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HomeMy WebLinkAbout2019-10-08; City Council; Resolution 2019-194RESOLUTION NO. 2019-194 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING THE MEMORANDUM OF UNDERSTANDING FOR A WARD'S WEED ERADICATION PROGRAM BETWEEN THE CITY OF CARLSBAD, NATURE COLLECTIVE, COUNTY OF SAN DIEGO, AND CENTER FOR NATURAL LANDS MANAGEMENT AND TAKING RELATED ACTIONS TO IMPLEMENT THE PROGRAM. WHEREAS, the City Council of the City of Carlsbad has determined that protecting the city's open space and the natural environment is one of the core values identified in Carlsbad's Community Vision; and WHEREAS, Ward's weed is a highly invasive non-native plant that threatens native habitats, protected plant and animal species, recreation areas and agricultural areas; and WHEREAS, Ward's weed was first discovered in Carlsbad in 2008, which was the first recorded discovery in North America, and is now known to have spread to approximately 200 acres of habitat within the city's Habitat Management Plan (HMP) preserve; and WHEREAS, investing in early and aggressive control of this species will save the city a significant amount of resources in the future; and WHEREAS, staff has partnered with the County of San Diego, Nature Collective, and Center for Natural Lands Management to identify sources of funding for Ward's weed eradication, develop an effective treatment protocol, and develop best management practices; and WHEREAS, Nature Collective, San Diego County, and Center for Natural Lands Management have identified approximately $200,000 from grants and other sources for Ward's weed eradication services in the City of Carlsbad; and WHEREAS, the proposed Memorandum of Understanding (MOU) made between the City of Carlsbad, the County of San Diego, Nature Collective and the Center for Natural Lands Management will formalize each party's obligations regarding funding, treatment prioritization, treatment areas, schedule and coordination efforts; and WHEREAS, to fulfill its commitment under the MOU, the city would provide Ward's weed eradication services through a proposed sole source agreement with ACS Habitat Management, which has extensive specialized experience treating Ward's weed; and WHEREAS, there are adequate budgetary savings in the fiscal year 2018-19 Environmental Management Department Operating Budget for a $200,000 carry-over appropriation to the fiscal year Oct. 8, 2019 Item #1 Page 8 of 50 2019-20 Environmental Management Department Operating Budget, for purposes of funding the proposed ACS Habitat Management agreement; and WHEREAS, the majority of the known Ward's weed infestation is on privately-owned preserve lands within the Bressi Ranch Preserve, Bressi Spectrum Preserve and Rancho Carrillo Preserve, and the city will execute right of entry permits with the affected private property owners prior to performing eradication services on those properties; and WHEREAS, the City Council of the City of Carlsbad finds that the dedication of public resources to perform the Ward's weed eradication services on such privately-owned preserve lands serves the public purpose of protecting the city's native habitats, protected plant and animal species, recreation areas and agricultural areas. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the City Manager, or designee, is hereby authorized and directed to execute the I Memorandum of Understanding between the City of Carlsbad, Nature Collective, San Diego County and Center for Natural Lands Management for a Ward's weed eradication program, attached hereto as Attachment A. 3. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute an agreement with ACS Habitat Management to provide Ward's weed eradication services, in an amount not to exceed $200,000 for the initial two-year term, attached hereto as Attachment B. 4. That the City Manager, or designee, is hereby authorized to execute amendments to extend the ACS Habitat Management agreement for up to three additional one-year terms or parts thereof, in an amount not to exceed $100,000 per each additional one- year term. 5. That the deputy city manager, administrative services branch, is hereby authorized to carry-over and appropriate budgetary savings of $200,000 from the FY 2018-19 Environmental Management Department Operating Budget to the FY 2019-20 Environmental Management Department Operating Budget, to fund the ACS Habitat Management agreement. Oct. 8, 2019 Item #1 Page 9 of 50 6. That the City Manager, or designee, is hereby authorized to execute Right of Entry Permits related to the Ward's weed eradication program, attached hereto as Attachment C. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 8th day of October 2019, by the following vote, to wit: AYES: Hall, Blackburn, Bhat-Patel, Schumacher, Hamilton. NAYS: None. ABSENT: None. (SEAL) Oct. 8, 2019 Item #1 Page 10 of 50 ATTACHMENT A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CARLSB~D, THE COUNTY OF SAN DIEGO, THE NATURE COLLECTIVE, ANDTHE'CENTER FOR NATURAL LANDS MANAGEMENT FOR THE WARD'S WEED ERADICATION PROGRAM This Memorandum of Understanding (MOU) is made and entered into on ____ __, 2019 by and among the City of Carlsbad, the County of San Diego, the Nature Collective (formerly the San Elijo Lagoon Conservancy) and the Center for Natural Lands Management (individually Party and collectively Parties). RECITALS A. Ward's weed is a highly invasive non-native plant that threatens native habitats, protected plant and animal species, recreation and agricultural areas, and increases the wildfire fuel load. Local and state agencies recognize Ward's weed as a high priority for eradication. B. Ward's weed was first discovered in North America on the Rancho La Costa Preserve in the City of Carlsbad in 2008. It has since been found in approximately 200 acres of habitat within the City of Carlsbad's Habitat Management Plan (HMP) preserve. Ward's weed has been found at three other locations in San Diego County, however 90% of the known infestation is in the City of Carlsbad. C. Infested areas in the City of Carlsbad, as more particularly described in Attachment A, include nine acres of land managed by the Center for Natural Lands Management and approximately five acres on City-maintained areas (Alga Norte Park landscaping and two City trail easements). The remaining infestation, approximately 186 acres, is on unmanaged HMP preserve land owned by a homeowners' associations and business associations. D. Local agencies and stakeholders, including the City of Carlsbad, the County of San Diego, the Nature Collective, and Center for Natural Lands Management, have identified effective treatment methods and best management practices, provided educational outreach to affected groups, and developed a proposed Ward's weed eradication program for the infested areas in the City of Carlsbad. E. The Parties have identified the application of a pre-emergent herbicide, Gallery SC, which stops the Ward's weed seeds from germinating and prevents future seed production, as the best method to eradicate this species (the Eradication Services). For the pre-emergent herbicide to work properly, it must be applied not long before the first measurable rainfall of the season, which may occur as early as November 1. F. The Parties have entered into, or will enter into, separate contracts with a contractor to perform Eradication Services during Fiscal Years 2019-2021 (the Contracts), in the following Oct. 8, 2019 Item #1 Page 11 of 50 October 9th estimated amounts: City of Carlsbad ($200,000}; the Nature Collective ($100,000}; and Center for Natural Lands Management ($10,000}. Grant funding obtained by the County of San Diego ($82,400) will be used by County staff to perform ward's weed eradication activities, and approximately $1,600 will be provided by Center for Natural Lands Management for in-kind staff time. G. The Parties agree that coordinated, aggressive control of this species will save a significant amount of resources in the future. The Parties desire to execute this MOU to define the terms and conditions under which the Parties will coordinate and prioritize activities, amongst themselves and with ACS under the Contracts, to prevent the introduction, establishment and spread of Ward's weed within the City of Carlsbad. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, the Parties agree as follows: AGREEMENT A. Prior to November 1, 2019, each Party shall execute and secure funding for their respective agreement for the Eradication Services within the City of Carlsbad for the period of two years (2019-2021). The amounts for the contracts are estimated as follows: the County of San Diego ($82,400); the Nature Collective ($100,000}, the City of Carlsbad ($200,000); and the Center for Natural Lands Management ($10,000). B. Each Party's contract shall provide Eradication Services in the City of Carlsbad that allows for a treatment protocol using Gallery SC, a pre-emergent used in native habitat landscapes for Ward's weed control. Each Party shall be responsible for their respective contractual requirements, including but not limited to the payment of contract costs and providing direction to their contractor(s) under their respective contracts. C. Each Party shall be responsible for obtaining any necessary permissions to access private property within the infestation area of the City of Carlsbad, for purposes of providing the Eradication Services. D. Prior to November 1, 2019, the Parties and their contractors will meet to discuss current conditions, prioritize treatment areas for the Eradication Services, develop a treatment schedule, and finalize any other necessary program details to treat Ward's weed in the City of carlsbad during the upcoming growing season (generally, November 2019 -June, 2020). The Parties agree to use a mutually agreed upon adaptive management strategy, which may require future adjustments to the treatment methods, prioritization of treatment areas, and treatment schedule based on factors such as new data, weather, site conditions, and regular coordination. E. The Parties agree that the "treatment area" will include the known area of infestation in Carlsbad, as further described on Attachment A. Currently (August 2019), the mapped Oct. 8, 2019 Item #1 Page 12 of 50 infestation area is between El Camino Real and the eastern border of the city, and between Palomar Airport Road and Alga Road. This treatment area may expand if additional areas are found to be infested in the City of Carlsbad. F. The Parties acknowledge that contract contributions from each Party will be as follows during the term of this MOU: (1) the Center for Natural Lands Management's contract will only be used to provide treatment within areas owned and managed by the Center for Natural Lands Management, as further depicted in Attachment A; (2) the County of San Diego's contract will be used within open space areas south of Poinsettia Lane, areas north of Poinsettia Lane that are owned by Rancho Carrillo Master Association, and a portion of the open space owned by Bressi Spectrum, as further depicted in Attachment A; and (3) the contracts for the Nature Collective and the City of Carlsbad will be used for initial treatments within the Bressi Ranch and Bressi Spectrum open space areas (which may include both preserve and adjacent fuel modification areas), as further depicted in Attachment A. The contracts for the Nature Collective and the City of Carlsbad may also be used to re-treat areas throughout all areas if surplus funds remain. If there is insufficient contract capacity to treat the entire treatment area initially, or to re-treat all areas in need of follow-up treatment, the Parties shall mutually agree on re-prioritization of treatment areas. G. This MOU may be revised as necessary by mutual consent of the Parties, through a written amendment executed by all Parties. H. This MOU in no way restricts any Party from participation in similar agreements and/or activities with other public or private entities. I. This MOU shall be effective upon execution by the City of Carlsbad and the Nature Collective (Effective Date) and, unless otherwise amended, expires two (2) years after the Effective Date. Any Party may terminate their participation in this MOU by providing 60 days' written notice to the other Parties of its desire to withdraw from the MOU. If such notice is given, the MOU shall continue to be binding on the Parties who have not formally withdrawn. J. Notwithstanding any other provision herein, the Parties acknowledge that the County of San Diego and the Center for Natural Lands Management may not execute this MOU concurrently with the City of Carlsbad and the Nature Collective. If either the County of San Diego or the Center for Natural lands Management execute the MOU at this later date, that Party may join the MOU without need for further approval by the other Parties. K. All obligations of the City of Carlsbad and the County of San Diego under the terms of this MOU are subject to the appropriation of the required resources by the City Council of the City of Carlsbad and the Board of Supervisors of the County of San Diego, respectively. Oct. 8, 2019 Item #1 Page 13 of 50 L. Each Party shall perform its·responsibilities and activities described herein as an independent party and not as an officer, agent, servant, or employee of any of the other Parties hereto. Each Party shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors, and subcontractors, if any. Nothing herein shall be considered as creating a partnership or joint venture between the Parties. M. Nothing in the provisions of this MOU is intended to create duties or obligations to or rights in third parties to this MOU or affect the legal liability of the Parties to third parties. N. Any notice required under this MOU may be personally served on the other Parties, by the Party giving notice, or may be served by certified mail, return receipt requested, to the following addresses: City of Carlsbad Attn: Rosanne Humphrey 1635 Faraday Avenue Carlsbad, CA 92008 County of San Diego Attn: Ha Dang Dept. of Agriculture, Weights and Measures 9325 Hazard Way Suite 100 San Diego, CA 92123 Nature Collective Attn: Doug Gibson P.O. Box 230634 Encinitas, CA 92023 Center for Natural Lands Management Attn: Isabella Gelmi 27258 Via lndustria, Suite B Temecula, CA 92590 0. This MOU may be executed in any number of identical counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument when each Party has signed one such counterpart. P. All terms, conditions, and provisions of this MOU shall inure to and shall bind each of the Parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. Q. This MOU shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this MOU, the action shall be brought in the County of San Diego, State of California. Oct. 8, 2019 Item #1 Page 14 of 50 City of Carlsbad APPROVED AS TO FORM: City of Carlsbad Doug Gibson, Executive Director The Nature Collective Ha Dang, Agricultural Commissioner San Diego County APPROVED AS TO FORM: Legal Counsel San Diego County Isabella Gelmi, Corporate Secretary Center for Natural Lands Management Oct. 8, 2019 lo/ey /I 1 Date Date Date Date Date Item #1 Page 15 of 50 IN WITNESS WHEREOF, the Parties hereto have executed this MOU as of the dates written below. Scott Chadwick, City Manager City of Carlsbad APPROVED AS TO FORM: Amanda Guy, Deputy City Attorney City of Carlsbad The Nature Collective Ha Dang, Agricultural Commissioner San Diego County APPROVED AS TO FORM: Legal Counsel San Diego County Isabella Gelmi Center for Natural Lands Management Oct. 8, 2019 Date Date Date Date Date Date Item #1 Page 16 of 50 IN WITNESS WHEREOF, the Parties hereto have executed this MOU as of the dates written below. Scott Chadwick, City Manager City of Carlsbad APPROVED AS TO FORM: Amanda Guy, Deputy City Attorney City of Carlsbad Doug Gibson, Executive Director The Nature Collective Ha Dang, Agricultural Commissioner San Diego County APPROVED AS TO FORM: Legal Counsel San Diego County Isabella Gelmi, Corporate Secretary Center for Natural Lands Management Oct. 8, 2019 Date Date Date Date Date 9/23/2019 Date Item #1 Page 17 of SO Oct. 8, 2019Item #1 Page 18 of 50A :: C HMP Preseive ~ Ward's Weed Infestation Ward's Weed Infestation and Treatment Areas (' L, s. .q ,r Center for Natural Lands Management (CNLM) Nature Collective and City of Carlsbad n, County Dept of Agriculture, Weights and Measures '1 Attachment A r r ., i': ~ p Q 2.000 ~E------3~~~~::::====;:;;E------3~~~~;:===jl Feel PSA20-895ENV AGREEMENT FOR WARD'S WEED ERADICATION SERVICES ACS HABITAT MANAGEMENT, INC. ylilS AGREEMENT is made and entered into as of the 9 -tL day of C:L ~ , 2019, by and between the City of Carlsbad, a municipal corporation, ("City"), and ACS Habitat Management, Inc., a California corporation ("Contractor"). RECITALS A. City requires the professional services of a habitat management company that is experienced in Ward's weed eradication. B. Contractor has the necessary experience in providing professional services and advice related to Ward's weed eradication services. C. 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 two (2) years from the date first above written. The City Manager may amend the Agreement to extend it for three (3) additional one (1) year periods or parts thereof. 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. 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 two hundred thousand dollars ($200,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed one hundred thousand dollars ($100,000) per Agreement year. Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". City Attorney Approved Version 6/12/18 Oct. 8, 2019 Item #1 Page 19 of 50 PSA20-895ENV 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. 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-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating City Attorney Approved Version 6/12/18 2 Oct. 8, 2019 Item #1 Page 20 of 50 PSA20-895ENV in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager 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. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an "occurrence" basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 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 Commercial General Liability which shall provide primary coverage to the City. 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. City Attorney Approved Version 6/12/18 3 Oct. 8, 2019 Item #1 Page 21 of 50 PSA20-895ENV 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, 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. 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 notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City Name Rosanne Humphrey Title Senior Program Manager PW -Environmental Department _M__...g_m_t. _______ _ City of Carlsbad Address 1635 Faraday Avenue Carlsbad, CA 92008 Phone No. 760-602-4689 For Contractor Name Graydon Dill Title Project Manager Address 4011 Avenida de la Plata Ste 310 Oceanside, CA 92056 Phone No. 760-681-9193 Email graydond@acshabitat.com 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. Ill Ill City Attorney Approved Version 6/12/18 4 Oct. 8, 2019 Item #1 Page 22 of 50 PSA20-895ENV 16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. YesD No [R] 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 whose services are 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. 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 City Attorney Approved Version 6/12/18 5 Oct. 8, 2019 Item #1 Page 23 of 50 PSA20-895ENV 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 acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTION 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 nor 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. City Attorney Approved Version 6/12/18 6 Oct. 8, 2019 Item #1 Page 24 of 50 PSA20-895ENV 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 ACS Habitat Management, Inc., a California corporation By: (sign here) f/rl1 D,,io,,-,lf'rr5 /2 £o (print namefotle) 7 By: (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California ATTEST: If required by City, proper notarial acknowledgment of execution by contractor 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 8 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: CELIA A. BREWER, City Attorney City Attorney Approved Version 6/12/18 7 Oct. 8, 2019 Item #1 Page 25 of 50 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attacl1ed, ancl not the trut11fulness, accuracy, or validity of that document. State of CaliforniiJ } County of _s~~~t,:> __ ~:0~'~£'..~c:c-~o ______ _ On Oc..t-2, 20,~ Date before me, :=t"Pe,1.0 '\JEtJ£<::, ~ "> Here Insert Name and Title of the Officer personally appeared ______ 6_0._E:'_<c:--___ O_,._,,~~0=,e..~i ________________ _ Name(s) of Signer(s) who proved to me on the biJsis of satisfactory evidence to be the person(:,{whose namerzl"@are subscribed to the within instrument and acknowledged to me that@she/they execu'ted the same il~/her/their authorized capacity(~ and that by~er/their signature(s~ the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Notary Public -California ~ i -r,; San Diego County ~ z · ,. Commission# 2160283 =: t ~•:o•~'·" .Mz soTrz· zxeir:sJ~ :J,}~2~ Place Notary Seal anci/or Stamp Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Sign~ ;;i::L/ - Signature of Notary Public OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: ~:('O\(.n,t--::Ji;,...-(.J,q.yz.n•~ W~E'O £.,.~o,f., c.~l-b"' Document Date: ______________________ Number of Pages: ____ _ Signer(s) Other Than Named Above: --------------·----------- Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: □ Corporate Officer -Title(s): _______ _ □ Corporate Officer -Title(s): _______ _ □ Partne1· -□ Limited □ General □ Partner --□ Limited o General □ Individual □ Attorney in Fact □ Individual □ Attorney in Fact □ Trustee □ Guardian of Conservator □ Trustee □ Guardian of Conservator □ Other □ Other Signer is Representing: _________ _ Signer is Representing: _________ _ 2017 NationiJI Notary Associc1tion Ml304-09 (09/17) Oct. 8, 2019 Item #1 Page 26 of 50 Exhibit "A" Scope of Work Ward's Weed Eradication Services ACS Habitat Management, Inc. PSA20-895ENV Anticipated Start Date: November 1, 2019 Anticipated End Date: October 31, 2024 (drought conditions may necessitate postponement of treatment to the following year or two). Treatment Area: Initial treatment will be focused north of Poinsettia Lane in the Bressi Ranch Preserve and Spectrum Preserve areas, which totals approximately 144 acres (see attached map, Exhibit "C"). Note that this may include large areas of heavy shrub cover that has not been invaded by Ward's weed or is not accessible to field crews; therefore, actual acreage treated will depend on site conditions to be determined. Subsequent re-treatments may be conducted within the highest priority area across the entire invaded are, which spans approximately 200 acres. The current mapped infestation area is between El Camino Real and the eastern border of the city, and between Palomar Airport Road and Alga Road. The City of Carlsbad's [city] prioritization of treatment areas will be conducted in coordination with the Carlsbad Ward's Weed Eradication Team (city, County Department of Agriculture, Weights and Measures [AWM], the Nature Collective, and Center for Natural Lands Management [CNLM]). ACS Habitat Management (ACS) will provide services under this Agreement pursuant to the city's direction. Cost: The city will be charged by crew day on a time and materials basis, not to exceed $200,000 per the original term of the Agreement. One crew daily rate would be approximately $4,895, which includes equipment/vehicle(s) driver/supervisor, four technicians, and sufficient amount of herbicide for the daily planned treatment area (see Rate Sheet, see Exhibit "B''). It is estimated that each ACS crew could cover an average of approximately 2.2 acres per day. Actual costs and number of acres treated per day may vary depending on site conditions and number of crew, type of equipment, and amount of herbicide needed for a given day. ACS will provide one to three crews per day. Description of Activities A. Within one week from issuance of the Notice to Proceed, ACS will meet with city staff and the Carlsbad Ward's Weed Eradication Team to discuss current conditions and develop a coordinated plan to treat the Ward's weed in Carlsbad during the upcoming growing season. Thereafter, ACS will communicate at least weekly with the city to discuss current site conditions, potential issues and constraints, and the treatment plan (schedule, location, priorities, etc.) for the upcoming week. ACS will perform daily Ward's weed treatment until the initial treatment area (Bressi Ranch and Spectrum Preserves north of Poinsettia Lane) has been completely treated, unless otherwise directed by the city. Weekly communication will continue throughout the growing season or until the funds in the contract have been spent. If there are any remaining funds at the end of the first year, ACS will follow the same meeting/communication schedule discussed above during the second and third year. B. To expedite treatment of the extensive Ward's weed area, ACS crews may work more than 8 hours/day, and/or on weekends or holidays. C. The current treatment protocol consists of treating infested areas with Gallery™, a pre- emergent that has been used in native habitat landscapes for Ward's weed control with good success. Follow up treatment in areas that were missed by the initial treatment effort may be necessary. One crew would generally consist of a crew truck (with trailer for City Attorney Approved Version 6/12/18 8 Oct. 8, 2019 Item #1 Page 27 of 50 PSA20-895ENV tractor), a tractor with a power sprayer and/or a boom and operator, a water truck and driver/supervisor, four technicians, and sufficient amount of Gallery TM for the daily planned treatment area. However, the actual number of technicians and equipment may vary depending on site conditions. All herbicide and necessary equipment will be provided by ACS. D. ACS will perform the Ward's weed treatment activities on private property, subject to right of entry permits between the city and landowner, which will be obtained by the city. ACS will adhere to all provisions contained within the right of entry permits. E. ACS will follow all necessary best management practices related to health and safety, and stormwater protection during all pesticide application activities pursuant to the following State of California licenses or certificates held by ACS: Pest Control Advisor, Qualified Applicator License, and Qualified Applicator Certificate. F. Ward's weed eradication will be implemented using an adaptive management strategy upon direction from the city and in coordination with the Ward's Weed Eradication Team; therefore, prioritization of treatment areas, herbicide use, and schedule may be subject to change based on best available knowledge, weather, and site conditions. G. With every invoice submitted, ACS will include a summary of activities performed, including labor hours/labor rate, areas treated (shown on a map), amount of herbicide used, and issues encountered. Invoices will be submitted monthly or as directed by the city. City Attorney Approved Version 6/12/18 9 Oct. 8, 2019 Item #1 Page 28 of 50 PSA20-895ENV Exhibit "B" Invasive species control activities to eradicate Ward's weed in Carlsbad will be charged by crew day. Rates for a standard crew day, including labor, materials and equipment are included in the table below. Note that actual costs may vary depending on site conditions on any given day (i.e., the number of crew members, type of equipment, and amount of herbicide) and additional crews may be mobilized as needed and in coordination with the city. Rate $80.00 $50.00 $75.00 $300.00 $500.00 $600.00 Item Tractor Tech Water Crew Water Tractor Herbicide Operator/ Truck Truck Truck Supervisor Operator Quantity 1 4 1 1 1 1 Hours/Day 9 36 9 n/a n/a n/a n/a AmounUDay $720.00 $1,800.00 $675.00 $300.00 $500.00 $600.00 $300.00 Total: $4,895.00 City Attorney Approved Version 6/12/18 10 Oct. 8, 2019 Item #1 Page 29 of 50 1 Al po I Rd P-'~ '1' ~ ~ ;. u :5 --~~.1:S.11:<-:: < r.:_ 0 u ,.ton W::,,y ::; C Garden It, c,,.,. i .. ~ ~-100,.~.,, •-.,~ fl ..,,pt'\-'lr Av,, .. HMP Preserve (2223 Ward's Weed Infestation Ward's Weed Infestation and Treatment Areas ,. IQ,. c? ~11,, C .,. Center for Nalural Lands Management (CNLM) Nature Collective and City of Carlsbad County Dept of Agricullure, Weighls and Measures PSA20-895ENV - Exhibit "C" .. ::,, 0 E-----3 E-----3 2.000 lFeet "0 .,,. ~ "' t, :SI~ ~ ~'o ~"""dPI _, "' " 1/J j I!, Cl S' Oct. 8, 2019Item #1 Page 30 of 50 Attachment C Right of Entry Permits Oct. 8, 2019 Item #1 Page 31 of 50 ( City of Carlsbad RIGHT OF ENTRY AUTHORIZATION Property Owner/Agent Bressi Gardenlane LLC 2 13122 15,21312104,2 APN 1312105,21303018, 2013 120090 Property Location/Address ___________ _ Mailing Address 15131 Alton Parkway, Suite 365 Andrew Han-LENNAR Contact Information 949-349-8234 andrew.han@lennar.com City, Zip Code Carlsbad, CA 92009 City, Zip Code Irvine, CA 92618 The above-listed Property Owner, Authorized Representative Agent or Operator of Property ("Owner") hereby permits the City of Carlsbad, its officers, employees, and agents ("City"), to enter upon Owner's property ("Premises") located as listed above, subject to all licenses, easements, encumbrances, and claims of title affecting the Premises and upon the following terms and conditions: 1. Grant of Right-of-Entry. Owner hereby grants City a right-of-entry ("Permit") over the Premises to ingress to and egress from the Premises to conduct land management activities that fulfill the overall purpose of the City's Habitat Management Plan, which may include but are not limited to biological surveys, vegetation mapping, trash removal, habitat enhancement or restoration, and invasive species control. Invasive species control methods will include the least toxic methods that are effective in treating the target species, and may include hand pulling, weed whipping, digging, or use of organic or non-organic herbicides. City will use and apply herbicides in accordance with the instructions on the herbicide label and _in accordance with all applicable state and county laws and regulations. Herbicides will only be applied by applicators licensed by the State of California. All activities are subject to the terms and conditions set forth in this Permit and shall be performed in the City's sole discretion. Entry to the Premises will be by means of existing roads and driveways, where available, and by other means mutually agreed to by both parties when roads and driveways are not available. 2. No Implied Easement. Nothing in this Permit shall be construed to grant City an easement by implication, prescription, or any other operation of law. 3. Term. This Permit shall become effective upon execution hereof by both parties and shall terminate only upon written agreement of the parties. 4. Compliance with Laws. In conducting its operations on the Premises, City shall comply, at City's expense, with all applicable laws, regulations, rules, and orders, regardless of when they become or became effective, including, without limitation, those relating to health, safety, noise, environmental protection, waste disposal, and water and air quality, and shall furnish satisfactory evidence of such compliance upon request of Owner: 5. Waiver of Liability. In consideration of the City's land management activities on the Premises at no cost to Owner, Owner hereby waives, releases and forever discharges any and all rights and claims for damages, injuries, expenses or costs of any kind which Owner has now or may acquire in the future that are directly or indirectly related to the work described above, against the City and its agents, officials, employees, volunteers and contractors. Oct. 8, 2019 Item #1 Page 32 of 50 ~ityof Carlsbad 6. Costs. The work described above shall be done at the City's sole expense. Page2 o/2 7. Authority. Owner represents and warrants that it has full power and authority to execute and fully perform its obligations under this Permit pursuant to its governing instruments, without the need for any further action, and that the person(s) executing this Permit on behalf of Owner are the duly designated agents of Owner and are authorized to do so, and that fee title to the Premises vests solely in Owner. 9. Entire Agreement. This Permit, together with any addenda, exhibits and riders attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior or contemporaneous agreements, understandings and representations, oral or written, are superseded. 10. Modification. The provisions of this Permit may not be modified, except by a written instrument signed by both parties. 11. Partial Invalidity. If any provision of this Permit is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Permit shall not be affected thereby. Each provision shall be valid and enforceable to the fullest extent permitted by law. l' J. '" "} ,-, , I' IN WITNESS WHEREOF, both parties have executed this Permit effective as of , :t~ L, 1 -/ ':.2:u I f. \ i CITY: Scott Chadwick City Manager OWNER/AGENT(S): \}.__----. v=----. Owner/agent signature Owner/agent printed name Oct. 8, 2019 Item #1 Page 33 of 50 {city of Carlsbad RIGHT OF ENTRY AUTHORIZATION Property Owner/Agent MarWest Commercial Real Estate/ Bressi Spectrum Owner's Association APN 2218130100 Property Location/Address Melrose Dr and Poinsettia Lane Carlsbad,CA92009 Contact Paul Danninger Information Association Manager, MarWest 1049 Camino Del Mar Suite 12 . Del Mar, CA 92014 pdanninger@MarWestCommercial.com {858) 775-4917 The above-listed Property Owner, Authorized Representative Agent or Operator of Property ("Owner") hereby permits the City of Carlsbad, its officers, employees, and agents ("City"), to enter upon Owner's property ("Premises") located as listed above, subject to all licenses, easements, encumbrances, and claims of title affecting the Premises and upon the following terms and conditions: 1. Grant of Right-of-Entry. Owner hereby grants City a right-of-entry ("Permit") over the Premises to ingress to and egress from the Premises to conduct land management activities that fulfill the overall purpose of the City's Habitat Management Plan, which may include but are not limited to biological surveys, vegetat ion mapping, trash removal, habitat enhancement or restoration, and invasive species control. Invasive species control methods will include the least toxic methods that are effective in treating the target species, and may include hand pulling, weed whipping, digging, or use of organic or non-organic herbicides. City will use and apply herbicides in accordance with the instructions on the herbicide label and in accordance with all applicable state and county laws and regulations. Herbicides will only be applied by applicators licensed by the State of California. All activities are subject to the terms and conditions set forth in this Permit and shall be performed in the City's sole discretion. Entry to the Premises will be by means of existing roads and driveways, where available, and by other means mutually agreed to by both parties when roads and driveways are not available. 2. No Implied Easement. Nothing in this Permit shall be construed to grant City an easement by implication, prescription, or any other operation of law. 3. Term. This Permit shall become effective upon execution hereof by both parties and shall terminate only upon written agreement of the parties. 4. Compliance with Laws. In conducting its operations on the Premises, City shall comply, at City's expense, with all applicable laws, regulations, rules, and orders, regardless of when they become or became effective, including, without limitation, those relating to health, safety, noise, environmental protection, waste disposal, and water and air quality, and shall furnish satisfactory evidence of such compliance upon request of Owner. 5. Waiver of Liability. In consideration of the City's land management activities on the Premises at no cost to Owner, Owner hereby waives, releases and forever discharges any and all rights and claims for damages, injuries, expenses or costs of any kind which Owner has now or may acquire in the future that are directly or indirectly related to the work described above, against the City and its agents, officials, employees, volunteers and contractors. Oct. 8, 2019 Item #1 Page 34 of 50 {city of Carlsbad Page 2 of 2 6. Costs. The work described above shall be done at the City's sole expense. 7. Authority. Owner represents and warrants that it has full power and authority to execute and fully perform its obligations under this Permit pursuant to its governing instruments, without the need for any further action, and that the person(s) executing this Permit on behalf of Owner are the duly designated agents of Owner and are authorized to do so, and that fee title to the Premises vests solely in Owner. 9. Entire Agreement. This Permit, together with any addenda, exhibits and riders attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior or contemporaneous agreements, understandings and representations, oral or written, are superseded. 10. Modification. The provisions of this Permit may not be modified, except by a written instrument signed by both parties. 11. Partial Invalidity. If any provision of this Permit is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Permit shall not be affected thereby. Each provision shall be valid and enforceable to the fullest extent permitted by law. IN WITNESS WHEREOF, both parties have executed this Permit effective as of {zJ . 9 , ,j-[,) J 1 . CITY: OWNER/ AGENT(S): ARLSBAD, a municipal n in the County of San Diego, By: _Cole Buchner ____________ _ Owner/agent printed name Oct. 8, 2019 Item #1 Page 35 of 50 {city of Carlsbad RIGHT OF ENTRY AUTHORIZATION Property Owner/Agent Rancho Carrillo Master Association 22261022,22261226,22260014, 22182346,22260005,22260003, APN 22266226, 22266029, 22265022, 22266119,22262131,22267308, 22267118,22268202,22267002, 22185132,22185140,22186301, Property Location/Address Near Poinsettia Lane & Melrose Dr. Mailing Address 6250 Flying L. C. lane Jackie Jimenez Property Manager Contact Information jiimenez@waltersmanagement.com 760-804-5969 City, Zip Code Carlsbad, CA 92009 City, Zip Code Carlsbad, CA 92009 The above-listed Property Owner, Authorized Representative Agent or Operator of Property ("Owner") hereby permits the City of Carlsbad, its officers, employees, and agents ("City"), to enter upon Owner's property ("Premises") located as listed above, subject to all licenses, easements, encumbrances, and claims of title affecting the Premises and upon the following terms and conditions: 1. Grant of Right-of-Entry. Owner hereby grants City a right-of-entry ("Permit") over the Premises to ingress to and egress from the Premises to conduct land management activities that fulfill the overall purpose of the City's Habitat Management Plan, which may include but are not limited to biological surveys, vegetation mapping, trash removal, habitat enhancement or restoration, and invasive species control. Invasive species control methods will include the least toxic methods that are effective in treating the target species, and may include hand pulling, weed whipping, digging, or use of organic or non-organic herbicides. City will use and apply herbicides in accordance with the instructions on the herbicide label and in accordance with all applicable state and county laws and regulations. Herbicides will only be applied by applicators licensed by the State of California. All activities are subject to the terms and conditions set forth in this Permit and shall be performed in the City's sole discretion. Entry to the Premises will be by means of existing roads and driveways, where available, and by other means mutually agreed to by both parties when roads and driveways are not available. 2. No Implied Easement. Nothing in this Permit shall be construed to grant City an easement by implication, prescription, or any other operation of law. 3. Term. This Permit shall become effective upon execution hereof by both parties and shall terminate only upon written agreement of the parties. 4. Compliance with Laws. In conducting its operations on the Premises, City shall comply, at City's expense, with all applicable laws, regulations, rules, and orders, regardless of when they become or became effective, including, without limitation, those relating to health, safety, noise, environmental protection, waste disposal, and water and air quality, and shall furnish satisfactory evidence of such compliance upon request of Owner. 5. Waiver of Liability. In consideration of the City's land management activities on the Premises at no cost to Owner, Owner hereby waives, releases and forever discharges any and all rights and claims Oct. 8, 2019 Item #1 Page 36 of 50 {city of Carlsbad Pagel of 2 for damages, injuries, expenses or costs of any kind which Owner has now or may acquire in the future that are directly or indirectly related to the work described above, against the City and its agents, officials, employees, volunteers and contractors. 6. Costs. The work described above shall be done at the City's sole expense. 7. Authority. Owner represents and warrants that it has full power and authority to execute and fully perform its obligations under this Permit pursuant to its governing instruments, without the need for any further action, and that the person(s) executing this Permit on behalf of Owner are the duly designated agents of Owner and are authorized to do so, and that fee title to the Premises vests solely in Owner. 9. Entire Agreement. This Permit, together with any addenda, exhibits and riders attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior or contemporaneous agreements, understandings and representations, oral or written, are superseded. 10. Modification. The provisions of this Permit may not be modified, except by a written instrument signed by both parties. 11. Partial Invalidity. If any provision of this Permit is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Permit shall not be affected thereby. Each provision shall be valid and enforceable to the fullest extent permitted by law. IN WITNESS WHEREOF, both parties have executed this Permit effective as of r.J(' .1\ Cj _ ~)()/ ,:} ) CITY: RLSBAD, a municipal n in the County of San Diego, By: City Manager Owner OWNER/AGENT(S): Oct. 8, 2019 Item #1 Page 37 of 50