David Magney Enviornmental Consulting VERDES•
• CITYoF
RANCHO
PALOS
OFFICE OF THE CITY CLERK
May 31, 2012
Mr. David L. Magney, President
David Magney Environmental Consulting
P.O. Box 1346
Ojai, CA 93024
Subject: Biological Consulting Services Agreement
Dear Mr. Magney:
Enclosed is a fully executed copy of the above referred to agreement that was
approved by the City Council at its June 7, 2011 meeting.
• If you have any questions about this agreement, please contact Assistant
Planner Abigail Harwell in our Planning Department at (310) 544-5348.
Yours very truly,
Carla Morreale
City Clerk
cc: Abigail Harwell, Assistant Planner (with attachment)
W:\CONTRACT\Letters-transmittal for agmts&contracts\2012\David Magney Env.Cons.doc
30940 HAWTHORNE BOULEVARD/RANCHO PALOS VERDES,CA 90275-5391/(310)544-5217/FAX(310)544-5291/WWW.PALOSVERDES.COM/RPV
PRINTED ON RECYCLED PAPER
Professional/ Technical Services Agreement for
Biological Consulting Services
Between
The City of RANCHO PALOS VERDES
David Magney Environmental Consulting
This Agreement ("Agreement") is made and entered into this 7th day of June,
2011 by and between the City of Rancho Palos Verdes (hereinafter referred to as the
"CITY") and David Magney Environmental Consulting (hereafter referred to as
"CONSULTANT").
RECITALS
The CITY wishes to use the professional services of CONSULTANT to provide
biological consulting services to CITY on an as-needed basis; and
CONSULTANT represents that it has a unique and specialized knowledge and
understanding of, and experience with, biological resources as they relate to the unique
environmental setting of the Palos Verdes Peninsula, current federal and state laws
regarding endangered species, the California Environmental Quality Act ("CEQA"), rare
and endangered plants per the California Native Plant Society, the preparation of Habitat
Conservation Plans("HCP")and Natural Communities Conservation Plans("NCCP"), and
certification from the United States Fish and Wildlife Service to perform California
Gnatcatcher Surveys, and is therefore qualified to perform said services for CITY.
IN CONSIDERATION of the foregoing recitals and the covenants hereinafter set
forth, the parties hereto mutually agree as follows:
ARTICLE 1
SCOPE OF SERVICES
1.1 Project Description
The Project is described as follows: Biological Consulting Services.
1.2 Description of Services
(a) CONSULTANT shall perform the following services,when requested in
writing by the CITY:
(i) Conduct Seasonal Botanical Surveys. CONSULTANT shall
gather existing data on biological resources for proposed project site and identify known
and reported occurrences of rare plant species and sensitive habitats in the region based
on a field survey. CONSULTANT shall submit to the CITY a written memorandum stating
findings and recommendations.
(ii) Conduct Biological Field Surveys. CONSULTANT shall conduct
a biological field survey to observe common and special status wildlife and plant species
present at a project site.
(iii) Conduct California Gnatcatcher Surveys. CONSULTANT shall
conduct surveys for the federally listed threatened California Gnatcatcher in accordance
with the United States Fish and Wildlife protocol. CONSULTANT shall conduct fieldwork
during the annual breeding season of February 14th through August 31st, unless otherwise
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directed. CONSULTANT shall submit to the CITY a written memorandum stating the
methodology, findings and recommendations of the field survey.
(iv) Prepare CEQA Related Documents for Biological Resources.
In accordance with CEQA, proposed projects may require the preparation of environmental
documents, particularly relating to biological resources. Such environmental documents
may include, but not be limited to, Initial Study Checklists and Mitigated Negative
Declarations. CONSULTANT shall prepare these documents based on existing data and
field surveys as they relate to the proposed project. CONSULTANT shall include in a
written report to the CITY specific recommendations, including mitigation measures for all
significant impacts to biological resources.
(v) Peer Review of Biological Reports. CONSULTANT shall assist
the CITY in reviewing any biological resource reports submitted by a project applicant for
accuracy, thoroughness, logic, completeness, and soundness of any assessments and
mitigations proposed. CONSULTANT shall review such reports in accordance with CEQA.
(b) Upon CONSULTANT's request, the CITY shall provide or make
available to CONSULTANT, without charge or expense, all information, data, records,
maps, reports, plans, equipment, or other material in its possession necessary for carrying
out the services and duties contemplated under this Agreement.
1.3 Schedule of Work
Upon receipt of written Notice to Proceed from the CITY's Director of
Community Development or Director of Public Works, CONSULTANT shall estimate the
time frame to complete each assignment, which shall be subject to review and approval
either by the CITY's Director of Community Development or Director of Public Works.
Upon that approval, CONSULTANT shall perform with due diligence the services
requested by the CITY and agreed on by CONSULTANT within the agreed upon time
frame. Time is of the essence in this Agreement. 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, other consultants/contractors, or
governmental agencies, or any other delays beyond CONSULTANT's control or without
CONSULTANT's fault.
ARTICLE 2
COMPENSATION
2.1 Fee
CITY agrees to compensate CONSULTANT in accordance with
CONSULTANT's Standard Billing Rates Schedule,which in attached hereto as Exhibit"A"
and incorporated herein by this reference, and which shall be in effect through the end of
this Agreement.
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2.2 Payment Address
All payments due CONSULTANT shall be paid to:
David Magney Environmental Consulting
P.O. Box 1346
Ojai, California 93024-1346
2.3 Terms of Compensation
CONSULTANT shall submit monthly invoices for the percentage of work
completed in the previous month. CITY agrees to authorize payment for all undisputed
invoice amounts within thirty (30) days of receipt of each invoice. CITY agrees to use its
best efforts to notify CONSULTANT of any disputed invoice amounts within ten (10)days
of the receipt of each invoice. However, CITY's failure to timely notify CONSULTANT of a
disputed amount shall not be deemed a waiver of CITY's right to challenge such amount.
Additionally, in the event CITY fails to'pay any undisputed amounts due
CONSULTANT within forty-five (45) days after invoices are received by CITY then CITY
agrees that CONSULTANT shall have the right to consider said default a total breach of
this Agreement and be terminated by CONSULTANT without liability to CONSULTANT
upon ten (10) working days advance written notice.
2.4 Additional Services
CITY may request additional specified work under this Agreement. All such
work must be authorized in writing by the CITY's Director of Community Development or
Director of Public Works prior to commencement. CONSULTANT shall perform such
services, and CITY shall pay for such additional services in accordance with the rates listed
in Exhibit "A."
2.5 Term of Agreement
This Agreement shall commence on July 1, 2011 and shall terminate on June
30, 2013, unless sooner terminated pursuant to Article 4 of this Agreement.
ARTICLE 3
INDEMNIFICATION AND INSURANCE
3.1 Indemnification
CONSULTANT shall defend, indemnify, and hold the CITY, its officials,
officers, employees, agents and independent contractors serving in the role of CITY
officials, and designated volunteers(collectively"Indemnitees")free and harmless from any
and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or
injuries, in law or equity, to property or persons, including wrongful death (collectively
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"Claims"), in any manner arising out of or incident to, in whole or in part, any acts or
omissions of CONSULTANT, its officials, officers, employees or agents in connection with
the performance of this Agreement, including without limitation the payment of all
consequential damages, attorneys'fees, and other related costs and expenses,except for
such Claims arising out of the sole negligence or willful misconduct of the CITY. With
respect to any and all such Claims, CONSULTANT shall defend Indemnitees at
CONSULTANT's own cost, expense, and risk and shall pay and satisfy any judgment,
award, or decree that may be rendered against Indemnitees. CONSULTANT shall
reimburse Indemnitees for any and all legal expenses and costs incurred by each of them
in connection therewith or in enforcing the indemnity herein provided. CONSULTANT's
obligation to indemnify shall not be restricted to insurance proceeds, if any, received by
CONSULTANT or Indemnitees. All duties of CONSULTANT under this Section shall
survive termination of this Agreement.
3.2 General Liability
CONSULTANT shall at all times during the term of the Agreement carry,
maintain, and keep in full force and effect, a policy or policies of Comprehensive General
Liability Insurance, with a minimum limits of one million dollars ($1,000,000.00) for each
occurrence and in the aggregate, combined single limit, against any personal injury,death,
loss or damage resulting from the wrongful or negligent acts by CONSULTANT. Said
policy or policies shall be issued by an insurer admitted in the State of California and rated
in Best's Insurance Guide with a rating A VII or better.
3.3 Professional Liability
CONSULTANT shall at all times during the term of this Agreement carry,
maintain, and keep in full force and effect a policy or policies of professional liability
insurance with a minimum limit of one million dollars ($1,000,000.00). Said policy or
policies shall be issued by an insurer admitted in the State of California and rated in Best's
Insurance Guide with a rating of A VII or better.
3.4 Automobile Liability
CONSULTANT shall at all times during the term of this Agreement carry,
maintain, and keep in full force and effect a policy or policies of automobile liability
insurance with a minimum limit of one million dollars ($1,000,000.00) per accident for
bodily injury and property damage. Said policy or policies shall be issued by an insurer
admitted in the State of California and rated in Best's Insurance Guide with a rating of A VII
or better.
3.5 Worker's Compensation
CONSULTANT agrees to maintain in force at all times during the
performance of work under this Agreement worker's compensation insurance as required
by the law. CONSULTANT shall require any subcontractor similarly to provide such
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compensation insurance for their respective employees.
3.6 Notice of Cancellation
(a) All insurance policies shall provide that the insurance coverage shall
not be canceled by the insurance carrier without thirty (30) days prior written notice to
CITY. CONSULTANT agrees that it will not cancel or reduce said insurance coverage.
(b) CONSULTANT agrees that if it does not keep the aforesaid insurance
in full force and effect, CITY may either immediately terminate this Agreement or, if
insurance is available at a responsible cost, CITY may take out the necessary insurance
and pay, at CONSULTANT's expense, the premium thereon.
3.7 Certificate of Insurance
At all times during the term of this Agreement, CONSULTANT shall maintain
on file with the City Clerk certificates of insurance showing that the aforesaid policies are in
effect in the required amounts. The comprehensive general liability policy or policies and
any professional liability insurance policy shall contain an endorsement naming the CITY
as an additional insured, which CONSULTANT shall maintain on file with the City Clerk.
3.8 Primary Coverage
The insurance provided by CONSULTANT shall by primary to any coverage
available to CITY in relation to the services provided under this Agreement. The insurance
policies (other than worker's compensation and professional liability) shall include
provisions for waiver of subrogation.
ARTICLE 4
TERMINATION
4.1 Termination of Agreement
(a) This Agreement may be terminated at any time,with or without cause,
by the CITY upon thirty(30)days prior written notice or by CONSULTANT upon ninety(90)
days prior written notice. Notice shall be deemed served if completed in compliance with
Section 6.14.
(b) In the event of termination or cancellation of this Agreement by
CONSULTANT or CITY, due to no fault or failure of performance by CONSULTANT,
CONSULTANT shall be paid compensation for all services performed by CONSULTANT,
in an amount to be determined as follows: for work satisfactorily done in accordance with
all of the terms and provisions of this Agreement, CONSULTANT shall be paid an amount
equal to the percentage of services performed prior to the effective date of termination or
cancellation in accordance with the work items; provided, in no event shall the amount of
money paid under the foregoing provisions of this paragraph exceed the amount which
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would have been paid to CONSULTANT for the full performance of the services described
in this Agreement.
ARTICLE 5
OWNERSHIP OF DOCUMENTS
5.1 Ownership of Documents and Work Product
All documents, plans, specifications, reports, information, data, exhibits,
photographs, images, video files and media created or developed by CONSULTANT
pursuant to this Agreement ("Written Products") shall be and remain the property of the
CITY without restriction or limitation upon its use, duplication or dissemination by the CITY.
All Written Products shall be considered "works made for hire," and all Written Products
and any and all intellectual property rights arising from their creation, including, but not
limited to, all copyrights and other proprietary rights, shall be and remain the property of the
CITY without restriction or limitation upon their use, duplication or dissemination by the
CITY. CONSULTANT shall not obtain or attempt to obtain copyright protection as to any
Written Products.
CONSULTANT hereby assigns to the CITY all ownership and any and all
intellectual property rights to the Written Products that are not otherwise vested in the CITY
pursuant to the paragraph directly above this one.
Upon termination, abandonment or suspension of the Project, the
CONSULTANT shall deliver to the CITY all Written Products and other deliverables related
to the Project without additional cost or expense to the CITY. If CONSULTANT prepares a
document on a computer, CONSULTANT shall provide CITY with said document both in a
printed format and in an electronic format that is acceptable to the CITY.
ARTICLE 6
GENERAL PROVISIONS
6.1 Representation
The Director of Community Development, Director of Public Works, or the
Directors' designee shall be the CITY's representative with regards to this Agreement.
CONSULTANT shall notify the CITY as to who the CONSULTANT's representative is,
which shall be either David L. Magney, Mitchell Provance, David M. Brown, or Daniel
Cooper. Each party's representative shall be the primary contact person for that party
regarding the performance of this Agreement.
6.2 Fair Employment Practices/Equal Opportunity Acts
In the performance of this Agreement, CONSULTANT shall comply with all
applicable provisions of the California Fair Employment Practices Act (California
Government Code Sections 12940-48)and the applicable equal employment provisions of
the Civil Rights Act of 1964 (42 U.S.C. 200e-217), and the Americans with Disabilities Act
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of 1992 (42 U.S.C. § 11200, et seq.).
6.3 Personnel
CONSULTANT represents that it has, or shall secure at its own expense, all
personnel required to perform CONSULTANT's services under this Agreement.
CONSULTANT shall make reasonable efforts to maintain the continuity of CONSULTANT's
staff who are assigned to perform the services hereunder and shall obtain the approval of
the Director of Community Development, Director of Public Works, or the Directors'
designee of all proposed staff members who will perform such services. CONSULTANT
shall notify City in writing of its recommendation of the retention of any sub-consultants and
the need therefore, but City must approve such sub-consultants in writing. At all times,
CONSULTANT shall be responsible for sub-consultants' services.
6.4 CONSULTANT's Representations
CONSULTANT represents, covenants and agrees that: a) CONSULTANT is
licensed, qualified, and capable of furnishing the labor, materials,and expertise necessary
to perform the services in accordance with the terms and conditions set forth in this
Agreement; b)there are no obligations, commitments, or impediments of any kind that will
limit or prevent CONSULTANT's full performance under this Agreement; c)to the extent
required by the standard of practice, CONSULTANT has investigated and considered the
scope of services performed, has carefully considered how the services should be
performed, and understands the facilities, difficulties and restrictions attending
performance of the services under this Agreement.
6.5 Conflicts of Interest
CONSULTANT agrees not to accept any employment or representation
during the term of this Agreement or within twelve(12)months after completion of the work
under this Agreement which is or may likely make CONSULTANT"financially interested"
(as provided in California Government Code Sections 1090 and 87100) in any decisions
made by CITY on any matter in connection with which CONSULTANT has been retained
pursuant to this Agreement.
6.6 Legal Action
(a) Should either party to this Agreement bring legal action against the
other,the validity, interpretation, and performance of this Agreement shall be controlled by
and construed under the laws of the State of California,excluding California's choice of law
rules. Venue for any such action relating to this Agreement shall be in the Los Angeles
County Superior Court.
(b) If any legal action or other proceeding, including action for declaratory
relief, is brought for the enforcement of this Agreement or because of an alleged dispute,
breach, default or misrepresentation in connection with this Agreement,the prevailing party
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411/
shall be entitled to recover reasonable attorneys' fees, experts' fees, and other costs, in
addition to any other relief to which the party may be entitled.
(c) Should any legal action about a project between CITY and a party
other than CONSULTANT require the testimony of CONSULTANT when there is no
allegation that CONSULTANT was negligent,CITY shall compensate CONSULTANT for its
testimony and preparation to testify at the hourly rates in effect at the time of such
testimony.
6.7 Assignment
Neither this Agreement nor any part thereof shall be assigned by
CONSULTANT without the prior written consent of the CITY. Any such purported
assignment without written consent shall be null and void, and CONSULTANT shall hold
harmless, defend and indemnify the CITY and its officers, officials, employees, agents and
representatives with respect to any claim, demand or action arising from any unauthorized
assignment.
Notwithstanding the above, CONSULTANT may use the services of persons
and entities not in CONSULTANT's direct employ,when it is appropriate and customary to
do so. Such persons and entities include, but are not necessarily limited to, surveyors,
specialized consultants, and testing laboratories. CONSULTANT's use of subcontractors
for additional services shall not be unreasonably restricted by the CITY provided
CONSULTANT notifies the CITY in advance.
6.8 Independent Contractor
CONSULTANT is and shall at all times remain, as to the CITY, a wholly
independent contractor. Neither the CITY nor any of its agents shall have control over the
conduct of CONSULTANT or any of the CONSULTANT's employees, except as herein set
forth, and CONSULTANT is free to dispose of all portions of its time and activities which it
is not obligated to devote to the CITY in such a manner and to such persons, firms, or
corporations as the CONSULTANT wishes except as expressly provided in this Agreement.
CONSULTANT shall have no power to incur any debt, obligation, or liability on behalf of the
CITY or otherwise act on behalf of the CITY as an agent. CONSULTANT shall not, at any
time or in any manner, represent that it or any of its agents, servants or employees, are in
any manner agents, servants or employees of CITY. CONSULTANT agrees to pay all
required taxes on amounts paid to CONSULTANT under this Agreement, and to indemnify
and hold the CITY harmless from any and all taxes, assessments, penalties, and interest
asserted against the CITY by reason of the independent contractor relationship created by
this Agreement. CONSULTANT shall fully comply with the workers' compensation law
regarding CONSULTANT and its employees. CONSULTANT further agrees to indemnify
and hold the CITY harmless from any failure of CONSULTANT to comply with applicable
workers'compensation laws. The CITY shall have the right to offset against the amount of
any fees due to CONSULTANT under this Agreement any amount due to the CITY from
CONSULTANT as a result of its failure to promptly pay to the CITY any reimbursement or
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indemnification arising under this Article.
6.9 Titles
The titles used in this Agreement are for general reference only and are not
part of the Agreement.
6.10 Entire Agreement
This Agreement, including any other documents incorporated herein by
specific reference, represents the entire and integrated agreement between CITY and
CONSULTANT and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be modified or amended, or provisions or
breach may be waived, only by subsequent written agreement signed by both parties.
6.11 Construction
In the event of any asserted ambiguity in, or dispute regarding the
interpretation of any matter herein, the interpretation of this Agreement shall not be
resolved by any rules of interpretation providing for interpretation against the party who
causes the uncertainty to exist or against the party who drafted the Agreement or who
drafted that portion of the Agreement.
6.12 Non-Waiver of Terms, Rights and Remedies
Waiver by either party of any one or more of the conditions of performance
under this Agreement shall not be a waiver of any other condition of performance under
this Agreement. In no event shall the making by the CITY of any payment to
CONSULTANT constitute or be construed as a waiver by the CITY of any breach of
covenant, or any default which may then exist on the part of CONSULTANT, and the
making of any such payment by the CITY shall in no way impair or prejudice any right or
remedy available to the CITY with regard to such breach or default.
6.13 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.
6.14 Notice
Except as otherwise required by law, any notice or other communication
authorized or required by this Agreement shall be in writing and shall be deemed
received on (a) the day of delivery if delivered by hand or overnight courier service
during CONSULTANT's or CITY's regular business hours or (b) on the third business
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day*Amin' g depositthe UnNed Saks mat postageprepaid.to the addresses fisted
beiow.orates other address as one pallynoffythe other
To C
Joel Rojas.AICP.Dintchw(*Community Development
City of Rancho Palos Verdes
Blvd.30940 Hawthorne
Randio Palos ifesdes.CA 90275
To CONSULTANT:
Mr_David L Piesident
David Magney Environmental Consulting
Box 1346
Ojai,Cargonia 93024
the parties hereto have executed this Agteement as of
the date and year irst above imam
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By:
Deist art OF RANCHO PALOS VERDES
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Mayor
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Exhibit"A":
David Magney Environmental Consulting
Standard Billing Rates Schedule
Exhibit "A"
R6876-000111349390v3.doc
Exhibit A
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Standard Billing Rates Schedule for 2010
Professional Staff Hourly Rate
Principal/Project Manager $115
Assistant Manager/Project Coordinator $100
Senior Restoration Ecologist/Planner $95
Senior Landscape Architect $115
Landscape Architect $85
Senior Biologist/Scientist $95
*Biologist IV $90
*Biologist HI $80
*Biologist II $70
*Biologist I $60
*Assistant Biologist $50
Fluvial Geomorphologist IV/Wetland Scientist $105
Hydrologist/Civil Engineer $95
Senior Inspector/Monitor $75
*Inspector/Monitor II $65
*Inspector/Monitor I $55
Expert Witness
Twice (two times) standard billing rates 2x Standard
*Overtime
1.5 times standard billing rates 1.5x Standard
Production/Support Staff
Word Processing Operator $45
Graphics Illustrator/GIS Technician $70
Office Assistant $35
Subcontractors
Cost plus 15 percent overhead fee Cost plus 15%
Direct Expenses Unit Rate($)
Mileage
Automobile $0.55/mile
Four-Wheel Drive $0.85/mile
Per Diem(Federal Rates) $171/day
Breakfast $ 16/day
Lunch $ 20/day
Dinner $ 25/day
Lodging $1 1 0/day
Photocopies
Black and white(8.5"x I 1") $0.15/page
Color(8.5"x11") $1.50/page
Color(11"x17") $2.50/page
Report Binding $5.00/report
Compact Discs $20.00/CD copy
Digital Camera $5.00/day
GPS Unit(hand-held) $5.00/day
Rental Equipment Cost plus 10%
Other direct expenses Cost plus 10%
Y.IDMEC\Contracts\DMEC-Billrate-2010 doc 7/1/2010