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HomeMy WebLinkAboutC-5090 - PSA for Lower Buck Gully Restoration ProjectPROFESSIONAL SERVICES AGREEMENT WITH LEATHERMAN BIOCONSULTING, INC. FOR LOWER BUCK GULLY RESTORATION PROJECT THIS AGREEMENT FpR PROFES L SERVICES ( "Agreement ") is made j and entered into as of this day of ty, 2012 by and between the CITY OF G NEWPORT BEACH, a California Municipal Corporation ( "City "), and, LEATHERMAN BIOCONSULTING, INC. a California corporation ( "Consultant "), whose address is 4848 Lakeview Avenue, Suite 100E, Yorba Linda, California 92886, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to implement restoration measures in the Lower Buck Gully Canyon. C. City desires to engage Consultant to conduct a brown- headed cowbird control program under conditions set forth by the Coastal Development Permit for the Lower Buck Gully Restoration Project ( "Project "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be Brian Leatherman. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on December 31, 2016, unless terminated earlier as set forth herein. r�'i=I:VJ Lei **1191 3=1»Nits]Nili1491 City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Work" or "Services "). The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.1.1 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.2 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator (as defined in Section 6 below) not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.3 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Thirty Thousand, Twenty Dollars and no /100 ($30,020.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and /or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: 4.3.1 The actual costs of subconsultants for performance of any of the Services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. LEATHERMAN BIOCONSULTING, INC. Page 2 4.3.2 Approved reproduction charges. 4.3.3 Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Brian Leatherman to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Robert Stein, Assistant City Engineer, or his designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES 7.1 In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: 7.1.1 Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 7.1.2 Provide blueprinting and other Services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. LEATHERMAN BIOCONSULTING, INC. Page 3 7.1.3 Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action LEATHERMAN BIOCONSULTING, INC. Page 4 on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE 14.1 Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. 14.2 Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times LEATHERMAN BIOCONSULTING, INC. Page 5 during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 14.2.1 Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subcontractors. The cost of such insurance shall be included in Consultant's bid. 14.3 Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 14.4 Coverage Requirements 14.4.1 Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor's employees. 14.4.1.1 Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non - payment of premium) prior to such change. 14.4.1.2 Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. 14.5 General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. 14.6 Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. 14.7 Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) limit per claim and in the aggregate. LEATHERMAN BIOCONSULTING, INC. Page 6 14.8 Other Insurance Provisions or Requirements. 14.8.1 The policies are to contain, or be endorsed to contain, the following provisions 14.8.1.1 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. 14.8.1.2 Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 14.8.1.3 Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. 14.8.1.4 Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. 14.9 Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. 14.10 Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty - five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. LEATHERMAN BIOCONSULTING, INC. Page 7 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the Work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the Work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall 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 to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project 24. CONFLICTS OF INTEREST 24.1 The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when LEATHERMAN BIOCONSULTING, INC. Page 9 delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Robert Stein Public Works Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: (949) 644 -3322 Fax: (949) 644 -3318 25.2 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Brian Leatherman LEATHERMAN BIOCONSULTING, INC. 4848 Lakeview Avenue, Suite 100E Yorba Linda, CA 92886 Phone: (714) 701 -0863 Cell: (714) 325 -4565 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Agreement, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27.2 Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been LEATHERMAN BIOCONSULTING, INC. Page 10 previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. STANDARD PROVISIONS 28.1 Compliance With all Laws. Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.2 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.3 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 28.4 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.5 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28.6 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 28.7 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28.8 Controlling Law And Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 28.9 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. LEATHERMAN BIOCONSULTING, INC. Page 11 28.10 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. 28.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURES NEXT PAGE] LEATHERMAN BIOCONSULTING, INC. Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTORNEY'S 91FFICE A California nhunicipal corporation Date: Z3 Z Date: ////?,-, By: Q r Aaron C. S h G. B 6d um City Attorney Pub' Works Director ATTEST: CONSULTANT:LEATHERMAN Date: 3 )3' 1L BIOCONSULTING, INC., a California Corporation „ / By: Q� Y', Leilani I. Brown ` City Clerk Brian Leather an President r/ Date: Sandy Leatherman / �- Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates LEATHERMAN BIOCONSULTING, INC. Page 13 EXHIBIT A LE, , ATHERMANi BIoCONSU TIN, G, INC. Biological Surveys, Management &Monitoring February 10, 2012 Ms. iris Lce Senior Civil Engineer CITY OF NEWPORT BEACH — PUBLIC WORKS DEi'ARTMENT 3300 Newport Boulevard Newport Beach, California 92663 PROJECT DESCRIPTION LBC understands that the City of Newport Beach (City) is required to conduct this brown - headed cowbird (Molothrus aier) control program under conditions set forth by the Coastal Commission. One cowbird trap is to be operated for five years. Because of the presence of the California gnatcatcher (Polioplila californica) throu ,about the Buck Gully area, LBC proposes to implement the control program from March 15 to July 15, which is consistent with other programs in the area that target the protection of nesting pairs of gnatcatchers. PROJECT APPROACH AND SCOPE OF WORK Task 1. Trap Set Up LBC will provide one cowbird trap and move it from its current storage location and set it up prior to the First clay of trapping (March 15, 2012). LBC usually includes a one -time $1,000 fee per cowbird trap; however, this fec will be waived because of the relatively small size of the program (LBC has an extra trap for the City's use). The location of the trap will be determined by Mr. Leatherman with input and approval from the City. LBC assumes that the City would provide daily access to a suitable trapping location. Seed trays, water guzzlers, shade cloth, locks/keys and other necessary trapping gear would be provided by LBC and are included in this proposal. In addition, LBC would be responsible for stocking the traps with decoy cowbirds in the established ratios (two males and three females), and getting the traps ready for daily operation. At the end of the trapping season, the trap will be disassembled and returned to its storage location. Task 2. Program Operation and Maintenance The bull: of the costs associated with running a program involve the daily monitoring of the traps. Trapping would start on March 15 and continue until July 15 for a total of 123 days per year. Thctraps must be monitored on a daily basis, in compliance with trapping permits from resource agencies, to maintain an environment conducive to trapping cowbirds and to release the non- target birds that are routinely trapped incidentally. All monitoring and maintenance activities would be recorded on data sheets. Monitoring activities are identified below. The following data would be recorded daily: • Number and status of decoy cowbirds • Number, sex, and age of all cowbirds caught • Number and species of non - target (native) birds • Trap conditions The following procedures would then be completed as part of daily maintenance: • Excess cowbirds would be removed from trap • Native birds would be recorded and released • Seed and water containers would be cleaned /re -filled • Traps inspected and repaired if necessary • Vegetation growing into the trap would be cut back Small signs would be placed on the trap to briefly describe the program and provide a contact number for additional information. These signs are required by the resource agencies. Cowbirds would be euthanized and disposed of properly or donated to falconers, wildlife rehabilitation centers, local colleges, or other suitable organizations. 'Mask 3. Report Preparation LBC would prepare a brief letter report to document the City's compliance with the requirement to conduct cowbird trapping issued by the Coastal Commission, The report will summarize the results of the trapping program and provide data in standardized tables, which provide a basis for year to year comparisons of Crapping success. A draft report would be made available (via email) to the City within two months of program conclusion for review. The final report would be prepared within two weeks, and one bound and one unbound copy of the final report would be submitted. An electronic copy of the final report in pdf format would be made available upon request. A copy of the report would also be submitted to the resource agencies in compliance with LBC's permits to conduct the program. Task 4. Project .Management This task would involve several subtasks as described below: • Coordination of Tasks I — 3 • Preparation of monthly invoices • Meeting attendance and coordination with City of Newport Beach representatives as necessary • Obtaining the necessary approvals and permits • Agency notifications and repotting for trap program implementation These project management tasks have not been included in the proposed budget because of the relatively small size of The project. COST E.STIMATL L.BC proposes to provide the scope of services described above on a time and materials basis not to exceed 530,020. The per -year fee is $6,004 (no annual increase was included for years 2 -5). All fees associated with operating the program, including labor, mileage, seed, water, permits, and report development /copying /delivery are included in the estimated costs (see attached budget outline). The cost estimate includes the time it would take to drive to the trap location, monitor the trap, record data, remove excess cowbirds, leave the trapping site, and return to the route of another trapping program we anticipate operating in the region: it is therefore contingent on LBC being retained to conduct that program. Sincerely, LSATI3I liVIAN BIOCONSULTPG, INC. Brian Leatherman Principal Biologist Ocv bird pmjccu 11CG 1\cuport Ucach hhcrp 2012 EXHIBIT B Buck Gully Brown - headed Cowbird Control BUDGET OUTLINE Est iinated Task flours Rate Total Cost Project \Management /Coordination 4 No charge SO Trap Assembly 2 S70 $140 Trap Dis- Assembly /Storage 2 $70 $140 Trap Monitoring (123 days) 123 S35 S4,305 Report Preparation 3 $70 $560 Other Direct Costs Mileage (123 days a 10 miles) 1230 50.555 $653 Mileage (2 days a 60 miles) 120 $0.555 5355 Trader Rental 2 $25.00 $67 Trap Rental I No charge $0 Supplies (seed, guzzlers; plastic bags, locks etc) S60 Total (per year) $6,004 Total Project Cost $30,020,00 AlccfakVOr OF LIABILITY INSURANCE DATE 03/06/12 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS i CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT., If the certificate holder is an ADDITIONAL INSURED, the policy(les):must be Endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of thepolicy, certain policies may require an endorsement A statement onthls certificate does not confer rights to the I certificate holder inlieuof such endorsement(s). PRODUCER NAME: Guy Borak I Yorba Linda Insurance Services, Inc PO Box 661 HON (714) 777 -8388 J; 389 _ E Exll, ADDRESS. guy@yllnsurance.com INSURER 3 AFFORDING COVERAGE NAICA Yorba Linda, CA 92885 MSURERA: Hartford Casualty Insurance Company I INSURER B.: Hartford Fire Insurance Company _1 Phone (714) 777 -8388 Fax (714) 777 -8389 _ INSURED INSURERC: Darwin Select Insurance Company Leatherman SloConsulfing, Inc. INSURERD: 4848 Lakeview Avenue Suite 100 -E INSURER E: Yorba Linda, CA 92886 s 10,000.00 A INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTVIATHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECTTO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LM TYPE OF INSURANCE ADD INSR 5Les `4!VP POLICY NUMBER POLICY EFF MM /DO/YVW POLICY EXP MMIDDAYYY LIMITS GENERAWABILITV C�I COMMERCIAL GENERAL LU181LITY L!.J EACH OCCURRENCE s 2,000,000.00 DAMAGE TO RENTED PREMI ES Eaaccurrence _ S 3001000.OD l MEO E%P(Any one pen;on) s 10,000.00 A ❑ ❑ CIAIMS -MADE J OCCUR ❑ Y N 72SBAGP8586 02/06/2012 02/06/2013 PERSONAL& ADV INJURY s 2,000,000.00 ❑ GENERAL AGGREGATE S 4,000,000.00 _ GEN'LAGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG $ 4,000,000.00 ❑ POLICY ❑ PR ❑ LOC _ s AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident 2,000,000.00 BODILY INJURY (Per person) $ ❑ ANY AUTO A ❑ OWNED SCHEDULED AUTOS AIO I��II rrII NON- DVVNED LvJ HIRED AVTOS �vJ AUTOS Y 72SBAGP8586 02106/2012 02/0612013 BODILY INJURY(Peramident) $ PROPERTY DAMAGE Per aeeitle�t) s ❑ ❑ S ❑ UMBRELLA LIAB ❑ OCCUR EACH OCCURRENCE 5 ❑ EXCESS LIAB ❑ CLAIMS -MADE ( AGGREGATE a ❑ OED ❑ RETENTIONS I $ B WORKERS COMPENSATION ANDEMPLOYERS'LIABILITY YIN ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICEP/MEMBER EXCLUDED? (Mandalaryin NH) Y❑ N/A 72WECYGO647 03/02/2012 03/02/2013 ,^� ,I WC STATU- OTH- u ORYLIMITS ❑ER 1,000,000.00 E. L. EACH ACCIDENT $ 1,000,000.00 , EL DISEASE - EA EMPLOYEE$ 1,000,000.00 Ifyes,destiibe under 9ESLRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ C Errors and Ommissions Y 03053355 02/18/2011 02/18/2013 $1, 000,000 each occ,$1,000,000 aggregate DESCRIPTION OF OPERATIONS / LOCATIONS /VEHICLES (Attach ACORD tot, Additonal Remarks Schedule, if more space is required) 10 Day Notice of Cancellation for Non - Payment of Premium. Certificate Holder is Hereby Named as Additonal Insured Per Attached Endorsement. Should any of the above polices be cancelled before the expiration date, the issuing company will endeavor (o mail 30 day written notice to the certificate holder. CERTIFICATE HOLDER CANCELLATION City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 ACORD 25 (2010105) OF SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. REPRESENTATIVE ©1988 -2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD POLICYNUMBER 72SBAGP8586 COMNIERCIAL GENERAL LIABILITY Leatherman BioConsulting, Inc. THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY ADDITIONAL, INSURED - OWNERS, LESSEES OR CONTRACTORS (FORM B) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: City of Newport Beach, its elected or appointed officers, agents, officials, employees and volunteers Subject to any limitation (s) shown in the above schedule the following applies: WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the schedule, but only with respect to liability arising out of "your work"orrthe work of others done for the named insured. The insurance afforded by this policy for the additional insured(s) is primary insurance and any other insurance maintained by or available to the additional insured(s) is non - contributory. CG 2010 11/85 Copyright, Insurance Services Office, Inc. 1984 POLICY NUMBER: 72SBAGP8596 Commercial General Liability Leatherman BioConsulting, Inc. THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY WAVER OR TRANSFER RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modified insurance provided under the following: COMMERCIAL GENERAL LLABIUTY COVERAGE PART. SCHEDULE Name of Person or Organization: City of Newport Beach, its elected or appointed officers, agents, officials, employees and volunteers The TRANSFER OF RECOVERY AGAINST OTHERS TO US Condition (Section IV- Commercial General Liability Conditions) is amended by the addition of the following We waive any right of recovery we may have against the person or organization shown in the Schedule because of payments we make for injury or damage arising out of ongoing or `your work' done under a contract with that person or organization and included in the "products complete operations hazard" This waiver applies only to the person or organization shown in the Schedule above. CG 24 04 Copyright, Insurance Services Office, Inc., 1984 POLICY NUMBER: 72WECYGO647 Workers Compensation Leatherman BioConsullfng, Inc. THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY WAIVER OR TRANSFER RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modified insurance provided under the following: SCHEDULE Name of Person or Organization: City of Newport Beach, its officers, agents, employees, and volunteers We waive any right of recovery we may have againstthe person or organization shown in the Schedule because of payments we make for injury or damage arising out of ongoing or'your work' done under a contract with that person or organization and included in the "products complete operations hazard:' This waiver applies only to the person or organization shown In the Schedule above. CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 3 -08 -12 Dept. /Contact Received From: Tania Date Completed: 3 -08 -12 Sent to: Tania By: Joel Company /Person required to have certificate: Leatherman BioConsulting, Inc. Type of contract: All Other I. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 2- 06- 12/2 -06 -13 A. INSURANCE COMPANY: Hartford Casualty Ins. B. AM BEST RATING (A -: VII or greater): A: XV INSURANCE COMPANY: Hartford Casualty Co. C. ADMITTED Company (Must be California Admitted): B. Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1 M or greater): What is limit provided? 1,000,000 E. ADDITIONAL INSURED ENDORSEMENT — please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must Is Company admitted in California? include): Is it included? (completed Operations status does ❑ No D. not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND for Waste Haulers): What is limits provided? COMPLETED OPERATIONS ENDORSEMENT (completed E Operations status does not apply to Waste Haulers) ® Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City (What is limits provided ?) N/A its officers, officials, employees and volunteers): Is it F. included? ® Yes ❑ No I. PRIMARY & NON - CONTRIBUTORY WORDING (Must be Haulers only): included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured HIRED AND NON -OWNED AUTO ONLY: ❑ N/A is not limited solely by their negligence) Does endorsement ® No H. include "solely by negligence' wording? ❑ Yes ® No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE /EXPIRATION DATE: 2 -06- 12/2 -06 -13 A. INSURANCE COMPANY: Hartford Casualty Co. B. AM BEST RATING (A-: VII or greater) A: XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? 1,000,000 E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided ?) N/A F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Haulers only): ® N/A ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes ® No H. NOTICE OF CANCELLATION: ❑ N/A 0 Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE /EXPIRATION DATE: 3 -02- 12/3 -02 -13 A. INSURANCE COMPANY: Hartford Fire Insurance Company B. AM BEST RATING (A -: VII or greater): A: XV C. ADMITTED Company (Must be California Admitted): ® Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) 1,000,000 F. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: [9 N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY V BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? Approved: Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 3 -07 -2012 Date ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® Yes ❑ No RISK MANAGEMENT APPROVAL REQUIRED (Non- admitted carrier rated less than _ Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No Reason for Risk Management approval /exception /waiver: Approved: Risk Management Date * Subject to the terms of the contract.