09-0312_MERKEL & ASSOCIATES_Personal Services AgreementPERSONAL 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 Merkel & Associates, Inc. (hereinafter referred to
as the "Consultant").
RECITALS:
WHEREAS, City desires to retain the services of Consultant regarding the City's
proposal to Provide the First Year of Biological Monitoring Services for the Placida
Landslide Habitat Restoration Project; 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 the Consultant shall consist of those tasks as
set forth in Exhibit' A," described as the Consultant's Proposal of January 08, 2009, M&A
Job No. 08-168-01, 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 Sixteen
Thousand Four Hundred Twenty Nine Dollars ($16,429.00) for the cost of the first year of
monitoring and reporting, including all costs and expenses, as set forth in Exhibit "A,"
attached and incorporated herein by reference.
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
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will pay monthly progress payments based on approved invoices in accordance with this
Section.
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 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.
Section S. 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.
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.gov, or
access the registration page at I'itt //w\Nniv mvis-dhs.corri/employerregistration. 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 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.
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 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 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 aggregate limit is used, either the
general aggregate limit shall apply separately to the work to be performed under this
agreement or the general aggregate limit shall be at least twice the required occurrence
limit.
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 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.
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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 thirty
(30) 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 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
Mr. John G. O'Donnell, Utilities Director
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
To Consultant: Merkel & Associates, Inc,
Ms. Barbara L. Merkel
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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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CITY OF SAN ,JUAN CAPISTRANO
By: �jlv.w
Dave Adam, City Manager
MERKEL & ASSOCIATES, INC.
Omar Sandoval, City Attorney
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Merkel & Associates, Inc.
5434 Ruffin Road, San Diego, CA 92123
Tel: 8581560-5465 • Fax: 8581560-7779
e-mail. associates@merkelinc.com
Mr. Eric Bauman
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Revised (Draft)
January 8, 2008
M&A 4 08-168-01
Re: Proposal to Provide Biological Monitoring Services for the City of San Juan
Capistrano Avenida Placida Landslide Emergency Project
Dear Mr. Bauman:
Thank you for requesting a proposal to provide biological consulting services on the Avenida Placida
Landslide Emergency project. This proposal includes costs for the development of a site
maintenance description, first year monitoring, reporting, and coordination for the project. The
following sections provide details for each task associated with the project.
PROPOSED METHOD TO ACCOMPLISH THE WORK
Task 1. Preparation of Maintenance Work Description
M&A would prepare a description of the maintenance work for the first year at the subject project
site. The maintenance work descriptions would outline work requirements to keep the project in
compliance with the USFG & USFW permit FWS.CDFG-OR-4244.2. The work description would
follow the format of the work description you provided for the Reservoir 760 S site, and provide the
maintenance contractor with a clear description of the level of work anticipated for the site to meet
the year 1 goals per the regulatory permits.
Task 2. Field Monitorin
Monitoring of the project site to assess the status of the revegetation effort would occur monthly for
Year 1 of the monitoring program and would consist of a qualitative overview of the project site.
Findings from each. monthly site visit would be summarized in a Site Observation Report and would
be sent to the City and maintenance contractor for review. The Year 1 (annual) monitoring event
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
areas, percent cover of each species, and the percent survival of container materials utilized in the
restoration program.
EXHIBIT "A"
December 15, 2008
Task 3. Report Preparation
Within two weeks following the monthly monitoring events, the results would be submitted. to the
City and maintenance contractor. The reports would describe overall site conditions, as well as
recommend specific site maintenance actions required to ensure permit requirements are fulfilled.
Additionally, following the annual monitoring event, a report detailing the results of the monitoring
would be completed per regulatory agency permit requirements. A draft annual report 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 draft report would be provided to the City of San Juan Capistrano and sent
to the pertinent regulatory agencies for review, comment, and general status information. M&A
would incorporate any agency comments into the final annual report. Please note that for budget
planning purposes, only one round of response to regulatory agency comments is included within this
scope of work
Task 4. Project Management and the M&A Team
M&A has an excellent working relationship with the pertinent resource agencies involved with the
subject project including, the U.S. Army Corps of Engineers (ACOS), California Department of Fish
and Game (COFG), and the United State Fish and Wildlife Service (USFWS). M&A's familiarity
with the requirements, policies, and processes of key resource agencies enables the firm to prepare
environmental documents as necessary for the project.
The M&A Team is comprised of individuals possessing considerable experience working in southern
California and within the City of San Juan Capistrano. All of the Team members have conducted
considerable work with regard to vegetation monitoring.
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 seeping requirements. The PM. will review all products
to ensure that they meet the requirements of the scope.
COST PROPOSAL
A fixed fee proposal has been attached. A detailed costs analysis has also been included with the
fixed fee total. M&A has proposed costs to cover the first year of monitoring. These costs will be
valid for 90 days.
If you have questions regarding this proposal, please do not hesitate to call Steve Rink or Barbara
Merkel at (858) 560-5465. We look forward to working with you on this project.
Sincerely.
Keith W. Merkel
Principal Consultant
Merkel & Associates, Inc. 908-168-01 2
Mr. Eric Bauman
November 26, 2008
Biological Monitoring_for the Avenida Placida Landslide Emergency Prgject
Task Staff Rate/Hour Hours Cost Total
1. Preparation of Maitenance Work Description
Senior Biologist $ 107.00 8.00 $ 856.00
Clerical Support $ 56.00 0.50 $ 28.00
Reproduction $ 15.00 1.00 $ 15.00
2 Field Monitoring
2a. Site Inspections
First Year Monthly Site Inspections
2b. Annual Monitioring
Year I
3 Report Preparation
3a. Site Inspection Letter Reports
First Year Monthly Letter Reports
3b. Annual Monitoring Reports
Year 1 (Draft)
Merkel & Associates, Inc. #08-968-01
$ 899.00
Task 1a Total $ 899.00
Senior Biologist
$
107.00
55.00
$
5,885.00
Clerical Support
S
56.00
2.75
$
154.00
Digital Camera
$
15.00
11.00
$
165.00
Mileage
$
0.65
1,364.00
$
886.60
Senior Biologist
$
107.00
Biological Techniciai
$
72.00
Clerical Support
$
56.00
Digital Camera
$
15.00
dGPS
$
110.00
Mileage
$
0.65
Senior Biologist
Clerical Support
Reproduction
107.00
$ 56.00
$ 5.00
Senior Biologist
$
107.00
Biological Techniciai
$
72.00
GIS Specialist
$+
82.00
Clerical Support
$
56.00
Reproduction
$
40.00
vy i,vi v.vu
Task la Total I S� 7,090.60
8.00
$
856.00
8.00
$
576.00
0.25
$
14.0.0
1.00
$
15.00
1.00
$
110.00
124.00
$
80.60
$ 1,651.60
...'Task.l.b. Total . $... 1,6;1.,60. .
Task 1Total $ 8,742.20
22.00 S 2,3 54.00
8.25 $ 462.00
12.00 S 60.00
$ 2,876.00
Task 2a "Total 1 $� 2,876.00
12.00
$
1,284.00
5.00
$
360.00
4.00
$
328.00
1.00
$
56.00
4.00
$
160.00
Budget Analysis
Costs Are Valid For 90 Days
Mr. Eric Bauman
Year 1 (Final)
4 Project Management
Senior Biologist
$ 107.00
GIS Specialist
$ 82.00
Clerical Support
$ 56.00
Reproduction
$ 40.00
Principal Consultant $ 218.00
Senior Biologist $ 107.00
Clerical $ 56.00
November 25, 2008
4.00
$
428.00
2.00
$
164.00
1.00
$
56.00
4.00
$
160.00
Task 2b. Total $ 2,996.00
Task 2 Total $ 5,872.00
1.00 $ 218.00
6.00 $ 642.00
1.00 $ 56.00
$ 916.00
Task 3 Total $ 916.00
GRAND TOTAL ALL, TASKS $ 16,429.20
Steve Rink is a Senior Biologist, Mary Tamburro is a Biological Technician, Keith Merkel is the Principal Consultant
Terminal Reservoir No. 3
Biological Monitoring of Wetlands Restoration Site
No.
JTask
Year 1
1
Monitoring Schedule & Goals Memo
$899.00
2.
Field Monitoring
$8,742.20
3.
Report Preparation
$5,872.00
4.
project Management
$916.00
Year 1 Total
$16,429.20
Budget Analysis
Costs Are Valid For 90 Days
Merkel & Associates, Inc. #08-168-01
32400 PASEO ADIELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493-1179
(845) 493-1053 FAx
www.sanjuancapistrano.org
TRANSMITTAL
Merkel & Associates, Inc
Ms. Barbara L. Merkel
5434 Ruffin Road
San Diego, CA 92123
DATE. March 12, 2009
FROM: Maria Morris, Deputy City Clerk (949) 443-6309
MEMBERS OF THE CITY COUNCI€.
SAM ALLEVATO
LAURA FREESE
THOMAS W. HRIBAR
MARK NIELSEN
AR. LONDRES USO
RE: Personal Services Agreement — Biological Monitoring Services — Placida Landslide
Habitat Restoration Project
Thank you for maintaining documentation confirming compliance with the terms of the
agreement related to insurance.
Please keep in mind this documentation must remain current with our office during the term of
this agreement. If you have questions related to insurance requirements, please call me at
(949) 443-6309.
If you have questions concerning the agreement, please contact Eric Bauman, Utilities
Engineer at (949) 487-4312
An original agreement is enclosed for your records
Cc: Eric Bauman, Utilities Engineer
San Juan Capistrano: Prerening the Past to Enhance the Future
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