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HomeMy WebLinkAboutC-6049 - Standard Agreement for Assistance with Lands Near Semeniuk SloughSTATE OF CALIFORNIA STANDARD AGREEMENT i STD.213 (new 06/03) V AGREEMENT NUMBER R22514 REGISTRATION NUMBER 1. This Agreement is entered into between the State Agency and the Contractor named below: STATE AGENCY'S NAME State Lands Commission CONTRACTOR'S NAME City of Newport Beach 2. The term of this Agreement is: January 16, 2015 through January 31, 2017 3. The maximum amount of this Agreement is: $ 84,867.00 4. The parties agree to comply with the terms and conditions of the following exhibits which are by this reference made a part of the Agreement: Exhibit A — Scope of Work 1 Page(s) Exhibit B — Budget Detail and Payment Provision/Definitions and Terms 2 Page(s) Exhibit C* — General Terms and Conditions GTC610 Check mark one item below as Exhibit D: 2 Page(s) X Exhibit D — Special Terms and Conditions (attached hereto as part of this Agreement) 1-1 Exhibit D* — Special Terms and Conditions Items shown with an Asterisk (*) are hereby incorporated by reference and made part of this Agreement as if attached hereto. These documents can be viewed at htt ://www.dgs.ca.gov/ols/Resources/StandardContractLgEgugge.aspx. IN WITNESS WHEREOF, this Agreement has been executed by Darties hereto. CALIFOWNIA CONTRACTOR Department of General Services Use only CONTRACTOR'S NAME Mother than individual, state whether a corporation, partnership, etc) City of Newport Beach BY (Authort_ed Signature) DATE SIGNED PRINTED NX!AND TITLE OF PERSON SIGNING ADDRESS 00 "%j % 1V 1JG.w o C. [-4 �!2A, b 1D STATE OF CALIFORNIA AGENCY NAME State Lan ommission BY (Authori Sig, ature) ' I DATE SIGN ED PR ED NAME AND TITLE OF PERSON SIGNING enise Cook, Fiscal Officer ADDRESS 100 Howe Avenue, Suite 100 -South, Sacramento, California 95825 Attorney Review: Attest ��� r r` City Clerk ❑ Exempt per Al"PID � � AS T'9 , �J' RM 4N/�- City A OfIley (AM oiJ Orli S R22514 City of Newport Beach Semeniuk Slough (aka Oxbow Loop) Survey Services EXHIBIT A SCOPE OF WORK 1. Work to be Performed —The City of Newport Beach (City) has requested assistance from the California State Lands Commission (State) staff for the project involving lands located in Semeniuk Slough within the city of Newport Beach in Orange County near the Pacific Ocean and Newport Bay. The State hereby agrees to perform the following services: State involvement will include: Performing a survey and preparing an administrative map of the Oxbow Loop / Semeniuk Slough area in a portion of the old channel of the Santa Anna River. The area to be surveyed is from the Pacific Coast Highway on the Southeast and the westerly corporate boundary of the City of Newport Beach as of July 25, 1919 on the southwest. Survey work will include performing pre -field and post -field in -house and other research; title and boundary analysis; field survey work including per diem, lodging and mileage; and preparing maps and descriptions. Mutual Understanding: This Agreement is entered into by the parties hereto with the express understanding that the State cannot assure: 1) final approval of any future State actions associated with this Project; 2) that either the State or the City is representing that the Project will go forward as proposed; and 3) that either the State or the City is irrevocably committed to proceeding with this Project. 2. Parties' Agents A. The State's Project Officer shall be: Sharron Scheiber California State Lands Commission 100 Howe Avenue, Suite 100 -South Sacramento, CA 95825 Tel. 916 - 574 -1868 Fax 916 -574 -1855 Email: Sharron.Scheiber(dlslc.ca.gov 3. Notices and Authorities B. The City's Project Manager shall be: Michael Torres City of New Port Beach 100 Civic Center Drive Newport Beach, CA 92660 Tel. (949) 644 -3135 Email: mtorresnafnewoortbeachca.gov A. Any notice or other written communications required or permitted under this Agreement may be personally delivered in writing to the State's Project Officer or City's Project Manager, or may be sent by certified mail, return receipt requested, to the address stated above and shall, based on such delivery or sending, be deemed to have been effectively communicated. Either party may change such address by written notice to the other party. Any notice given other than as provided above, shall not be deemed to be effectively communicated until received in writing. B. The Project Manager shall have full authority to act on behalf of the City for administration of the project. All communications given to the Project Manager shall be as binding as if given to the City. C. The State may change its Project Officer at any time by written notice to the City. The City may change its Project Manager at any time by written notice to the State's Project Officer. 0112015 CSLC R22514 City of Newport Beach Semeniuk Slough (aka Oxbow Loop) Survey Services EXHIBIT B BUDGET AND PAYMENT PROVISIONS Invoicing and Payment — City agrees to reimburse the State for all reasonable costs associated with the Project according to this Standard Agreement whether prior or subsequent to the execution of this Agreement. Processing costs shall include, but not be limited to, 1) actual costs of the State staff time to conduct the following: document processing, negotiation of terms and conditions, field inspections (travel and per diem), preparation of field reports, boundary services, and consultation and coordination; 2) any other associated activity involved in the Project described in Exhibit A. Staff costs shall be computed in accordance with Section 8752 of the State Administrative Manual and shall include salaries and wages, related staff benefits and administrative overhead. The invoice shall be mailed to the Applicant's Project Manager. Payments shall reference the Agreement number assigned to this project and must be mailed to the following address: State Lands Commission 100 Howe Avenue, Suite 100 South Sacramento, CA 95825 -8202 Attn: Fiscal Services 2. Estimated Reimbursable Costs —The initial estimated costs are based on the information and contracts existent as of the date of this Agreement, it is estimated that the itemized reimbursable costs for Work To Be Performed will be: Approximate Total Cost $84,867 Estimated costs above are based on the initial processing of the application. Additional costs will be determined upon defining of the scope of the project and cost of consultant contracts. 3. Expense Deposits and Billings — An expense deposit of $84,867 is due upon execution of this agreement. Costs incurred by the State will be charged on a monthly basis and applied against the deposits until exhausted. The City will be advised of any estimated cost increase in writing in accordance with this Agreement should the need for additional services become known or as costs previously estimated exceed the above estimate. Upon notification of the need for additional funds, the City shall have the right to terminate this Agreement in accordance with the Termination clause; or dispute the change. The City shall have the option to dispute or accept the increase with all the terms and conditions of this Agreement being unchanged and in effect. City shall notify the State within five (5) days of notice of any intent to terminate the Agreement or dispute the change. Non- response shall be acknowledged as acceptance of the additional charges and City will be billed for the balance in accordance with the terms above. 01/2015 CSLC R22514 City of Newport Beach Semeniuk Slough (aka Oxbow Loop) Survey Services EXHIBIT B BUDGET AND PAYMENT PROVISIONS 4. Definitions and Terms - Wherever the following abbreviations and terms (or pronouns in place of them) are used, the intent and meaning shall be interpreted as provided in this section. Working titles that have a masculine gender, and pronouns referring to said titles, are utilized in this Agreement for the sake of brevity and are not intended to refer to either sex or the neuter. All references to the singular shall refer also to the plural. All references to the plural shall refer also to the singular. A. As used within this Agreement, the terms "City" and "Contractor" are used interchangeably and are to be considered the same entity. B. The term "Agreement" refers to this document as executed by the City and the State. This document includes Standard Form and any attached Exhibits. C. The term "Project" means that activity which is the subject of this Agreement. D. The term "Project Manager" refers to that person appointed or designated by the City to administer the project for the City. E. The term "Project Officer" refers to that person appointed by the State to administer the project for the State. 01/2015 CSLC GTC 610 EXHIBIT C GENERAL TERMS AND CONDITIONS 1. APPROVAL: This Agreement is of no force or effect until signed by both parties and approved by the Department of General Services, if required. Contractor may not commence performance until such approval has been obtained. 2. AMENDMENT: No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or Agreement not incorporated in the Agreement is binding on any of the parties. 3. ASSIGNMENT: This Agreement is not assignable by the Contractor, either in whole or in part, without the consent of the State in the form of a formal written amendment. 4. AUDIT: Contractor agrees that the awarding department, the Department of General Services, the Bureau of State Audits, or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. Contractor agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated. Contractor agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, Contractor agrees to include a similar right of the State to audit records and interview staff in any subcontract related to performance of this Agreement. (Gov. Code §8546.7, Pub. Contract Code §10115 et seq., CCR Title 2, Section 1896). 5. INDEMNIFICATION: Contractor agrees to indemnify, defend and save harmless the State, its officers, agents and employees from any and all claims and losses accruing or resulting to any and all contractors, subcontractors, suppliers, laborers, and any other person, firm or corporation furnishing or supplying work services, materials, or supplies in connection with the performance of this Agreement, and from any and all claims and losses accruing or resulting to any person, firm or corporation who may be injured or damaged by Contractor in the performance of this Agreement. 6. DISPUTES: Contractor shall continue with the responsibilities under this Agreement during any dispute. 7. TERMINATION FOR CAUSE: The State may terminate this Agreement and be relieved of any payments should the Contractor fail to perform the requirements of this Agreement at the time and in the manner herein provided. In the event of such termination the State may proceed with the work in any manner deemed proper by the State. All costs to the State shall be deducted from any sum due the Contractor under this Agreement and the balance, if any, shall be paid to the Contractor upon demand. 8. INDEPENDENT CONTRACTOR: Contractor, and the agents and employees of Contractor, in the performance of this Agreement, shall act in an independent capacity and not as officers or employees or agents of the State. 9. RECYCLING CERTIFICATION: The Contractor shall certify in writing under penalty of perjury, the minimum, if not exact, percentage of post consumer material as defined in the Public Contract Code Section 12200, in products, materials, goods, or supplies offered or sold to the State regardless of whether the product meets the requirements of Public Contract Code Section 12209. With respect to printer or duplication cartridges that comply with the requirements of Section 12156(e), the certification required by this subdivision shall specify that the cartridges so comply (Pub. Contract Code § 12205). 10. NON - DISCRIMINATION CLAUSE: During the performance of this Agreement, Contractor and its subcontractors shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Contractor and subcontractors shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Contractor and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a -f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a -f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Agreement. 11. CERTIFICATION CLAUSES: The CONTRACTOR CERTIFICATION CLAUSES contained in the document CCC 307 are hereby incorporated by reference and made a part of this Agreement by this reference as if attached hereto. 12. TIMELINESS: Time is of the essence in this Agreement. 13. COMPENSATION: The consideration to be paid Contractor, as provided herein, shall be in compensation for all of Contractor's expenses incurred in the performance hereof, including travel, per diem, and taxes, unless otherwise expressly so provided. 14. GOVERNING LAW: This contract is governed by and shall be interpreted in accordance with the laws of the State of California. 15. ANTITRUST CLAIMS: The Contractor by signing this agreement hereby certifies that if these services or goods are obtained by means of a competitive bid, the Contractor shall comply with the requirements of the Government Codes Sections set out below. a. The Government Code Chapter on Antitrust claims contains the following definitions: 1) "Public purchase" means a purchase by means of competitive bids of goods, services, or materials by the State or any of its political subdivisions or public agencies on whose behalf the Attorney General may bring an action pursuant to subdivision (c) of Section 16750 of the Business and Professions Code. 2) "Public purchasing body" means the State or the subdivision or agency making a public purchase. Government Code Section 4550. b. In submitting a bid to a public purchasing body, the bidder offers and agrees that if the bid is accepted, it will assign to the purchasing body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, materials, or services by the bidder for sale to the purchasing body pursuant to the bid. Such assignment shall be made and become effective at the time the purchasing body tenders final payment to the bidder. Government Code Section 4552. c. If an awarding body or public purchasing body receives, either through judgment or settlement, a monetary recovery for a cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from the public body any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assignor but were not paid by the public body as part of the bid price, less the expenses incurred in obtaining that portion of the recovery. Government Code Section 4553. d. Upon demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and (a) the assignee has not been injured thereby, or (b) the assignee declines to file a court action for the cause of action. See Government Code Section 4554. 16. CHILD SUPPORT COMPLIANCE ACT: For any Agreement in excess of $100,000, the contractor acknowledges in accordance with Public Contract Code 7110, that: a. The contractor recognizes the importance of child and family support obligations and shall fully comply with all applicable state and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with section 5200) of Part 5 of Division 9 of the Family Code; and b. The contractor, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department. 17. UNENFORCEABLE PROVISION: In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. 18. PRIORITY HIRING CONSIDERATIONS: If this Contract includes services in excess of $200,000, the Contractor shall give priority consideration in filling vacancies in positions funded by the Contract to qualified recipients of aid under Welfare and Institutions Code Section 11200 in accordance with Pub. Contract Code § 10353. 19. SMALL BUSINESS PARTICIPATION AND DVBE PARTICIPATION REPORTING a. If for this Contract Contractor made a commitment to achieve small business participation, then Contractor must within 60 days of receiving final payment under this Contract (or within such other time period as maybe specified elsewhere in this Contract) report to the awarding department the actual percentage of small business participation that was achieved. (Govt. Code § 14841.) b. If for this Contract Contractor made a commitment to achieve disabled veteran business enterprise (DVBE) participation, then Contractor must within 60 days of receiving final payment under this Contract (or within such other time period as may be specified elsewhere in this Contract) certify in a report to the awarding department: (1) the total amount the prime Contractor received under the Contract; (2) the name and address of the DVBE(s) that participated in the performance of the Contract; (3) the amount each DVBE received from the prime Contractor; (4) that all payments under the Contract have been made to the DVBE; and (5) the actual percentage of DVBE participation that was achieved. A person or entity that knowingly provides false information shall be subject to a civil penalty for each violation. (Mil. & Vets. Code § 999.5(d); Govt. Code § 14841.) 20. LOSS LEADER: If this contract involves the furnishing of equipment, materials, or supplies then the following statement is incorporated: It is unlawful for any person engaged in business within this state to sell or use any article or product as a "loss leader" as defined in Section 17030 of the Business and Professions Code. (PCC 10344(e).) S:\ADMKHOMFPAGE\GTC-610.doc R22514 City of Newport Beach Semeniuk Slough (aka Oxbow Loop) Survey Services EXHIBIT D SPECIAL TERMS AND CONDITIONS 1. Type of Agreement — This Agreement between the State and the City is for the reimbursement of costs, from the City to the State, for performing a survey and Project related activities, detailed in Exhibits A and B of this Agreement, performed by staff of the State. This Agreement does not involve the procurement of goods or services from the City. 2. Effective Reimbursement Period — Notwithstanding the date of Agreement approval in paragraph 1 of GTC 610, the City agrees to reimburse the State for the costs of Project related activities detailed in Exhibits A and B of this Agreement, that accrue beginning on the date listed in form STD.213, paragraph 2 of this Agreement until the termination of this Agreement. 3. This paragraph supersedes paragraph 5 of GTC 610, Exhibit C, "Indemnification ": Indemnification - The City shall defend, indemnify and hold harmless the State, its officers, agencies, commissions, and employees from and against any and all claims, liabilities, charges, losses, expenses and costs, including without limitation third party claims and claims by any governmental agency (other than the State) that may arise from, or by reason of, any action or inaction by the State or any of its officers, employees or agents in connection with or as a result of this agreement or the work performed by the State under this agreement, except for any such liability, claims, damage or injury caused solely by the active negligence of the State, its officers, agents and employees. This obligation of the City to indemnify, defend and hold harmless the State shall not apply to the extent that any such obligation to indemnify, defend and hold harmless the State is. void or otherwise unenforceable under applicable law in effect on or validly retroactive to the date of this agrement; and further, the provisions of the preceding sentence shall not apply to any claims, litigation or other actions which may be brought by the City against the State in relation to any of the matters in connection with the City's project or this agreement. 4. Reimbursement of Costs - City shall reimburse the State in full for all reasonable costs and attorney's fees, including, but not limited to, those charged it by the California Office of the Attorney General, that the State incurs in connection with the defense of any action brought against the State challenging this agreement or any other matter related to this agreement or the work performed by the State under this agreement. In addition, City shall reimburse the State for any court costs and reasonable attorney fees that the State may be required by a court to pay as a result of such action. City may participate in the defense of the action, but its participation shall not relieve it of its obligations under this Paragraph. The provision of this Paragraph shall not apply to any claims, litigation or other actions which may be brought by either City or the State against each other and shall not apply to the extent that any such obligation is void or otherwise unenforceable under applicable law in effect on or validly retroactive to the date of this agreement. Nothing in this Paragraph shall be construed to require the State to defend itself against all or any aspect of the challenge to this agreement or work performed under this agreement. However, City may take whatever legal action is available to it to defend this agreement or any work performed under this agreement against any challenge by a third party, whether or not the State chooses to raise a defense against such a challenge. 5. This paragraph supersedes paragraph 6 of GTC 510, Exhibit C, "Disputes" Disputes — Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under or relating to the performance of this Agreement which is not disposed of by agreement shall be decided by the Project Officer, who shall reduce his decision to writing in regard to the dispute and shall transmit a copy thereof to the City within thirty (30) days. The decision of the Project Officer shall be final and conclusive, unless within thirty (30) days from the date of receipt of such copy, the City transmits to the State a written appeal. Said appeal shall be supported with specificity. 0112015 CSLC R22514 City of Newport Beach Semeniuk Slough (aka Oxbow Loop) Survey Services EXHIBIT D SPECIAL TERMS AND CONDITIONS a. In connection with any appeal proceeding under this clause, the City shall be afforded an opportunity to be heard before the State Lands Commission within sixty (60) days of the receipt by the State of the City's written appeal and to offer evidence in support of its appeal. Pending the final decision of any such dispute, the City shall proceed diligently with the performance of the Agreement and in accordance with the written decision of the Project Officer which is the subject of the City's appeal including the payment of invoices to the State. b. The procedure described herein shall not prejudice or deny the City his remedies at law. However, the City agrees to exhaust the procedure described herein before pursuing his remedies at law. All amounts paid to the State under protest shall be held by the State in trust until the dispute is resolved. 6. Termination— This paragraph supersedes paragraph 7 of GTC 610, Exhibit C, "Termination for Cause ": Either party may elect to terminate this Agreement by written notice at any time prior to referral of the project to the Commission upon ten (10) days written notice to the other party. The City agrees that in the event of termination of this Agreement by either party as provided above, it shall reimburse the State upon its written request one hundred percent (100 %) of all costs incurred by the State in the performance of its obligations as described in this Agreement. Records — Upon five (5) business days' notice, the State's records relating to its costs shall be available for the City's audit in the State's office in Sacramento. Said audit shall take place only during regular business hours of the State. Payment of costs by the City shall not constitute a waiver of its rights to audit nor an acknowledgment by the City of the validity of the costs that have been paid. Nothing herein shall be deemed to require the State, its consultants, other contractors and subcontractors to maintain books, records, or documents other than those usually maintained by them, provided that such books, records and documents reasonably segregate and identify the costs for which reimbursement is required hereunder. As used herein, "State's records" include any audit of the consultant by the State or its designated representative as authorized in this Agreement. 8. Paragraphs 4, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, and 20 of GTC 610, Exhibit C, are hereby waived and shall have no force or effect upon this Agreement. 01/2015 CSLC