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*
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,-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.
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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.
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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:
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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
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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)
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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
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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
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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
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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.
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3)
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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,
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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
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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
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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
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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
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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.
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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
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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 ($1,000,000) eac
unless a lower amount is approved by the City Attorney or the City Manager. Th
insurance shall be in force during the life of this agreement and shall not be cancelc
without thirty (30) days prior written notice to the City sent by certified mail.
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The City shall be named as an additional insured on these policies. The Consultant
shall furnish certificates of insurance to the City before Commencement of work
Executed by Consultant this ,.. day of Auaust , 1993.
CITY OF CARLSBAD, a municipal CONSULTANT:
(name of Consultant)
p$ 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
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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.
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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
,?
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