07-0328_MERKEL & ASSOCIATES , INC_Action Reminder0
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CITY CLERK'S DEPARTMENT - ACTION REMINDER
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TO: SECOND REQUES'
FROM: Christy Swanson, Secretary
SITUATION:
DATE: April 1, 2008 -1' 21
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On March 28, 2007 the City of San Juan Capistrano entered into a Personal Services
Agreement with Merkel and Associates, Inc to provide biological monitoring services for the
Acu Canyon Mitigation Site. �V�6-yl
ACTION REQUESTED: X115
Services shall be complete no later than April 30, 2008.
ACTION TO BE TAKEN:
DATE WHEN NEXT AC ON (S) SHOULD BETAKEN:
SIGNATURE OF OFFICIAL TAKING ACTION:
DATE SIGNED: i%�/• 2� G
***FOR CITY CLERK'S DEPARTMENT USE ONLY***
Tickler Date: 04/01/08
Deadline Date: 04/30/08
(600.30/merkel)
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PERSONAL SERVICES AGREEMENT
all -
THIS AGREEMENT is made and entered into this qday of NSVV07,
by and between the City of San Juan Capistrano (hereinafter referred to as the "City")
and MERKEL AND ASSOCIATES, INC. (hereinafter referred to as "Consultant").
RECITALS:
WHEREAS, City desires to retain the services of Consultant regarding the City's
proposal to provide biological monitoring services for the Acu Canyon Mitigation 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," attached and incorporated herein by reference.
Consultant warrants that all of its services shall be performed in a competent,
professional and satisfactory manner and in accordance with the prevalent standards of
its profession.
Section 2. Term.
This Agreement shall commence on the effective date of this Agreement and
services required hereunder shall be completed no later than April 30, 2008
Section 3. Compensation.
3.1 Amount.
Total compensation for the scope of services for this Project shall be for a lump
sum of Ten Thousand Thirty -Five Dollars and Forty Cents ($10,035.40) as set forth in
Exhibit "B," (Year 1), attached and incorporated herein by reference.
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3.2 Rate Schedule.
The services shall be billed to the City as set forth in Exhibit "B," attached and
incorporated herein by reference. Included within the compensation are the entire
Consultant's ordinary office and overhead expenses incurred by it, its agents and
employees, including meetings with the City representatives and incidental costs to
perform the stipulated services. Submittals shall be in accordance with Consultant's
proposal.
3.3 Method of Payment.
Notwithstanding the payment terms outlined in Exhibit "B", Consultant shall
submit monthly invoices based on total services, which have been satisfactorily
completed and specifying a percentage of projected completion for approval by the City.
The City will pay monthly progress payments based on approved invoices in
accordance with this Section.
For extra work not part of this Agreement, a written authorization from City is
required prior to Consultant undertaking any extra work.
3.4 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 were a substantial inducement for 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.
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Section 6. Changes to Scope of 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 Construction Site.
By executing this Agreement, Consultant warrants that: (1) it has investigated
the work to be performed; (2) it has investigated the proposed construction site,
including the location of all utilities, and is aware of all conditions there; and (3) it
understands the facilities, difficulties and restrictions of the work 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 City of
this and shall not proceed with further work under this Agreement until written
instructions are received from the City.
Section 8. Time of Essence.
Time is of the essence in the performance of this Agreement. Consultant shall
complete the Scope of Services as set forth in the schedule included in Exhibit "A",
attached and incorporated herein by reference.
Section 9. Compliance with Law.
Consultant shall comply with all applicable laws, ordinances, codes and
regulations of federal, state and local government.
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 contract period, Consultant shall have delivered to City
at least one (1) copy of any final reports and architectural drawings containing
Consultant's findings, conclusions, and recommendations with any support
documentation. All reports submitted to the City shall be in reproducible format.
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All services to be rendered hereunder shall be subject to the direction and
approval of the City.
Section 12. Ownership of Documents.
All reports, information, data and exhibits prepared or assembled by Consultant
in connection with the performance of its services pursuant to 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.
Consultant agrees to protect, and hold harmless City, its elected and appointed
officials and employees from any and all liabilities, expenses or damages of any nature,
including reasonable attorneys' fees, for injury or death of any person or damage to
property or interference with use of property resulting from errors and omissions
committed by Consultant arising from the negligent acts of Consultant, its agents,
employees and subcontractors in carrying out its obligations under this Agreement.
Section 14. Insurance.
Insurance required herein shall be valid for a minimum of one year, or term of
contract, whichever is longer, and it shall be provided by Admitted 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 the following minimum amounts:
$500,000 property damage;
$500,000 injury to one person/any one occurrence/not limited to
contractual period;
$1,000,000 injury to more than one person/any one occurrence/not limited
to contractual period.
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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 the following minimum amounts:
$500,000 property damage;
$500,000 injury to one person/any one occurrence/not limited to
contractual period;
$1,000,000 injury to more than one person/any one occurrence/not limited
to contractual period
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 to the Consultant's general liability and umbrella liability
policies to the City Clerk's office for certification that the insurance requirements of this
Agreement have been satisfied.
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 Clerk of the Board's office for
certification that the insurance requirements of this Agreement have been satisfied.
14.6 Notice of Cancellation/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.
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 and Consultant shall have the right to terminate this Agreement without
cause by giving thirty (30) days' advance written notice of termination to the other party
In addition, this Agreement may be terminated for cause by providing ten (10)
days' notice to the other party of a material breach of contract. If the other party 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: Public Works Director
To Consultant: Barbara L. Merkel
Merkel and Associates, Inc.
5434 Ruffin Road
San Diego, CA 92123
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 Agreement.
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:
R. Monahan, City Clerk
APPROVED AS TO FORM:
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John R.,hWw, City Attorney
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CITY OF SAN JUAN CAPISTRANO
By: --y 0,\-w,
David F. Adams, City Manager
CONSULTANT
Merkel &
Inc.
5434 Ruffin Road, San Diego,CA 92123
Tel: 858/560-5465 • Fax: 858/560-7779
e-mail: associates@merkelinc.com
I ;i! MAR 6 2007
Mr. Peter Salgado --
City of San Juan Capistrano
32400 Paseo Adelanto PJeuC !i; S
San Juan Capistrano, CA 92675 ------
arch 5, 2007
# 01-130-15
Re: Proposal to Provide Biological Monitoring Services for the City of San Juan
Capistrano Terminal Reservoir No. 3, Acu Canyon Mitigation Site
Dear Mr. Salgado:
Thank you for requesting a proposal for continued work on the San Juan Capistrano Terminal
Reservoir 3 wetland mitigation project. This proposal includes costs for a 5 -year monitoring and
reporting schedule for 0.34 -acre Acu Canyon off-site wetland enhancement area. Survey work
would be initiated following the installation of additional container plants at the site.
Task 1. Field Monitoring
Monitoring of the Acu Canyon site to assess the status of the wetland enhancement effort would
occur monthly for the first 12 months, quarterly for the second twelve months, and annually
thereafter for the remainder of the 5 -year monitoring program. Surveys would be initiated following
the installation of additional plants. The first 12 monthly monitoring events and Year 2 quarterly
monitoring events would consist of qualitative progress assessments of the project site. Years 1, 2, 3,
4, and 5 annual monitoring events would consist of both qualitative and quantitative site evaluations.
Quantitative monitoring would make use of a fixed -transect methodology to collect data to determine
plant cover within the planting area, percent cover of each species, and the percent survival of
container materials utilized in the restoration program. The 5 -year period may be shortened (with
agency concurrence) if final success milestones are achieved early.
Task 2. Report Preparation
Within two weeks following the monthly and quarterly monitoring events, the results would be
submitted to the City. The reports would describe overall site conditions as well as recommend
specific site maintenance actions required to ensure successful plant establishment. Additionally,
within one month following each annual monitoring period, a report detailing the results of the
monitoring would be completed. The annual reports would provide an analysis of data gathered
during the site visit and would discuss qualitative observations noted. The reports would also
provide prescribed remedial maintenance actions to be performed to ensure permit compliance. The
reports would be provided to the City of San Juan Capistrano for dissemination to the pertinent
regulatory agencies for review, comment, and general status information.
EXHIBIT A
. , M,,rkel & Associates, Inc. 401-0.5 • March 5, 2007
Task 3. Proiect Management
The Project Manager (PM) designated for the project shall be Mr. Stephen Rink. As Project
Manager, Mr. Rink will function as the day-to-day liaison with the City and will be the point of
contact for all administrative and contractual matters. The PM will be responsible for meeting
schedules, controlling budgets, and fulfilling scoping requirements. The PM will review all products
to ensure that they meet the requirements of the scope.
COST PROPOSAL
The following table summarizes the costs for the scope of work describe above. The costs reflect a
full 5 -year maintenance and monitoring program. Should the site achieve early sign -off (with agency
approval), a full 5 years may not be required, and only work completed would be billed. Any
additional surveys or required meetings would be addressed through a separate scope of work.
Tasks
Costs
Long Term Maintenance and Monitoring
Task 1.
Field Monitoring (5 -years)
$11,684.00
Task 2.
Report Preparation (5 -Years)
$11,512.00
Task 3.
Project Management (5 -Years)
$1,487.00
Total $24,683.00
We require a written authorization to proceed with this scope of work. If you have questions
regarding this proposal, please do not hesitate to call me or Steve Rink at (858) 560-5465. We look
forward to working with you on this project.
Merkel & Associates, Inc, has no existing or potential conflicts of interest, other projects, or
commitments that might impair or undermine our ability or integrity regarding the proposed services.
If you have questions regarding this proposal, please do not hesitate to call Steve Rink or me at (858)
560-5465. We look forward to working with you on this project.
Sincerely, p ��
Barbara L. Merkel
President
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EXHIBIT B
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32400 PASEO ADELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493-1171
(949) 493-1053 FAX
www.sanjuancapistrano.org
TRANSMITTAL
TO:
Merkel & Associates, Inc.
5434 Ruffin Road
San Diego, CA 92123
Attention: Barbara L. Merkel
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IRlAufY(E X961
1776
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FROM: Meg Monahan, MMC — City Clerk (949) 443-6308
MEMBERS OF THE CITY COUNCIL
SAM ALLEVATO
THOMAS W. HRIBAR
MARK NIELSEN
JOE $OTO
DR. LONDRES USO
RE: Personal Services Agreement — biological monitoring for Acue Canyon Mitigation Site.
An original, executed agreement is enclosed for your records.
Please coordinate your work under this agreement with Peter Salgado, Senior Civil Engineer
(949) 443-6366.
CC: Peter Salgado, Senior Civil Engineer
John Elwell, Interim Public Works Director
San Juan Capistrano: Preserving the Past to Enhance the Future
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