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HomeMy WebLinkAbout2009/08/04 Item 5 CITY COUNCIL AGENDA STATEMENT ~(~ CITYOF . · - (HUlA VISTA ITEM TITLE: SUm\UTTED BY: REVIEWED BY: August 4, 2009, Item~ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A TWO-PARTY AGREEMENT BETWEEN THE CITY OF CHULA VISTA Ai'lD RECON ENVIRONMENTAL, INe., TO SERVE AS THE OTAY RAt"lCH PRESERVE STEWARD/BIOLOGIST ("AGREEMENT") AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT AND UP TO FOUR I-YEAR EXTENSIONS TO THE AGREEMENT DEPUTY CITY MANAGE~VELOPMENT SERVICES DIRECTOR CITY MANAGE~ 4/5THS VOTE: Y~S D NO 0 SUMMARY On May 6, 2009, a Request for Qualifications was distributed to qualified biological consultants in order to solicit candidates interested in serving as the Otay Ranch Preserve Steward/Biologist. Upon completing a competitive bidding process, the City selected RECON Environmental Inc. (RECON) to serve as the Preserve Steward/Biologist to manage and monitor the biological resources within the Otay Ranch Preserve in accordance with the Otay Ranch Resource Management Plan. Staff has prepared a two-party agreement with RECON for this service for Council consideration. ENVIRONlYIENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it involves only the approval of a contract to provide biological technical services to the City as the Otay Ranch Preserve Steward/Biologist; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA Thus, no environmental review is necessary. 5-1 AUGUST 4, 2009, Item~ Page 2 of 4 RECOMMENDATION Council adopt the Resolution. BOARDS/COMMISSION RECOMMENDATION Not Applicable DISCUSSION In 1993, the City of Chula Vista (City) and County of San Diego (County) jointly adopted the Otay Ranch General Development Plan/Subregional Plan (GDP/SRP), which sets forth the plans for development and open space within Otay Ranch. The GDP/SRP delineates approximately 11,000 acre area as the Otay Ranch Preserve system (preserve). Included as part of the GDP/SRP, the Otay Ranch Resource Management Plan (RMP) Phase 1 was incorporated to identify major policies and implementation measures to guide development and the protection of the biological and cultural resources within Otay Ranch. As a requirement of RMP Phase I, prior to the approval of the first Sectional Planning Area (SPA) within the Ranch, a Preserve Owner/Manager (paM) for the Preserve must be selected and an RMP Phase 2 must be completed, which would serve as the implementation plan providing the framework for the protection, management, and monitoring requirements of the Preserve. In 1996, RMP Phase 2 was completed and the City and the County designated themselves as the Otay Ranch paM. The City and County executed a Joint Powers Agreement (JP A) to delineate their respective roles and responsibilities. The fundamental job of the paM is to implement the RMP by actively managing lands conveyed to the Otay Ranch Preserve system. Generally the paM is tasked to protect resources, monitor and manage preserve lands; participate in necessary enforcement activities; develop educational facilities and interpretive programs; and implement and/or coordinate and accommodate research programs. To date, the City and County continue to serve as the paM for the Preserve. In March 2009, the City and County, in coordination with the Otay Ranch paM Working Group, consisting of representatives from the U.S. Fish and Wildlife Service, California Department of Fish and Game (collectively referred to as the Resource Agencies), stakeholders, and other interested parties, determined the need to designate a single entity to serve as the Preserve Steward/Biologist to provide the paM with technical expertise needed to manage and monitor the Preserve. paM staff and the Working Group developed a Scope of Work (SOW) outlining the qualifications of the Preserve Steward/Biologist. The SOW was then presented and approved by the Otay Ranch paM Preserve Management Team (PMT) and Policy Committee (PC) that same month. The PMT consists 'of the City's Deputy City Manager/Director of Development Services, Gary Halbert, and Deputy Chief Administrative Officer of the County of San Diego, Chandra Wallar. The PC includes two elected officials, one from each jurisdiction, Deputy Mayor John McCann and Supervisor Greg Cox, Member of the Board of Supervisors for the County of San Diego. Both the PMT and PC directed paM staff to proceed with retaining a Preserve Steward/Biologist through a competative bidding 5-2 AUGUST 4, 2009, Item 5 Page 3 of 4 process. At that time, the City agreed to administer the contract on behalf of the POM and proceed with distribution of a Request for Qualifications (RFQ). On May 6, 2009, a RFQ was distributed to qualified biological consultants in order to solicit candidates interested in serving as the Otay Ranch Preserve Steward/Biologist. Upon completing a competitive bidding process, the City selected RECON to serve as the Preserve Steward/Biologist in order to manage and monitor the biological resources within the Preserve in accordance with the approved Otay Ranch R.tVIP. Staff has prepared a two-party agreement with RECON outlining the scope of work anticipated for the Preserve Steward/Biologist. Services to be provided to the City include, but are not limited to the following: . Conduct field surveys in order to monitor the sensitive biological resources existing within the Preserve; . Prepare biological resource reports documenting monitoring results and observation; . Participate and represent the POM at meetings related to management and monitoring of regional habitat; and, . Implement basic stewardship in accordance with the Otay Ranch RMP. Pursuant to the two-party agreement, RECON will serve as the Preserve Steward/Biologist for a duration of I-year. The City has the option to renew this Agreement on an annual basis, for a maximum of four additional I-year terms. The City Manager shall have the authority to exercise each option to renew. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property, which is the subject of this action. CURRENT YEAR FISCAL IMPACT Staff has estimated approximately $350,000 will cover the costs for the Preserve Steward/Biologist to implement management and monitoring of the lands currently under POM ownership, which totals approximately 1,300 acres. The funding source for this contract is provided through the City's Community Facility District 97-2 (CFD 97-2). CFD 97-2 was specifically established to provide perpetual funding for the maintenance and monitoring of the Otay Ranch Preserve. During the 08/09 fiscal year, $350,000 was collected to cover costs for management and monitoring of lands currently under POM ownership; therefore, the cost to implement the two-party agreement with RECON will not result in a fiscal impact to the general fund. ONGOING FISCAL IMPACT As stated previously, CFD 97-2 was established to provide a perpetual funding source for maintenance and monitoring of the Otay Ranch Preserve. Currently, the annual management and monitoring budget is approximately 5350,000; however, this amount 5-3 AUGUST 4, 2009, Item~ Page 4 of 4 may vary each year and will be reassessed on an annual basis. The annual budget will be based upon management and monitoring needs and requirements outlined in an annual work plan to be prepared by RECON, which will be subject to the review and approval of the City. This review and approval will allow staff to evaluate the estimated cost to implement the proposed work plan and determine a reasonable tax assessment for the CFD. A TT ACHMENTS Two-Party Agreement: City ofChula Vista and RECON Prepared by: Josie McNeeley, Associate Planner, Development Services Department of J:IPlanningVosielPOMlPreserve Biologist - RFQ\08.04.09CC-ZptyAgreementRECONAI13.doc 5-4 Parties and Recital Page( s) Agreement between City of Chula Vista and RECON Environmental, Inc. for Biological Consultant Services Associated with the Otay Ranch Preserve Steward/Biologist This agreement ("Agreement"), dated for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph I, is between the City-related entity as is indicated on Exhibit A, Paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, Paragraph 3, and the entity indicated on the attached Exhibit A, Paragraph 4, as Consultant, whose business form is set forth on Exhibit A, Paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, Paragraph 6 ("Consultant"), and is made with reference to the following facts: Recitals Whereas, on May 6, 2009, a Request for Qualifications was distributed to qualified biological consultants in order to solicit candidates interested in serving as the Otay Ranch Preserve Steward/Biologist; and Whereas, the property which is the subject matter of this Agreement is commonly known as Otay Ranch Preserve, and is shown as set forth in the attached Exhibit B ("Property"); and, Whereas, the City received proposals from four biological consultants in response to the formal Request for Qualifications; and Whereas, the City evaluated each submittal based on clarity, approach, cost, qualifications, and completeness; and Whereas, through a competItIve bid process, the Consultant was selected based upon its proposed approach and demonstrated qualifications to perform the services outlined in the detailed scope of work; and Whereas, Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement. (End of Recitals. Next Page starts Obligatory Provisions.) 5-5 Page I Obligatory Provisions Pages NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: I. Consultant's Duties A. General Duties Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Services In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph I G(C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. E. Standard of Care Consultant, in performing any Services under this agreement, whether Defined Services or Additional Services, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. 5-6 Page 2 F. Insurance Consultant must procure insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under the contract and the results of that work by the Consultant, his agents, representatives, employees or subcontractors and provide documentation of same prior to commencement of work. The insurance must be maintained for the duration of the contract. Minimum Scope of Insurance Coverage must be at least as broad as: (I) Insurance Services Office Commercial General Liability coverage (occurrence Form CG0001). (2) Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). (3) Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (4) Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. Minimum Limits of Insurance Contractor must maintain limits no less than: I. General Liability: (Including operations, products and completed operations, as applicable) 2. Automobile Liability: 3. Workers' Compensation Employer's Liability: 4. Professional Liability or Errors & Omissions Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance with a general aggregate limit is used, either the general aggregate limit must apply separately to this project/location or the general aggregate limit must be twice the required occurrence limit. $1,000,000 per accident for bodily injury and property damage. Statutory $1,000,000 each accident $1,000,000 disease-policy limit 51,000,000 disease-each employee $1,000,000 each occurrence Oeductibles and Self-Insured Retentions 5-7 Page 3 Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Consultant will provide a [mancial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Other Insurance Provisions The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: (I) The City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Consultant, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the contractor's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. (2) The Consultant's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the contractor and in no way relieves the contractor from its responsibility to provide insurance. (3) The insurance policy required by this clause must be endorsed to state that coverage will not be canceled by either party, except after thirty (30) days' prior written notice to the City by certified mail, return receipt requested. (4) Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnifY the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. (5) Consultant's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage during the life of this contract. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: (1) The "Retro Date" must be shown, and must be before the date of the contract or the beginning of the contract work. (2) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract work. 5-8 Page 4 (3) If coverage is canceled or non-renew~d, and not replaced with another claims-made policy form with a "Retro Date" prior to the contract effective date, the Consultant must purchase "'extended reporting" coverage for a minimum of five (5) years after completion of contract work. (4) A copy of the claims reporting requirements must be submitted to the City for review. Acceptability of Insurers Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no' less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers ("LESLI") with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. Verification of Coverage Consultant shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the contract requirements. All , certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. Subcontractors Consultants must include all subconsultants as insureds under its policies or furnish separate certificates and endorsements for each subconsultant. All coverage for subconsultants are subject to all of the requirements included in these specifications. G. Security for Performance (I) Performance Bond In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond in the form prescribed by the City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, http://www.fms.treas.gov/c570. and whose underwriting limitation is sufficient to issue bonds in the amount required by the agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the 5-9 Page 5 limits so required. Form must be satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Exhibit A, Paragraph 18. . (2) Letter of Credit In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space, immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to t,he term, "Letter of Credit", in said Exhibit A, Paragraph 18. (3) Other Security In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. H. Business License Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. 2. Duties of the City A. Consultation and Cooperation City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and gUidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 9, and with the further understanding that delay in the provision of these materials beyond thirty (30) days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance of this agreement. B. Compensation Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth 5-10 Page 6 in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph II. All billings submitted by Consultant shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the amount due and payable thereunder is proper, and shall specifically contain the City's account number indicated on Exhibit A, Paragraph 17(C) to be charged upon making such payment. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 12, as said party's contract administrator who is authorized by said party to represent .them in the routine administration of this agreement. 4. Term This Agreement shall terminate when the Parties have complied with all executory provisions hereof. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 ("Liquidated Damages Rate"). Time extensions for delays beyond the Consultant's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions of time, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. 6. Financial Interests of Consultant A. Consultant is Designated as an FPPC Filer 5-11 Page 7 If Consultant is designated on Exhibit A, Paragraph 14, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or ifnone are specified, then as determined by the City Attorney. B. Decline to Participate Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. C. Search to Determine Economic Interests Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this agreement. D. Promise Not to Acquire Conflicting Interests Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. F. Specific Warranties Against Economic Interests Consultant warrants and represents that neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 14. Consultant further warrants and represents that no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or 5-12 Page 8 Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for twelve months thereafter. Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for twelve months after the expiration of this Agreement, except with the written permission of City. Consultant. may not conduct or solicit any business for any party to this Agreement, or for any third party that may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. 7. Hold Harmless Consultant shall defend, indemnifY, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) arising out of or alleged by third parties to be the result of the negligent acts, errors or omissions or the willful misconduct of the Consultant, and Consultant's employees, subcontractors or other persons, agencies or firms for whom Consultant is legally responsible in connection with the execution of the work covered by this Agreement, except only for those claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. With respect to losses arising from Consultant's professional errors or omissions, Consultant shall defend, indemnifY, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) except for those claims arising from the negligence or willful misconduct of City, its officers or employees. Consultant's indemnification shall include any and all costs, expenses, attorneys fees and liability incurred by the City, its officers, agents or employees in defending against such claims, whether the same proceed to judgment or not. Consultant's obligations under this Section shall not be limited by any prior or subsequent declaration by the Consultant. Consultant's obligations under this Section shall survive the termination of this Agreement. For those professionals who are required to be licensed by the state (e.g. architects, landscape architects, surveyors and engineers), the following indemnification provisions should be utilized: (1) Indemnification and Hold Harmless Agreement With respect to any liability, including but not limited to claims asserted or costs, losses, attorney fees, or payments for injury to any person or property caused or claimed to be caused by the acts or omissions of the Consultant, or Consultant's employees, agents, and officers, arisin'g 5-13 Page 9 out of any services performed involving this project, except liability for Professional Services covered under Section 7.2, the Consultant agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, or employees from and against all liability. Also covered is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its. employees, agents or officers, or any third party. The Consultant's duty to indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the Consultant's obligation and duties under Section Exhibit A to this Agreement. (2) Indemnification for Professional Services. As to the Consultant's professional obligation, work or services involving this Project, the Consultant agrees to indemnify, defend and hold harmless the City, its agents, officers and employees from and against any and all liability, claims, costs, and damages, including but not limited to, attorneys fees, that arise out of, or pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant and its agents in the performance of services under this agreement, but this indemnity does not apply liability for damages for death or bodily injury to persons, injury to property, or other loss, arising from the sole negligence, willful misconduct or defects in design by City or the agents, servants, or independent contractors who are directly responsible to City, or arising from the active negligence of City. 8. Termination of Agreement for Cause If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused City by Consultant's breach. 9. Errors and Omissions In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City 5-14 Page 10 City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 to the subconsultants identified thereat as "Permitted Subconsultants". 12. Ownership, Publication, Reproduction and Use of Material All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 13.. Independent Contractor City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, inj ury leave or other leave benefits. Therefore, City will not withhold state or federal income ta'C, social security ta'C or any other payroll ta'C, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures 5-15 Page II No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has fIrst been presented in writing and fIled with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. . 15. Attorney's Fees Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 16. Statement of Costs In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the DefIned Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. 17. Miscellaneous A Consultant not authorized to Represent City Unless specifIcally authorized in writing by City, Consultant shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. B. Consultant is Real Estate Broker and/or Salesman If the box on Exhibit A, Paragraph 15 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. C. Notices All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certifIed, with return receipt requested, at the addresses identifIed herein as the places of business for each of the designated parties. 5-16 Page 12 D. Entire Agreement This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. E. Capacity of Parties Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F. Governing LawNenue This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder,-shall be the City ofChula Vista. (End of page. Next page is signature page.) 5-17 Page 13 Signature Page to Agreement between City of Chula Vista ani! RECON Environmental, Inc. (RECON) for Biological Consultant Services Associated with the Otay Ranch Preserve Steward/Biologist IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: City of Chula Vista Dated: By: James D. Sandoval, City Manager Attest: Donna Norris, City Clerk Approved as to form: Bart Miesfeld, City Attorney RECON Environmental, Inc. Dated: By: Robert MacAller, President Exhibit List to Agreement (x) Exhibit A. (x) Exhibit B. 5-18 Page 14 1. Effective Date of Agreement: 2. City-Related Entity: Exhibit A to Agreement between City of Chula Vista and Wildlife Research Institute Julv 28, 2009 (x) City of Chula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City ofChula Vista, a political subdivision of the State of California ( ) Industrial Development Authority of the City ofChula Vista, a ( ) Other: , a [insert business form] ("City") 3. Place of Business for City: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Consultant: RECON Environmental, Inc. 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership ex) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: 1927 Fifth Avenue San Diego, CA 92101-2358 Voice Phone: (619)308-9333 Fax Phone: (619) 308-9334 5-19 Page 15 7. General Duties: Consultants shall provide a specific biologist as the preserve steward who will be expected to perform the majority of the monitoring and management tasks needed and will be responsible for subcontracting with biologists who have additional expertise, as needed. Independent biologists who apply must have the ability to manage subcontractors for management and monitoring tasks that he/she does not have the expertise to complete. The preserve steward shall: (a) Have extensive field experience and demonstrate the ability to manage large areas ofland, (b) Be qualified to conduct field surveys as well as prepare written documents, including graphics, (c) Have the required permits to survey for listed species in the Otay Ranch Preserve (e.g., gnatcatchers, Quino, etc.) or the ability to subcontract to biologists with the necessary permits, (d) Have knowledge of the adopted Phases I and 2 Otay Ranch Resource Management Plans (RMP), and, (e) Have knowledge of the adopted Multiple Species Conservation Program (MSCP) Subregional Plan, MSCP Subarea Plans for the City and County. The preserve steward shall assist the paM in ensuring compliance with these programs/plans. 8. Scope of Work and Schedule: A. Detailed Scope of Work: Tasks that may be required include but are not limited to the following. 1. On-Going Services A. Prepare an Annual Work Plan recommending management and monitoring tasks to be accomplished during the next fiscal year. The work plan shall include, but is not limited to, the following: 1. Recommendation of tasks to be performed in priority order; 2. Citations of how the tasks relate to the R1\1P (cite specific enabling RMP goals, objectives, policies or implementation measure); 3. Expected outcome including success criteria; 4. Estimated costs; 5. Recommendation of who will perform the task; and 6. Recommendation oftirneframe. B. Oversee and coordinate Otay Ranch preserve management, monitoring, and reporting with the Wildlife Agencies, the paM, Otay Ranch land owners who may convey lands within the. Preserve, regional monitoring entities, interested public groups, and the general public. Page 16 5-20 C. Provide science-based technical recommendations to paM staff and any contractors retained to conduct specific management tasks, monitoring, data collection and analysis, and adaptive management programs. D. Perform biological monitoring as directed by paM staff. E. Participate and represent the paM in regional or subregional meetings relating to preserve management and monitoring to ensure management and monitoring efforts within the Preserve are not being duplicated. Meetings may include: 1. Monthly MSCP Monitoring Group meetings 2. SAt'lDAG Environmental Mitigation Program Working Group meetings 3. Otay Valley"Regional Park (OVRP) Joint Exercises of Power Agreement (JEP A) meetings if the agenda includes items associated with the Otay Ranch Preserve F. Implement basic stewardship including, but not limited to, the following: I. Monitor existing fencing/gates and identify needs for additional access control; provide minor repairs and coordinate with appropriate contractor to repair or construct more significant fencing/gate needs; 2. Remove minor amounts of trash, litter, and debris; monitor and report to appropriate contractor to remove significant amounts of trash, litter, and other debris; 3. Remove small acreages of weeds and exotics that are found during routine patrols (significant eradication projects are covered under section C. Adaptive Management); and 4. Monitor and report enforcement issues, including off-road traffic, trespassing, grazing, shooting, and illegal dumping to enforcement agencies, such as, the County Sheriffs Department, City Police Department; U.S. Border Patrol, and property owners. G. Participate in public hearings/meetings, Resource Agencies meetings, and field visits. H. Complete tasks within time and budget requirements. , II. Biological Surveys and On-Going Biological Monitoring Provide biological research, data collection and analyses including, but not limited to, the following: " Page 17 5-21 A. As a part of the Annual Work Plan, determine the biological studies, reports, and focused surveys that need to be undertaken in the Preserve. B. Conduct biological reconnaissance and biological field surveys, including focused surveys for threatened or endangered species (e.g. California gnatcatcher, coastal cactus wren) and/or monitoring of these species per USFWS monitoring protocols. C. Assist in the preparation of biological resource reports meeting City, County, State and Federal criteria. D. Provide science-based technical recommendations to POM staff and any contractors hired for specific management tasks for survey design, monitoring protocols, data collection and analysis, and adaptive management programs. III. Adaptive Management A. Prioritize threats to the preserve and provide guidance to POM staff on direct management actions to deal with those threats. B. Prepare and coordinate implementation of plans for comprehensive eradication and control of exotics. This may include mapping exotic species infestations and detailing methods to employ to remove such infestations. C. Develop and/or coordinate implementation of biological restoration programs, including ecological restoration/creation plans for any sensitive habitat, sensitive floral or faunal species, and erosion control plans. I. Provide specialized biological assistance required for the preparation of the restoration' program, including wetland and sensitive habitat delineation, and vegetation and wildlife assessment. 2. Develop revegetation plans, cost estimates, and specifications for plan implementation. 3. Develop irrigation plans, cost estimates, and specifications for plan implementation. 4. Develop and/or implement restoration monitoring plans and monitoring schedules. 5. Perform restoration monitoring. D. Continuously evaluate the effectiveness and efficiency of preserve management activities in view of available resources and ensure consistent use of the most cost-effective methods for management. Page 18 5-22 IV. Reporting A. Prepare and submit monthly reports for the first year and quarterly reports for subsequent years to paM staff. These reports shall summarize field observations including, but not limited to, the following: 1. List of species observed during the observation period; 2. Areas in need of invasive control, remediation, and/or restoration; 3. Management and monitoring tasks recommended to be implemented; 4. Prioritization of those management and monitoring tasks; 5. Basic stewardship activities; and 6. Progress towards completion of the annual Work Program. V. Other services that may be required A. Prepare and/or assist in identifYing discrepancies in management and monitoring requirements between the adopted MSCP Subarea Plans for the County and City and the Otay Ranch Phase 2 RMP. B. Assist in the preparation of grant proposals to apply for additional funding for Preserve management tasks beyond what is needed to be consistent with the RMP and MSCP. C. Assist in the technical reVlSlons of Phase 2 RtV1P and provide recommendations for prioritization and implementation of resource management directives. B. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: The Consultant may be required to prepare and submit the following deliverables throughout the term of this Agreement. Additional deliverables not noted below, but related to the scope of work identified in Section 8.A. (Detailed Scope of Work) of this Agreement, may be requested on an as-needed basis. At the time of the request, the City will provide the Consultant with the submittal requirements for the deliverable(s) and deliverable shall be completed to the satisfaction of the City. Page 19 5-23 Deliverable No. I: Monitoring reports shall be due bi-weekly for the fIrst six months and shall be emailed to the contract administrator. Subsequent monitoring reports shall be submitted quarterly or based on the request of the City. Deliverable No.2: An Annual Work Plan summanzmg proposed management and monitoring tasks to be completed during the next fIscal year, including, but not limited to the following, prioritization of management and monitoring tasks to be implemented;. Deliverable No.3: Prepare and submit biological resource reports, in order to document the habitat and/or wildlife species observed during biological reconnaissance and/or focused biological surveys. Deliverable No.4: Prepare and submit plans for comprehensive eradication and control of exotics, which may include maps detailing exotic species infestations and methods to remove such invasives. Deliverable No.5: Prepare and submit biological restoration plans, including ecological restoration/creation plans for any sensitive habitat, sensitive floral or faunal species, and erosion control plans. Deliverable No.6: Pursuant to Section 8.A. (Detailed Scope of Work) of this document, other reports/documentation/GIS data may be requested on an as- needed basis and completed to the satisfaction on the City. D. Date for completion of all Consultant services: I-year from the Effective Date of this Agreement. with an option for the Citv to extend for I-year (or each subsequent year) 9. Materials Required to be Supplied by City to Consultant: None. 10. Compensation: A. ( ) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: , payable as follows: Milestone or Event or Deliverable Amount or Percent of Fixed Fee Page 20 5-24 ( ) 1. Interim MontWy Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the soie and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim montWy advances shall not convert this agreement to a time and materials basis of payment. B. ( ) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase 1. 2. 3. Fee for Said Phase $ $ $ ( ) I. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim Page 21 5-25 advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: (1) (X) Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform tasks of the Defined Services herein required of Consultant for an amount up to $ 350,000 , including all Materials, and other "reimbursables" ("Maximum Compensation"). (2) ( ) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preClude Consultant from providing additional Services at Consultant's own cost and expense. Categorv of Emolovee Principal in Charge Senior Biologist Senior Biologist Senior Biologist Associate Biologist Analyst Production Rate Schedule Name ofConsultant(s) Paul Fromer Mark Dodero Wendy Loeffler John Lovio Hourlv Rate $178 $146 $146 $146 $119 $99 $70 $40 $78 Crew GIS Technician ( ) Hourly rates may increase by 6% for. services rendered after [ month], 20_, if delay in providing services is caused by City. Page 22 5-26 11. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: ( ) None, the compensation includes all costs. Cost or Rate $ $ $ $ $ $ $ $ $ $ () Reports, not to exceed $ () Copies, not to exceed $ () Travel, not to exceed $ () Printing, not to exceed $ () Postage, not to exceed $ () Delivery, not to exceed $ () Long Distance Telephone Charges, not to exceed $ () Other Actual Identifiable Direct Costs: , not to exceed $ , not to exceed $ 12. Contract Administrators: City: Josie McNeeley, Associate Planner 276 Fourth Avenue, Public Services Building 300 Chula Vista, CA 91910 (619) 409-5922 Consultant: Paul Fromer, Principal 1927 Fifth Avenue San Diego, CA 92101-2358 (619) 308-9333 13. Liquidated Damages Rate: ( ) $ ( ) Other: per day. 14. Statement of Economic Interests, Consultant Reporting Categories, per Contlict ofInterest Code: (X) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer Page 23 5-27 ( ) Category No. 1. Investments and sources of income. ( ) Category No.2. Interests in real property. ( ) Category No.3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. ( ) Category No.4. Investments in business entities and sources of income that engage in land development, construction or the acquisition or sale of real property. ( ) Category No.5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City ofChula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. ( ) Category No.6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. ( ) Category No. 7. Business positions. ( ) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 15. ( ) Consultant is Real Estate Broker and/or Salesman 16. Permitted Subconsultants: None. 17. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: (X) Monthly ( ) Quarter! y Page 24 5-28 ( ) Other: B. Day of the Period for submission of Consultant's Billing: ( ) First of the Month ( ) 15th Day of each Month (X) End of the Month ( ) Other: C. City's Account Number: 18. Security for Performance ( ) Performance Bond, $ ( ) Letter of Credit, $ ( ) Other Security: Type: Amount: $ ( ) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ( ) Retention Percentage: ( ) Retention Amount: $ % Retention Release Event: ( ) Completion of All Consultant Services ( ) Other: , J:\P!anningVosie\POM\Preserve Biologist. RFQI2PTYAgreemem.doc Page 25 5-29 RESOLUTION NO. 2009- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A TWO-PARTY AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND RECON ENVIRONMENTAL, INC., TO SERVE AS THE OTAY RANCH PRESERVE STEW ARD/BIOLOGIST ("AGREEMENT") AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT AND UP TO FOUR I-YEAR EXTENSIONS TO THE AGREEMENT WHEREAS, the City of Chula Vista (City) and County of San Diego (County) jointly adopted the Otay Ranch General Development Plan/Subregional Plan (GDP/SRP) in 1993, which sets forth the plans for development and open space within Otay Ranch; and WHEREAS; the GDP/SRP delineates an approximately 11,000 acre area as the Otay Ranch Preserve system (Preserve) and includes the Otay Ranch Resource Management Plan (RMP) Phase 1, which identifies major policies and implementation measures to guide development and the protection of the biological and cultural resources within Otay Ranch; and WHEREAS, the R1\1P Phase I requires, prior to the approval of the first Sectional Planning Area within the Ranch, a Preserve Owner/Manager (POM) for the Preserve must be selected and an R1\1P Phase 2 must be completed, which would serve as the implementation plan providing the framework for the protection, management, and monitoring requirements of the Preserve; and WHEREAS, in 1996, the R1\1P Phase 2 was completed and the City and the County designated themselves as the Otay Ranch POM and executed a Joint Powers Agreement to delineate their respective roles and responsibilities; and WHEREAS, the City and County continue to serve as the Otay Ranch Preserve/Owner Manager and are responsible for implementing the R1\1P by actively managing and monitoring preserve lands conveyed to the Otay Ranch Preserve system; and WHEREAS, in March 2009, the Otay Ranch POM Preserve Management Team and Policy Committee directed POM staff to retain a Preserve Steward/Biologist to provide the technical expertise to advise the POM on the status of the Preserve, monitor the sensitive biological resources existing within the Preserve, and implement basic stewardship in accordance with the R.MP; and 5-30 WHEREAS, on May 6, 2009, a Request for Qualifications was distributed to qualified biological consultants in order to solicit candidates interested in serving as the Otay Ranch Preserve StewardlBiologist; and WHEREAS, upon completing a competitive bidding process, the City, with POM staff concurrence, has selected RECON Environmental, Inc. (RECON) to serve as the Preserve StewardlBiologist in order to manage and monitor the biological resources within the Preserve in accordance with the approved Otay Ranch RMP. NOW THEREFORE BE IT RESOLVED that the City Council does hereby approve the two-party agreement with RECON and the City of Chula Vista for biological consulting services as the Preserve Steward/Biologist for the Otay Ranch Preserve (the "Agreement") and authorizes the City Manager to execute the Agreement, and up to four I-year extensions to the Agreement, on behalf of the City. Presented by Approved as to form by ~aftf) . leI.. . At! mey Gary Halbert, P.E., AICP Deputy City Manager I Development Services Director J:\Planning\Josie\PON1\Preserve Biologist - RFQ\RESO_2pty Agreementl.doc 5-31 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORt\1ALL Y SIGNED UPON APPROVAL BY THE CITY COUNCIL g~ O~/ f, City Attorney Dated:~ ?-q! n, AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND RECON ENVIRONMENTAL, INC. FOR BIOLOGICAL CONSULTANT SERVICES ASSOCIATED WITH THE OT A Y RANCH PRESERVE STEW ARD/BIOLOGIST 5-32 Parties and Recital Page(s) Agreement between City of Chula Vista and RECON Environmental, Inc. for Biological Consultant Services Associated with the Otay Ranch Preserve StewardlBiologist This agreement ("Agreement"), dated for the purposes of reference only, and effective as of the date last executed unless another dite is otherwise specified in Exhibit A, Paragraph I, is between the City-related entity as is indicated on Exhibit A, Paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, Paragraph 3, and the entity indicated on the attached Exhibit A, Paragraph 4, as Consultant, whose business form is set forth on Exhibit A, Paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, Paragraph 6 ("Consultant"), and is made with reference to the following facts: Recitals Whereas, on May 6,2009, a Request for Qualifications was distributed to qualified biological consultants in order to solicit candidates interested in serving as the Otay Ranch Preserve StewardlBiologist; and Whereas, the property which is the subject matter of this Agreement is commonly known as Otay Ranch Preserve, and is shown as set forth in the attached Exhibit B ("Property"); and, Whereas, the City received proposals from four biological consultants in response to the formal Request for Qualifications; and Whereas, the City evaluated each submittal based on clarity, approach, cost, qualifications, and completeness; and Whereas, through a competitive bid process, the Consultant was selected based upon its proposed approach and demonstrated qualifications to perform the services outlined in the detailed scope of work; and Whereas. Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement. (End of Recitals. Next Page starts Obligatory Provisions.) 5-33 Page I Obligatory Provisions Pages NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: 1. Consultant's Duties A. General Duties Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule", not inconSistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Services In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph IO(C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. E. Standard of Care Consultant, in performing any Services under this agreement, whether Defined Services or Additional Services, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. 5-34 Page 2 F. Insurance Consultant must procure insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under the contract and the results of that work by the Consultant, his agents, representatives, employees or subcontractors and provide documentation of same prior to commencement of work. The insurance must be maintained for the duration of the contract. Minimum Scope of Insurance Coverage must be at least as broad as: (1) Insurance Services Office Commercial General Liability coverage (occurrence Form CGOOOl). (2) Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code I (any auto). (3) Workers' Compensation insurance as required by the State of Califomia and Employer's Liability Insurance. (4) Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. Minimum Limits of Insurance Contractor must maintain limits no less than: 1. General Liability: (Including operations, products and completed operations, as applicable) 2. Automobile Liability: 3. Workers' Compensation Employer's Liability: 4. Professional Liability or Errors & Omissions Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance with a general aggregate limit is used, either the general aggregate limit must apply separately to this projectJlocation or the general aggregate limit must be twice the required occurrence limit. $1,000,000 per accident for bodily injury and property damage. Statutory $1,000,000 each accident $1,000,000 disease-policy limit $1,000,000 disease-each employee $1,000,000 each occurrence Deductibles and Self-Insured Retentions 5-35 Page 3 Any deductibles or self-insured retentions must be' declared to and approved by tbe City. At the option of the City, eitber the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or tbe Consultant will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Other Insurance Provisions The general liability, automobile liability, and where appropriate, tbe worker's compensation policies are to contain, or be endorsed to contain, tbe following provisions: (1) The City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds witb respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Consultant, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to tbe contractor's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, tbe endorsement must not exclude Products/Completed Operations coverage. (2) The Consultant's General Liability insurance coverage must be primary insurance as it pertains to tbe City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from tbe insurance of tbe contractor and in no way relieves the contractor from its responsibility to provide insurance. (3) The insurance policy required by this clause must be endorsed to state tbat coverage will not be canceled by either party, except after thirty (30) days' prior written notice to the City by certified mail, retUrn receipt requested. (4) Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify tbe additional insured would be invalid under Subdivision (b) of Section 2782 of tbe Civil Code. (5) Consultant's insurer will provide a Waiver of Subrogation in favor of tbe City for each required policy providing coverage during the life of this contract. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: (1) The "Retro Date" must be shown, and must be before the date of tbe contract or the beginning of the contract work. (2) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract work. 5-36 Page 4 (3) If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. (4) A copy of the claims reporting requirements must be submitted to the City for review. Acceptability of Insurers Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers ("LESLI") with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. Verification of Coverage Consultant shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the contract requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. Subcontractors Consultants must include all subconsultants as insureds under its policies or fumish separate certificates and endorsements for each subconsultant. All coverage for subconsultants are subject to all of the requirements included in these specifications. G. Security for Performance (I) Performance Bond In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond in the form prescribed by the City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, http://www-fms.treas.gov/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the , 5-37 Page 5 limits so required. Form must be satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Exhibit A, Paragraph 18. (2) Letter of Credit In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank: a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank:, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit", in said Exhibit A, Paragraph 18. (3) Other Security In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space irrunediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. H. Business License Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. 2. Duties of the City A. Consultation and Cooperation City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, f1les and records by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 9, and with the further understanding that delay in the provision of these materials beyond thirty (30) days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance of this agreement. B. Compensation Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 17,"but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth 5-38 Page 6 in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, 'and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph II. All billings submitted by Consultant shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the amount due and payable thereunder is proper, and shall specifically contain the City's account number indicated on Exhibit A, Paragraph 17(C) to be charged upon making such payment. 3, Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 12, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. 4, Term This Agreement shall terminate when the Parties have complied with all executory provisions hereof. . 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 ("Liquidated Damages Rate"). Time extensions for delays beyond the Consultant's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions of time, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. 6. Financial Interests of Consultant A. Consultant is Designated as an FPPC Filer 5-39 Page 7 If Consultant is designated on Exhibit A, Paragraph 14, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if none are specified, then as determined by the City Attorney. B. Decline to Participate Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. C. Search to Determine Economic Interests Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this agreement. D. Promise Not to Acquire Conflicting Interests Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. F. Specific Warranties Against Economic Interests Consultant warrants and represents that neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 14. Consultant further warrants and represents that no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or 5-40 Page 8 Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for twelve months thereafter. Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for twelve months after the expiration of this Agreement, except with the written permission of City. Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party that may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. 7. Hold Harmless Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) arising out of or alleged by third parties to be the result of the negligent acts, errors or omissions or the willful misconduct of the Consultant, and Consultant's employees, subcontractors or other persons, agencies or firms for whom Consultant is legally responsible in connection with the execution of the work covered by this Agreement, except only for those claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. With respect to losses arising from Consultant's professional errors or omissions, Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) except for those claims arising from the negligence or willful misconduct of City, its officers or employees. Consultant's indemnification shall include any and all costs, expenses, attorneys fees and liability incurred by the City, its officers, agents or employees in defending against such claims, whether the same proceed to judgment or not. Consultant's obligations under this Section shall not be limited by any prior or subsequent declaration by the Consultant. Consultant's obligations under this Section shall survive the termination of this Agreement. For those professionals who are required to be licensed by the state (e.g. architects, landscape architects, surveyors and engineers), the following indemnification provisions should be utilized: (1) Indemnification and Hold Harmless Agreement With respect to any liability, including but not limited to claims asserted or costs, losses, attorney fees, or payments for injury to any person or property caused or claimed to be caused by the acts or omissions of the Consultant, or Consultant's employees, agents, and officers, arising 5-41 Page 9 out of any services performed involving this project, except liability for Professional Services covered under Section 7.2, the Consultant agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, or employees from and against all liability. Also covered is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. The Consultant's duty to indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the Consultant's obligation and duties under Section Exhibit A to this Agreement. (2) Indemnification for Professional Services. As to the Consultant's professional obligation, work or services involving this Project, the Consultant agrees to indemnify, defend and hold harmless the City, its agents, officers and employees from and against any and all liability, claims, costs, and damages, including but not limited to, attorneys fees, that arise out of, or pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant and its agents in the performance of services under this agreement, but this indemnity does not apply liability for damages for death or bodily injury to persons, injury to property, or other loss, arising from the sole negligence, willful misconduct or defects in design by City or the agents, servants, or independent contractors who are directly responsible to City, or arising from the active negligence of City. 8. Termination of Agreement for Cause If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused City by Consultant's breach. 9. Errors and Omissions In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City 5-42 Page 10 City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfmished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. 1f the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. II. Assignability The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 to the subconsultants identified thereat as "Permitted Subconsultants". 12. Ownership, Publication, Reproduction and Use of Material All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 13. Independent Contractor City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant aod any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of City, and none of them shall be entitled to aoy benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, aod Consultant shall be solely responsible for the payment of same aod shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures 5-43 Page 11 No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 15. Attorney's Fees Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 16. Statement of Costs In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. 17. Miscellaneous A. Consultant not authorized to Represent City Unless specifically authorized in writing by City, Consultant shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. B. Consultant is Real Estate Broker and/or Salesman If the box on Exhibit A, Paragraph 15 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are . licensed real estate brokers or salespersons. C. Notices All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. 5-44 Page 12 D. Entire Agreement This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived or diss;harged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. E. Capacity of Parties Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F. Governing LawNenue This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. (End of page. Next page is signature page.) 5-45 Page l3 Signature Page to Agreement between City of Chula Vista and RECON Environmental, Inc. (RECON) for Biological Consultant Services Associated with the Otay Ranch Preserve StewardJBiologist IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: City of Chula Vista By: James D. Sandoval, City Manager Attest: Donna Norris, City Clerk Approved as to form: Bart Miesfeld, City Attorney Dated: RECON Environmental, Inc. "'-l lfi ,'" B <~-V .ll~'----- y ,. Robert MacAller, President Exhibit List to Agreement (x) Exhibit A. (x) Exhibit B. 5-46 Page 14 I. Effective Date of Agreement: 2. City-Related Entity: Exhibit A to Agreement between City of Chula Vista and RECON Environmental, Inc. August 4. 2009 (x) City of Chula Vista, a muoicipal chartered corporation of the State of California ( ) Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California ( ) Industrial Development Authority of the City of Chula Vista, a ( ) Other: , a [insert business form] ("City") 3. Place of Business for City: City of Chula Vista 276 Fourth A venue Chula Vista, CA 91910 4. Consultant: RECON Environmental, Inc. 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership (X) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: 1927 Fifth Avenue San Diego, CA 92101-2358 Voice Phone: (619) 308-9333 Fax Phone: (619) 308-9334 5-47 Page 15 7. General Duties: Consultant shall provide a specific biologist as the preserve steward who will be expected to perform the majority of the monitoring and management tasks needed and will be responsible for subcontracting with biologists who have additional expertise, as needed. Consultant must have the ability to manage subcontractors for management and monitoring tasks that the Consultant does not have the expertise to complete. The preserve steward shall: (a) Have extensive field experience and demonstrate the ability to manage large areas ofland, (b) Be qualified to conduct field surveys as well as prepare written documents, including graphics, (c) Have the required permits to survey for listed species in the Otay Ranch Preserve (e.g., gnatcatchers, Quino, etc.) or the ability to subcontract to biologists with the necessary permits, (d) Have knowledge of the adopted Phases 1 and 2 Otay Ranch Resource Management Plans (RMP), and, (e) Have knowledge of the adopted Multiple Species Conservation Program (MSCP) Subregional Plan, MSCP Subarea Plans for the City and County. The preserve steward shall assist the POM in ensuring compliance with these programs/plans. 8. Scope of Work and Schedule: A. Detailed Scope of Work: Tasks that may be required include but are not limited to the following. 1. On-Going Services A. Prepare an Annual Wark Plan recommending management and monitoring tasks to be accomplished during the next fiscal year. The work plan shall include, but is not limited to, the following: 1. Recommendation of tasks to be performed in priority order; 2. Citations of how the tasks relate to the RMP (cite specific enabling RMP goals, objectives, policies or implementation measure); 3. Expected outcome including success criteria; 4. Estimated costs; 5. Recommendation of who will perform the task; and 6. Recommendation of time frame. B. Oversee and coordinate Otay Ranch preserve management, monitoring, and reporting with the Wildlife Agencies, the POM, Otay Ranch land owners who may convey lands within the Preserve, regional monitoring entities, interested public groups, and the general public. 5-48 Page 16 C. Provide science-based technical recommendations to paM staff and any contractors retained to conduct specific management tasks, monitoring, data collection and analysis, and adaptive management programs. D. Perform biological monitoring as directed by paM staff. E. Participate and represent the paM in regional or subregional meetings relating to preserve management and monitoring to ensure management and monitoring efforts within the Preserve are not being duplicated. Meetings may include: 1. Monthly MSCP Monitoring Group meetings 2. SAt"\iDAG Environmental Mitigation Program Working Group meetings 3. Otay Valley Regional Park (OVRP) Joint Exercises of Power Agreement (JEPA) meetings if the agenda includes items associated with the Otay Ranch Preserve F. Implement basic stewardship including, but not limited to, the following: 1. Monitor existing fencing/gates and identify needs for additional access control; provide minor repairs and coordinate with appropriate contractor to repair or construct more significant fencing! gate needs; 2. Remove minor amounts of trash, litter, and debris; monitor and report to appropriate contractor to remove significant amounts of trash, litter, and other debris; 3. Remove small acreages of weeds and exotics that are found during routine patrols (significant eradication projects are covered under section C. Adaptive Management); and 4. Monitor and report enforcement issues, including off-road traffic, trespassing, grazing, shooting, and illegal dumping to enforcement agencies, such as, the County Sheriffs Department, City Police Department, U.S. Border Patrol, and property owners. G. Participate in public hearings/meetings, Resource Agencies meetings, and field visits. H. Complete tasks within time and budget requirements. II. Biological Surveys and On-Going Biological Monitoring Provide biological research, data collection and analyses including, but not limited to, the following: 5-49 Page 17 A. As a part of the Annual Work Plan, determine the biological studies, reports, and focused surveys that need to be undertaken in the Preserve. B. Conduct biological reconnaissance and biological field surveys, including focused surveys for threatened or endangered species (e.g. California gnatcatcher, coastal cactus wren) and/or monitoring of these species per USFWS monitoring protocols. C. Assist in the preparation of biological resource reports meeting City, County, State and Federal criteria. D. Provide science-based technical recommendations to POM staff and any contractors hired for specific management tasks for survey design, monitoring protocols, data collection and analysis, and adaptive management programs. III. Adaptive Management A. Prioritize threats to the preserve and provide guidance to POM staff on direct management actions to deal with those threats. B. Prepare and coordinate implementation of plans for comprehensive eradication and control of exotics. This may include mapping exotic species infestations and detailing methods to employ to remove such infestations. C. Develop and/or coordinate implementation of biological restoration programs, including ecological restoration/creation plans for any sensitive habitat, sensitive floral or faunal species, and erosion control plans. 1. Provide specialized biological assistance required for the preparation of the restoration program, including wetland and sensitive habitat delineation, and vegetation and wildlife assessment. 2. Develop revegetation plans, cost estimates, and specifications for plan implementation. 3. Develop irrigation plans, cost estimates, and specifications for plan implementation. 4. Develop and/or implement restoration monitoring plans and monitoring schedules. 5. Perform restoration monitoring. D. Continuously evaluate the effectiveness and efficiency of preserve management activities in view of available resources and ensure consistent use of the most cost-effective methods for management. 5-50 Page 18 IV. Reporting A. Prepare and submit monthly reports for the fIrst year and quarterly reports for subsequent years to POM staff. These reports shall summarize fIeld observations including, but not limited to, the following: 1. List of species observed during the observation period; 2. Areas in need of invasive control, remediation, and/or restoration; 3. Management and monitoring tasks recommended to be implemented; 4. Prioritization of those management and monitoring tasks; 5. Basic stewardship activities; and 6. Progress towards completion of the annual Work Program. V. Other services that may be required A. Prepare and! or assist in identifying discrepancies in management and monitoring requirements between the adopted MSCP Subarea Plans for the County and City and the Otay Ranch Phase 2 RMP. B. Assist in the preparation of grant proposals to apply for additional funding for Preserve management tasks beyond what is needed to be consistent with the RtVlP and MSCP. C. Assist in the technical reVlSlons of Phase 2 RMP and provide recommendations for prioritization and implementation of resource management directives. B. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates ar Time Limits for Delivery of Deliverables: , The Consultant may be required to prepare and submit the following deliverables throughout the term of this Agreement. Additional deliverables not noted below, but related to the scope of work identifIed in Section 8.A. (Detailed Scope of Wark) of this Agreement, may be requested on an as-needed basis. At the time of the request, the City will provide the Consultant with the submittal requirements for the deliverable(s) and deliverable shall be completed to the satisfaction of the City. Page 19 5-51 Deliverable No.1: Monitoring reports shall be due bi-weekly for the first six months and shall be emailed to the contract administrator. Subsequent monitoring reports shall be submitted quarterly or based on the request of the City. Deliverable No.2: An Annual Work Plan summanZillg proposed management and monitoring tasks to be completed during the next fiscal year, including, but not limited to the following, prioritization of management and monitoring tasks to be implemented; Deliverable No.3: Prepare and submit biological resource reports, in order to document the habitat and/or wildlife species observed during biological reconnaissance and/or focused biological surveys. Deliverable No.4: Prepare and submit plans for comprehensive eradication and control of exotics, which may include maps detailing exotic species infestations and methods to remove such invasi ves. Deliverable No.5: Prepare and submit biological restoration plans, including ecological restoration/creation plans for any sensitive habitat, sensitive floral or faunal species, and erosion control plans. Deliverable NO.6: Pursuant to Section 8.A. (Detailed Scope of Work) of this document, other reports/documentation/GIS data may be requested on an as- needed basis and completed to the satisfaction on the City. D. Date for completion of all Consultant services: I-year from the Effective Date of this Agreement; however, the City shall have the option to renew this Agreement on an annual basis, at the City's sole discretion, for four additional I-year terms. The City Manager shall have the authority to exercise each option to renew. The City Council may authorize subsequent renewals, at its discretion. 9. Materials Required to be Supplied by City to Consultant: None. 10. Compensation: A. ( ) Single Fixed Fee Arrangement. F or performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: , payable as follows: 5-52 Page 20 Milestone or Event or Deliverable Amount or Percent of Fixed Fee ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. ( ) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase 1. 2. 3. Fee for Said Phase $ $ $ ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that mustbe returned to the City if the Phase is not satisfactorily completed.lfthe Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or 5-53 . Page 21 such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours oftirne spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: (1) (X)Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant oftime and materials in excess of said Ma,imum Compensation amount, Consultant agrees that Consultant will perform tasks of the Defined Services herein required of Consultant for an amount up to $ 350.000 . including all Materials, and other "reimbursables" ("Maximum Compensation"). The rates set forth in the Rate Schedule below shall be effective upon execution of this Agreement. If the City elects to renew this Agreement, pursuant to Section S.D. of this Exhibit A, the Consultant shall continue to be compensated at the rates set forth in the Rate Schedule below, for up to two I-year renewal periods. After such time, if the City chooses to exercise its option to renew the Agreement, the City and the Consultant shall negotiate the rate schedule at the time of renewal. The total amount of compensation for each renewal period shall not exceed the CFD funds available for purposes of compensating the Consultant, as determined by City's finance staff. (2) ( ) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. Categorv of Emplovee Principal in Charge Principal Principal Rate Schedule Name ofConsultant(s) Paul Fromer Peter Tomsovic Robert MacAller Hourlv Rate $169 $169 $169 5-54 Page 22 Senior Biologist Mark Dodero $139 Senior Biologist Wendy Loeffler $139 Senior Biologist John Lovio $139 Associate Biologist Brenna Ogg $113 Associate Biologist Raquel Atik $113 Associate Biologist Erin McKinney $113 Analyst Mike Nieto $94 Assistant Anna Bennett $80 Assistant Alexander Forner $80 Assistant Elizabeth Proscal $80 Production Greg Kazmer $67 Production Steven Gaughran $67 Crew Various $40 GIS Technician Frank McDermott $74 GIS Technician Sean Bohac $74 ( ) Hourly rates may increase by 6% for services rendered after [month], 20_, if delay in providing services is caused by City. 11. Materials Reimbursement Arrangement F or the cost of out 0 f pocket expenses incurred by ~onsultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: ( ) None, the compensation includes all costs. () Reports, not to exceed $6!bound report plus $0.08/page(B&W) and $1.00 (color): () Copies, not to exceed $0.08/page (B&W) and $1.00 (color): () Travel, not to exceed $0: () Printing, not to exceed $O.OS/page (B&W) and $1.00 (color): 5-55 Cost or Rate $6!bolmd report plus $0.08/page(B&Vl) and $1. OO/page (color): SO.08/page (B&W) and $1.00/page (color) SO.OO $0.08/page (B&W) and $1.00/page (color) Page 23 () Postage, not to exceed Standard USPS rates, no mark up: () Delivery, not to exceed Standard delivery rates, no mark up: () Long Distance Telephone Charges, not to exceed $0.00. () Other Actual Identifiable Direct Costs: . Standard herbicide mix (glyphosate only), dye, activator, and conditioner not to exceed $90/gallon: . 2000 gallon Water Truck, not to exceed $250/day: . Herbicide Truck, not to exceed $250/day: . 40 yard bin, not to exceed $430/bin: . Plant material, not to exceed $3.50/1 gallon (standard species) 12. Contract Administrators: City: Josie McNeeley, Associate Planner 276 Fourth Avenue, Public Services Building 300 Chula Vista, CA 91910 (619) 409-5922 Consultant: Paul Fromer, Principal 1927 Fifth Avenue San Diego, CA 92101-2358 (619) 308-9333 13. Liquidated Damages Rate: ( ) $ ( ) Other: per day. Standard USPS rates Standard deli very rates $0.00 $ $90/gallon $250/day $250/day $430/bin $3.25/1 gallon 14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (X)Not Applicable. Not an FPPC Filer. ( ) FPPC Filer ( ) Category No. 1. Investments and sources of income. ( ) Category No.2. Interests in real property. ( ) Category No.3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. 5-56 Page 24 ( ) Category No.4. Investments in business entities and sources of income that engage in land development, construction or the acquisition or sale of real property. ( ) Category No.5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. ( ) Category No.6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. ( ) Category No.7. Business positions. ( ) List."Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 15. ( ) Consultant is Real Estate Broker and/or Salesman 16. Permitted Subconsultants: In the event the Consultant finds it necessary to retain a subconsultant to complete any of the services identified in Section S.A. (Detailed Scope of Work) of this Agreement, the selection of the subconsultant shall be subject to the approval of the City. 17. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: (X) Monthly ( ) Quarterly ( ) Other: . B. Day of the Period for submission of Consultant's Billing: ( ) First of the Month Page 25 5-57 ( ) 15th Day of each Month (X) End of the Month ( ) Other: C. City's Account Number: 18. Security for Performance ( ) Performance Bond, $ ( ) Letter 0 f Credit, $ ( ) Other Security: Type: Amount: $ ( ) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ( ) Retention Percentage: ( ) Retention Amount: $ % Retention Release Event: ( ) Completion of All Consultant Services ( ) Other: J:\PlanningVosie\POivf\Preserve Biologist - RFQ\2PTY Agreementdoc 5-58 Page 26