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HomeMy WebLinkAbout1993-09-07; City Council; 12378; APPROVAL OF CONSULTANT AGREEMENT FOR GNATCATCHER OBSERVATION AND CONSULTATION FOR PALOMAR AIRPORT ROAD AND EL CAMINO REAL WIDENING PROJECT* P 0 B 9 3 Z s G 4 5 z 3 0 0 ,-I I 'F CIB OF CARLSBAD - AGEW BILL '2; {*& AB# 43'78 TITLE: APPROVAL OF CONSULTANT DEPT. H MTG, 9/07/93 AGREEMENT FOR GNATCATCHER OBSERVATION CITY AT CITY MC DEPT. ENG RECOMMENDED ACTION: AND CONSULTATION FOR PALOMAR AIRPORT ROAD AND EL CAMINO REAL WIDENING PROJECT Adopt Resolution No. 93-24 b approving a consultant agreement with P Technologies for consulting services and ornithological observation of Califc gnatcatchers and other protected bird species on the Palomar Airport Road and El Cai Real Widening, Project No. 3166. ITEM EXPLANATION: The widening of Palomar Airport Road is a joint project with the City of San Mar Project management is provided by Carlsbad staff, and San Marcos is funding the PO of the road within their boundaries. On March 25, 1993, the California gnatcatcher was listed as a threatened species u the protection of the Endangered Species Act. On April 9, 1993, City staff received nc from the U.S.Fish & Wildlife Service (USF&N that planned construction activitie! Palomar Airport Road east of Business Park Drive (actually San Marcos Boulevard ai location) would possibly constitute harassment, and thus "take", of nesting migratory I and California gnatcatchers that might be in the vicinity. Because this segment of the is in San Marcos, Carlsbad staff consulted with San Marcos staff, who indicated that would pay their share of the cost of biological surveys. The City Manager, there authorized a contract with P & D Technologies to perform surveys of nesting migrz birds and California gnatcatchers in the vicinity of the Palomar Airport Road construc A pair of California gnatcatchers with eggs in their nest, located 48 feet outside 01 construction area for the north side of Palomar Airport Road east of Business Park C in the City of Vista, was discovered on April 27,1993. Consequently, City staff investig alternative alignments and grading plans that would avoid the gnatcatcher I Observation of the birds by P & D Technologies continued. On June 17, 1993, P & D Technologies reported that the gnatcatchers had left their and moved to a location about 1200 feet away. Based on this new information, and consultation with San Marcos, the road contractor was directed to proceed construction of that segment of the road with daily monitoring by P & D Technologies. continued observations by P & D Technologies have shown that the construc operations on Palomar Airport Road have had no discernable effect on the gnatcatcl The ongoing need for observation has caused the cost for biological services to exc the original amount authorized by the City Manager. Staff recommends that Coi authorize the approval of a contract with P & D Technologies for consulting services ornithological observation in the amount of $40,000. I 0 e Page 2 of Agenda Bill No. /2,d7b FISCAL IMPACT The responsibility for construction costs for the portion of the street impacted by the location belongs to the City of San Marcos. The City of San Marcos has been notifk the costs associated with the additional monitoring and services and will be respon for $37,500 of these costs. Funds in the amount of $896,077 are available in Project Account No. 31 0-344-1 8404 to cover the costs of the bird monitoring. EXHIBITS: 1. Resolution No. 93-24b approving a consultant agreement with P Technologies for consulting services and ornithological observation of Califc gnatcatchers and other protected bird species on the Palomar Airport Road ar; Camino Real Widening, Project No. 31 66. 2. Consultant Agreement. !i 1- 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 ’ 9 20 21 22 23 24 25 26 27 28 0 0 RESOLUTION NO. 9 3 - 2 4 6 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSEAD, CALIFORNIA, APPROVING A CONSULTANT AGREEMENT WITH P & D TECHNOLOGIES TO PROVIDE GNATCATCHER OBSERVATION AND CONSULTATION. WHEREAS, the City Council of the City of Carlsbad hereby finds it necessary, dc and in the public interest to proceed with the construction of Palomar Airport Road Camino Real; and, WHEREAS, the City Council of the City of Carlsbad finds it necessary, desirable the public interest to perform gnatcatcher observation and other protected bird specie! the construction of the Palomar Airport Road and El Camino Real Project; and WHEREAS, a consultant agreement with P & D Technologies, Inc., has been prepa submitted hereto. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of C: California, as follows: 1. 2. That the above recitations are true and correct. That a consultant agreement between the City of Carlsbad and I Technologies, Inc., in the amount of $4O,OOO, is hereby approved and the Mayor and Cil are authorized and directed to execute said agreement. The City Clerk is further authoriz directed to forward copies Ill Ill Ill Ill 111 //I I k 1 2 3 4 5 6 7 8 9 10 11 12 13 j4 15 16 17 18 19 20 21 22 23 . 24 25 26 27 28 I 0 0 of the signed agreement to P & D Technologies, Inc., 401 West “A Street, Suite 2500, San California, 921 01, attention Betty Dehoney, as well as the Engineering Department for proa PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City ( held on the 7th day of SEPTEMBER , 1993 by the following vote, to wit: AYES: NOES: None ABSENT: Council Member Stanton Council Members Lewis, Kulchin, Nygaard, Finnila ATTEST: ALE$$h?kU<N (SEAL) 0 0 AGREEMENT FOR PALOMAR AIRPORT ROAD GNATCATCHER AND WILDLIFE OBSERVATION SERVICES THIS AGREEMENT, made and entered into as of the 8th day of SEPTEMBER , 192, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City", and P&D Technologies of 401 West 'A' Street, Suite 2500, San Diego California 921 01, hereinafter referred to as "Consultant". RECITALS City requires the services of an environmental consultant to providt ornithological services for preparation of spot mapping and behavioral analysis o California gnatcatchers in conjunction with City's efforts to assure that constructio operations do not take California gnatcatchers in contravention of the U.S Endangered Species Act; and Consultant possesses the necessary skills an qualifications to provide the services required by City; NOW, THEREFORE, in consideration of these recitals and the mutual covenanl contained herein, City and Consultant agree as follows: 1. co NSULTANT 'S OBLIGATIONS The Consultant shall provide monitoring, mapping and consultation servic regarding California gnatcatchers located in the vicinity of the north side of S Rev. 6/10/! e Marcos and Vista. Consultant shall make objective field observations, prepare fie1 notes and maps, provide verbal reports and allow City to copy field notes on the da said observations are made. Consultant shall prepare summary reports as directed b City. Consultant shall provide consultation to the City regarding the observations an the ramifications the observations have to project number 31 66, Palomar Airpo Road and El Camino Real Widening (project). 2. CITY OBLIGATIONS City shall provide access to the project site and assist Consultant in obtainin City shall provide copies of existing topograph access to adjacent properties. mapping for Consultant's mapping. 3. PROGRESS AND CO M PLETION The work under this contract will begin within ten (101 days after receipt 1 notification to proceed by City and be completed within 180 days of that dat Extensions of time may be granted if requested by Consultant and agreed to in writii by the City Engineer. The City Engineer will give allowance for documented ai substantiated unforeseeable and unavoidable delays not caused by a lack of foresig on the part of the Consultant, or delays caused by City inaction or other agencie lack of timely action. 4. FEES TO BE PAID TO CO NSULTANT 2 Rev. 6/10/! 0 0 The total shall be based on actual time and materials used to accomplish the work and shall not exceed $40,000.00. Computation of the fee shall be by extension of the actual time and materials by hourly rates and unit prices listed in Paragraph 6, "Payment of Fees". No other compensation for services will be allowed except those items covered by supplemental agreements per Paragraph 8, "Changes in Work." 5. DURATION OF CONTRACT This agreement shall extend for a period of 365 days from date thereof. The contract may be extended for one additional one (1) year periods or parts thereof, based upon satisfactory performance and the City's needs. 6. PAYMENT0 F FEES Hourly rate fees shall be as the following table. Title/Name S's per hou 100.00 85.a 75.0 65.0 55.0 Project Environmental Analyst, Betty Dehoney Sr. Environmental Analyst / Specialist, (no names submitted) Environmental Analyst / Specialist, (no names submitted) Sr. Researcher, (no names submitted) Researcher, Brian Daniels, Charlotte Johnson, Kathleen Keane, Elyssa Robertson, Douglas Willick Word Processing, (no names submitted) 50.C Reimbursable expenses shall be paid at the following rates. Mileage $0.275/Mi Rev. 6/1 O/! 3 0 0 Reproduction, single sided $O.O7/Copy Reproduction, double sided $0.1 o/copy Other printing and reproduction Cost + 15% For the purposes of this agreement the costs of postage, telephone, marketing, billing, office management and similar functions are general overhead and included as i portion of the hourly rates specified above. 7. FINAL SUBMISSIONS Within 30 days of completion of the field monitoring phase and approval of thc field reports the Consultant shall deliver to the City the following items: One bound copy of all field reports. The reports shall be legible anc accompanied by a legend sheet for all symbols and abbreviations usec in the reports. A summary report of the field observations. The summary report sha contain a synopsis of the field observations of the California gnatcatchf and shall relate the observations with the earthmoving operation associated with project. Maps that show the range of the California gnatcatcher during the peria of observation. The maps shall show the probable range of the bii through the various episodes of development and movement that ms occur. 1) 2) 3) Rev. 6/1 OK 4 e 0 4) A statement of professional opinion as to the existence of "take" of California gnatcatchers directly caused by the construction operations of project. 8. CHANGES IN WORK If, in the course of the contract, changes seem merited by the Consultant or the City, and informal consultations with the other party indicate that a change in the conditions of the contract is warranted, the Consultant or the City may request a change in contract. Such changes shall be processed by the City in the following manner: A letter outlining the required changes shall be forwarded to the City by Consultant to inform them of the proposed changes along with a statement 01 estimated changes in charges or time schedule. A supplemental agreement shall be prepared by the City and approved by the City according to the'procedures describec in Carlsbad Municipal Code Section 3.28.1 72. Such supplemental agreement shal not render ineffective or invalidate unaffected portions of the agreement. 9. COVENANTS AGAINST CO NTINGENT FEES The Consultant warrants that their firm has not employed or retained an company or person, othef a bona fide employee working for the Consultant, to solic or secure this agreement, and that Consuitant has not paid or agreed to pay ar company or person, other than a bona fide employee, any fee, comrnissioi percentage, brokerage fee, gift, or any other consideration contingent upon, 5 Rev. 6/10/! 0 0 resulting from, the award or making of this agreement. For breach or violation of thi! warranty, the City shall have the right to annul this agreement without liability, or, i its discretion, to deduct from the agreement price or consideration, or otherwis recover, the full amount of such fee, commission, percentage, brokerage fees, giR or contingent fee. 10. NONDISCRIMINATION CLAUSE The Consultant shall comply with the state and federal laws regardin nondiscrimination. 11. TERMINATION OF CONTRACT In the event of the Consultant’s failure to prosecute, deliver, or perform the wor as provided for in this contract, the City may terminate this contract fc nonperformance by notifying the Consultant by certified mail of the termination of th Consultant. The Consultant, thereupon, has five (5) working days to deliver sai documents owned by the City and all work in progress to the City Engineer. The Cil Engineer shall make a determination of fact based upon the documents delivered t City of the percentage of work which the Consultant has performed which is usabl and of worth to the City in having the contract completed. Based upon that findin as reported to the City Manager, the Manager shall determine the final payment of th contract. 12. DISPUTES If a dispute should arise regarding the performance of work under this agreemen Rev. 6/10/$ 6 0 0 the following procedure shall be used to resolve any question of fact or interpretatiol not otherwise settled by agreement between parties. Such questions, if they becom identified as a part of a dispute among persons operating under the provisions of thi contract, shall be reduced to writing by the principal of the Consultant or the Cit Engineer. A copy of such documented dispute shall be forwarded to both partie involved along with recommended methods of resolution which would be of benef to both parties. The City Engineer or principal receiving the letter shall reply to th letter along with a recommended method of resolution within ten (10) days. If th resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining th dispute shall be forwarded to the City Council for their resolution through the Offic of the City Manager. The City Council may then opt to consider the directed solutio to the problem. In such cases, the action of the City Council shall be binding upa the parties involved, although nothing in this procedure shall prohibit the partie seeking remedies available to them at law. 13. SUS PENSION OR TERMINATION OF SERVICES This agreement may be terminated by either party upon tendering thirty (30) da) written notice to the other party. In the event of such suspension or terminatioi upon request of the City, the Consultant shall assemble the work product and pi same in order for proper filing and closing and deliver said product to City. In th event of termination, the Consultant shall be paid for work performed to tP termination date; however, the total shall not exceed the lump sum fee payable undl paragraph 4. The City shall make the final determination as to the portions of task Rev. 6/10/9 7 0 0 completed and the compensation to be made. 14. STATUS 0 F THE CONSULTANT The Consultant shall perform the services provided for herein in Consultant‘s ow way as an independent contractor and in pursuit of Consultant’s independent callin! and not as an employee of the City. Consultant shall be under control of the City on as to the result to be accomplished, but shall consult with the City as provided for the request for proposal. The Consultant is an independent contractor of the City. The payment made t the Consultant pursuant to the contract shall be the full and complete compensatic to which the Consultant is entitled. The City shall not make any federal or state ta withholdings on behalf of the Consultant. The City shall not be required to pay ar workers’ compensation insurance on behalf of the Consultant. The Consultant agret to indemnify the City for any tax, retirement contribution, social security, overtin payment, or workers’ compensation payment which the City may be required to mal on behalf of the Consultant or any employee of the Consultant for work done und this agreement. The Consultant shall be aware of the requirements of the Immigration Reform ar Control Act of 1986 and shall comply with those requirements, including, but nc limited to, verifying the eligibility for employment of all agents, employee subcontractors and consultants that are included in this agreement. 15. CO NFORMITY TO LEGAL REQUIREMENTS a Rev. 6/1 O/! 0 e The Consultant shall cause all drawings and specifications to conform to all applicable requirements of law: federal, state and local. Consultant shall provide all necessary supporting documents, to be filed with any agencies whose approval is necessary. The City will provide copies of the approved plans to any other agencies. 16. OWNERSHIP OF DOCU MENTS All plans, studies, sketches, drawings, reports, and specifications as hereir required are the property of the City, whether the work for which they are made bc executed or not. In the event this contract is terminated, all documents, plans specifications, drawings, reports, and studies shall be delivered forthwith to the City Consultant shall have the right to make one (1) copy of the plans for hidher records 17. REPRODUCTION RIGHTS The Consultant agrees that all copyrights which arise from creation of the WOI pursuant to this contract shall be vested in City and hereby agrees to relinquish i claims to such copyrights in favor of City. 18. HOLD HARMLESS AGREEMFNT The City, its officers, and employees shall not be liable for any claims, liabilitit penalties, fines, or any damage to goods, properties, or effects of any pers whatever, nor for personal injuries or death caused by, or resulting from, a intentional or negligent acts, errors or omissions of Consultant or Consultant's agen Rev. 6/10/ 9 m employees, or representatives. Consultant agrees to defend, indemnify, and save frec and harmless the City and its officers and employees against any of the ioregoin claims, liabilities, penalties or fines, including liabilities or claims by reason of allege defects in any plans and specifications, and any cost, expense or attorney‘s fee which are incurred by the City on account of any of the foregoing. 19. ASSIGNMENT OF CONTRACT The Consultant shall not assign this contract or any part thereof or any monk due thereunder without the prior written consent of the City. 20. SUBCO NTRACTING If the Consultant shall subcontract any of the work to be performed under th contract by the Consultant, Consultant shall be fully responsible to the City for tt acts and omissions of Consultant’s subcontractor and of the persons either direct or indirectly employed by the subcontractor, as Consultant is for the acts ai omissions of persons directly employed by consultant. Nothing contained in tt contract shall create any contractual relationship between any subcontractor Consultant and the City. The Consultant shall bind every subcontractor and eve subcontractor of a subcontractor by the terms of this contract applicable Consultant’s work unless specifically noted to the contrary in the subcontract question approved in writing by the City. 10 Rev. 6/10/ 0 0 21. PROHIBITED INTEREST No official of the City who is authorized in such capacity on behalf of the City t negotiate, make, accept, or approve, or take part in negotiating, making, acceptin! or approving of this agreement, shall become directly or indirectly intereste personally in this contract or in any part thereof. No officer or employee of the Cii who is authorized in such capacity and on behalf of the City to exercise ar executive, supervisory, or similar functions in connection with the performance of th contract shall become directly or indirectly interested personally in this contract or ar part thereof. 22. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of tl City, either before, during or after the execution of this contract, shall affect or modi any of the terms or obligations herein contained nor entitle the Consultant to ai additional payment whatsoever under the terms of this contract. 23. SUCC ESSORS OR ASSIGNS Subject to the provisions of Paragraph 18, "Hold Harmless Agreement," all tern conditions, and provisions hereof shall insure to and shall bind each of the part hereto, and each of their respective heirs, executors, administrators, successors, a assigns. 24. EFFECTIVE DATE 11 Rev. 6/101 e 0 This agreement shall be effective on and from the day and year first writte above. 25. CONFLICT OF INTEREST The consultant shall not file a conflict of interest statement with the city cle in accordance with the requirements of the City of Carlsbad conflict of interest cod 26. INSURANCE The Consultant shall obtain and maintain policies of general liability insuranc automobile liability insurance, and a combined policy of worker's compensation ai employers liability insurance from an insurance company authorized to do business the State of California which meets the requirements of City Council Resolution N1 91-403 in an insurable amount of not less than one million dollars ($1,000,000) eac unless a lower amount is approved by the City Attorney or the City Manager. Th insurance shall be in force during the life of this agreement and shall not be cancelc without thirty (30) days prior written notice to the City sent by certified mail. .... .... .... .... .... .... Rev. 6/10/! 12 e 0 The City shall be named as an additional insured on these policies. The Consultant shall furnish certificates of insurance to the City before Commencement of work Executed by Consultant this ,.. day of Auaust , 1993. CITY OF CARLSBAD, a municipal CONSULTANT: (name of Consultant) p$ P mt/~.6cQ6/Gs By: p- x. g'&J (sign here) ATTEST: ntw A/'. R/&f&&QJ (print name here) *I .- - ") A 7w* hCkl-jC /I/ Q.lf;; P. &A fhouph statute doea not requi fill in the data below, dotng mJahbIet0 persons relylllg 01 personally appeared or the entity upon behalf of which the person(s) acted, executed the instrument. SIGNER IS REPRESE WITNESS my hand and official seal. NAME OF PERSON(S) OR ENTIT THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRlBED AT RIGHT TITLE OR TYPE OF ~UME NUMBER OF PAGES 01992 NATIONAL NOTARY ASSOCIATION 8236 Remmet Ave.. P 0 Box 7184 Canoga * 0 a The City shall be named as an additional insured on these policies. The Consultant shall furnish certificates of insurance to the City before commencement of work. Executed by Consultant this 23 day of Auaust , 1993. CONSULTANT: CITY OF CARLSBAD, a municipal Pf D ~~T~/AOCCG/E 5; (name of Consultant) By: y& 2. gIL-J (sign here) ATTEST: -mw A'. R/&iARQJ ViCE 3&t4/ DWT BY: 3-a. - (print name here) (title and organization of signatory) ALETHA L. RAUTENKRANZ City Clerk Karen A. Benvie Vice President, Assistant Secretary (Proper notarial acknowledgment of execution by CONSULTANT must be attached (President or vice-president and secretary or assistant secretary must sign fc corporations. If only one officer signs, the corporation must attach a resolutic certified by the secretary or assistant secretary under corporate seal empowering th; officer to bind the corporation.) APPROVED AS TO FORM: RONALD R. BAU City Attorney BY /Id2 k- Deputy City tt rney $yPgr. Rev. 6/10/ 13 @ 1) CARL’S JR. RESTAURI Carl Karcher Enterprises, Inc. 1200 North Harbor Boulevard P.O. Box 4349 Anaheim, California 928034349 (714 June28, 1993 Ms. Aletha L. Rautenkranz City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008-1989 Re: Carl’s Jr. Restaurant No. 117 950 Carlsbad Village Drive Carlsbad, CA Citv Council Meeting of June 22, 1993 Dear Ms. Rautenkranz: Thank you for taking the time out of your busy schedule to meet with Larry, Greg Losa an( myself prior to the City Council meeting last week. We sincerely appreciated your cooperatioi and assistance regarding the information we were seeking. With respect to the City Council meeting on June 22nd, please accept this letter as our reques to obtain a copy of the Minutes, in particular, the portion covering the Carl’s Jr. property an( the Streetscape Project. Once again, your assistance is greatly appreciated. Very sincerely, CARL KARCHER ENTERPRISES, INC. &Ma Colleen A. Ford Manager, Corporate Real Estate CAF/sr cc: Larry Young ,? A c, L->v/J & ck I 1 y 12 k.j.j/& + f ,, 0- ,---kW &d 54/-,,-,,.,. v