HomeMy WebLinkAbout2009-05-19; City Council; Resolution 2009-117EXHIBIT 1
1 RESOLUTION NO. 2009-117
2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING A REIMBURSEMENT
3 AGREEMENT WITH THE CITY OF LOS ANGELES AND
APPROVING A CONSULTANT AGREEMENT TO PREPARE
4 THE 10-YEAR BIOLOGICAL MONITORING REPORT FOR THE
BATIQUITOS LAGOON ENHANCEMENT PROJECT.
5 CASE NAME: BATIQUITOS LAGOON BIOLOGICAL
MONITORING PROGRAM
6
WHEREAS, the City Council has previously entered into agreements with the
7
Board of Harbor Commissioners of the City of Los Angeles (Board) and Merkel & Associates for
8
the 10-Year Biological Monitoring Program for the Batiquitos Lagoon Enhancement Project; and
9
WHEREAS, the City of Carlsbad was permittee for the restoration of Batiquitos
10
Lagoon and responsible for special conditions of the original Coastal Development Permit,
Department of Army Permit, Stream bed. Alteration Agreement which required implementation of
a long term monitoring program; and
WHEREAS, the Board has agreed to reimburse the City of Carlsbad for long14
term biological monitoring required by said permits; and
WHEREAS, the City of Carlsbad staff, in coordination with Board staff, selected16
Merkel & Associates to perform the long-term biological monitoring program for the lagoon and
awarded a contract to Merkel & Associates for said monitoring; and1 8
WHEREAS, the City of Carlsbad staff and Board staff deemed it necessary to
„ include physical as well as biological information, including tidal, bathymetric, and
71 hydrogeomorphologic assessments, in the 10-year Batiquitos Lagoon Biological Monitoring
22 Report which caused a delay in the preparation of the report; and
23 WHEREAS, the Reimbursement Agreement with the Board (LAHD 1419-7) and
24 the contract with Merkel & Associates have expired prior to preparation of the 10-year report;
25 anc'
26 WHEREAS, by this action the City Council hereby finds it necessary, desirable,
27 and in the public interest to complete the long-term biological monitoring program for the lagoon;
28 and
1 WHEREAS, the Board has approved a new Reimbursement Agreement (LAHD
2 1419-8) for long term monitoring services and City of Carlsbad administrative costs.
3 NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of the City
4 of Carlsbad as follows:
5 1. That the above recitations are true and correct.
2. That a Reimbursement Agreement with the Board of Harbor Commissioners
of the City of Los Angeles regarding funding and administration of the long term biological
monitoring (Exhibit 2 attached) has been prepared and is hereby approved in the not-to-exceed
amount of $330,000 and the Mayor, upon receipt of signed copies of the Reimbursement
Agreement, is authorized to execute said agreement. Following the City's execution of said
„ agreement, the City Clerk is directed to return five (5) signed original copies of the agreement to
the Port of Los Angeles, Attention: Dr. Ralph Appy, Director of Environmental Management, 425
10 South Palos Verde Street, San Pedro, CA 90731, and one signed photocopy to the Planning
Department.
3. That a consulting agreement (Exhibit 3 attached) with Merkel & Associates
12 for consulting services to complete the long term biological monitoring program for Batiquitos
Lagoon including field surveys and final report preparation and delivery, is hereby approved and
13 the City Manager is authorized to execute said agreement. Following the City Manager's
execution of said agreement, the City Clerk is directed to forward copies of this resolution and
14 said agreement to Merkel & Associates, 5434 Ruffin Road, San Diego, CA 92123 and to the
Planning Department.
15
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
16
Carlsbad on the 19tb day of May 2009, by the following vote, to wit:
17
AYES: COUNCIL MEMBERS LEWIS, HALL, PACKARD AND BLACKBURN.
18
NOES: NONE.
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ABSENT: COJ^GJL MEMBER KULCHIN.
20 "
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23
ATTEST:
24"
25
LORRAINE M. WOOD, City Clerk 7
26
(SEAL)
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EXHIBIT 2
LAHD AGREEMENT NO. 1419-8
REIMBURSEMENT AGREEMENT BETWEEN
THE CITY OF CARLSBAD AND
THE CITY OF LOS ANGELES FOR COMPLETION OF THE
LONG TERM BIOLOGICAL MONITORING OF THE BATIQUITOS LAGOON
ENHANCEMENT PROJECT.
THIS AGREEMENT is made and entered into by and between the CITY OF
CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as
CITY and the City of Los Angeles acting by and through the Board of Harbor
Commissioners hereinafter referred to as BOARD.
RECITALS
WHEREAS, BOARD and CITY are parties to a Memorandum of Agreement (MOA)
with various federal and state agencies which established procedures and responsibilities
for design, construction and maintenance of the Batiquitos Lagoon Restoration Project
(Project); and
WHEREAS, on December 10, 1996, the BOARD entered into LAHD Agreement No.
1419-7 to reimburse CITY for the completion of long term (10 year) biological
monitoring of the restored lagoon as required in state and federal permit conditions and to
assist City with administration of the Project monitoring; and
WHEREAS, in accordance with LAHD Agreement No. 1419-7, CITY engaged the firm
of Merkel and Associates, Inc., hereinafter referred to as CONSULTANT, to perform all
the services necessary to complete the long term biological monitoring services for the
Project; and
WHEREAS, CONSULTANT provided monitoring reports at years 1, 2, 3, and 5 post
lagoon restoration; and
WHEREAS, LAHD Agreement No. 1419-7, incorporated herein as Exhibit A, expired
prior to the completion of the final monitoring report for year 10.
Now, THEREFORE, in consideration of the covenants and conditions, it is agreed as
follows:
1. CITY's Responsibility. CITY will provide to Board the final CONSULTANT
monitoring report for year 10 by June 30, 2009, prepared in accordance with the
agreement to conduct long term biological monitoring of Batiquitos Lagoon
between CITY and CONSULTANT ("Consultant Agreement"), which
Consultant Agreement is attached as Exhibit B, and incorporated herein by
reference.
2. BOARD'S Reimbursement for CITY costs. BOARD shall reimburse CITY up to
$330,000 for i) costs incurred by CITY under Consultant Agreement for the final
monitoring report for year 10; and ii) CITY'S administrative costs incurred under
Consultant Agreement within 30 days of receipt of an invoice from City.
3. Acceptability of Consultant Work. In the event the BOARD or CITY through
their Project Directors are not satisfied with CONSULTANT'S work then the
CITY Project Director shall be obliged to meet and confer in good faith with the
Director of Environmental Management to correct the dissatisfaction. In the
event that, after meeting and conferring in good faith, the parties are unable to
agree, a meeting of the CITY'S City Manager and BOARD'S Executive Director
shall be held to resolve the dispute.
4. Effective Date and Term. The effective date of this Agreement is the date of the
last signature fully executing this Agreement. The term of this Agreement shall
be for six (6) months from the effective date.
5. Proprietary Information. CITY'S Consultant Agreement shall provide that the
work product of CONSULTANT retained by CITY shall be owned jointly by
CITY and BOARD and shall not be released to any other party or used for any
purpose by the CONSULTANT without the consent of both CITY'S and
BOARD'S Project Directors.
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IN WITNESS WHEREOF, the parties hereto have executed this agreement on the
day and year first above written.
CITY OF CARLSBAD, a Municipal Corporation of the State of California
Carlsbad City Attorney
CITY OF LOS ANGELES, by and through its Board of Harbor Commissioners
By
Executive Director
Attest
Board Secretary
APPPROVED AS TO FORM:
By
Los Angeles Assistant City Attorney
,2009
LAHD AGREEKRNT NO. 1419-7
REIMBURSEMENT AGREEMENT BETWEEN
THE CITY OF CARLSBAD AND
THE CITY OF LOS ANGELES FOR
LONG TERM BIOLOGICAL MONITORING OF THE
BATIQUITOS LAGOON ENHANCEMENT PROJECT
LAHD
EXHIBIT A
HARBOR DEPARTMENT
AGREEMENT /#?- 7
CITY OF LOS ANGELES
THIS AGREEMENT is made this day of
1996, between the CITY OF CARLSBAD, a municipal corporation of the
State of California, hereinafter referred to as CITY, and the City
of Los Angeles acting by and through the Board of Harbor
Commissioners hereinafter referred to as BOARD.
RECITALS
WHEREAS, BOARD and CITY are nearing completion of a project
identified as the enhancement of Batiquitos Lagoon (Project) as
mitigation for Los Angeles Harbor fills; and
WHEREAS, BOARD and CITY are parties to an Agreement ( "MOA" )
with various- federal and state agencies which established
procedures and responsibilities for design, construction and
maintenance of the Project; and
WHEREAS, CITY has during the course of Project development
accepted permit conditions requiring CITY to monitor the Project;
and
WHEREAS, CITY has received proposals and is now proposing to
award a contract for the long term monitoring of the completed
project; and
WHEREAS it is necessary for CITY and BOARD to enter into an
Agreement to complete the MOA and fulfill the monitoring/permit
requirements; and
WHEREAS, BOARD will fund the amount necessary to monitor the
Project and to assist City with administration of the Project
monitoring .
Now, THEREFORE, in consideration of the covenants and
conditions, it is agreed as follows:
1. Carlsbad's Retention of Consultant. CITY will engage the
firm of Merkel and Associates, Inc. hereinafter referred to
as CONSULTANT to perform all the services necessary to
complete the long term biological monitoring services for the
Batiquitos Project as described more specifically in
Agreement between CITY and CONSULTANT.
2. BOARD'S Reimbursement for CITY Costs. Unless this agreement
is first amended in writing by BOARD and CITY, the not-to-
exceed amount of this reimbursement agreement is $1,883,876
(see Exhibit 1) for i) long term biological monitoring
consultant costs incurred through CITY Contract with
CONSULTANT at a not-to-exceed $1,794,168 (Exhibit 2) and ii)
CITY administrative costs associated with this CONSULTANT'S
agreement at a not-to-exceed $89,708 (Exhibit 1). CONSULTANT
costs shall be based on the compensation provisions of the
CITY - CONSULTANT agreement (Exhibit 2} . CITY shall be
compensated at a rate of five (5) percent of CONSULTANT
invoices.
Properly prepared invoices of CONSULTANT shall be forwarded
to CITY and BOARD for direct payment to CONSULTANT by BOARD
in a timely manner. Upon approval of CONSULTANT invoices,
CITY administrative costs shall be paid to CITY using the
form attached as Exhibit 3.
3. Availability of Funding. The Board's obligation for payment
of any contract funds beyond the current fiscal year end is
contingent upon the availability of funding from which
payment can be made. No legal liability on the part of the
Board shall arise for payment beyond June 30 of the calendar
year unless funds are made available for such performance.
4. Pro-iect Directors. Both BOARD and CITY shall appoint one (1)
Project Director each to represent BOARD and CITY to
administer the project in the following way:
a. The Project Directors shall have joint authority to
authorize and execute monitoring change orders
increasing or decreasing the contract amount in excess
of $50,000 per change order as long as any increases do
not exceed the CONSULTANTS $100,000 contingency amount
of Exhibit 1 to this agreement. Changes in excess of
the amounts specified in Exhibit 1 shall be approved in
advance by CITY and BOARD. Project Directors have joint
authority to move funds between tasks specified in
Exhibit 2.B., and to approve increases and decreases to
the contract time. CITY agrees it will not amend or
terminate the Consultant agreement without approval from
BOARD'S Executive Director.
b. For the purposes of this paragraph 4 and other
paragraphs of this agreement, the "joint authority" of
the parties shall be defined as the mutual obligation to
meet and confer in good faith with joint authorization
occurring if the parties are in agreement. In the event
that, after meeting and conferring in good faith, the
parties are unable to agree, a meeting of the City
Manager and the BOARD'S Executive Director shall be held
to resolve the item in dispute.
5. Acceptability of Consultant Work. In the event the BOARD or
CITY through their Project Directors are not satisfied with
CONSULTANT'S work then CITY Project Director shall be obliged
to meet and confer in good faith with BOARD Project Director
to correct the dissatisfaction in accordance with the "joint
authority" provisions of paragraph 4.b. Above.
6. Appointment of Proi'ect Directors. Board's Executive Director
and the CITY'S City Manager shall each appoint a Project
Director for the Project. It is understood that the Project
Directors initially appointed are: Mr. Gary Wayne for the
CITY and Dr. Ralph Appy for the BOARD. Should one or both of
the Project Directors need to be replaced over the term of
the agreement, then the new Project Director (s) must be
acceptable to both the Executive Director and City Manager.
Acceptance of the Project Director shall be by written
notification.
7. Term. The term of this reimbursement agreement is 3923 days
from the date of the last signature.
8. Proprietary Information. The work product of CONSULTANT
retained by CITY shall be owned jointly by CITY and BOARD and
shall not be released to any other party or used for any
purpose by the CONSULTANT without the consent of both CITY
and BOARD Project Directors.
10-
IN WITNESS WHEREOF, the parties hereto have executed this
agreement on the day and year first above written.
CITY
the S
OF ILSBAD, a Municipal Cooperation of
California
Attest
ALETHA L. RAUTENKRANZ, City
CITY OF LOS ANGELES, by and through its Board
of Harbor Commissioners
APPROVED AS TO FORM:
By.
/ Executive Director
RONALD R. BALL, /City Attorney
. 1996
APPROVED
By_', 1996
RAYMOND P-^BENDER, Assistant City^Attorney
Budget - FY194&/
Funds Available, Dateund
A
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Exhibit 1
LAHD REIMBURSEMENT AGREEMENT 1419-7
EXHIBIT 1
CONTRACTUAL SERVICES
AND
CARLSBAD ADMINISTRATIVE SERVICES
FOR LONG TERM MONITORING PROGRAM FOR THE
BATIQUJTOS LAGOON ENHANCEMENT PROJECT
1. SUBAGREEMENT1 - CONSULTANT SERVICES
Merkel & Associates, Inc. - Contract Amt. S 1,694,168
Long Term Monitoring Services Contingency $ 100,000
City of Carlsbad Agmt. S 1,794,168
II. SUBAGREEMTN 2 - CARLSBAD ADMINISTRATIVE SERVICES
Staff Salaries, Supplies, Travel* 5% of Contractual
Services $ 89,708
III. SUMMARY
Contractual Services $ 1,794,168
Carlsbad Administrative Services S 89.708
Not-To-Exceed S 1,883,876
*The reimbursement to Carlsbad for administrative services will be automatically paid
to Carlsbad as 5 percent of the contractual services invoices.
rt-
EXHIBITS
AGREEMENT FOR CONSULTING SERVICES TO COMPLETE THE FINAL REPORT
FOR THE BATIQUITOS LAGOON LONG TERM BIOLOGICAL MONITORING
PROGRAM
(Merkel & Associates)
JhllS AGREEMENT is made and entered into as of the day of
^AAtiU/jp 20 0f, by and between the CITY OF CARLSBAD, a municipal
corporation ("City"), and Merkel & Associates, an environmental services firm
("Contractor").
RECITALS
A. City requires the professional services of a consultant that is experienced
in biological monitoring and reporting
B. Contractor has the necessary experience in providing professional
services and advice related to completion of the final report for the Batiquitos Lagoon
Long-Term Biological Monitoring Program.
C. Selection of Contractor is expected to achieve the desired results in an
expedited fashion.
D. Contractor has submitted a proposal to City and has affirmed its
willingness and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this
reference in accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional
care and skill customarily exercised by reputable members of Contractor's profession
practicing in the Metropolitan Southern California Area, and will use reasonable
diligence and best judgment while exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of 90 days from the date first
above written. The City Manager may amend the Agreement to extend it for one
additional 90 day period or parts thereof in an amount not to exceed three hundred
thirteen thousand, five hundred dollars ($313,500) for all professional services received.
Extensions will be based upon a satisfactory review of Contractor's performance, City
needs, and appropriation of funds by the City Council. The parties will prepare a written
amendment indicating the effective date and length of the extended Agreement.
City Attorney Approved Version #05.06.08
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term
will be three hundred thirteen thousand, five hundred dollars ($313,500). No other
compensation for the Services will be allowed except for items covered by subsequent
amendments to this Agreement. The City reserves the right to withhold a ten percent
(10%) retention until City has accepted the work and/or Services specified in Exhibit "A".
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent
contractor and in pursuit of Contractor's independent calling, and not as an employee of
City. Contractor will be under control of City only as to the result to be accomplished,
but will consult with City as necessary. The persons used by Contractor to provide
services under this Agreement will not be considered employees of City for any
purposes.
The payment made to Contractor pursuant to the Agreement will be the full and
complete compensation to which Contractor is entitled. City will not make any federal or
state tax withholdings on behalf of Contractor or its agents, employees or
subcontractors. City will not be required to pay any workers' compensation insurance or
unemployment contributions on behalf of Contractor or its employees or subcontractors.
Contractor agrees to indemnify City within thirty (30) days for any tax, retirement
contribution, social security, overtime payment, unemployment payment or workers'
compensation payment which City may be required to make on behalf of Contractor or
any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City's election, City may deduct the indemnification amount from any
balance owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval
of City. If Contractor subcontracts any of the Services, Contractor will be fully
responsible to City for the acts and omissions of Contractor's subcontractor and of the
persons either directly or indirectly employed by the subcontractor, as Contractor is for
the acts and omissions of persons directly employed by Contractor. Nothing contained
in this Agreement will create any contractual relationship between any subcontractor of
Contractor and City. Contractor will be responsible for payment of subcontractors.
Contractor will bind every subcontractor and every subcontractor of a subcontractor by
the terms of this Agreement applicable to Contractor's work unless specifically noted to
the contrary in the subcontract and approved in writing by City.
City Attorney Approved Version #05.06.08
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials,
employees and volunteers from and against all claims, damages, losses and expenses
including attorneys fees arising out of the performance of the work described herein
caused by any negligence, recklessness, or willful misconduct of the Contractor, any
subcontractor, anyone directly or indirectly employed by any of them or anyone for
whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense City
incurs or makes to or on behalf of an injured employee under the City's self-
administered workers' compensation is included as a loss, expense or cost for the
purposes of this section, and that this section will survive the expiration or early
termination of this Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property
which may arise out of or in connection with performance of the services by Contractor
or Contractor's agents, representatives, employees or subcontractors. The insurance
will be obtained from an insurance carrier admitted and authorized to do business in the
State of California. The insurance carrier is required to have a current Best's Key Rating
of not less than "A-:VM". OR with a surplus line insurer on the State of California's List of
Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide
of at least "A:X".
10.1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below,
unless City Attorney or City Manager approves a lower amount. These minimum
amounts of coverage will not constitute any limitations or cap on Contractor's
indemnification obligations under this Agreement. City, its officers, agents and
employees make no representation that the limits of the insurance specified to be
carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If
Contractor believes that any required insurance coverage is inadequate, Contractor will
obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense.
10.1.1 Commercial General Liability Insurance. $1.000.000 combined
single-limit per occurrence for bodily injury, personal injury and property damage. If the
submitted policies contain aggregate limits, general aggregate limits will apply
separately to the work under this Agreement or the general aggregate will be twice the
required per occurrence limit.
City Attorney Approved Version #05.06.08
10.1.2 Automobile Liability (if the use of an automobile is involved for
Contractor's work for City). $1,000,000 combined single-limit per accident for bodily
injury and property damage.
10.1.3 Workers' Compensation and Employer's Liability. Workers'
Compensation limits as required by the California Labor Code. Workers' Compensation
will not be required if Contractor has no employees and provides, to City's satisfaction, a
declaration stating this.
10.1.4 Professional Liability. Errors and omissions liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must
be maintained for a period of five years following the date of completion of the work.
10.2. Additional Provisions. Contractor will ensure that the policies of insurance
required under this Agreement contain, or are endorsed to contain, the following
provisions:
10.2.1 The City will be named as an additional insured on General
Liability.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and
any extensions of it and will not be canceled without thirty (30) days prior written notice
to City sent by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution
of this Agreement, Contractor will furnish certificates of insurance and endorsements to
City.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these
insurance coverages, then City will have the option to declare Contractor in breach, or
may purchase replacement insurance or pay the premiums that are due on existing
policies in order to maintain the required coverages. Contractor is responsible for any
payments made by City to obtain or maintain insurance and City may collect these
payments from Contractor or deduct the amount paid from any sums due Contractor
under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at anytime,
complete and certified copies of any or all required insurance policies and
endorsements.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of
the Agreement, as may be amended from time-to-time.
City Attorney Approved Version #05.06.08
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12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred
under this Agreement. All records will be clearly identifiable. Contractor will allow a
representative of City during normal business hours to examine, audit, and make
transcripts or copies of records and any other documents created pursuant to this
Agreement. Contractor will allow inspection of all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the date of
final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors
pursuant to this Agreement is the property of City. In the event this Agreement is
terminated, all work product produced by Contractor or its agents, employees and
subcontractors pursuant to this Agreement will be delivered at once to City. Contractor
will have the right to make one (1) copy of the work product for Contractor's records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City
and Contractor relinquishes all claims to the copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written
notice on behalf of City and on behalf of Contractor under this Agreement.
For City:
Name Michele Masterson
For Contractor:
Title Senior Management Analyst
Department Planning
Name_
Title
Merkel & Associates
Principal Consultant
City of Carlsbad
Address 1635 Faraday Ave.
Address 5434 Ruffin Rd.
San Diego. CA 92123
Phone No. 858-560-5465
Carlsbad. CA 92008
Phone No. 760-602-4615
Each party will notify the other immediately of any changes of address that would
require any notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
City will evaluate Contractor's duties pursuant to this Agreement to determine whether
disclosure under the Political Reform Act and City's Conflict of Interest Code is required
of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be
determined that disclosure is required, Contractor or Contractor's affected employees,
City Attorney Approved Version #05.06.08
agents, or subcontractors will complete and file with the City Clerk those schedules
specified by City and contained in the Statement of Economic Interests Form 700.
Contractor, for Contractor and on behalf of Contractor's agents, employees,
subcontractors and consultants warrants that by execution of this Agreement, that they
have no interest, present or contemplated, in the projects affected by this Agreement.
Contractor further warrants that neither Contractor, nor Contractor's agents, employees,
subcontractors and consultants have any ancillary real property, business interests or
income that will be affected by this Agreement or, alternatively, that Contractor will file
with the City an affidavit disclosing this interest.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way
affect the performance of the Services by Contractor. Contractor will at all times observe
and comply with these laws, ordinances, and regulations and will be responsible for the
compliance of Contractor's services with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act
of 1986 and will comply with those requirements, including, but not limited to, verifying
the eligibility for employment of all agents, employees, subcontractors and consultants
that the services required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations
prohibiting discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following
procedure will be used to resolve any questions of fact or interpretation not otherwise
settled by agreement between the parties. Representatives of Contractor or City will
reduce such questions, and their respective views, to writing. A copy of such
documented dispute will be forwarded to both parties involved along with recommended
methods of resolution, which would be of benefit to both parties. The representative
receiving the letter will reply to the letter along with a recommended method of
resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City
Manager. The City Manager will consider the facts and solutions recommended by each
party and may then opt to direct a solution to the problem. In such cases, the action of
the City Manager will be binding upon the parties involved, although nothing in this
procedure will prohibit the parties from seeking remedies available to them at law.
City Attorney Approved Version #05.06.08
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20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services,
City may terminate this Agreement for nonperformance by notifying Contractor by
certified mail of the termination. If City decides to abandon or indefinitely postpone the
work or services contemplated by this Agreement, City may terminate this Agreement
upon written notice to Contractor. Upon notification of termination, Contractor has five
(5) business days to deliver any documents owned by City and all work in progress to
City address contained in this Agreement. City will make a determination of fact based
upon the work product delivered to City and of the percentage of work that Contractor
has performed which is usable and of worth to City in having the Agreement completed.
Based upon that finding City will determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may
terminate this Agreement. In this event and upon request of City, Contractor will
assemble the work product and put it in order for proper filing and closing and deliver it
to City. Contractor will be paid for work performed to the termination date; however, the
total will not exceed the lump sum fee payable under this Agreement. City will make the
final determination as to the portions of tasks completed and the compensation to be
made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or
person, other than a bona fide employee working for Contractor, to solicit or secure this
Agreement, and that Contractor has not paid or agreed to pay any company or person,
other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift,
or any other consideration contingent upon, or resulting from, the award or making of
this Agreement. For breach or violation of this warranty, City will have the right to annul
this Agreement without liability, or, in its discretion, to deduct from the Agreement price
or consideration, or otherwise recover, the full amount of the fee, commission,
percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to
City must be asserted as part of the Agreement process as set forth in this Agreement
and not in anticipation of litigation or in conjunction with litigation. Contractor
acknowledges that if a false claim is submitted to City, it may be considered fraud and
Contractor may be subject to criminal prosecution. Contractor acknowledges that
California Government Code sections 12650 et seq.. the False Claims Act applies to
this Agreement and, provides for civil penalties where a person knowingly submits a
false claim to a public entity. These provisions include false claims made with deliberate
ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is
entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges
that the filing of a false claim may subject Contractor to an administrative debarment
proceeding as the result of which Contractor may be prevented to act as a Contractor
on any public work or improvement for a period of up to five (5) years. Contractor
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acknowledges debarment by another jurisdiction is grounds for City to terminate this
Agreement.
23. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of
enforcing a right or rights provided for by this Agreement will be tried in a court of
competent jurisdiction in the County of San Diego, State of California, and the parties
waive all provisions of law providing for a change of venue in these proceedings to any
other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
Contractor and their respective successors. Neither this Agreement or any part of it nor
any monies due or to become due under it may be assigned by Contractor without the
prior consent of City, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated
by it, along with the purchase order for this Agreement and its provisions, embody the
entire Agreement and understanding between the parties relating to the subject matter
of it. In case of conflict, the terms of the Agreement supersede the purchase order.
Neither this Agreement nor any of its provisions may be amended, modified, waived or
discharged except in a writing signed by both parties.
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8
26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf
of Contractor each represent and warrant that they have the legal power, right and
actual authority to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR
(sfgnhere)
CITY OF CARLSBAD, a municipal
corporation of the State of California
Bv:
City Manager
(print name/title)ATTEST"
, <Le>-rrx
(e-maNaddress)
*Bv:
(sign here)
(print name/title)
rnrAyv»
|
LORRAINE M. WOOD
City Cleft
(e-mail address)
If required by City, proper notarial acknowledgment of execution
must be attached. If a Corporation. Agreement must be signed by one corporate
officer from each of the following two groups.
*Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering the officer(s) signing to bind the
corporation.
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
/ If /. / /? S
By:.
ity Attorney
City Attorney Approved Version #05.06.08
EXHIBIT "A"
SCOPE OF SERVICES
See attached Scope of Work from Merkel & Associates, dated April 26, 2009.
City Attorney Approved Version #05.06.08
10
Merkel & Associates, Inc.
5434 Ruffin Road, San Diego, CA 92123
Tel: 858/560-5465 • Fax: 858/560-7779
e-mail: associates@merkelinc.com
April 26, 2009
M&A #96-05 7-01
Mike Grim
City of Carlsbad
1635 Faraday Ave
Carlsbad, CA 92008
RE: Batiquitos Lagoon Long-Term Biological Monitoring and Reporting
Dear Mike:
In response to your recent email requests, we have prepared the following scope of work and corresponding
cost for the Year 10 monitoring, preparation of an administrative draft and final project report, and
preparation for and presentation at the final interagency meeting for the Batiquitos Lagoon Long-Term
Biological Monitoring Project. The reporting for Year 10 has been delayed for purposes of incorporation
of physical monitoring results funded separately by the City of Carlsbad through the agricultural
conversion mitigation funds. This physical monitoring information has substantively increased the
interpretive capacity of the analysis of biological change within the lagoon.
SCOPE OF WORK
Task A: Year 10 Monitoring
Under this task, M&A staff would complete the Year 10 monitoring for the project, including transect
vegetation monitoring, fisheries studies, benthic investigations, avian surveys, water quality/sediment
investigations, and GIS spatial data management/aerial imagery, and eelgrass and cordgrass transplant
monitoring.
Task B: Administrative Draft Final Report
A final annual report will be prepared at the conclusion of the year 10 monitoring. This report will serve as
a stand-alone document and will provide details on survey methods, results, analyses and tests conducted,
conclusions, and recommendations made during the course of the monitoring year. A total of eight review
copies of this administrative draft report will be submitted to the City/Port/Resources Agencies for review
and comment.
TaskC: Final Report
The final annual report will be prepared following receipt of comments from the project directors. The
executive summary for the annual report will provide a comprehensive summary of study methods and
results, as well as progress of the program and recommendations made during the year; this summary will
serve as a stand alone document. Eight copies of the final annual report will be submitted to the project
directors, along with a camera-ready, unbound original and digital files in PDF file formats.
Task D: Final Interagency Meeting
Following completion of the Year 10 Monitoring and coincident with preparation of the Final Annual
Report, M&A will conduct an interagency meeting to discuss monitoring results.
COSTS
The cost to perform the scope of work described above is to be billed on a fixed fee basis for an amount of
$313,500. This cost proposal is valid for 60 days. Any additional work would be billed on a time and
materials basis.
If you have questions regarding this proposal or you need additional information, please do not hesitate to
call me at (858) 560-5465 or kmerkel@merkelinc.com.
Sincerely,
Keith Merkel
Principal Consultant