately meet the requirements of CEQA. Following preparation of the Initial Study, City staff will review the Initial Study and make a final determination as to the appropriate CEQA document for this project. If it is determined that a Mitigated Negative Declaration is adequate, one document covering all of the structures will be prepared. In situations where potential impacts may be site specific (i.e., biology, water quality, hydrology), a more detailed discussion will be provided within the document for each study area. For impacts that are similar for each site (i.e., land use, traffic, public services), a broader discussion can be provided that will cover all of the sites. In compliance with AB 3 I 80 (PRC 2108 1.6), which requires the monitoring of mitigation measures and reporting their implementation to ensure compliance as part of specific project approvals, DEA will prepare the Mitigation Monitoring and Reporting Program for the project as part of the draft IS/MND. Implementation of the mitigation measures and the required monitoring will be linked to specific stages of project development to ensure all mitigation measures are implemented. This scope of work does not include the preparation of an Environmental Impact Report (EIR) or separate technical studies except as defined in Task 2 above. The draft IS/MND will be presented to City staff for review and comment. DEA will revise the document as directed by City staff. Task 4: (CEQA) Public Review and Notices Task 4.1 Notice of Intent (NO!) - In accordance with the City of Chula Vista Environmental Review Guidelines, DEA will prepare an NO! for the project. DEA will incorporate comments received on the NO! as determined appropriate by City staff. Task 4.2 Notice of Availability - In accordance with the CEQA Guidelines and the City of Chula Vista Environmental Review Procedures, DEA will prepare a_Notice of Completion for the Draft IS/MND. Task 5 - Final IS/MND. Task 5.1 Responses to Comment. Upon completion of the 30-day public review period, DEA will prepare written responses to all letters of comment received. All comments received in response to the IS/MND will be discussed with the City and an approach to the responses will be agreed upon prior to preparation of the responses. Draft responses to comments will be submitted to City staff for review and comment. DEA will modifY the responses to comments as directed by City staff. Task 5.2 Preparation of Final IS/MND. DEA will revise the IS/MND as necessary to respond to the comments received. The draft final IS/MND will be submitted to City staff for review and comment. DEA will modify the final IS/MND in accordance with City staffs direction. The Page 20 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-27 Final IS/MND will include revisions to the draft IS/MND in strikeout/underline format, comment letters and responses. Task 6 - Permitting / Regulatory Compliance Task 6.1 Preliminary A2encv Coordination. During initial review of project information, Foothill will make initial informal contact with the U.S. Army Corps of Engineers (USACE), California Department ofFish and Game (CDFG), and Regional Water Quality Control Board (RWQCB). Following completion of Task 1, Foothill, in coordination with City staff, will initiate pre-application coordination with the agencies to determine the most appropriate and efficient permitting strategy for the proposed maintenance work. At this time it is anticipated that the following permits will be required . U. S. Army Corps of Engineers: Standard Individual Permit (IP); negotiation ofa Regional General Permit (RGP) to categorically permit these types of actions; or a Memorandum of Understanding (MOU). . California Department ofFish and Game: Section 1602 Streambed Alteration Agreement (SAA); Master Streambed Alteration Agreement; or a Memorandum of Understanding (MOU). . Regional Water Quality Control Board: 401 Water Quality Certification; or a Master 401 Certification. Foothill will be responsible for processing all permits regardless of which process is ultimately determined by the City/agencies to be appropriate. Foothill will coordinate closely with City staff and with each of the regulatory agencies throughout the process. Task 6.2 Permit application preparation. Upon reaching agreement with each agency on the proper permitting strategy, Foothill will prepare the necessary applications. This task includes gathering all relevant project description and technical information, completing required permit forms as determined by Task 6.1, and submitting a complete draft permit package to City staff for review. The fee for this contract does not include the required agency fees. The City will pay those fees directly. Task 6.3 - Permit review process. Foothill will make all necessary revisions per City staff comments, submitting required documents to the review agencies, and coordinate with the City and the agencies to facilitate the review of application materials. The preparation of any new technical studies required by the agencies is not included in this contract and will be subject to negotiation between the City and Foothill. Foothill will prepare clear application materials that include viable mitigation plans. This task will be closely linked to Tasks 7 and 8. This task includes up to six (6) meetings in person and up to (15) teleconference calls in order to provide coordination with City maintenance, engineering, and project management staff as well as the relevant regulatory agencies. This task does not include stakeholder outreach or facilitation. Page 21 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-28 Task 6.4 - A!!encv coordination and review of miti!!ation strate!!v: Following City review and approval of the Mitigation Strategic Plan, Foothill will incorporate the Plan into the formal permit application materials, submit the information for review, and be available for discussion as necessary. Foothill will facilitate and attend one joint field meeting with City staff and state and federal agency staff. Revisions to the proposed mitigation strategy will be explored as needed to respond to agency and City needs. Task 6.5 - Issuance of State and Federal Permits. Foothill will facilitate the final approval of all required permits from state and federal agencies. This task may include additional meetings and/or submittal of additional information to the agencies. Task 7 - Miti!!ation Strate!!ic Plan. In consultation with City staff, Foothill_will investigate a variety of options for implementing the mitigation associated with the permit(s) including potentially reducing impacts through modification of the project area; modification to the methods proposed for maintenance activities that would either reduce or alleviate impacts; opportunities for on-site mitigation through habitat preservation; restoration, enhancement, and creation of habitats on or near the project facilities; purchasing credits in existing mitigation banks; coordinated mitigation projects with other municipalities; establishing a mitigation bank for the City's use on this and future projects; and any other options that surface through the process The Mitigation Strategic Plan will consist of a letter report that outlines mitigation requirements, potential mitigation options for each area of impact, off-site mitigation areas considered and Foothill's recommendations. The Mitigation Strategic Plan will also include preliminary cost estimates for land acquisition, implementation, and maintenance and monitoring activities. Foothill will also provide recommendations on strategies for implementing permit mitigations/conditions including but not limited to funding, technical guidance, logistical/operational guidance, etc. Foothill will include all feasible mitigation proposals in the Mitigation Strategic Plan. Foothill will present the proposed mitigation strategy to City staff and will be available for discussion and questions as necessary. The Mitigation Strategic Plan will be included in the state and federal agency permit application packages. All mitigation proposed will be consistent with the City ofChula Vista MSCP Subarea Plan including the Wetlands Protection Regulations, the Habitat Loss and Incidental Take (HUT) ordinance, regulatory agency standards, and other relevant guidelines. In accordance with the MSCP Subarea Plan, preference for off-site mitigation sites will be on sites within the City's MSCP Preserve, within the same watershed and as close to the area of impact as feasible. Preference will also be given to the area immediately surrounding each of the project facilities in order to provide mitigation as close as possible to the impacted areas. Task 7.1 Potential Miti!!ation Site Investi!!ation. Foothill will initiate an analytical GIS-based search for possible mitigation sites based on the criteria identified in Task 6.1 and 6.3 to be included in the Mitigation Strategic Plan. The analysis will be based on a variety of natural Page 22 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-29 resource and administrative information, including vegetation and habitat mapping, soils, hydrology, topography/slope, land ownership, and conservation status. As a part of this task Foothill will conduct field visits to potential sites, including the maintenance locations and the immediate vicinity, and other areas highlighted in initial research and analysis. Initial field visits will focus on basic characterization of the site, including its size, existing and adjacent habitats, accessibility, and an analysis of the mitigation options present (restoration, enhancement, creation). As scheduled, this phase will occur during the dry season, providing a view of the sites' dry-season condition and hydrology. Observations will include photo documentation, which will be recorded, saved for subsequent use, and made available for preliminary coordination with the regulatory agencies. Task 8 - Wetlands Mitieation and Monitorine Plan: Task 8.1 - Draft Wetland Mitieation and Monitorine Plan - Assuming that some combination of restoration, enhancement, and creation of wetland habitats will be necessary for the proposed maintenance project, Foothill will prepare a draft conceptual wetlands mitigation and monitoring plan that reflects the agency permit conditions. The Mitigation Plan will be prepared in a format acceptable to City staff and the state and federal agencies, typically the u.s. Army Corps of Engineers approved format. The Mitigation Plan will summarize the maintenance project description, the associated habitat and jurisdictional impacts, and the required mitigation. It will then describe the proposed mitigation site, summarize existing site conditions, and outline the mitigation goals in detail. Container planting, seeding, weed eradication, irrigation, grading, and other applicable design details will be included, along with logistical recommendations on plant material sources, site preparation, installation methods, timing, erosion control, etc. Specific, measurable, and realistic performance criteria will be presented as part of a detailed maintenance and monitoring program. All information will be prepared so as to maximize the ease of transitioning the mitigation project into construction drawings and specifications at a later date. Task 8.2 - Final Wetland Mitieation and Monitorine Plan Following City staff and agency review ofthe Wetland Mitigation and Monitoring Plan, Foothill will incorporate all revisions as directed by City staff into a final Wetland Mitigation and Monitoring Plan. B. Date for Commencement of Foothill Services: ( X ) Same as Effective Date of Agreement ( ) Other: Page 23 Agreement with Whitney Enviromnental Consulting, Inc. dba Foothill Associates February, 2007 7-30 C. Dates or Time Limits for Delivery of Deliverables: Deliverables Foothill will provide to the City each one of the deliverables to the satisfaction of City staff, including any and all revisions to documents that are the result of errors or omissions on the part of Foothill Associates or its subcontractor. Revisions to deliverables necessary due to changes made by the City to the scope of work including but not limited to the project area or method of maintenance that create a need for revisions to the analysis or deliverables described herein are beyond the scope of this Agreement. Deliverable No. I: 5 printed copies and I electronic copy of the draft technical letter report containing the results of each wildlife survey including maps of all detected locations of sensitive species and occurrence information recorded submitted to City staff for review. Deliverable No.2: 5 printed copies and 1 electronic copy of the draft technical letter report containing the results of plant surveys and habitat mapping. The locations will be mapped with population estimates according to accepted standard survey protocols. The letter report will be submitted to City stafffor review. Deliverable No.3: 5 printed copies and I electronic copy of the draft technical letter report containing the result of all wildlife and plant surveys and habitat mapping for the concrete lined channel. Deliverable No.4: 5 printed copies and I electronic copy of the final technical letter reports (Deliverables I, 2 and 3) incorporating revisions from City staff review Deliverable No.5: 5 printed copies and I electronic copy of the Screencheck Draft Initial Study/MND and appendices Deliverable No.6: 2 printed copies and I electronic copy of Revised Initial Study and appendices Deliverable No.7: I printed copies and I electronic copy of Draft Notice ofInitial Study (NO!) Deliverable No.8: I printed copies and I electronic copy of Final Notice ofInitial Study (NO!) including City staff revisions Deliverable No.9: I printed copy and I electronic copy of draft Notice of Availability (NOA) Deliverable No. 10: I printed copy and I electronic copy of Final Notice of Availability (NOA) including City staff revisions Page 24 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-31 Deliverable No. II: 50 copies and 1 electronic copy of Draft IS/MND with appendices for distribution during the public review period Deliverable No. 12: 5 copies and I electronic copy of draft responses to comment letters for City staff review Deliverable No. 13: 5 copies and I electronic copy Draft Final IS/MND including revisions to address comment letters for City staff review Deliverable No. 14: 25 copies and 1 electronic copy of Final Initial Study/MND Deliverable No. 15: 1 printed copy and I electronic (pdt) copy of each draft agency permit for review prior to initial submittal to regulatory agencies. Deliverable No. 16: 5 printed copies and I electronic copy of the Mitigation Strategic Plan for City review. Deliverable No. 17: 5 printed copies and I electronic copy ofthe Revised Mitigation Strategic Plan, per City comments. Deliverable No. 18: 5 printed copies and I electronic copy of the Draft Conceptual Wetlands Mitigation and Monitoring Plan. Text will be delivered in MS Word and/or Adobe Acrobat format. Maps and drawings can be delivered in GIS, CAD, or PDF formats. Deliverable No. 19: 5 printed copies and I electronic copy of the Final Conceptual Wetlands Mitigation and Monitoring Plan Deliverable No. 20: I printed copy and 1 electronic copy of each final agency permit. C. Dates or Time Limits for Delivery of Deliverables: Deliverable No. I: 2 weeks after the wildlife surveys are completed Deliverable No.2: 2 weeks after the plant survey is completed Deliverable No.3: 2 weeks after the wildlife and plant survey is completed Deliverable No.4: I week after Foothill receives City staffs comments on Deliverables I, 2 and 3 Deliverable No.5: I week after Deliverable No.4 is completed Deliverable No.6: 1 week after Foothill receives City staffs comments on Deliverable 5 Page 25 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-32 Deliverable No.7: 30 days after effective date of the Agreement Deliverable No.8: 3 working days after Foothill receives City staffs comments on Deliverable 7 Deliverable No.9: Concurrent with Deliverable 5 Deliverable No. 10: Concurrent with Deliverable II Deliverable No. II: I week after Foothill receives City staffs comments on Deliverable 6 and final City staff approval to print documents Deliverable No. 12: I week after the close of the public review period Deliverable No. 13: 1 week after Deliverable 12 Deliverable No. 14: 1 week after Foothill receives City staffs comments on Deliverable 13 Deliverable No. 15: 4 weeks after submittal of Deliverable No.4 Deliverable No. 16: Concurrent with Deliverable No.4 Deliverable No. 17: 2 weeks after receiving City staffs comments on Deliverable #16 Deliverable No. 18: 2 weeks after receiving appropriate agency approval of Mitigation Strategic Plan during agency review of permit applications. Deliverable No. 19: I week after Foothill receives City staffs comments on Deliverable 17 and final City staff approval to print documents Deliverable No. 20: I week after Foothill receives City staffs comments on Deliverable 15 and final City staff approval to print documents Deliverable No. 21: Meetings The following meetings are included in the contract: . Initial kick off meeting upon final approval of the Agreement to be attended by city staff and Foothill team; . One meeting with City staff and Foothill team for Foothill to present the proposed mitigation strategy to City staff and be available for discussion and questions as necessary; Page 26 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-33 . Up to six coordination meetings with City staff and/or permitting agencies and Foothill as necessary throughout the agency permitting process, and; . One joint field meeting with City staff and agency staff that Foothill will facilitate and attend. D. Date for completion of all Foothill's services: Mav 15. 2008 9. Materials Required to be Supplied by City to Foothill: The City will provide all necessary proj ect information and related resources including, but not limited to the following: .:. A full and detailed project description, including locations, limits, proposed work, maintenance methods and equipment, standard frequency and scheduling of maintenance, required access paths or staging areas that fall outside of the maintenance areas, etc. as well as any relevant available information on the initial construction of the basins (dates, prior conditions). .:. Any available spatial data relevant to the project, including GIS base mapping and biological mapping, CAD files, and aerial imagery. .:. Copies of any relevant watershed plans, restoration master plans, community plans, departmental guidelines, or similar information that may not be readily available public information and that may provide guidelines or restrictions relevant to the project. 10. Compensation: A. ( ) Single Fixed Fee Arrangement.3 For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: , payable as follows: Milestone or Event or Deliverable Amount or Percent of Fixed Fee 3. The difference between a single fixed fee amount with phased payments and a phased fixed fee amount is that, in a single fixed fee amount all of the work is required for all of the compensation. Payments are phased to help with consultant cash flow. In a phased fixed fee arrangement, the City has the authority to cancel or require performance under subsequent phases, so that the compensation is due just for the phase of work required, and not for the total amount. Page 27 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-34 ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. ( ) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase 1. 2. 3. Fee for Said Phase $ $ $ ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or Page 28 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-35 such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. ( ) Hourly Rate Arrangement For performance of the Defined Services by Foothill as required by this Agreement, City shall pay Foothill for the productive hours of time spent by Foothill in the performance of said Services, at the rates or amounts set forth in the Rate Schedule below according to the following terms and conditions: (I) (X) Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Foothill of time and materials in excess of the Maximum Compensation amount, Foothill agrees that Foothill will perform all of the Defined Services required of Foothill for $113,401 without the optional task, and $120,081 with the optional task, including all Materials, and other "reimbursables" ("Maximum Compensation"). Pursuant to Section Section l.D ofthis Agreement, the Director of Public Works Operations in his sole discretion, independently, and upon request from Foothill, may from time to time, negotiate additional services to be performed by the Foothill under this Agreement {"Additional Service"). The cost of the Additional Services in connection with the environmental document shall not exceed $30,000. (2) ( ) Limitation without Further Authorization on Time and Materials Arrangement At such time as Foothill shall have incurred time and materials equal to ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing in this Agreement shall preclude Foothill from providing additional Services at Foothill's own cost and expense. Category of Employee Dick Rol MikeHoward Sheri Dister Rate Schedule Name of Consultant Foothill Associates Foothill Associates Foothill Associates Hourly Rate $ 130 $ 115 $ 110 Page 29 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-36 David Bise Foothill Associates $ 100 Craig Richardson Foothill Associates $ 65 Rachelle Mundo Foothill Associates $ 50 Erik Evans Foothill Associates $ 65 Ryan Birdseye David Evans Associates $ 153 Josephine Alido David Evans Associates $105 Emery McCaffery David Evans Associates $77 ( X) Hourly rates may increase by 6% for services rendered after February, 2008, if delay in providing services is caused by City. 11. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Foothill in the performance of services required by this Agreement, City shall pay Foothill at the rates or amounts set forth below: ( ) None, the compensation includes all costs. Cost or Rate $ 25 per MND $ $ 0.485 per mile $0.10 per page $ $ $ $ $3 per CD $ (X) Reports, not to exceed $ 1772: () Copies, not to exceed $ () Travel, not to exceed $ 2280: () Printing, not to exceed $ 2200: () Postage, not to exceed $ () Delivery, not to exceed $ () Long Distance Telephone Charges, not to exceed $ () Other Actual Identifiable Direct Costs: compact discs, not to exceed $ 30: , not to exceed $ 12. Contract Administrators: City: Marilyn R. F. Ponseggi, Environmental Review Coordinator Foothill: Kathleen M.C. Kirsh, Vice President Page 30 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-37 13. Liquidated Damages Rate: ( ) $ ( ) Other: per day. 14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict ofInterest Code: ( X ) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer ( ) Category No.1. Investments and sources of income. ( ) Category No.2. Interests in real property. ( ) Category No.3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. ( ) Category No.4. Investments in business entities and sources of income that engage in land development, construction or the acquisition or sale of real property. ( ) Category No.5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. ( ) Category No.6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. ( ) Category No.7. Business positions. ( ) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: Page 31 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-38 IS. ( ) Consultant is Real Estate Broker and/or Salesman 16. Permitted Subconsultants: David Evans Associates 17. Bill Processing: A. Foothill's Billing to be submitted for the following period of time: (X )Monthly ( ) Quarterly ( ) Other: B. Day of the Period for submission of Foothill's Billing: (X) First ofthe Month ( ) 15th Day of each Month ( ) End of the Month ( ) Other: C. City's Account Number: 18. Security for Performance ( ) Performance Bond, $ ( ) Letter of Credit, $ ( ) Other Security: Type: Amount: $ (X) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to Foothill sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: (X) Retention Percentage: 10% ( ) Retention Amount: $ Retention Release Event: (X) Completion of All Foothill's Services ( ) Other: Foothills2PTY Page 32 Agreement with Whitney Environmental Consulting, Inc. dba Foothill Associates February, 2007 7-39 7-40 pXW.Sli!sel:fI$~3rOJd e 'Mea.,Sl:>3[OId Nlll,^:lJ\f\SID\sddB\OOO~IoIlt..\ -eISIA Bln\l:JjO ~I!O