HomeMy WebLinkAboutMerkel & Associates Inc; 2004-12-07;AMENDMENT NO. 2 TO AGREEMENT FOR
Biological Assessment of Lake Calavera Mitigation Site
Merkel and Associates Inc.
This Amendment No. 2 is entered into and effective as of the <u day of
_V rmii ^Lr\ . 200^ _ , amending the agreement dated December 7. 2004
(the "Agreement ) by and between the City of Carlsbad, a municipal corporation, ("City1'), and
Merkel and Associates Inc. ("Contractor") (collectively, the "Parties") for Biological
Assessment of the Lake Calavera Mitigation Site.
RECITALS
A. The parties desire to alter the scope of work of the Agreement to include response to
comments and revision of impacts for the Biological Report and the preparation of the Response
to Comments Memo for the comments received from the public and the Resource agencies on
the Draft Mitigated Negative Declaration for the Lake Calavera Trails Master Plan; and
B. The Parties have negotiated and agreed to a supplemental scope of work and fee
schedule, which is attached to and incorporated by this reference as Exhibit "A", Scope of
Services and Fee.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained
herein, City and Contractor agree as follows:
1. In addition to those services contained in the Agreement, as may have
been amended from time to time, Contractor will provide those services described in Exhibit "A".
2. City will pay Contractor for all work associated with those services
described in Exhibit "A" on a time and materials basis not-to-exceed Ten Thousand dollars
($ 10.000 ). Contractor will provide City, on a monthly basis, copies of invoices sufficiently
detailed to include hours performed, hourly rates, and related activities and costs for approval by
City.
3. Contractor will complete all work described in Exhibit "A" by
(November 30. 2006).
4. All other provisions of the Agreement, as may have been amended from
time to time, will remain in full force and effect.
5. All requisite insurance policies to be maintained by Contractor pursuant to
the Agreement, as may have been amended from time to time, will include coverage for this
Amendment.
6. The individuals executing this Amendment and the instruments referenced
in it on behalf of Contractor each represent and warrant that they have the legal power, right and
actual authority to bind Contractor to the terms and conditions of this Amendment.
City Attorney Approved Version #05.22.01
CONTRACTOR
*By/
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CITY OF CARLSBAD, a municipal
corporation of the State of California
City Manager or Mayor
ATTEST:
LORRAINE MlWOOD
City Clerk
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a Corporation. Agreement must be signed by one corporate officer from each of the following
two groups.
*Group A.
Chairman,
President, or
Vice-President
"Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
eputy City Attorney
City Attorney Approved Version #05.22.01
EXHIBIT A
SCOPE OF SERVICES AND FEE
Merkel & Associates, Inc.
Iteml
Field visits and Biological Report Revisions of Impacts for the Lake Calavera Trails
Project, all services and tasks as outlined in attached Cost Proposal Letter
Fee $4,010.60
Item 2
Preparation of Response Memo to resource agency and public comments received during
review period of the Mitigated Negative Declaration, all services and tasks as outlined in
attached Cost Proposal Letter for Response to Comments
Fee $5,982.00
Total Fee for Items 1 &2 $9,992.60
Exhibit A Scope of Services and Fee
Merkel & Associates, Inc.
5434 Ruffin Road, San Diego, CA 92123
Tel: 858/560-5465 • Fax: 858/560-7779
e-mail: associates@merkelinc.com
September 15, 2006
Revised October 12, 2006
M& A #04-101-06
Ms. Liz Ketabian
Park Planner - Recreation Department
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Re: Cost Proposal for Response to Comments on the Lake Calavera Trails Project Site,
Located in the City of Carlsbad of San Diego County
Dear Ms. Ketabian:
Thank you for contacting Merkel & Associates, Inc. (M&A) regarding the 262-acre Lake Calavera
Trails Project located in the City of Carlsbad (City). We have prepared the following scope of work
and corresponding costs in response to your request regarding the need for M&A to review and
respond to comments pertaining to M&A's biological report, dated June 8, 2005, revised June 13,
2006. In addition, based on your e-mail dated August 21, 2006, this scope of work would also
include time for a field visit with the resource agencies to review their comments.
Scope of Work
Task 1. Field Visit with Agencies. Per the request from the City on August 21, 2006, this task would
include time for one field visit with M&A, the City, and the resource agencies to review comments
received from the USFWS (FWS-SDG-5002.1).
Task 2. Response to Comments and Client/'Agency (s) Liaison. Upon completion of the field visit and
discussion with the agencies, M&A would address the comments noted from: 1) USFWS (FWS-
SDG-5002.1); 2) Native American Heritage Commission dated July 24, 2006 (SCH#2006071064); 3)
Preserve Calavera dated August 6, 2006; and 4) Kasey Cinciarelli dated August 8, 2006. M&A
would coordinate as necessary with the client/agency(s) to resolve any questions concerning the
comments. A memorandum letter providing the responses to comments would be prepared, and any
edits to the biological report would be completed in underline/strikeout format. Upon agreement of
project issues between the agencies and the City, we would provide you with 2 CD's containing the
memorandum letter and revised biological report in PDF format.
Task 3. Project Administration. Actions associated with this task include internal coordination,
scheduling, and clerical duties (e.g., copying, filing, and mailing) in support of the project.
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10/20/06 FRI 13:46 FAX 858 560 7779 @002
Merkel & Associates, Inc.
5434 Ruffin Road, San Diego, CA 92123
Tel: 858/560-5465 • Fax: 858/560-7779
e-mail: associates@merkelinc.com
August 21,2006
Revised October 12, 2006
M& A #04-101-05
Ms. Liz Ketabian
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Re: Cost Proposal for Revision of Impacts on the Lake Calavera Trails Project Site
within the Biological Report, Located in the City of Carlsbad of San Diego County
Dear Ms. Ketabian:
Thank you for contacting Merkel & Associates, Inc. (M&A) regarding the Lake Calavera Trails
Project located in the City of Carlsbad (City). We have prepared the following scope of work and
corresponding costs in response to your previous requests by the City in 1) March 2006 to comment
on boardwalk widths and impact determinations; 2) April 2006 to address the updated staging area
limits of construction; 3) May 2006 to address mitigation measures; and 4) July 2006 to address the
location of identified cultural resources. Based on your requests, M&A updated the Biological
Resources Report, Revised June 13, 2006 and provided the City with a total of 9 copies of the report
(8 were rebound copies from the City) and 19 CD's.
The revision of the report required 1) M&A to revisit the site and verify staging area limits of
impacts; 2) an update of the biological resource impacts resulting from the revised proposed project,
and measures to avoid, minimize, and/or mitigate significant impacts consistent with the California
Environmental Quality Act (CEQA) and the City's Habitat ManaRemcnt Plan for Natural
Communities (Adopted 2004); and 3) project administration including internal coordination,
scheduling, and clerical duties in support of the project.
The total cost for the biological services above performed by M&A is $4,010.60.
Please provide M&A with a contract amendment for this additional work. If you have any questions
regarding this cost proposal or you need additional information, please do not hesitate to contact
Amanda Gonzales (agonzales@merkelinc.com) or Barbara L. Merkel (bnierkel@merkelinc.com) at
(858) 560-5465.
Sincerelv.
Keith W. Merkel
Principal Consultant
AMENDMENT NO. I TO AGREEMENT FOR
Biological Assessment of Lake Calavera Mitigation Site
Merkel and Associates Inc.
mendment No. 1 is entered into and effective as of the / SA%-, day of
(the “Agreeme$”) by and between the City of Carlsbad, a municipal corporation, (“City”), and
Merkel and Associates Inc. , (“Contractor“) (collectively, the “Parties”) for Biological
Assessment of the Lake Calavera Mitigation Site.
, ZOOS, amending the agreement dated December 7, 2004
RECITALS
A. The parties desire to alter the scope of work of the Agreement to include additional
biological surveys for recently discovered fairy shrimp at the Lake Calavera Mitigation site; and
B. The Parties have negotiated and agreed to a supplemental scope of work and fee
schedule, which is attached to and incorporated by this reference as Exhibit “A, Scope of
Services and Fee.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained
herein, City and Contractor agree as follows:
1. In addition to those services contained in the Agreement, as may have
been amended from time to time, Contractor will provide those services described in Exhibit “A.
2. City will pay Contractor for all work associated with those services
described in Exhibit “A on a time and materials basis not-to-exceed Ten Thousand Five
Hundred and Fifty dollars ( $ 10,550 ). Contractor will provide City, on a monthly basis, copies
of invoices sufficiently detailed to include hours performed, hourly rates, and related activities
and costs for approval by City.
3. Contractor will complete all work described in Exhibit “A by
lADril 1,2005).
4. All other provisions of the Agreement, as may have been amended from
time to time, will remain in full force and effect.
5. All requisite insurance policies to be maintained by Contractor pursuant to
the Agreement, as may have been amended from time to time, will include coverage for this
Amendment.
6. The individuals executing this Amendment and the instruments referenced
in it on behalf of Contractor each represent and warrant that they have the legal power, right and
actual authority to bind Contractor to the terms and conditions of this Amendment.
City Attorney Approved Version #05.22.01
1
CONTRACTOR CITY OF CARLSBAD, a municipal
/(sign here) I
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corporation of the State of Calif-
(print namekitle)
ATTEST: ceo@ .mw
City Clerk
**By:
(sign here)
(print name/title)
(e-maradd ress)
&bw e&!! i nC . .mm
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a Corporation, Agreement must be signed by one corporate officer from each of the following
two groups.
*Group A.
Chairman,
President, or
Vice-president
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
n n
By:
REV. 02/03/2005
2
EXHIBIT “A”
SCOPE OF SERVICES AND FEE
The outlined scope of services is provided to reflect the specific anticipated survey requirements for
the Lake Calavera Trails project relative to listed branchiopods. Based on input from the U.S. Fish
and Wildlife Service (USFWS) regarding the appearance of Lindahl’s fairy shrimp (Branchinecta
Eindahli) throughout the region in 2005 and the hydrological conditions of vernal and ephemeral
pools, in conjunction with the appearance of Lindahl’s fairy shrimp on the site, we are recommending
wet season surveys only. While it cannot be assured that a single wet season survey will be sufficient,
dry season surveying is not recommended at this time. The current proposal includes the costs for a
single wet season survey. The results of this survey would be presented to USFWS and through
discussions with USFWS it would be determined if a second wet season survey (2006) would be
required.
During a recent biological survey on the Lake Calavera Trails project site, Merkel & Associates
(M&A) biologists discovered the presence of Lindahl’s fairy shrimp (an unlisted species) within a
shallow depression underlain by a substrate of clay. This particular area is situated within a proposed
trail easement; located within the northeastern portion of the study area. A cursory survey of other
pools located throughout the property revealed many of these pools also support fairy shrimp
(although voucher specimens were not collected from these pools and therefore the fairy shrimp were
not identified to the species level).
Based on experience in the field as well as a pertinent literature review, there is a possibility that the
project site could support the federally endangered San Diego fairy shrimp (Branchinecta
sandiegonensis). Both the San Diego fairy shrimp and Lindahl’s fairy shrimp can occupy the same
pool at the same time, however Lindahl’s fairy shrimp seem to be more prevalent in the more
disturbed pools, such as those on-site. Regardless, it is recommended that focused surveys for the San
Diego fairy shrimp be conducted to determine the presence and distribution (if present) of this species
within the project area.
This proposal is based on the U.S. Fish and Wildlife Service sampling protocol as outlined in the
Interim Survey Guidelines for the Listed Vernal Pool Branchiopods (Guidelines) (USFWS 1996).
However, this proposal does not include 2 surveys (wet and dry seasons or 2 wet season), as it is
currently recommended by M&A that a single season be completed, results be presented to USFWS,
and a decision be made if a second survey is necessary.
Some basic survey assumptions have been made for budgeting purposes, they are described below.
1. The vernal pool survey area would be located within potential areas surrounding Lake Calavera.
2. Although the initial storm event for San Diego County occurred in October of 2004, the
observation of fairy shrimp on January 14,2005 demonstrates that fairy shrimp still exit on-site.
3. The attached costs are based on a single full wet survey. If two wet season surveys are required
and performed, a budget augment equal to the cost of Task 1 and Task 3 would be required.
4. Work not required or completed would not be billed.
5. Any additional work requirements that become obvious once fieldwork commences would be
communicated to you immediately for consideration for scopekost modification.
City Attorney Approved Version # 05.22.01
3
Wet season fairy shrimp surveys.
Tasks
Task 1. Wet Season Fairv Shrimu Survevs
These surveys would be conducted according to published USFWS protocol for listed vernal pool
branchiopods, by qualified biologists listed on the M&A Recovery Permit under section lO(a)(l)(A)
of the Endangered Species Act. Surveys would be commence immediately upon City and USFWS
approval to take advantage of the current “full” state of many of the pools on-site. Surveys would
then be conducted within two weeks after pool inundation with rainfall and continue every two weeks
thereafter for a maximum of 120 days. During these surveys, live shrimp would be searched for,
collected, and identified to the species level. All areas of a pool would be sampled to rule out the
possibility that B. sandiegonensis and B. lindahli occupy different regions of that pool should they
both be actively swimming. In cases where the pools/swales dry and then refill within the same wet
season, sampling would be reinitiated within 8 days of refilling and would be continued until they
have experienced 120 days of continuous inundation, or until they are no longer inundated.
Currently, 8 individual surveys for each pool are assumed, with one day per survey to cover the pools
located on-site. A minor amount of additional time is included for field checks after rainfall events to
confirm pool inundation. Additional surveys may be required, depending on rainfall and pool
inundation, and would be billed as an amendment to this cost proposal. Species to be searched for
include, Riverside fairy shrimp (Streptocephalus wootoni), vernal pool fairy shrimp (Branchinecta
lynchi), and San Diego fairy shrimp (Brachinecta sandiegoensis). As previously mentioned, the pools
on-site are currently full and many were observed to have swimming fairy shrimp.
costs
7.148 .OO
Report preparation.
Task 3. Report Preparation
Task 4. Administration
Total
The fairy shrimp surveys require a 10-day notification to proceed, and permission from the USFWS
prior to commencement. Therefore, we recommend that this survey (at least the initial wet season) be
approved by the City as soon as possible so that the 10-day notification process can begin. It is
mandatory to receive USFWS approval before collecting live shrimp.
$2,240.00
356.00
$10,550.00
In addition, a report would be prepared following the completion of the wet season fairy shrimp
fieldwork that would discuss methodology and results of the surveys. This survey would be
accompanied by graphics that show vernal pools and fairy shrimp locations.
costs
The following table outlines the costs for the scope of work describe above. As mentioned, any
additional required surveys (depending on rainfall and pool inundation) would be addressed through
an amendment to this scope of work.
I Task 2. Permit Annlication Prenaration I 806.00 I
City Attorney Approved Version # 05.22.01
4
AGREEMENT FOR BIOLOGICAL ASSESSMENT OF LAKE CALAVERA
MITIGATION SITE
Merkela Associates, Inc.
THIS AGREEMENT is made and entered into as of the qh- day of , 203 by and between the CITY OF CARLSBAD, a municipal Darnbar
corporation, ("City"), and Merkel 8 Associates, Inc., ("contractor").
RECITALS
A. City requires the professional services of an experienced and qualified
environmental services firm that is experienced in site biological assessments and
preparation of biological analysis and impact reports.
B. Contractor has the necessary experience in providing professional
services and advice related to the development of a Master Plan for trail improvements
for the Lake Calavera Trails Master Plan.
C. Selection of Contractor is expected to achieve the desired results in an
expedited fashion.
D. Contractor has submitted a proposal to City and has affirmed its
willingness and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this
reference in accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional
care and skill customarily exercised by reputable members of Contractor's profession
practicing in the Metropolitan Southern California Area, and will use reasonable
diligence and best judgment while exercising its professional skill and expertise.
3- - TERM
The term of this Agreement will be effective for a period of two (2) vears from the date
first above written. The City Manager may amend the Agreement to extend it for one (1)
additional one (1) year period or parts thereof in an amount not to exceed 10% per
Agreement year. Extensions will be based upon a satisfactory review of Contractor's
performance, City needs, and appropriation of funds by the City Council. The parties will
prepare a written amendment indicating the effective date and length of the extended
Agreement.
1
Crty Attorney Approved Version M4.01.02
4.
Time is of the essence for each and every provision of this Agreement.
TIME IS OF THE ESSENCE
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term
will be Eiqhteen Thousand Seven Hundred Seventv two dollars ($18,772.00). No other
compensation for the Services will be allowed except for items covered by subsequent
amendments to this Agreement. The City reserves the right to withhold a ten percent
(1 0%) retention until City has accepted the work and/or Services specified in Exhibit "A.
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A.
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent
contractor and in pursuit of Contractor's independent calling, and not as an employee of
City. Contractor will be under control of City only as to the result to be accomplished,
but will consult with City as necessary. The persons used by Contractor to provide
services under this Agreement will not be considered employees of City for any
purposes.
The payment made to Contractor pursuant to the Agreement will be the full and
complete compensation to which Contractor is entitled. City will not make any federal or
state tax withholdings on behalf of Contractor or its agents, employees or
subcontractors. City will not be required to pay any workers' compensation insurance or
unemployment contributions on behalf of Contractor or its employees or subcontractors.
Contractor agrees to indemnify City within thirty (30) days for any tax, retirement
contribution, social security, overtime payment, unemployment payment or workers'
compensation payment which City may be required to make on behalf of Contractor or
any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City's election, City may deduct the indemnification amount from any
balance owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval
of City. If Contractor subcontracts any of the Services, Contractor will be fully
responsible to City for the acts and omissions of Contractor's subcontractor and of the
persons either directly or indirectly employed by the subcontractor, as Contractor is for
the acts and omissions of persons directly employed by Contractor. Nothing contained
in this Agreement will create any contractual relationship between any subcontractor of
Contractor and City. Contractor will be responsible for payment of subcontractors.
Contractor will bind every subcontractor and every subcontractor of a subcontractor by
the terms of this Agreement applicable to Contractor's work unless specifically noted to
the contrary in the subcontract and approved in writing by City.
City Attorney Approved Version #04.01.02
2
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9.
Contractor agrees to indemnify and hold harmless the City and its officers, officials,
employees and volunteers from and against all claims, damages, losses and expenses
including attorneys fees arising out of the performance of the work described herein
caused in whole or in part by any willful misconduct or negligent act or omission of the
Contractor, any subcontractor, anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable.
I N DE M N I F I CAT IO N
The parties expressly agree that any payment, attorney's fee, costs or expense City
incurs or makes to or on behalf of an injured employee under the City's self-
administered workers' compensation is included as a loss, expense or cost for the
purposes of this section, and that this section will survive the expiration or early
termination of this Agreement.
IO. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property
which may arise out of or in connection with performance of the services by Contractor
or Contractor's agents, representatives, employees or subcontractors. The insurance
will be obtained from an insurance carrier admitted and authorized to do business in the
State of California. The insurance carrier is required to have a current Best's Key Rating
of not less than "A-:V".
IO. 1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below,
unless City Attorney or City Manager approves a lower amount. These minimum
amounts of coverage will not constitute any limitations or cap on Contractor's
indemnification obligations under this Agreement. City, its officers, agents and
employees make no representation that the limits of the insurance specified to be
carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If
Contractor believes that any required insurance coverage is inadequate, Contractor will
obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense.
10.1.1 Commercial General Liability Insurance. $1,000,000 combined
single-limit per occurrence for bodily injury, personal injury and property damage. If the
submitted policies contain aggregate limits, general aggregate limits will apply
separately to the work under this Agreement or the general aggregate will be twice the
required per occurrence limit.
10.1.2 Automobile Liability (if the use of an automobile is involved for
Contractor's work for City). $1,000,000 combined single-limit per accident for bodily
injury and property damage.
City Attorney Approved Version #04.01.02
3
10.1.3 Workers' Compensation and Emplover's Liability. Workers'
Compensation limits as required by the California Labor Code and Employer's Liability
limits of $1,000,000 per accident for bodily injury. Workers' Compensation and
Employer's Liability insurance will not be required if Contractor has no employees and
provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must
be maintained for a period of five years following the date of completion of the work.
10.2. Additional Provisions. Contractor will ensure that the policies of insurance
required under this Agreement contain, or are endorsed to contain, the following
provisions:
10.2.1 The City will be named as an additional insured on General
Liability.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and
any extensions of it and will not be canceled without thirty (30) days prior written notice
to City sent by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providinq Certificates of Insurance and Endorsements. Prior to City's execution
of this Agreement, Contractor will furnish certificates of insurance and endorsements to
City.
10.4 Failure to Maintain Coveraqe. If Contractor fails to maintain any of these
insurance coverages, then City will have the option to declare Contractor in breach, or
may purchase replacement insurance or pay the premiums that are due on existing
policies in order to maintain the required coverages. Contractor is responsible for any
payments made by City to obtain or maintain insurance and City may collect these
payments from Contractor or deduct the amount paid from any sums due Contractor
under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at anytime,
complete and certified copies of any or all required insurance policies and
endorsements.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of
the Agreement, as may be amended from time-to-time.
City Attorney Approved Version #04.01.02 4
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred
under this Agreement. All records will be clearly identifiable. Contractor will allow a
representative of City during normal business hours to examine, audit, and make
transcripts or copies of records and any other documents created pursuant to this
Agreement. Contractor will allow inspection of all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the date of
final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors
pursuant to this Agreement is the property of City. In the event this Agreement is
terminated, all work product produced by Contractor or its agents, employees and
subcontractors pursuant to this Agreement will be delivered at once to City. Contractor
will have the right to make one (1) copy of the work product for Contractor’s records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City
and Contractor relinquishes all claims to the copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written
notice on behalf of City and on behalf of Contractor under this Agreement.
For City: For Contractor:
Name Elizabeth Ketabian Name Barbara L. Merkel
Title Park Planner Title President
Department Recreation Address 5434 Ruffin Road
City of Carlsbad
Address 1200 Carlsbad Villaqe Dr. Phone No. 858-560-5465
San Dieqo, CA 92123
Carlsbad. CA 92008
Phone No. 760-434-2978
Each party will notify the other immediately of any changes of address that would
require any notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
City will evaluate Contractor’s duties pursuant to this Agreement to determine whether
disclosure under the Political Reform Act and City’s Conflict of Interest Code is required
of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be
determined that disclosure is required, Contractor or Contractor‘s affected employees,
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agents, or subcontractors will complete and file with the City Clerk those schedules
specified by City and contained in the Statement of Economic Interests Form 700.
Contractor, for Contractor and on behalf of Contractor’s agents, employees,
subcontractors and consultants warrants that by execution of this Agreement, that they
have no interest, present or contemplated, in the projects affected by this Agreement.
Contractor further warrants that neither Contractor, nor Contractor’s agents, employees,
subcontractors and consultants have any ancillary real property, business interests or
income that will be affected by this Agreement or, alternatively, that Contractor will file
with the City an affidavit disclosing this interest.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way
affect the performance of the Services by Contractor. Contractor will at all times observe
and comply with these laws, ordinances, and regulations and will be responsible for the
compliance of Contractor‘s services with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act
of 1986 and will comply with those requirements, including, but not limited to, verifying
the eligibility for employment of all agents, employees, subcontractors and consultants
that the services required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations
prohibiting discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following
procedure will be used to resolve any questions of fact or interpretation not otherwise
settled by agreement between the parties. Representatives of Contractor or City will
reduce such questions, and their respective views, to writing. A copy of such
documented dispute will be forwarded to both parties involved along with recommended
methods of resolution, which would be of benefit to both parties. The representative
receiving the letter will reply to the letter along with a recommended method of
resolution within ten (IO) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City
Manager. The City Manager will consider the facts and solutions recommended by each
party and may then opt to direct a solution to the problem. In such cases, the action of
the City Manager will be binding upon the parties involved, although nothing in this
procedure will prohibit the parties from seeking remedies available to them at law.
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20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services,
City may terminate this Agreement for nonperformance by notifying Contractor by
certified mail of the termination. If City decides to abandon or indefinitely postpone the
work or services contemplated by this Agreement, City may terminate this Agreement
upon written notice to Contractor. Upon notification of termination, Contractor has five
(5) business days to deliver any documents owned by City and all work in progress to
City address contained in this Agreement. City will make a determination of fact based
upon the work product delivered to City and of the percentage of work that Contractor
has performed which is usable and of worth to City in having the Agreement completed.
Based upon that finding City will determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may
terminate this Agreement. In this event and upon request of City, Contractor will
assemble the work product and put it in order for proper filing and closing and deliver it
to City. Contractor will be paid for work performed to the termination date; however, the
total will not exceed the lump sum fee payable under this Agreement. City will make the
final determination as to the portions of tasks completed and the compensation to be
made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or
person, other than a bona fide employee working for Contractor, to solicit or secure this
Agreement, and that Contractor has not paid or agreed to pay any company or person,
other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift,
or any other consideration contingent upon, or resulting from, the award or making of
this Agreement. For breach or violation of this warranty, City will have the right to annul
this Agreement without liability, or, in its discretion, to deduct from the Agreement price
or consideration, or otherwise recover, the full amount of the fee, commission,
percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to -- City must-be asserted as part of the Agreement process as set forth in this Agreement
and not in anticipation of litigation or in conjunction with litigation. Contractor
acknowledges that if a false claim is submitted to City, it may be considered fraud and
Contractor may be subject to criminal prosecution. Contractor acknowledges that
California Government Code sections 12650 et seq., the False Claims Act applies to
this Agreement and, provides for civil penalties where a person knowingly submits a
false claim to a public entity. These provisions include false claims made with deliberate
ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is
entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges
that the filing of a false claim may subject Contractor to an administrative debarment
proceeding as the result of which Contractor may be prevented to act as a Contractor
on any public work or improvement for a period of up to five (5) years. Contractor
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acknowledges debarment by another jurisdiction is grounds for City to terminate this
Agreement.
23. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of
enforcing a right or rights provided for by this Agreement will be tried in a court of
competent jurisdiction in the County of San Diego, State of California, and the parties
waive all provisions of law providing for a change of venue in these proceedings to any
other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
Contractor and their respective successors. Neither this Agreement or any part of it nor
any monies due or to become due under it may be assigned by Contractor without the
prior consent of City, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated
by it, along with the purchase order for this Agreement and its provisions, embody the
entire Agreement and understanding between the parties relating to the subject matter
of it. In case of conflict, the terms of the Agreement supersede the purchase order.
Neither this Agreement nor any of its provisions may be amended, modified, waived or
discharged except in a writing signed by both parties.
26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf
of Contractor each represent and warrant that they have the legal power, right and
actual authority to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR CITY OF CARLSBAD, a municipal
*By: ‘@)Am
(sign here)
&CbGrRL. Mor &I Qes;dea+
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**By:
ATTEST: (print namehitle)
LORRAINE M. WOOD (sign here)
City Clerk e i4-h W M~,cke( . V ic4 Fk~aOk+
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(print namehitle)
(e-rnail address)
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..
If required by City, proper notarial acknowledgment of execution by contractor
must be attached. If a Corporation, Agreement must be signed by one corporate
officer from each of the following two groups.
*Group A.
Chairman,
President, or
Vice-president
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney \
By:
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EXHIBIT “A”
SCOPE OF SERVICES
& @- The scope of work to be performed under this contract by Merkel Associates, Inc. includes:
Task 1. Field Meetings
Per direction of the City of Carlsbad Recreation Department, M&A biologist(s) would attend 5
project related meetings, one on-site meeting and 4 public workshops. The purpose of the on-site
meeting would be to familiarize the biologist with the project; identify current trail erosion issues;
and discuss expected impacts.
A
Task 2. Literaturematabase Search and Field Analysis
In order to document the existing conditions of the site, including the staging area, a literature
search and biological survey would be performed. The literature search would consist of
compilation and review of biological reports from the site and surrounding area and queries of
sensitive species databases (e.g., CNDDB and USFWS). During the biological survey, vegetation
communities would be mapped; an inventory of floral and faunal species observed or detected
would be recorded; and on-site existing conditions would be photo-documented. An assessment
of the site’s potential to support sensitive species would be derived from the results of the
literature and database search, the biological survey results, and knowledge of local sensitive
species presence/absence and natural history.
Task 3. Jurisdictional Wetland Delineation
Proposed fieldwork under this task includes a jurisdictional delineation of wetlands and Non-
wetland Waters of the U.S./Streambeds under the jurisdictions of the U.S. Army Corps of
Engineers, California Department of Fish and Game, and California Coastal Commission. The
functions and values of the wetlands andor Non-wetland Waters of the U.S./Streambeds would
also be analyzed, wetland habitats and/or jurisdictional waterways would be plotted onto a
topographical map of the site, and evidence supporting jurisdictional determinations would be
recorded on wetland data forms and depicted in photographs of the project site. Proposed
wetland delineation methodology would follow the U.S. Army Corps of Engineers’ routine
delineation standards and the fieldwork would be performed by a certified wetland delineator.
It should be noted that M&A has performed a previous wetland delineation on a portion of the
Lake Calavera site. For purposes of the Lake Calavera Trails Project, a wetland delineation
would only be undertaken in areas where proposed trails are slated for improvement and on
existing trails that may be subject to restoration and coincide with wetland indicators that the
previous wetland delineation did not cover.
Task 4. California Gnatcatcher Surveys and Reporting
These surveys would be conducted by permitted biologists in accordance with the U.S. Fish and
Wildlife Service (USFWS) California Gnatcatcher Survey Protocol (dated 1997). Three separate
field visits would be made, with weekly intervals between each visit. Positive locations would be
mapped. In order to comply with USFWS Recovery Permit conditions, M&A would submit a
10-day notice prior to initiation of the survey and a 45-day letter report after conclusion of the
survey to the City of Carlsbad, USFWS and the California Department of Fish and Game
(CDFG).
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. . .*
Task 5. Least Bell’s Vireo and Southwestern Willow Flycatcher Surveys and Reporting
M&A biologists would complete surveys for both the Southwestern Willow Flycatcher and Least
Bell’s Vireo. Individuals surveying for flycatchers or assisting with surveys would be authorized
under M&A’s lO(a)(l)(A) permit #797999 issued by U. S. Fish and Wildlife Service (USFWS)
and our California Department of Fish and Game (CDFG) Memorandum of Understanding.
Surveys would be conducted according to the revised southwestern Willow Flycatcher Protocol
(dated 2000) and the current Least Bell’s Vireo Survey Guidelines (dated January 2001).
M&A biologists would survey for Least Bell’s Vireo, in conjunction with flycatcher, during the
flycatcher surveys. In addition, 4 separate (non-overlapping) vireo survey visits would be
conducted, as required by the guidelines. Due to protocol restraints, one of the visits within the
third flycatcher survey period cannot be counted toward the vireo surveys as there would be an
insufficient time (less than 10 days) between survey visits. Therefore, a minimum of 4 additional
vireo survey visits would be necessary to meet the protocol requirements, 8 surveys a minimum
of 10 days apart.
M&A would provide a 10-day notice to USFWS and CDFG prior to commencement of vireo and
flycatcher surveys, as required. Following completion of the surveys, M&A would provide the
City of Carlsbad, USFWS and CDFG with the 45-day letter report of findings from the surveys.
Focused surveys for the Southwestern Willow Flycatcher and Least Bell’s Vireo were performed
by M&A biologists during 2004; therefore, for purposes of the Lake Calavera Trails Project,
M&A would only need to perfom focused surveys for these 2 sensitive species in areas that were
not previously surveyed.
Task 6. Identification of Archeological Areas
Proposed work under this task includes a records search of the Lake Calavera Trails
Project site for any significant archeological sites. M&A proposes to use Kyle Consulting
for this work.
Task 7. Trail Recommendations
A. Grid Guide to Areas On-site
A user-friendly map would be prepared (created in ArcView and exportable to AutoCAD) to
allow the public, maintenance crew members, volunteers, and first emergency responders to
easily locate areas on the map using a grid system.
Task 8. On-site Revegetation Recommendations
Under this task, M&A would identify suitable areas for revegetation, as well as recommend a
revegetation seed mix. It should be noted that M&A would not provide an actual revegetation
plan. As with Task 7, this information would be included within the recommendations section of
the biological resources report.
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Task 9. Biological Resources Report
Following the field surveys, wetland delineation, and records search, M&A would prepare a
biological resources report detailing the existing biological conditions and the status of any
sensitive resource(s) identified on-site. The report would include a project-specific biological
impact analysis (including direct, indirect, and cumulative impacts), significance determinations
with supporting evidence andor references, and recommended measures to avoid, reduce, and/or
mitigate impacts to a level below significant. Vegetation communities and sensitive biological
resource locations would be mapped relative to proposed impacts. In addition, M&A would
identify and map the following landscape features: major ridge lines, intermittent drainage
courses, 2540% slopes, greater than 40% slopes, major rock outcroppings, floodplains, and
easements. M&A would also identify areas located on-site that have high erosion potential.
Finally, the report would address project consistency with the Multiple Habitat Conservation
Program (MHCP) and the City of Carlsbad's Subarea Plan. As requested by the City of Carlsbad
Recreation Department, one copy of the impacts analysis map would be provided on a 24" x 36"
sheet containing the above data.
This scope of work does not include time to address comments resulting from review of the
project biological (technical) report and/or project CEQA document. By its very nature,
discretional review of project documents can result in comments that are valid under the
discretionary authority of the lead agency, but may not be predictable or directly related to
conformance with published regulations and ordinances. Since these comments cannot be
accurately anticipated, they would be addressed through a subsequent scope of work and costs,
produced in response to review of the comment letter.
Task 10. Project Administration
Undertakings associated with this task include internal coordination, scheduling, and clerical
duties (e.g., copying, filing, and mailing) in support of the project.
costs
The following table outlines the costs for the scope of work describe above. Any additional
surveys or required meetings would be addressed through a separate scope of work. In the event
that trails improvements or amenities would result in impacts outside of the existing trails, an
impact analysis and CEQA documentation would be required. M&A could provide a technical
report (with a biological impact analysis) under a separate scope of work.
* the costs for identification of revegetation areas are included within the biological report
(Task 9)
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