09-0616_CAA PLANNING_D11_Agenda Report0
AGENDA REPORT �p
TO: Dave Adams, City Managerp V
FROM: Joe Tait, Acting Utilities Director
• 6/16/2009
D11
SUBJECT: Consideration of the Personal Services Agreement for the 2009 Biological
Monitoring and Project Management for the 760 S Reservoir Project (CAA
Planning) (CIP# 791)
RECOMMENDATION:
By motion, approve the Personal Services Agreement with CAA Planning, Inc., in the
amount of $36,500, for biological monitoring services for 2009, at the 760 S Reservoir
Project; and direct the City Manager to sign the Agreement.
SITUATION:
In July 2006, the City completed construction of phase 1 of the 760 S Reservoir Project
which includes the construction of an initial four million gallon (MG) water reservoir and
a pad for a future four MG water reservoir to serve existing and future developments in
the southern portion of the City. The project site is located in the City's South Open
Space, at the head of Reservoir Canyon see location map, Attachment 2. The project
resulted in temporary and permanent impacts to almost nine acres of existing native
habitat. These impacts required jurisdictional reviews and approvals from the U.S. Fish
and Wildlife Service, California Department of Fish and Game, U.S. Army Corps of
Engineers, and California Regional Water Quality Control Board. Collectively, these
agencies are referred to as the resource agencies.
As part of the approvals from the resource agencies, the City has been required to
restore 17 acres of native habitat made up of a combination of Coastal Sage Scrub and
Riparian habitats. The City has also been required to maintain and monitor the
restoration area for a minimum 5 -year period to ensure compliance with the
jurisdictional approvals per the Reservoir Canyon Habitat Mitigation and Monitoring Plan
for the 760 Zone SC -04 Reservoir Project — Pursuant to the Condition Concurrence
with the Special 4(d) rule interim Habitat loss mitigation plan (IHLMP) for the project
(FWS/CDFG-OR_1602.3), CDFG 1066-2004-0440-R5, ACOE No. 200400717-CLM,
RWQCB File No. 04C-010), Prepared by J. Froke PhD., June 1, 2004, and modified
February 21, 2007. The aforementioned documents resulted in the following resource
agency permits, each carrying a burden of reporting and compliance: (A) U.S Fish and
Wildlife Service and CA Dept of Fish and Game — Conditional Concurrence with the
Special 4(d) Rule Interim Habitat Loss Mitigation Plan (HLMP) for the 760S Zone SC -04
Agenda Report
Page 2 July 16, 2009
Reservoir Project, City of San Juan Capistrano, Orange County, California; dated May
21, 2004; (B) Department of Fish and Game Streambed Alteration Agreement #1600-
204-0040-R5; dated June 14, 2004; (C) Department of the Army (aka ACOE)
Certification of Compliance with Nationwide Permit, No. 200400717-CLM; dated April 4,
2004; (D) CA-RWQCB, San Diego Region Waiver of Waste Discharge Requirements,
signed April 4, 2004. The purpose of this agreement with CAAP is to comply with these
requirements for 2009.
FINANCIAL CONSIDERATIONS:
There is sufficient funding in CIP No. 791 for this work. CAAP has performed the
monitoring work in the past for about $31,000 per year but this year proposes an
increase to $36,500. Several issues have added to the effort required. The issues
increasing the amount of work required include the addition of restoration area 13, the
expansion of the riparian habitat area to accommodate the mitigation for the Camino
Capistrano slide, additional restoration work needed to mitigate an illegally bike trail,
and increases in the field reporting requirements recently implemented by the ACOE.
Com -
RECOMMENDATION:
By motion, approve the Personal Services Agreement with CAA Planning, Inc., in the
amount of $36,500, for biological monitoring services for 2009, at the 760 S Reservoir
Project; and direct the City Manager to sign the Agreement.
Respectfully submitted,
Je Tait
Acting Utilities Director
Attachments:
1. Personal Services Agreement
2. Location Map
Pre/pared by,
Eric P. Bauman
Utilities Engineer
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PERSONAL SERVICES AGREEMENT
THIS AGREEMENT is made, entered into, and shall become effective this _day
of , 2009, by and between the City of San Juan Capistrano (hereinafter referred to
as the "City") and CAA Planning (hereinafter referred to as the "Consultant").
RECITALS:
WHEREAS, City desires to retain the services of Consultant for the performance of
Biological Monitoring and Reporting for 2009, at the 760 Reservoir Site; and,
WHEREAS, Consultant is qualified by virtue of experience, training, education and
expertise to accomplish such services.
NOW, THEREFORE, City and Consultant mutually agree as follows:
Section 1. Scope of Work.
The scope of work to be performed by Consultant shall consist of those tasks as set
forth in Exhibit 'A" described as the Consultant's proposal of June 3, 2009, attached and
incorporated herein by reference. To the extent that there are any conflicts between the
provisions described in Exhibit "A" and those provisions contained within this Agreement,
the provisions in this Agreement shall control.
Section 2. Term.
This Agreement shall commence on the effective date of this Agreement and
services required hereunder shall continue until notified that said services are no longer
required, subject to 15 days notice of termination.
Section 3. Compensation.
3.1 Amount.
Total compensation for the services hereunder shall not exceed $36,500 per
year; including expenses, as set forth in Exhibit "A,"
3.2 Method of Payment.
Subject to Section 3.1, Consultant shall submit monthly invoices based on
total services which have been satisfactorily completed for such monthly period. The City
will pay monthly progress payments based on approved invoices in accordance with this
Section.
ATTACHMENT
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3.3 Records of Expenses.
Consultant shall keep complete and accurate records of all costs and
expenses incidental to services covered by this Agreement. These records will be made
available at reasonable times to City.
Section 4. Independent Contractor.
It is agreed that Consultant shall act and be an independent contractor and not an
agent or employee of City, and shall obtain no rights to any benefits which accrue to City's
employees.
Section 5. Limitations Upon Subcontracting and Assignment.
The experience, knowledge, capability and reputation of Consultant, its principals
and employees and Sub -consultant Jeffery B. Froke were a substantial inducementfor City
to enter into this Agreement. Consultant shall not contract with any other entity to perform
the services required without written approval of the City. This Agreement may not be
assigned, voluntarily or by operation of law, without the prior written approval of the City. If
Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall
be responsible to City for the acts and omissions of its subcontractor as it is for persons
directly employed. Nothing contained in this Agreement shall create any contractual
relationships between any subcontractor and City. All persons engaged in the work will be
considered employees of Consultant. City will deal directly with and will make all payments
to Consultant.
Section 6. Changes to Scope of Work.
For extra work not part of this Agreement, a written authorization from City is
required prior to Consultant undertaking any extra work. In the event of a change in the
Scope of Work provided for in the contract documents as requested by the City, the Parties
hereto shall execute an addendum to this Agreement setting forth with particularity all
terms of the new agreement, including but not limited to any additional Consultant's fees.
Section 7. Familiarity with Work and/or Construction Site.
By executing this Agreement, Consultant warrants that: (1) it has investigated the
work to be performed; (2) if applicable, it has investigated the work site(s), and is aware of
all conditions there; and (3) it understands the facilities, difficulties and restrictions of the
work to be performed under this Agreement. Should Consultant discover any latent or
unknown conditions materially differing from those inherent in the work or as represented
by City, it shall immediately inform the City of this and shall not proceed with further work
under this Agreement until written instructions are received from the City.
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Section 8. Time of Essence.
Time is of the essence in the performance of this Agreement.
Section 9. Compliance with Law: E -Verify.
9.1. Compliance with Law.
Consultant shall comply with all applicable laws, ordinances, codes and regulations
of federal, state and local government.
9.2. E -Verify.
If Consultant is not already enrolled in the U.S. Department of Homeland Security's
E -Verify program, Consultant shall enroll in the E -Verify program within fifteen days of the
effective date of this Agreement to verify the employment authorization of new employees
assigned to perform work hereunder. Consultant shall verify employment authorization
within three days of hiring a new employee to perform work under this Agreement.
Information pertaining to the E -Verify program can be found at http://www.uscis.-goy, or
access the registration page at https://www.vis-dhs.com/emploverregistration. Consultant
shall certify its registration with E -Verify and provide its registration number within sixteen
days of the effective date of this Agreement. Failure to provide certification will result in
withholding payment until full compliance is demonstrated.
Section 10. Conflicts of Interest.
Consultant covenants that it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the
performance of the services contemplated by this Agreement. No person having such
interest shall be employed by or associated with Consultant.
Section 11. Copies of Work Product.
At the completion of the work, Consultant shall have delivered to City at least one
(1) copy of any final reports and/or notes or drawings containing Consultant's findings,
conclusions, and recommendations with any supporting documentation. All reports
submitted to the City shall be in reproducible format, or in the format otherwise approved
by the City in writing.
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Section 12. Ownership of Documents.
All reports, information, data and exhibits prepared or assembled by Consultant in
connection with the performance of its services pursuantto this Agreement are confidential
to the extent permitted by law, and Consultant agrees that they shall not be made available
to any individual or organization without prior written consent of the City. All such reports,
information, data, and exhibits shall be the property of the City and shall be delivered to the
City upon demand without additional costs or expense to the City. The City acknowledges
such documents are instruments of Consultant's professional services.
Section 13. Indemnity.
To the fullest extent permitted by law, Consultant agrees to protect, defend, and
hold harmless the City and its elective and appointive boards, officers, agents, and
employees from any and all claims, liabilities, expenses, or damages of any nature,
including attorneys' fees, for injury or death of any person, or damages of any nature,
including interference with use of property, arising out of, or in any way connected with the
negligence, recklessness and/or intentional wrongful conduct of Consultant, Consultant's
agents, officers, employees, subcontractors, or independent contractors hired by
Consultant in the performance of the Agreement. The only exception to Consultant's
responsibility to protect, defend, and hold harmless the City, is due to the negligence,
recklessness and/or wrongful conduct of the City, or any of its elective or appointive
boards, officers, agents, or employees.
This hold harmless agreement shall apply to all liability regardless of whether any
insurance policies are applicable. The policy limits do not act as a limitation upon the
amount of indemnification to be provided by Consultant.
Section 14. Insurance.
On or before beginning any of the services or work called for by any term of this
Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration
of the agreement, and provide proof thereof that is acceptable to the City, the insurance
specified below with insurers and under forms of insurance satisfactory in all respects to
the City. Consultant shall not allow any subcontractor to commence work on any
subcontract until all insurance required of the Consultant has also been obtained for the
subcontractor. Insurance required herein shall be provided by Insurers in good standing
with the State of California and having a minimum Best's Guide Rating of A- Class VII or
better.
14.1 Comprehensive General Liability.
Throughout the term of this Agreement, Consultant shall maintain in full force
and effect Comprehensive General Liability coverage in an amount not less than one
million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks
associated with the work contemplated by this agreement. If a Commercial General
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Liability Insurance form or other form with a general
general aggregate limit shall apply separately to th
agreement or the general aggregate limit shall be at
limit.
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aggregate limit is used, either the
e work to be performed under this
least twice the required occurrence
14.2 Comprehensive Automobile Liability.
Throughout the term of this Agreement, Consultant shall maintain in full force
and effect Comprehensive Automobile Liability coverage, including owned, hired and non -
owned vehicles in an amount not less than one million dollars per occurrence
($1,000,000.00).
14.3 Worker's Compensation.
If Consultant intends to employ employees to perform services under this
Agreement, Consultant shall obtain and maintain, during the term of this Agreement,
Worker's Compensation Employer's Liability Insurance in the statutory amount as required
by state law.
14.4 Proof of Insurance Requirements/Endorsement.
Prior to beginning any work under this Agreement, Consultant shall submit
the insurance certificates, including the deductible or self -retention amount, and an
additional insured endorsement naming City, its officers, employees, agents, and
volunteers as additional insureds as respects each of the following: Liability arising out of
activities performed by or on behalf of Consultant, including the insured's general
supervision of Consultant; products and completed operations of Consultant; premises
owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed
by Consultant, The coverage shall contain no special limitations on the scope of protection
afforded City, its officers, employees, agents, or volunteers.
14.5 Errors and Omissions Coverage
Throughout the term of this Agreement, Consultant shall maintain Errors and
Omissions Coverage (professional liability coverage) in an amount of not less than One
Million Dollars ($1,000,000). Prior to beginning any work under this Agreement, Consultant
shall submit an insurance certificate to the City's General Counsel for certification that the
insurance requirements of this Agreement have been satisfied.
14.6 Notice of Cancel lation/TermInation of Insurance.
The above policy/policies shall not terminate, nor shall they be cancelled, nor
the coverages reduced, until after thirty (30) days' written notice is given to City, except that
ten (10) days' notice shall be given if there is a cancellation due to failure to pay a
premium.
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14.7 Terms of Compensation.
Consultant shall not receive any compensation until all insurance provisions
have been satisfied.
14.8 Notice to Proceed.
Consultant shall not proceed with any work under this Agreement until the
City has issued a written "Notice to Proceed" verifying that Consultant has complied with all
insurance requirements of this Agreement.
Section 15. Termination.
City shall have the right to terminate this Agreement without cause by giving fifteen
(15) days' advance written notice of termination to Consultant.
In addition, this Agreement may be terminated by any party for cause by providing
ten (10) days' notice to the other party of a material breach of contract. If the other parry
does not cure the breach of contract, then the agreement may be terminated subsequent
to the ten (10) day cure period.
Section 16. Notice.
All notices shall be personally delivered or mailed to the below listed addresses, or
to such other addresses as may be designated by written notice. These addresses shall
be used for delivery of service of process:
To City: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Joe Tait, Acting Utilities Director.
To Consultant: CAA Planning
85 Argonaut, Suite 220
Aliso Viejo, California 92656
Attn: Shawna L. Schaffner, Chief Executive Officer
Section 17. Attorneys' Fees.
If any action at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which he may be entitled.
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Section 18. Dispute Resolution.
In the event of a dispute arising between the parties regarding performance or
interpretation of this Agreement, the dispute shall be resolved by binding arbitration under
the auspices of the Judicial Arbitration and Mediation Service ("JAMS").
Section 19. Entire Aareement.
This Agreement constitutes the entire understanding and agreement between the
parties and supersedes all previous negotiations between them pertaining to the subject
matter thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
ATTEST:
Margaret R. Monahan, City Clerk
APPROVED AS TO FORM:
Ut
'
��� -
Omar Sandoval, City Attorney
CITY OF SAN JUAN CAPISTRANO
In
Dave Adams, City Manager
CONSULTANT `�
-Shawna L. Schaffp r,
Chief Executive Officer
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I
CAA PLANNING
June 3, 2009
Mr. Eric Bauman
Water Engineering Manager
Public Works Department
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
SUBJECT: Proposal for Professional Planning Services and Biological Monitoring and
Reporting Relating Monitoring at the 760 Reservoir Site in the City of San Juan
Capistrano
Dear Mr. Bauman:
CAA Planning (CAA) appreciates the opportunity to submit this proposal for the third year of
Biological Monitoring and Reporting relating to the 760 Reservoir Site. CAA has been working
on the 760 Reservoir project since December 2003. The habitat restoration is mainly on target for
2008-09, and we are entering FY 2009 biological monitoring and reporting. While the habitat
creation project has been successful for the most part, there are a few issues on site that need to
be addressed so that the project is successful. A detailed report on the status of the site was
provided to you on December 1, 2008.
Weed abatement is an anticipated task that will need to be conducted during the next year of
monitoring. The availability of water is also a concern due to the lack of adequate rainfall thus
far. The site will need to be monitored carefully to ensure that plant growth is successful on site.
Due to the lack of adequate rain this year the 760 Reservoir Site has suffered shortfalls and
challenges regarding plant growth. During 2008 Dr. Jeffrey B. Froke conducted approximately
20 days of biological field monitoring. Dr. Froke will need to continue to engage in biological
field monitoring to improve the long-term viability of the project. Dr. Froke's tasks are
anticipated to total 200 hours and include monitoring plant vigor/density, definition and
monitoring of site maintenance, preparation of monthly field reports and annual report
preparation.
In addition to Dr. Froke's work, we will prepare monthly status reports to the City and the City's
Maintenance Contractor. We will also prepare yearly Monitoring Reports in accordance with the
conditions of the City's Resource Agency Permits. We will submit the Monitoring Reports to the
respective Resource Agency, and provide copies of all correspondence to the City. We will
provide on-going project management including coordination efforts with the Maintenance
Contractor. The project management task will also include analysis of data gathered during field
EXHIBIT "A"
85 Argonaut, Suite 220 • Aliso Viejo, Califomia 92656 • (949) 581-2888 • Fax (949) 581-3599
Mr. Eric Bauman
June 3, 2009
Page 2 of 4
monitoring to adjust or fine tune maintenance techniques for each restoration site. Finally, we
will provide necessary coordination with the Resource Agencies on the City's behalf. An outline
of our proposed tasks, along with the estimated fee, is provided below.
Project Tasks and Estimated Fee
No.
Task
Cost
1.
Field Monitoring, year-end reporting and monthly status reports
$ 31,500
to City and City's Maintenance Contractor
2.
Project Management including data analysis, coordination with
$ 5,000
the maintenance contractor, strategic coordination with City and
Resource Agencies
Tota[
1 $ 36,500
Prior to initiation of the new year of biological monitoring, Dr. Froke will submit a field
monitoring schedule to the City and to the City's maintenance contractor. This schedule will
promote effective communication between Dr. Froke and the maintenance contractor, and will
enable any maintenance efforts requiring Dr. Froke's supervision to be planned in a cost-
effective manner.
Compensation
At this time, we believe that a time and materials approach, as set forth in the attached General
Provisions and Schedule of Fees for Professional Services, for an estimated fee of $36,500 will
provide an effective working relationship for the successful completion of this project. All
reimbursable expenses including printing, postage and word processing are in addition and will be
billed at cost. Invoices will be submitted monthly for prior month's services.
Limitations
The proposal is based on the time parameters and estimated fees set forth herein, and the narrative
outlining the scope of work. Changes in the schedule or scope of work assumptions may result in costs
beyond those currently anticipated. Major changes include, but are not limited to:
1. Changes in the project by the City, State, or other approving body which cause
revisions of printed documentation or plans beyond those covered by the scope of
work.
2. Changes in the schedule by the City, State, or other approving body, beyond the
parameters set forth in this proposal.
3. Expansion of the project area under study by the City, State, or other approving
body.
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Mr. Eric Bauman
June 3, 2009
Page 3 of 4
4. Additional planning entitlements, permits or processing requested by the City.
5. Appeal of project determinations (e.g. project approval or denial) by the. City,
State, or other approving body, or other person, group or organization.
If one or more of the above incidents occurs, CAA shall be entitled to request a contract
amendment. In the event a contract amendment cannot be mutually agreed upon or is denied,
CAA shall be entitled to withdraw from the project and terminate the contract/agreement, and be
paid by the Client for all amounts owed/pending up to the date of termination of the
contract/agreement for the work performed.
This proposal will be considered valid for a commence -work date up to July 31, 2009 and is
valid for a project completion date of July 31, 2010.
Conclusion
We believe that CAA Planning can provide the best representation for the City on this project.
Should you find this proposal acceptable, our authorization to proceed will be satisfied by
signing where indicated on the following page and returning the original of this letter to my
attention. We look forward to continuing our work with the City on this important project.
Should you have any questions regarding this proposal, please contact me or Tom Mathews at
(949)581-2888.
Sincerely,
CAA Planning
Shawna L. Schaffner
Chief Executive Officer
Attachment: Schedule of Fees
Mr. Eric Bauman
June 3, 2009
Page 4 of 4
AUTHORIZATION TO PROCEED:
Signature:
Name:
Title:
Date:
Place of Execution:
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CAA PLANNING
General Conditions and
Schedule of Fees for Professional Services
Standard Billing Rates Effective January 1, 2009*
Classification
Hourly Rate
Principal
$275
Principal Planner 1
$200
Principal Planner II
$150
Senior Project Manager
$135
Project Manager
$125
Engineering Coordinator
$125
Senior Planner
$110
Associate Planner 1
$100
Associate Planner 11
$85
Graphics Manager
$75
Assistant Planner
$65
'Rates are subject to revision effective January 1 of each year
General Conditions
1. Reimbursable expenses (travel accommodations
including rental vehicles and regularly scheduled
commercial airline flights, food and lodging, blueprinting
and reproduction, delivery/courier, supplies, extensive
mailing postage, etc.) are billed at cost and are in
addition to the estimated fee for the project.
2. Automobile mileage outside Orange County will be billed
at $0.585 per mile.
3. Hourly rates apply to work time as well as travel time and
waiting time that occurs at public hearings. Rates
increase 50% for depositions or court testimony.
4. Statements will be submitted monthly for work in
progress or upon completion of work. Statements are
payable upon receipt. Any statement unpaid after thirty
(30) days shall be subject to the maximum monthly
interest charge provided by law on amounts thirty (30)
days past due. If Client fails to pay Consultant within
sixty (60) days after invoice is rendered, client agrees
Consultant shall have the right to consider such default
in payment a material breach of the entire agreement,
and, upon written notice, the duties, obligations, and
responsibilities of Consultant under this agreement are
terminated.
5. Client hereby agrees that the balance in a billing
statement is correct and binding unless the Client
notifies the Consultant in writing within ten (10) days of
the date of billing and informs Consultant of alleged
incorrect item; provided, however, that the foregoing
shall apply only to the description of work performed as
set forth in the billing statement, and if after such ten
(10) day period Client discovers a mathematical error in
the billing statement, Client shall not be bound by the
erroneous balance, which Consultant hereby agrees to
correct.
6. Consultant makes no warranty as to its findings, except
that the work is performed using generally accepted
methods.
7. Consultant makes no warranty that the project will be
approved by any governmental agency, nor endorsed by
any citizens group.
8. Client agrees to limit the Consultant's liability to the
Client and to all Contractors and Subcontractors on the
project due to Consultant's material, willful, and grossly
negligent acts, errors, or omissions, to the sum of
$50,000 or to the Consultant's fee, whichever is less.
9. In the event either party commences legal action to
enforce this Agreement of the General Conditions, the
prevailing party shall be entitled to recover its reasonable
attorney's fees and costs incurred in the action, in
addition to all other relief to which the prevailing party is
entitled.
10. In the event of a mid -phase contract suspension, billings
will be prorated to reflect tasks in progress, except where
a task was completed earty, in which case it will be billed
as if the task were complete.
11. Client agrees and concurs that Consultant is obligated to
only Client to perform and/or receive direction or
instructions on the project, and that Consultant is not
obligated to perform and/or take direction or instructions
from Client's other Consultants or Subconsultants
without prior written notification and concurrence by
Consultant.
a
THE CITY OF
SAN JUAN CAPISTRANO
Site
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ATTACHMENT