HomeMy WebLinkAboutASM Affiliates Inc; 2014-12-19; TRAN1199TRAN1199
AMENDMENT NO. 1 TO AGREEMENT FOR CULTURAL RESOURCE MONITORING
SERVICES FOR PROJECT NO. 3957, EL CAMINO REAL ROAD WIDENING, TAMARACK
AVENUE TO CHESTNUT AVENUE
(ASM AFFILIATES, INC.)
This Amendment No. 1 is entered into and effective as of the ff-Th day of
:::Juf\C-, 20 fS, amending the agreement dated December 19,
2014 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"),
and ASM AFFILIATES, INC. (ASM), ("Contractor") (collectively, the "Parties").
RECITALS
A. The Parties desire to alter the Agreement's scope of work to increase the
Agreement amount by eighteen thousand seventeen dollars ($18,017) for a total agreement
amount of thirty five thousand dollars ($35,000) for continued cultural resource monitoring and
investigation due to the discovery of human remains as well as historic and prehistoric artifacts;
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 eighteen thousand seventeen dollars
($18,017). 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 December 19, 2015.
4. All other provisions of the Agreement, as may have been amended from time to
time, will remain in full force and effect.
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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.
CONTRACTOR
By: ~
John R. Cook, President/Secretary
(print name/title)
By:
(sign here)
(print name/title)
CITY OF CARLSBAD, a municipal
corporation of the State of California
By~
Interim City Manager or Mayor or Director
Kathryn B. Dodson
ATTEST:
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:
CELIA A. BREWER, City Attorney
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EXHIBIT "A"
SCOPE OF SERVICES AND FEE
Cultural resource monitoring, to include preparation of a research design, additional fieldwork,
artifact analysis, report preparation, and artifact curation as mandated by the city for compliance
with CEQA at the following rates:
• $480 per day
• $240 per % day
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AGREEMENT FOR CULTURAL RESOURCE MONITORING SERVICES FOR
PROJECT NO. 3957, EL CAMINO REAL ROAD WIDENING, TAMARACK AVENUE TO
CHESTNUT AVENUE
(ASM AFFILIATES, INC.)
THIS AGREEMENT is made and entered into as of the fc:r-/h. day of
Dec~ev-, 20!.!:1:::, by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and ASM AFFILIATES, INC. (ASM), a California Corporation, ("Contractor").
RECITALS
A. City requires the professional services of a cultural resources management firm
that is experienced in conducting cultural and archeological resource management.
B. Contractor has the necessary experience in providing professional services and
advice related to cultural and archeological resource management.
C. 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 one year from the date first above
written. The City Manager may amend the Agreement to extend it for 2 additional one year periods
or parts thereof in an amount not to exceed sixteen thousand nine hundred eighty three dollars
($16,983) 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.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term will be
sixteen thousand nine hundred eighty three dollars ($16,983). 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 (10%) 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".
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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.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
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 by any negligence,
recklessness, or willful misconduct 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.
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.
10. 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-:VII". OR with a surplus
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line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating
in the latest Best's Key Rating Guide of at least "A:X".
1 0.1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk
Manager 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.
1 0.1.2 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.
1 0.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation
limits as required by the California Labor Code. Workers' Compensation will not be required if
Contractor has no employees and provides, to City's satisfaction, a declaration stating this.
1 0.1.4 Professional Liability. 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.
City's Initials Contractor's Initials
D If box is checked, Professional Liability
Insurance requirement is waived.
1 0.2. Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
1 0.2.1 The City will be named as an additional insured on Commercial General
Liability which shall provide primary coverage to the City.
1 0.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
1 0.2.3 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 Providing 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 Coverage. 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
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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.
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 ttie 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 Citv
Name Patrick Vaughan
Title Engineering Manager
Department _C.::...M:..:..:...::.:&.:....I ______ _
City of Carlsbad
Address 5950 El Camino Real
Carlsbad, CA 92008
Phone No.
For Contractor
Name Sinead Ni Ghabhlain
Title Vice President
Address 2034 Corte Del Nogal
Carlsbad, CA 92011
Phone No. 760-804-5757
Email
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.
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16. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report
investments or interests in all four categories.
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 whose services are
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 (1 0) 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.
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.
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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 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.
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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
John R. Cook, President/Secretary
(print name/title)
By:
(sign here)
(print name/title)
CITY OF CARLSBAD, a municipal
corporation of the State of California
By~ Cil'fli=~~r
as authorized by the City Manager
Patrick Thomas
ATTEST:
BARBARA ENGLESON. /
City Clerk t'
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:
CELIA A. BREWER, City Attorney
BY Jill)__ ~ ASSiStaTitCity Attomey
AGREEMENT FOR CULTURAL RESOURCE MONITORING SERVICES FOR
PROJECT NO. 3957, EL CAMINO REAL ROAD WIDENING, TAMARACK AVENUE TO CHESTNUT AVENUE
(ASM AFFILIATES, INC.)
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November 26, 2014
Patrick Vaughan, P. E.
City of Carlsbad
Division Manager
Construction Management & Inspection
5950 El Camino Real
Carlsbad, CA 92008
EXHIBIT "A"
Re: Proposal for Cultural Resource Monitoring for the El Camino Real Road Widening, Tamarack
A venue to Chestnut A venue Project, City of Carlsbad, California
Dear Mr. Vaughan,
ASM Affiliates, Inc. (ASM) is pleased to present this proposal to conduct cultural resources monitoring for
the El Camino Real Road Widening, Tamarack A venue to Chestnut A venue Project for compliance with
the mitigation measures provided in the project Mitigated Negative Declaration. This proposal includes a
scope of work, cost estimate, and the proposed schedule for completion of the work. Please note that the
actual schedule for completion of the proposed tasks will be dependent upon the overall construction
schedule. All proposed services will be performed on a time and materials basis. This proposal will remain
valid for 90 days from today's date.
Scope of Work
ASM conducted a record search at the South Coastal Information Center (SCI C) and at the Museum of Man
for its 2006 cultural resource study for the project. ASM will conduct a new record search to update the
records prior to the project preconstruction meeting. ASM Principal Investigator (P.I.) Sinead Ni Ghabhlliin,
Ph.D. will attend the preconstruction meeting and will provide a site grading plan (11x17) that identifies
areas to be monitored as well as areas that may require delineation of grading limits.
ASM will provide full-time archaeological monitors during grading and excavation in native soils. The
archaeological monitor will document all monitoring activity via the Consultant Monitor Record and these
records will be submitted to the City Planner once a month. Daily monitoring logs will also be maintained
by the archaeological monitor and these will be provided to the CP once a month.
In the event of a discovery the Construction Manager (CM) shall be contacted by the archaeological P.I.
and will divert, direct or temporarily halt ground disturbing activity in the area of the discovery to allow for
preliminary evaluation of potentially significant resources. The P.I. will carry out the evaluation of
potentially significant resources and will notify the CM immediately of her findings. For significant
archaeological resources, a Research Design and Data Recovery Program will be prepared, for approval by
the City of Carlsbad and subsequently implemented. Following completion of the Data Recovery program,
ground-disturbing activities will be allowed to resume.
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In the event of a discovery of a small cultural resource deposit, ASM will implement the Minor Discovery
Process outlined in the mitigation measures developed for this project. Such small cultural resource
deposits will be documented in situ, and artifacts will be recovered, photographed, analyzed and
subsequently curated. The remainder of the deposit not within the limits of the excavation will be left intact.
The Final Results Report will include a requirement for monitoring of any future work in the vicinity.
Within three months following the completion of the monitoring, two copies of the Final Results Report
and/or evaluation report will be submitted to the CP for approval. ASM will also prepare State of California
Department of Parks and recreation forms for all cultural resources encountered during the Archaeological
Monitoring Program and will submit the forms to the South Coastal Information Center. All artifacts
recovered as a result of the monitoring program and/or evaluation of data recovery programs will be
submitted for permanent curation at the San Diego Archaeological Center.
Cost Estimate
The services described above will be provided for an estimated cost of$16,983.00. This estimate includes:
attendance at a preconstruction meeting by the P.l., project management and pre-field time for the
preparation of the record search and GIS mapping, 160 hours (20 days) of full time archaeological
monitoring, an additional40 hours of spot checking, one field visit by the project P.l., and the preparation
of an archaeological monitoring report. Please note, this assumes the results of the monitoring will be
negative. Any services related to site evaluation or mitigation through data recovery will require a contract
augment for preparation of a research design, additional fieldwork, artifact analysis, report preparation, and
artifact curation as mandated by the City for compliance with CEQA. If additional monitoring time is
needed, we will provide the services of the archaeological monitor at a rate of $480.00 per day or $240.00
per half-day. This proposal does not include the cost of Native American monitoring.
Thank you for this opportunity to provide this proposal on your project. Please call if you have any
questions.
Sincerely,
Sinead Ni Ghabhlliin
Vice President
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