HomeMy WebLinkAbout2006-03-07; City Council; 18472; Declaration of Local EmergencyCITY OF CARLSBAD - AGENDA BILL 1
AB# 18,472
MTG. 03/07/06
DEPT. ENG
TITLE:
DECLARATION OF LOCAL EMERGENCY
DEPT. HD.
CITY ATTY.^T^X
CITY MGRMJ^V^
RECOMMENDED ACTION:
Hold a Special Meeting to discuss and ratify the Declaration of a Local Emergency proclaimed by
the City Manager on March 2, 2006 pursuant to Government Code section 54956 of the Brown Act
and adopt Resolution No. 2006-053
ITEM EXPLANATION:
Due to the heavy storms last winter, and past deposition of sediment in Agua Hedionda and
Calavera Creek channels, a clear and imminent threat exists that demands immediate attention to
prevent loss of or damage to health, property and essential public services prior to this year's storm
season. During the last winter's storms, the flow in Agua Hedionda Creek was within inches of
reaching the underside of the El Camino Real bridge. Incremental increases to those flows will
cause a significant backup of storm water, inundating upstream properties in Rancho Carlsbad, flow
across El Camino Real and Cannon Road severing these vital regional arterials and potentially
endanger the structural stability of the El Camino Real bridge. Based on recent survey
measurements, additional sediment was deposited in last winter's storms, so even the same amount
of rainfall this year would have more detrimental effects than last year.
Measures taken to remedy the situation include dredging of the Agua Hedionda and Calavera Creek
channels within and immediately downstream of the Rancho Carlsbad Community. Dredging of the
Agua Hedionda Creek channel will extend from the upstream edge of the Cannon Road bridge to
approximately 3,000 feet upstream of the El Camino Real bridge. Dredging of Calavera Creek will
begin at its confluence with Agua Hedionda Creek and extend approximately 200 feet upstream.
The dredge work will remove approximately 30,000 to 40,000 cubic yards of sediment and eight
tenths (0.8) of an acre of riparian vegetation. All resource agency permits were issued for the
emergency dredge work in compliance with local, State and Federal regulation and in compliance
with the City's habitat management plan. A condition of the permits is that all dredge work between
the Cannon Road and El Camino Real bridges be completed prior to March 15th to avoid impacts to
nesting endangered riparian bird species.
The City Manager signed the "Declaration of Local Emergency in Order to Immediately Procure
Equipment, Services and Supplies" on March 2, 2006 pursuant to Carlsbad Municipal Code
Sections 6.04.100 and 3.28.130. The final resource agency permit for the emergency project was
approved on Friday March 3rd. Vegetation removal was initiated and completed by City crews over
the weekend using hand tools and manual labor to avoid soil disturbance while City consultants
prepared mitigation monitoring plans acceptable to the resource agencies in compliance with permit
conditions. The City Manager approved a construction contract with Marathon Construction and
dredging operations began on the segment of channel between the two bridges yesterday. The
contract with Marathon construction is on a time and materials basis with a not to exceed amount of
$250,000.
The Corps of Engineers permit requires the City to use the dredge material for beach nourishment
unless the City finds the cost to be infeasible. The beach sand nourishment program is still
problematic at this point and the City has no permanent place to store 30,000 cubic yards of
material. The City Manager also signed a license agreement with McMillin homes to store the sand
stockpile until May 15, 2006, at which point the City would need to move the sand to another
location or renegotiate the arrangement. The cost to store and transport the sand multiple times
Page 2 of Agenda Bill No.
would make the cost infeasible. Staff invited five firms to bid on the dredge project. Only one firm,
Marathon Construction bid on the project and was able to meet the tight deadlines established for
the project. A major reason they agreed to the
project was to gain possession of the dredged material and their costs reflect their retaining
ownership of the dredged material. Staff is recommending that the City respond to the corps that
using the dredge material for beach nourishment is infeasible for the reasons stated above.
The City Manager also approved an agreement with Wells Fargo Bank to establish an Irrevocable
Standby Letter of Credit (LOG) in favor of the Army Corps of Engineers to guarantee completion of
the environmental mitigation for the project. The LOG is in the amount of $488,000 and guarantees
2.6 acres of wetland creation and 0.8 acres of wetland restoration or enhancement. The amount of
the LOG reflects the cost to acquire appropriate property for wetland creation, wetland creation cost
enhancement costs plus a 20% contingency.
FISCAL IMPACT:
The total costs to respond to the local emergency are unknown at this time. The dredging and
sediment removal contract with Marathon Construction is estimated to cost $250,000. This cost is
based upon Marathon Construction retaining ownership of the dredged sand. The consultant costs
for agency required environmental services and water quality monitoring is $41,802. The estimated
costs for the mitigation plan for the vegetation removal is $488,000; however, these costs may be
lower depending on availability of suitable land. Additionally, the Regional Water Quality Control
Board is requiring a one for one mitigation ratio for the lost "potential" habitat for the channel dredge
through the Rancho Carlsbad property. No cost estimate has been prepared for this requirement.
In addition to the above project costs, there will be costs for City staff time and consultant project
manager services. At the conclusion of the emergency, the Council will be presented with a full
accounting of all costs including all material, labor, regular and professional services.
ENVIRONMENTAL REVIEW:
Emergency projects are statutorily exempt from CEQA pursuant to CEQA Guidelines section 15269.
A Notice of Exemption for the Agua Hedionda and Calavera Creek Dredging Project was approved
by the Planning Director on March 6, 2006 pursuant to California Code Section 21080(b)(4).
EXHIBITS:
1. Resolution No. 2006-053 with Exhibit A, Declaration of Local Emergency.
2. Agua Hedionda and Calavera Creek Dredging Project Contract with Marathon Construction.
3. License Agreement with McMillin Homes.
DEPARTMENT CONTACT: David Hauser, (760) 602-2739, dhaus@ci.carlsbad.ca.us
1 RESOLUTION NO. 2006-053
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
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A LOCAL EMERGENCY.
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WHEREAS, on March 2, 2006, the City Manager of the City of Carlsbad proclaimed the
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existence of a local emergency pursuant to Carlsbad Municipal Code Sections 6.04.100 and
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3.28.130 due to potential flooding conditions that create the potential for a clear and imminent
£xKbH- I
CARLSBAD, CALIFORNIA, PROCLAIMING THE EXISTENCE OF
danger of loss or impairment of life, health, property or essential public services, and is likely to
require resources beyond the services, personnel, equipment and facilities of the City of Carlsbad;
and
WHEREAS, the storm of January 2005 created flows in Agua Hedionda Creek that
crested within a foot of the soffit of the El Camino Real bridge; and
WHEREAS, El Camino Real is classified as a regionally significant arterial roadway
carrying over 50,000 vehicles per day; and,
WHEREAS, the El Camino Real roadbed carries numerous major utilities including a
regional high pressure fuel line; and,
WHEREAS, the Agua Hedionda Creek flood control channel through the Rancho Carlsbad
community has severely reduced capacity to carry floodwaters due to sediment deposits of 4 to 6
feet; and,
WHEREAS, a major storm event under current conditions would result in damages to
surrounding structures and contents conservatively estimated at $10 to $20 million; and,
WHEREAS, rising floodwaters from even a moderately flood would be potentially
devastating to the residents of the Ranch Carlsbad "seniors only" community; and,
WHEREAS, these conditions create the potential of extreme peril to the safety of persons
and property within Carlsbad; and,
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WHEREAS, in accordance with the laws of the State of California and the laws of the
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City of Carlsbad, the City Council declares a state of local emergency exists within and along the
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WHEREAS, the City Council does hereby ratify the proclamations of the existence of
a local emergency (attached as Exhibit A) declared by the City Manager on March 2, 2006; and
WHEREAS, said local emergency continues until the sediments are dredged from the
Agua Hedionda and Calavera Creek channels; and
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WHEREAS, it is the intent of the City Council to seek the maximum aid, comfort and
restitution of its citizens who are potential victims of this calamity; and
WHEREAS, it is the intent of the City Council to do all things necessary to effectuate this
intent,
NOW, THEREFORE, IT IS PROCLAIMED THAT:
1. That the above recitations are true and correct.
2. A local emergency now exists throughout Carlsbad.
3. Said emergency continues to exist until declared abated by order of the City
Manager and City Council.
4. That the City Council hereby ratifies and approves the construction contract with
Marathon Construction and the License Agreement with McMillin Homes.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
held on the 7th day of March , 2006 by the following vote, to wit:
Council Members Lewis_, Hall, Kulchin, Packard, Sigafoose
None
WOOD, City "Clerk (SEAL)
DECLARATION OF LOCAL EMERGENCY
IN ORDER TO IMMEDIATELY PROCURE EQUIPMENT, SERVICES AND SUPPLIES
WHEREAS, the City Council of the City of Carlsbad empowers the City Manager to
proclaim the existence of a local emergency when said City is affected by a public calamity and
the City Council is not in session; and
WHEREAS, the City Manager of the City of Carlsbad, California does hereby find:
That the storms of January 2005 created flows in Agua Hedionda Creek that crested
within a foot of the soffit of the El Camino Real bridge; and
That El Camino Real is classified as a regionally significant arterial roadway carrying
over 50,000 vehicles per day; and
That the El Camino Real roadbed carries numerous major utilities including a regional
high pressure fuel line; and
That the Agua Hedionda Creek flood control channel through the Rancho Carlsbad
community has a severely reduced capacity to carry floodwaters due to sediment deposits of 4 to
6 feet; and
That a major storm under current conditions would result in damages to surrounding
structures and contents conservatively estimated at $10 to $20 million; and
That a rising floodwaters from even a moderate flood would be potentially devastating to
the residents of the Rancho Carlsbad "seniors only" community; and
That these conditions create the potential of extreme peril to the safety of persons and
property within the City of Carlsbad; and
That immediate action is required to mitigate the conditions creating the potential for a
clear and imminent danger of loss or impairment of life, health, property or essential public
services, and is likely to require resources beyond the services, personnel, equipment and
facilities of the City of Carlsbad; and
That these conditions do not permit a delay resulting from a competitive solicitation for
bids, and that the action is necessary to respond to the emergency; and
That the City Council of the City of Carlsbad was not in session and could not
immediately be called into session.
NOW, THEREFORE, IT IS HEREBY PROCLAIMED that a local emergency now
exists in the area surrounding the Agua Hedionda Creek Channel between Cannon Road and
Rancho Carlsbad Drive in the City of Carlsbad, California; and
IT IS FURTHER PROCLAIMED AND ORDERED that during the existence of said
local emergency, the powers, functions and duties of the emergency organization of the City of
Carlsbad are those prescribed by state law, by ordinances and resolutions of the City of Carlsbad
Emergency Plan.
Dated: 3. -Ef.
RaymQnd~R. Patchett, City Manager
City of Carlsbad, California
CONTRACT
PUBLIC WORKS
AGUA HEDIONDA AND CALAVERA CREEK
EMERGENCY DREDGE PROJECT
(PROJECT NO. CIP 3338)
This agreement is made this 3 Jay of March . 2(X)6. hy
and between the City of Carlsbad. California, a municipal corporation, (hereinafter called "City"),
and Marathon Construction Corporation whose principal place of business is 10108 Riverford Road.
Lakeside. CA. 92040. (hereinafter called "Contractor").
City and Contractor agree a,s follows:
1. Description of Work. Contractor shall perform all work as design and directed by the City
Engineer on a cost plus materials basis as shown on Exhibit "A" (hereinafter called "work")..
2. Provisions of Labor and Materials. Contractor shall provide all labor, materials. t<x>ls.
equipment, and personnel to perform the work specified hy the Contract Documents.
3. Contract Documents. The Contract Documents consist of this Contract and Exhibit "A",
incorporated herein by this reference.
Contractor, her/his subcontractors, and materials suppliers shall provide and install the work as
indicated, specified, and implied by the Contract Documents. Any items of work not indicated or
.specified, bui which are essential to the completion of the work, shall he provided at the Contractor's
expense to fulfill the intern of said documents. In all instances through the life of the Contract, the
City will be the interpreter of the intent of the Contract Documents, and the City's decision relative to
said intent will be final and binding. Failure of the Contractor to apprise subcontractors and materials
.suppliers of this condition of the Contract will not relieve responsibility of compliance.
4. Payment. For all compensation Tor Contractor's performance of work under this Contract, City
shall make payment to the Contractor per section 9-1 PAYMENT of the Standard Specifications for
Public Works Construction (SSPWC) 1997 Edition, and the 1998 and 1999 supplements thereto,
hereinafter designated "SSPWC". as issued hy the Southern California Chapter of the American
Public Works Association, and as amended by the Supplemental Provisions section of this contract.
The Engineer will close the estimate of work completed for progress payments on ihe last working
day of each month. The total fee to ihe Contractor shall not exceed $250,(KX) without approved
amendments to the Contract. The Contractor will be compensated on a lime and materials basis as
shown in Exhibit "A", and markup shall not exceed !()'#.
5. Independent Investigation. Contractor has made an independent investigation of Ihe jobsite. the
.soil conditions at the jobsite. and all other conditions thai might affect the progress of the work, and
is aware of those conditions. The Contract price includes payment for all work that may be done by
Contractor, whether anticipated or not. in order to overcome underground conditions. Any
information that may have been furnished to Contractor by City about underground conditions or
other job conditions is for Contractor's convenience only, and City does mil warrant that the
conditions are as thus indicated. Contractor is satisfied with all job conditions, including underground
conditions and has mn relied on information furnished by C'ily.
6. Immigration Reform and Control Act. Contractor certifies it is aware of the requirements or
the Immigration Reform and Control Act of 1986 (S USC sections 1101-1525) and has complied and
will comply with these requirements, including, hut not limited to. verifying the eligibility for
employment of all agents, employees, subcontractors, and consultants that are included in this
Contract.
7. Prevailing Wage. Pursuant to the California Labor Code, the director of the Department of
Industrial Relations has determined the general prevailing rale of per diem wages in accordance with
California Labor Code, section 1773 and a copy of a schedule of said general prevailing wage rales is
on file in the office of the Cily Engineer, and is incorporated by reference herein. Pursuant lo
California Labor Code, section 1775, Contractor shall pay prevailing wages. Contractor shall post
copies of all applicable prevailing wages on the job site.
8. Indemnification. Contractor shall assume the defense of. pay all expenses of defense, and
indemnify and hold harmless the City, and its officers and employees, from ull claims, loss, damage,
injury and liability of every kind, nature and description, directly or indirectly arising from or in
connection with the performance of I he Contract or work: or from any failure or alleged failure of
Contractor to comply with any applicable law. rules or regulations including those relating to safely
and health: and from any and all claims, loss, damages, injury and liability, howsoever the same may
be caused, resulting direclly or indirectly from the nature of the work covered by the Contract, except
for loss or damage caused by the sole or active negligence or willful misconduct of the City. The
expenses of defense include all costs and expenses including attorneys' fees for litigation, arbitration,
or other dispute resolution method.
Contractor shall also defend and indemnify the Cily against any challenges to the award of the
contract to Contractor, and Contractor will pay all costs, including defense costs for the City. Defense
costs include (he cos! of separate counsel for Cily. if City requests separate counsel.
Contractor shall also defend and indemnify the Cily against any challenges to the award of the
contract to Contractor, arising in whole or in part from alleged inaccuracies or misrepresentation by
the Contractor, whether intentional or oiherwise. and Contractor will pay all cosis. including defense
costs for the City. Defense costs include the cosi of separate counsel for City, if City requesis
separate counsel.
9. Insurance. Contractor shall procure and maintain for the duration of the contract insurance
against claims for injuries lo persons or damage to property which may arise from or in connection
with the performance of the work hereunder by ihe Comracior, his or her agents, representatives,
employees or subcontractors. Said insurance shall meet the City's policy for insurance as stated in
Cily Resolution No. 91-403.
(A) Coverages And Limits Contractor shall maintain the types of coverages and minimum limits
indicted herein:
a. Comprehensive General Liability Insurance: $1,(KX),(XX) combined single limit per
occurrence for bodily injury and property damage. If Ihe policy has an aggregate limit, a separate
aggregaie in ihe amounts specified shall he established for the risks for which Ihe Cily or iis agenis.
officers or employees are additional insured.
h. Business Automobile Liability Insurance: SI.(KK).(KX) combined single litnii per accident for
bodily injury and properly damage. In addition, ihc auto policy inusl cover any vehicle used in Ihe
performance of (he contract, used onsite or offsite. whether owned, non-owned or hired, and whether
scheduled or non-scheduled. The auto insurance certificate must state Ihe coverage is for "any auto"
and cannot be limited in any manner.
c. Workers' Compensation and Employers' Liability Insurance: Workers' compensation limits
as required by the Labor Code of the Stale of California and Employers' Liability limits of
$1 .tKK).(KH) per incident. Workers' compensation offered by Ihe State Compensation Insurance Fund
is acceptable to Ihe City.
(B) Additional Provisions. Contractor shall ensure thut the policies of insurance required under this
agreement with the exception of Workers' Compensation and Business Automobile Liability
Insurance contain, or are endorsed to contain. Ihe following provisions.
a. The City, its officials, employees and volunteers are lo be covered as additional insured as
respects: liability arising out of activities performed by or on behalf of the Contractor: products and
completed operations of the contractor; premises owned, leased, hired or borrowed by the contractor.
The coverage shall contain no special limitations on the scope of protection afforded to the City, ils
officials, employees or volunteers. All additional insured endorsements must be evidenced using
separate documents attached to Ihe certificate of insurance: one for each company affording general
liability, and employers' liability coverage.
b. The Contractor's insurance coverage shall be primary insurance as respects the City, its officials,
employees and volunteers. Any insurance or self-insurance maintained by the City, ils officials,
employees or volunteers shall be in excess of the contractor's insurance and shall noi contribute with
it.
c. Any failure to comply with reporting provisions of Ihe policies shall not affect coverage
provided to the City, ils officials, employees or volunteers.
d. Coverage shall stale that the contractor's insurance shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
(C) Notice Of Cancellation. Each insurance policy required by this agreement shall he endorsed to
state that coverage shall not he nonrenewed. suspended, voided, canceled, or reduced in coverage or
limits except after thirty (30) days' prior written notice has been given lo the City by certified mail,
return receipt requested.
(D) Deductible* And Self-Insured Retention (S.I.K.I Levels. Any deductible^ or self-insured
retention levels must he declared to and approved by Ihe City. At the option of (he City, either: the
insurer shall reduce or eliminate such deductibles or self-insured retention levels as respects the City,
its officials and employees; or the contractor shall procure a bond guaranteeing payment of losses and
related investigation, claim administration and defense expenses.
(E) Waiver Of Subrogation. All policies of insurance required under this agreement shall contain a
waiver of all rights of subrogation the insurer may have or may acquire against the City or any of ils
officials or employees.
(F) Subcontractors. Contractor shall include all subcontractors as insured under its policies or shall
furnish separate cenificates and endorsements for each subcontractor. Coverages for subcontractors
shall he subject to all of the requirements staled herein.
(G) Acceptability Of Insurers. Insurance is lo be placed with insurers that have a rating in Best's
Key Rating Guide of at least A-:V. Insurers must also be authorized lo transact Ihe business of
insurance by the State of California Insurance Commissioner as admitted carriers as evidenced by a
listing in Ihe official publication of the Department of Insurance of the Stale of California and/or
under the standards specified by Ihe City Council in Resolution No. 91-403.
(H) Verification Of Coverage. Contractor shall furnish the City with certificates of insurance and
original endorsements affecting coverage required by this clause. The certificates and endorsements
for each insurance policy arc to be signed by a person authori/.ed by that insurer lo bind coverage on
its behalf. The certificates and endorsements are to be in forms approved by the City and are to be
received and approved by the Cily before Ihe Contract is executed by the Cily.
(I) Cost Of Insurance. The Cost of all insurance required under this agreement shall he included in
the Contractor's bid.
10. Claims and Lawsuits. All claims by contractor for $375.(MX1 or less shall be resolved in
accordance with the provisions in the Public Contract Code, Division 2. Part 3. Chapter I, Article 1.5
(commencing with section 20I04( which are incorporated by reference. A copy of Article 1.5 is
included in Ihe Supplemental Provisions I section. The contractor shall initially submit all claims over
$375.<XX) to the Cily using the informal dispute resolution process described in Public Contract Ctxlc
subsections 20l()4.2(a). Ic). id). Notwithstanding the provisions of this section of the contract, all
claims shall comply with the Government Ton Claim Act (section 9<K) el seq., of the California
Government Code) for any claim or cause of action for money or damages prior to filing any lawsuit
for breach of this agreement.
<A» Assertion of Claims. Contractor hereby agrees that any contract claim submitted to the Cily
must be asserted as part of the contract process as set forth in this agreement and not in anticipation
of litigation or in conjunction with litigation
(B) False Claims. Contractor acknowledges that if a false claim is submitted lo the Cily. it may IK
considered fraud and the Contractor may be subject lo criminal prosecution.
(C) Government Code. Contractor acknowledges that California Government Code sections 12650
el seq.. the False Claims Act. provides for civil penalties where a person knowingly submits a false
claim lo a public entity. These provisions include false claims made with deliberate ignorance of Ihe
false information or in reckless disregard of the truth or falsity of the information.
(Dl Penalty Recover)'. If the Cily of Carlsbad seeks to recover penalties pursuant to the False
Claims Act. it is entitled to recover its litigation costs, including attorney's fees.
(E) Debarment for False Claims. Contractor hereby acknowledges that Ihe filing of a false claim
may subject Ihe Contractor to an administrative debarmeni proceeding wherein Ihe Contractor may be
prevented from further bidding on public contracts for a period of up to five years
(F) Carlsbad Municipal Code. The provisions of Carlsbad Municipal Code sections 3.32.025.
3.32.026. 3.32.027 ami 3.32.028 pertaining to false claims are incorporated herein hy reference.
(G) Debarment froni Other Jurisdictions. Contractor hereby acknowledges that deharnient hy
another jurisdiction is grounds for the City of Carlsbad to disqualify the Contractor or
subcontractor from participating in future contract bidding,
(H) Jurisdiction. Contractor agrees and hereby stipulates that the proper venue arid jurisdiction for
resolution of any disputes between the panics arising out of this agreemem is San Diego County.
California.
I have read and understand all provisions of Section 11 above/ j./ff". Wt init* ; tl .-
11, Maintenance of Records. Contractor shall maintain and make available at no cost to the City,
upon request, records in accordance with sections 1776 and I8l\2of Part 7, Chapter i. Article 2. of
the Labor Code If the Contractor does not maintain the records at Contractor's principal place of
business as specified above. Contractor shall so inform the City by certified letter accompanying the
return of this Contract. Contractor shall notify the City by certified mail of any change of address of
such records.
12. Labor Code Provisions. The provisions of Part 7. Chapter I, commencing with section 1720 of
the Labor Code are incorporated ht*n?in by reference
14. Security. Securities in the form of cash, cashier's check, or certified check may he substituted
for any monies withheld hy the City to secure performance of this contract for any obligation
established by this contract. Any other security that is mutually agreed to by the Contractor and the
City may be substituted for monies withheld to ensure performance under this Contract.
15. Provisions Required by Law Deemed Inserted. Each and every provision of law and clause
required by law to he inserted in this Contract shall he deemed to he inserted herein and included
herein, and it", through mistake or otherwise, any such provision is not inserted, or is not correctly
inserted, then upon application ol either puny, (he Contract shall fonhwith he physically amended in
make such insertion or correction.
NOTARIAL ACKNOWLEDGMENT OF EXECUTION BY ALL SIGNATORIES MUST BE
ATTACHED
(CORPORATE SEAL)
CONTRACTOR:
Marathon Cpnstruction
Byr:
Michael V. Furby, tfegsldent
CITY OF C
iORRAINk M WOOD. Cilv Clerk
fsign here)
CharlesF. Cunningham, Vice President
(print name and title)
President or vice-president and secretary »r assistant secretary must sign for corporaliotjPt
one officer signs, the corporation must attach a resolution certified hy the secretary or'^sfctaoT
secretary under the corporate seal empowering that officer to hind the corporation. ''•-
APPROVED AS TO FORM:
RONALD R BALI.
City Attorney
Deputy City Attorney
MARATHON CONSTRUCTION CORPORATION
CONTRACTORS AND ENGINEERS STATE LICENSE NO. 411338
10108 RIVERFORD ROAD, LAKESIDE, CA 92040-2740
TEL (619) 276-4401 FAX (619) 276-0717
www.marathonconstruction.biz
March 3, 2006
City of Carlsbad
Public Works - Engineering
1635 Faraday Avenue
Carlsbad, CA 92038-7314
Attention: David Hauser, Deputy City Engineer
Project: Agua Hedionda Channel Emergency Dredging Project
Project No. CIP 3338
Subject: Exhibit "A"- Description of Work
Via US Mail and Facsimile (760-602-8562)
Gentlemen:
Marathon Construction Corporation is pleased to propose on the above referenced project. Please use
this scoping letter as the Exhibit "A" referenced in your attached contract. Marathon proposes to
perform this dredging project on a time and materials basis with the following equipment and labor at
the following rates:
Description
Cat 325 Excavator
Volvo A35 Truck
ASV Track Loader
Cat 140H Motorgrader
Cat D6 LGP Swampdozer
Chipper
Full Time Superintendent
Laborer
Carpenter
Group 8 Operator
Straight Time Rate
SI25.00/Hour
$I25.00/Hour
$125.00/Hour
$125.00/Hour
S125.00/Hour
$50.00/Hour
$125.00/Hour
S45.00/Hour
S50.00/Hour
S65.00/Hour
Overtime Rate
SI50.00/Hour
$I50.00/Hour
$150.00/Hour
5150.00/Hour
$150.00/Hour
S 50.00/Hour
$!25.00/Hour
$ 65.00/Hour
S 70.00/Hour
S 85.00/Hour
Double Time Rate
$175.00/Hour
$I75.00/Hour
S175.00/Hour
S175.00/Hour
$!75.00/Hour
$50.00/Hour
$!25.00/Hour
$ 85.00/Hour
$ 90.00/Hour
$105.00/Hour
Equipment mobilization and demobilization will be at a rate of $400.00 per each piece of equipment
(round trip). These rates are applicable only if Marathon Construction Corporation is permitted to take
ownership of the dredge spoils and allowed to screen these spoils at the agreed screening/disposal site
east of lhe entry drive to the project which Mr. Van Peski and Marathon discussed at our site meeting on
13
City of Carlsbad
Exhibit "A"-Agua Hedionda Channel Emergency Dredging Project
Page 2 of 2
March 1. 2006. Marathon also reserves the discretion of determining which material will be removed
from the site and what will be left in the disposal/screening area. Listed rales and time and material
work are limited to the excavation, trucking and disposal of the material at the agreed upon
screening/disposal site and include equipment, labor and fuel, oil and grease. No costs for the
screening, processing, and removal of the material from the screening/disposal area will be charged to
the City ol Carlsbad. We anticipate having the screening and removal of the dredged material completed
within one week after the completion of the excavation.
Our proposal excludes bond costs, damages to pavement, curbs, drives due to equipment use, inspection
and testing, permits, surveys, liquidated damages and engineering costs. There is no stipulated contract
price or contract duration for the project. Marathon anticipates with the current scope of not exceeding
$250,000.00 costs for the project. All work will be done on a time and material basis with a daily force
account approved and signed by a City of Carlsbad inspector or person qualified and signatory to
represent the City of Carlsbad daily. Marathon anticipates the current scope of work to be completed
within three weeks, although there are no time constraints in the contract. Marathon will provide a full
time superintendent on the project during all hours of work. All costs at the rates referenced above will
be marked up 10% per your contract. Any additional subcontract work and time and material work not
referenced in the original scope of work will additionally be marked up 10%. Clearing and grubbing
downstream of the El Camino Real bridge is currently not included in our scope.
We anticipate commencing work on Monday, March 6, 2006 and working from 7AM to 3:30PM unless
directed otherwise. Should you have any questions regarding this proposal, please feel free to contact
me at 619-276-4401.
Best regards,
MARATHON CONSTRUCTION
Michael V. FufbYTPresident
CC: Joe Ellis and Jim Furby. Marathon Construction
Glen Van Peski. P.E.
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement") is effective as of March 6, 2006 (the
"Effective Date") by and between CALAVERA HILLS II, LLC, a Delaware limited liability
company ("Licensor"), and the CITY OF CARLSBAD, a municipal corporation ("Licensee").
RECITALS
A. Licensor is the owner of certain real property in the City of Carlsbad, County of
San Diego, State of California, described on Exhibit "A" attached to this Agreement (the
"Property").
B. Licensee desires to use the Property as a temporary storage area for dredged
materials from a public project in the vicinity of the Property. Licensor desires to grant to
Licensee a license to enter upon the Property for those purposes, on the terms and conditions of
this Agreement.
TERMS AND CONDITIONS
NOW THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. License to Use Property for Construction Staging Area. Subject to the terms and
conditions set forth herein, Licensor hereby grants to Licensee, its contractors, subcontractors,
consultants, agents and employees a nonexclusive license and permission to enter upon the
Property (the "License") for the purpose of using the Property as a temporary storage area for
dredged materials from a public project in the vicinity of the Property, including, but not
necessarily limited to, the storage of tools, equipment, vehicles and other construction-related
materials. Prior to entry onto the Property, Licensee shall comply with the terms of Section 6
below and shall notify Licensor and otherwise coordinate same with any reasonable requirements
of Licensor such as the use of temporary power.
2. Term. The term of the License will commence on the Effective Date, and will
terminate on May 15, 2006.
3. Laws. Licensee shall comply with all governmental rules, regulations,
ordinances, statutes and laws pertaining to the activities of Licensee in connection with the
Property. Licensee shall at no time keep, store or maintain on the Property any product,
substance, or waste whose presence, use, manufacture, disposal, spill, effect, quantity/intensity of
existence, transportation, or release, either by itself or in combination with other materials
expected to be on the Premises, is either: (i) potentially injurious to the public health, safety or
welfare, the environment or the Premises, (ii) regulated or monitored by any governmental
authority, or (iii) a basis for potential liability of Lessor to any governmental agency or third
party under any applicable statute or common law theory. Hazardous Substances shall include,
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but not be limited to, hydrocarbons, petroleum, gasoline, and crude oil and any products, by-
products and fractions thereof.
4. Liens. Licensee shall not suffer or permit to be enforced against the Property, or
any part thereof, any mechanics', materialmen's, contractors' or subcontractors' liens or any
claim for damage arising from any work performed by Licensee or its representatives,
contractors, subcontractors, agents or employees, but Licensee shall pay or cause to be paid all of
said liens, claims or demands before any action is brought to enforce the same against the
Property. Notwithstanding anything to the contrary set forth above, if Licensee shall in good
faith contest the validity of any such lien, claim or demand, then Licensee shall, at its expense,
defend itself and Licensor against the same and shall pay and satisfy any adverse judgment that
may be rendered thereon before the enforcement thereof against Licensor or the Property, but
only upon the condition that if Licensor shall require, Licensee shall procure and record or
furnish to Licensor a surety bond or other acceptable security satisfactory to Licensor in an
amount sufficient to indemnify Licensor against liability for the same, and to hold the Property
free from the effect of any lien or claim. Licensor reserves the right at any time and from time to
time to post and maintain on the Property or any portion thereof or improvement thereon such
notices of non-responsibility or otherwise as may be necessary to protect Licensor against
liability for any such liens and claims.
5. Indemnity. Licensee shall protect, indemnify, defend (with counsel reasonably
acceptable to Licensor) and hold Licensor and Licensor's officers, directors, shareholders,
participants, partners, affiliates, employees, representatives, invitees, agents and contractors free
and harmless from and against any and all claims, damages, liens, stop notices, liabilities, losses,
costs and expenses, including attorneys' fees and court costs, resulting from Licensee's entry onto
the Property, including, without limitation, repairing any and all damages to any portion of the
Property, arising out of or related (directly or indirectly) to Licensee's conducting any
inspections and tests and any other activities of Licensee or its contractors, subcontractors,
agents or employees upon the Property. Licensee's indemnification obligations set forth herein
shall survive any termination of the License and/or this Agreement.
6. Insurance. Prior to any entry by Licensee onto the Property, Licensee shall have
delivered to Licensor an original endorsement to Licensee's commercial general liability
insurance policy which evidences that Licensee has obtained a commercial general liability
insurance policy with a financially responsible insurance company reasonable acceptable to
Licensor covering (i) the activities of Licensee, and Licensee's agents, contractors,
subcontractors and employees on or upon the Property during the term of this Agreement, and
(ii) Licensee's indemnity obligation set forth in paragraph 5 above. Such endorsement to such
insurance policy shall evidence that such insurance policy shall have a per occurrence limit of at
least One Million Dollars ($1,000,000) and an aggregate limit of at least Two Million Dollars
($2,000,000), shall name Licensor as an additional insured, shall be primary and noncontributing
with any other insurance available to Licensor, and shall contain a full waiver of subrogation
clause.
7. Security. Licensee is fully responsible for securing the Property and Licensee's
property located on the Property during the term of this License. Licensor shall have no
II*
responsibility for security and shall have no responsibility for any items of stolen or damaged
property stored or located on the Property.
8. Repair and Restoration. Any damage, destruction or alteration of the Property or
any improvements to the Property or any adjacent streets, curbs, gutters or other public
improvements caused by Licensee's use of the Property or the License shall be restored or
repaired by Licensee at its sole cost and expense. In the event this Agreement is terminated for
any reason, and such repair and restoration has not then occurred, the License shall be extended
for an additional ten (10) day period solely for the purpose of permitting Licensee a means to
perform such repair and/or restoration. The grade level of the Property will need to be re-
certified upon the termination of Licensee's use of the Property and restored to the satisfaction of
the Licensor. Licensee shall be responsible for any cost associated with such re-certification.
9. Inspection. Licensor and any authorized representative, employee, agent or
independent contractor shall be entitled to enter and inspect the Property or any portion thereof
or work of Licensee thereon at any time and from time to time.
10. Cost of Enforcement. In the event of any breach, violation or failure to perform
or satisfy any of the terms or provisions hereof, the non-defaulting party shall have all rights and
remedies provided at law or in equity, all of which shall be cumulative and non-exclusive. In the
event either party employs an attorney or other person or commences an action to enforce any of
the provisions of this Agreement, the prevailing party shall be entitled to recover from the other
party all costs of enforcement in connection therewith, including but not limited to court costs
and attorneys' fees.
11. Miscellaneous. This Agreement shall constitute the entire agreement between the
parties hereto pertaining to the subject matter hereof and all prior and contemporaneous
agreements, representations and understandings of the parties hereto, oral or written, are hereby
superseded and merged herein. No supplement, modification or amendment of this Agreement
shall be binding unless in writing and executed by the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provisions, whether or not similar, nor shall any waiver be a continuing waiver. No waiver shall
be binding unless executed in writing by the party making the waiver. The liabilities of the
parties hereunder shall survive the termination of this Agreement. This Agreement shall be
construed and enforced in accordance with, and governed by, the laws of the State of California.
The headings of this Agreement are for purposes of reference only and shall not limit or define
the meaning of the provisions hereof. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which shall constitute one and the
same instrument. The parties acknowledge that each party and its counsel have reviewed and
approved this Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
12. Existing Bond. Calavera Hills II, LLC currently has a bond posted for the
stockpile area for City of Carlsbad DWG 390-9E. City agrees to release said bond (No.
58608929) in the amount of One Million Two Hundred Sixty Thousand Dollars ($1,260,000.)
along with the cash deposit in the amount of One Hundred Forty Thousand Dollars ($140,000.)
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concurrently with the posting of a new bond for City of Carlsbad DWG 433-6A (Robertson
Ranch Mass Grading). The amount of said new bond shall be determined by using a unit price
of $0.35 per square foot for clearing and grubbing and a unit price of $3.20 per cubic yard for
grading consistent with the "City of San Diego Cost Estimate Unit Price List, March 2000".
13. Adjacent Property Owners. The City of Carlsbad shall notify the adjacent
property owners (Rancho Carlsbad Mobile Home Park) that the work being done on the
Robertson Ranch is by the City of Carlsbad and not Calavera Hills II, LLC.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
"LICENSOR" CALAVERA HILLS II, LLC,
a California limited liability company
By: McMillin Companies, LLC
a Delaware limited liability company
Its: Manager
By:
Name:
Its:
By:_
Name:_
Its:
"LICENSEE" CJIYOF CARfeSM^T^municipal (tormration
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concurrently with the posting of a new bond for City of Carlsbad DWG 43 3-6A (Robertson
Ranch Mass Grading). The amount of said new bond shall be determined by using a unit price
of $0.35 per square foot for clearing and grubbing and a unit price of $3.20 per cubic yard for
grading consistent with the "City of San Diego Cost Estimate Unit Price List, March 2000".
13. Adjacent Property Owners. The City of Carlsbad shall notify the adjacent
property owners (Rancho Carlsbad Mobile Home Park) that the work being done on the
Robertson Ranch is by the City of Carlsbad and not Calavera Hills II, LLC.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
"LICENSOR"CALAVERA HILLS II, LLC,
a California limited liability company
By: McMillin Companies, LLC
a Delaware limited liability company
Its: Manager
By:_
Name:
Its:
"LICENSEE"
Name: CLAUDE A. LEWIS
Its: Mavor
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EXHIBIT "A"
LEGAL DECRIPTION OF THE PROPERTY
THE LAND REFERRED TO HEREIN IS SITUATRED IN THE STATE OF
CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1 ON CERTIFICATE OF COMPLIANCE RECORDED NOVEMBER 28,
2001 AS FILE NO. 2001-0865064 OF OFFICIAL RECORDS.
AND
THE REMAINDER PARCEL SOUTH OF CANNON ROAD OF CARLSBAD
MINOR SUBDIVISION 02-10, ROBERTSON RANCH, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO PARCEL MAP THEREOF NO. 19804, FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 3, 2005.
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