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HomeMy WebLinkAbout1986-01-07; City Council; 8460; Batiquitos Lagoon*/v CIT OF CARLSBAD — AGEND 3ILL 90 (jj$) AR« PY6O MTG. 1/7 / 8.6-: DEPT. TITLE: BATIQUITOS LAGOON DEPT. HD. ' HITY ATTYU^5 CITY MGR.J*^ LU o£CL RECOMMENDED ACTION: Adopt Resolution />3J3L, approving agreement with Joseph E. Petrillo for consulting services re Batiquitos Lagoon Enhancement Plan not to exceed $10,000. BACKGROUND On October 17, 1985 the Council LCP Committee concurred with the City Manager to retain the services of Joseph E. Petrillo to assist the City with the negotiations on the Batiquitos Lagoon Plan. Mr. Petrillo has conferred with City representatives and has met with state agency officials to work out a solution to the Lagoon Plan. Negotiations are now at a critical stage. We are close to an agreement between agencies on how the lagoon can be enhanced and maintained. In order to successfully conclude those negotiations it is recommended that the City retain Mr. Petrillo to continue to represent Carlsbad's interest. The agreement provides that Mr. Petrillo will attend technical meetings on behalf of the City and will negotiate MOU (Memorandum of Understanding) between the parties. The MOU's will provide for the final solution and designate City as lead agency to implement the plan. Scope of work is attached. Time line provides for: Basic agreement November 30 Conceptual Drawing December 15 MOU December 15 Final Approval February 1 FISCAL IMPACT Mr. Petrillo's services will cost $4,000 per month plus expenses with a maximum of $10,000. City Manager previously authorized $5,000 for Mr. Petrillo's services on a purchase order contract. Council action is required to exceed $5,000. City Manager finds that Mr. Petrillo is a "sole source" consultant due to his intimate knowledge of this project. He is a lawyer and previously served as Executive Officer of the State Coastal Conservancy. _ EXHIBITS O Resolution No. ^ Q Agreement (Attachment A) Scope of Work November 18 Progress Report November 1 FPPC letter dated 12/17/85 JOSEPH E. PETRILLO 785 Market Street, 14th Floor San Francisco, California 94103 (415)553-3843 November 15, 1985 Mr. Frank Aleshire City Manager City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008-1989 Bataquitos Lagoon - Proposal Dear Frank: Enclosed is my proposed scope of work on the Bataquitos Lagoon Enhancement project for the two months ending in mid-January. The terms would be the same as in my previous letter $4,000.00 per month plus expenses. I hope this is acceptable. As I indicated the Technical meeting is tentatively sched- uled for November 26th. Very/^truly yours, JEP/cp Enclosure seph E. Petrillo November 18, 1985 SCOPE OF WORK BATIQUITOS LAGOON PLAN INTRODUCTION Development of a land use and restoration plan for the Batiquitos Lagoon area involves a variety of issues and actors. Major concerns at this point include the following. 1. The City's wish to develop a plan for the area which complements existing adjacent uses, provides public recreational access, minimizes City expenditures and is otherwise consistent with City policies. 2. The desire of the Port of Los Angeles (PLA) to attain immediate approval of a restoration plan for the Lagoon which minimizes costs but maximizes fill credit. 3. The needs of the landowners to secure development plan approvals within a reasonable time frame and to ensure that the restoration of the lagoon complements the proposed uses. 4. The concerns and goals of a number of other actors, such as the State Department of Fish and Game (DFG) , State Coastal Conservancy (SCO, U.S. Fish and Wildlife Service (FWS), Army Corps of Engineers, and others. GOALS AND TIMELINE 1. By November 30, we should have basic agreement on the criteria for the lagoon restoration among the City, landowners, PLA, DFG, SCC and , hopefully, FWS. This criteria will set out the acreage needed for the several habitat types. It must also meet the following criteria. a. be consistent with City-approved goals for the area with regards to landuses, public recreation and access and other issues; b. maximize wetland mitigation and aesthetic values; c. maximize the ability of the wetland to be self-sufficient, e.g. to require a minimum of maintenance; d. minimize actual capital outlays for planning and implement action; and e. maximize the period of full opening of the tidal mouth, at least to the level proposed by the Scripps Institute. 2. By December 15, we (the City of Carlsbad) should have prepared conceptual drawings translating the general criteria into a conceptual plan (I hope it can be done concurrently with the development of the criteria but realistically I list it as a sequential action). 3. By December 15 we should have ensured that all required memoranda of Understanding (MOU) have been drafted and circulat- ed. The MOU's will detail the financial and other responsibili- ties of the various signatory parties. 4. During the period of December 15 through 19, we will expedite the review and approval of the above MOU's. 5. We should ensure that the SCC staff will have completed a contract for joint SCC-City action which shall have been reviewed for approval by the City. This contract should be finalized by December 15, to be approved at the SCC December or January meeting. The contract shall specify the City's primary and lead role in the preparation of all required plans, analysis environmental documents, or other materials requisite to planning at the lagoon. 6. Also by December 15, we should ensure that SCC shall have prepared a Conservancy Enhancement Plan for review and approval by the Board at the same meeting. 7. By January or February 1, our goal is to have an approved SCC Enhancement Plan, an approved SCC-City contract (described above) and the final MOU's signed. -2- Joseph E. Petrillo 785 Market Street, 16th Floor San Francisco, California 94103 November 1, 1985 Mr. Frank Aleshire City Manager City of Carlsbad 1200 Elm Ave. Carlsbad, California 92008-1989 Bataquitos Lagoon - Progress Report Dear Frank: This letter is to bring you up to date on my progress toward developing an acceptable Bataquitos Lagoon Enhancement Plan. In undertaking my contract I had three general goals in mind. The first was, to secure for the City of Carlsbad greater control over the process. (The importance of this was recently brought home to me by Peter Bondadelli's complaint that the city and landlowners have failed to give him adequate "feedback" on his attempts to deal with their concerns.) Second, I intended that the enhancement plan adequately reflect the city's wishes that it be attractive, low maintenance, qualify for the Port of Los Angeles mitigation fund and have high habitat value. Finally, I hoped to straighten out the diverse elements of the process so that the city can begin its implementation with confidence it has a clear conception of what is expected of it. As to the first goal, beginning prior to my being retained by the City, I have urged both Grenell and Bondadelli that the city be designated its implementation and lead agency. Most recently at the meeting on October 29, Peter Grenell affirmed that that is his intention. We need to prepare a letter confirm- ing that I will prepare a draft of the letter. For the future, we must participate in the drafting of the memorandum of under- standing and in the contracts. I have begun looking into these and will describe more of what needs to be done in my proposal for the period through December. In addition, I have insisted that the plan be general enough so that the city has flexibility in preparing its final designs so as to take care of its aesthetic concerns. Both Grenell and Bondadelli have committed this to me. To further this approach, Mr. Frank Aleshire November 1, 1985 Page 2 I suggested that we prepare the drawings for the conceptual plan itself. They have agreed. I also have begun to prepare some suggested changes along the lines we discussed in your office. If it is acceptable to all parties, then we will be asked to prepared the concept drawings. This will also be further explained in my proposal to follow. As for the design itself, the Department of Fish and Game has indicated support for our approach. They have also apparently agreed to allow its additional dredging of the westernmost basin to insure the scouring of the entrance channel and thus, further lowering maintenance costs. In order to achieve this result, I have had to urge them to re-examine their opinion of the existing values of the lagoon, thereby lowering the acreage required for shorebirds. In addition, by supporting the concept of the "cells" which are more productive for shorebirds than the mudflats, we further increase the subtidal area. I am still working on this and will have more to report within the week. This approach also provides for the Port of Los Angeles greater value for "banking" their mitigation credits, so that even if the Pac-Tex project should not proceed they will still use the lagoon for their other mitigation requirements. As to the last goal, my proposal will address what needs to be done. Very/icruly yours, JEP/mm mOl . Petrillo Report; Work Order #14866 This constitutes my report of accomplishment under* contract. As I pointed out in my letter to you of November 1, 1985, my three general goals were 1) to secure for the City of Carlsbad greater control over the process, 2) produce an enhancement plan that reflects the city's wishes that it be attractive, low maintenance and have high habitat value, and 3) organize the process so that the city can begin its implementation. As to the first goal, following consultation with the State Coastal Conservatory and the Department of Fish and Game, it has generally been acknowledged that the City is designated the agency to carry out the restoration plan and to receive the port funds. This was publicly announced by Pete Grenell, the execu- tive officer of the State Coastal Conservancy at a meeting in the Fish and Wildlife offices at Laguna Nigel on October 29th. Currently MOU's and contracts are being drafted to reflect this agreement. We must diligently review all proposals to assure they reflect the City's position. In addition, it was our intention to ensure that the city is designated the entity to prepare the conceptual plan that will form the basis of those agreements. Meetings among the parties scheduled for November 26 in Sacramento with the State agencies and December 10 in Laguna Nieel with the federal agencies hope- fully will confirm this. As to the second point, following extensive negotiations with the Department of Fish and Game and the Fish and Wildlife Service, we have moved from the State Coastal Conservancy's preferred alternative providing for 213 acres of intertidal habitat, 167 acres of subtidal and 85 of salt marsh to a new proposed which provides for 160 acres intertidal habitat, 200+ acres of subtidal and 75 acres of salt marsh. This still remains approximately 40 acres away from the city's preferred position. At the November 26th meeting we tried unsuccessfully to close this gap although substantial design changes were made in an attempt to meet our concerns. We, however, have received oral agreement to give the city great latitude to design and landscape the lagoon as part of its restoration to as to provide maximum aesthetic values. One method we suggested would be a managed pond or marsh system providing constant water coverage for most of the year. In addition, the Department of Fish and Game appears to have IMW agreed to allow the city to dredge the west basilf to a greater extent than that that would have been permitted under the Conservancy's preferred alternative. Finally, all parties have agreed to the city's insistence that any design provided for a 30+ year closure frequency inter- val for the lagoon entrance. As to the third goal, drafting and review of the contracts and MOU's are under way. It is expected that the draft for these will be completed before the end of December. I believe we are making substantial progress and have every hope of achieving a satisfactory result in the very near future. I:h01 -2- California Fair Political Practices Commission December 17, 1985 Joseph E. Petrillo 785 Market Street, 14th Floor San Francisco, CA 94103 Re: Your Request for Advice Our File No. A-85-255 Dear Mr. Petrillo: You have requested advice from this office on your duties under Government Code Sections 87400-87405 of the Political Reform Act.1/ QUESTION You asked whether you may perform consulting services to the City of Carlsbad on the Bataquitos Lagoon Enhancement Plan in view of the fact that you previously served as the Executive Officer of the State Coastal Conservancy. CONCLUSION Yes, you may perform such consulting services based on the discussion below. DISCUSSION You stated the facts as follows: Approximately one year ago, while serving as Executive Officer, of the State Coastal Conservancy, I authorized the staff to assist in resolving conflicts surrounding the restoration and enhancement of Bataquitos Lagoon in San Diego County. This was a voluntary action and not required by any provision of I/ Government Code Sections 81000-91015. All statutory references are to the Government Code unless otherwise indicated. 428 J Street, Suite 800 • P.O. Box 807 • Sacramento CA 95804-0807 • (916)322-5660 Joseph E. Petrillo December 17, 1985 Page 2 law. As part of that initiative I authorized the hiring of consultants. During my tenure several meetings were held with a number of the participants (Public Agencies and private parties). During this time, an environmental mitigation program was announced for Bataquitos Lagoon providing funds to restore the lagoon as mitigation for proposed fill in the Port of Los Angeles. The conservancy staff (not the Conservancy) decided not to take an official position on this proposal. At no time during my tenure did I receive the results of the studies. The agencies to which any plans must be submitted for approval were the Coastal Commission and the Federal Fish and Wildlife Service. Neither agency was significantly involved at that time. Subsequent to my departure (approximately two months) from the Conservancy, I entered a contract with the City of Carlsbad to: 1. Consult with and participate in activities of appropriate agencies to assure the City is designated the agency to carry out the restoration plan to be funded by the mitigation funds. (The choice is the prerogrative of the Fish and Wildlife Service. 2. Assist in resolving disputes among the agencies as to the content of the Environmental Plan. 3. Review and assist in drafting any documents required. It was the intention of the contract that I participate in activities of the Fish and Game to set up a program for receipt of the Port mitigation funds and to assist in developing the criteria and documentation for the development of a plan for the lagoon to ultimately be submitted to the Coastal Commission. Subsequent to my departure from the Conservancy, the studies and plans were completed and publicized. They have not been formally adopted by the Conservancy or anyone else, but merely represent the consultants conclusions. They now form the starting point from which the ultimate plan will emerge. In carrying out my functions it is advisable but not necessary that I talk with the Conservancy staff although the nature of Joseph E. Petrillo December 17, 1985 Page 3 the intergovernmental meetings makes it almost impossible not to. The provisions of the Act which apply to former state employees who work in the private sector are Sections 87400 through 87405. The basic prohibition is found in Section 87401 which provides as follows: No former state administrative official, after the termination of his or her employment or term of office, shall for compensation act as agent or attorney for, or otherwise represent, any other person (other than the state of California) before any court or state administrative agency or any officer or employee thereof by making any formal or informal appearance, or by making any oral or written communication with the intent to influence, in connection with any judicial, quasi-judicial or other proceeding if both of the following apply: (a) The State of California is a party or has a direct and substantial interest; and (b) The proceeding is one in which the former state administrative official participated. The issue in your situation is whether there was a "proceeding" before the Conservancy within the meaning of the law in which you participated. Section 87400(c) defines "judicial, quasi-judicial or other proceeding" to mean "any proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties in any court or state administrative agency...." You authorized studies on the lagoon restoration, and meetings were held with a number of the interested parties. However, the studies were not completed and a lagoon plan was not submitted to the Coastal Conservancy while you were the Executive Officer nor was any other proceeding concerning the lagoon restoration brought before the Conservancy by either Conservancy staff or private parties. In addition the Conservancy never took an official position. Thus, we conclude that there was not a "proceeding" before the Coastal Conservancy within the meaning of Section 87401 which involved the subject matter of your consulting contract with the City of Carlsbad. Therefore, the prohibitions contained in Sections 87401 and 87402 do not apply to your consulting activities. Joseph E. Petrillo December 17, 1985 Page 4 Please feel free to contact me if I may be of further assistance. Sincerely^ Diane Maura Fishburn Staff Counsel Legal Division DMF:plh o A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT FOR 3 27 28 RESOLUTION NO. 8332 CONSULTING SERVICES ON BATIQUITOS LAGOON ENHANCEMENT PLAN 4 5 WHEREAS, The City Manager and the City Council concur, that 6 consulting on Batiquitos Lagoon Enhancement Plan must be made 7 available in order for the City to fulfill its obligations; and 8 !WHEREAS, a satisfactory agreement to provide Consultingi 9 .Services has been negotiated. 10 NOW, THEREFORE, BE IT RESOLVED by the City Council of the 11 City of Carlsbad, California, as follows: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1. That the above recitations are true and correct. 2. That the agreement for consulting services on Batiquitos Lagoon Enhancement Plan, as shown in Attachment A, attached hereto and made a part hereof, is approved, and the Mayor is authorized to sign on behalf of the City. 3. That funds from Research Analysis professional services in the amount of TEN THOUSAND AND NO/100 DOLLARS ($10,000.00) Account No. 01-820-1610-2470 is hereby authorized and approved. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 7th day of January , 1986 by the following vote, to wit; AYES: Council Members Casler, Lewis, Kulchin, Chick and Pettine NOES: None ABSENT: None ATTEST: MARY H. CASLER, Mayor ALETHA L. RAUTENKRANZ, City Cl>rk (SEAL) AGREEMENT FOR CONSULTING SERVICES THIS AGREEMENT, made and entered into as of the /J^1 day of ^S /¥^V-1085j by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City," and JOSEPH E. PETRILLO hereinafter referred to as "Consultant." RECITALS City requires the services of a Consultant for Batiquitos Lagoon enhancement plan; and Consultant possesses the necessary skills and qualifi- cations to provide the services required by City. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein. City and a Consultant agree as follows: 1. CONSULTANT'S OBLIGATIONS Consultant shall: A. Assist the City Manager in representing the City's interests in working out an enhancement plan for Batiquitos Lagoon as outlined in the attached scope of work dated November 18, 1985. B. Coordinate and cooperate with various members of all City departments and various outside agencies as required. C. Prepare such correspondence and reports as may be required of each project as assigned by the City Manager. Progress reports to City Council shall be required monthly. D. Attend such meetings of public or private groups as may be required by the City Manager. E. Be "on-call" to perform services at City Hall or at such other locations as the City Manager may designate. F. Provide transportation for all meetings. G. Maintain automobile bodily injury and property damage liability insurance covering owned, non-owned, rented, and hired automobiles. The combined single limit for bodily injury and property damage shall be not less than $300,000. 2. CITY OBLIGATIONS Under the general direction of the City Manager and subject to the provisions of Section 9 of this agreement, the City shall: Make available to Consultant all records, reports, and other documents deemed necessary by Consultant to properly perform the services required by the City. 3. FEES TO BE PAID TO CONSULTANT A. Under the general direction of the City Manager and subject to the provisions of Section 9 of this agreement, the City shall compensate Consultant for services performed under Article 1 above, at a rate of $4,000 per month. B. Transportation shall be provided by the Consultant. C. Actual and necessary expences shall be reimbursed not to exceed $1,000 per month subject to approval of the City Manager. D. The maximum amount payable under this contract is $10,000.00. 4. PAYMENT OF FEES Fees earned pursuant to Section 3A of this agreement shall be paid within twenty (20) days of delivery of monthly billing based on time and materials expended, provided, however, that no fees shall be paid until the bill has been verified and approved by the City Manager. Payment of any fees pursuant to this section shall not constitute a waiver by City of any breach of any part of this agreement. 5. DISPUTES If a dispute should arise regarding the performance of work under this agreement, the following procedure shall be used to resolve any question of fact or interpretation not otherwise settled by agreement between parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this contract, shall be reduced to writing by the principal of the Consultant or the City Manager. A copy of such documented dispute shall be forwarded to both parties involved along with recommended methods of resolution which would be of benefit to both parties. The City Manager or principal receiving the letter shall reply to the letter along with a recommended method of resolution within ten (10) days. In such cases, the action of the City Manager shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties seeking remedies available to them at law. 6. RESPONSIBILITY OF THE CONSULTANT The Consultant is hired to render professional service only, and any payments made to Consultant are compensation solely for such services as Consultant may render and recommendations Consultant may make in the course of the project. 7. SUSPENSION OR TERMINATION OF SERVICES This aqreement may be terminated by either party upon tendering ten (10) days written notice to the other party. In the event of such suspension or termination, upon request of the City, the Consultant shall assemble all City documents in the Consultant's possession and put same in order for proper filing and closing and deliver said documents to City. In the event of termination, the Consultant shall be paid for work performed to the termination date. The City shall make the final determination as to the portions of tasks completed and the compensation to be made. Compensation to be made in compliance with the Code of Federal Regulations. 8. STATUS OF THE CONSULTANT The Consultant shall perform the services provided for herein in Consultant's own way as an independent contractor and in pursuit of Consultant's independent calling, and not as an employee of the City. Consultant shall be under the direction and control of the City Manager only as to the assignment of tasks, the result to be accomplished and the personnel assigned to the project. The Consultant shall consult with the City Manager as necessary to ensure compliance with this agreement. 9. OWNERSHIP OF DOCUMENTS All plans, studies, sketches, drawings, correspondence, reports and "specifications as herein required are the property of the City, whether the work for which they are made be executed or not. In the event this contract is terminated, all documents, plans, specifications, drawings, reports and studies shall be delivered forthwith to the City. Consultant shall have the right to make one (1) copy of the documents for his records. 10. ASSIGNMENT OF CONTRACT The Consultant shall not assign this contract or any part thereof or any monies due thereunder without the prior written ' consent of the City. 11. PROHIBITED INTEREST No official of the City who is authorized in such capacity on behalf of the City to negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or approving of any architectural, engineering inspection, construction or material supply contractor, or any subcontractor in connection with the construction of the project, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer, employee, architect, attorney, engineer, or inspector of or for the City who is authorized in such capacity and on behalf of the City to exercise any executive, supervisory, or other similar functions in connection with the performance of this contract shall become directly or indirectly interested personally in this contract or any part thereof. 12. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of the City, either before, during, or after the execution of this contract, shall affect or modify any of the terms or obligations herein contained nor such verbal agreement or conversation entitle the Consultant to any additional payment whatsoever under the terms of this contract. 13. SUCCESSORS OR ASSIGNS All terms, conditions, and provisions hereof shall insure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. 14. EFFECTIVE DATE This agreement shall be effective on and from the day and year first above written. 15. CONFLICT OF INTEREST If required by the Carlsbad local Conflict of Interest Code the Consultant shall file a Conflict of Interest Statement with the City Clerk of the City of Carlsbad. IB WITNESS WHEREOF* we have hereunto set our hands and seals. CITY OF CARLSBAD: JOSEPH E. PETRILLO & . (~*L**JU MARY H. ,CASLER, Mayor ATTESTED: VINCENT P. BIONDO, JR. City Attorney ALETHA L. RAUTENKRANZ City Clerk