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18-0516_HAMILTON BIOLOGICAL INC._Letter Agreement32400 PASEO ADELANTO SAN JUAN CAPISTRANO. CA 92675 (949) 493-1171 (949) 4931053 FAX w«-it..can)uancapisrrano. org MAY 16, 2018 HAMILTON BIOLOGICAL INC. 316 MONROVIA AVENUE LONG BEACH, CA 90803 Dear Mr. Hamilton, Letter Agreement for Biological Monitoring Services MEMBERS OF THE CITY COUNCIL SERGIO FARIAS KERRY K. FERGUSON BRIAN L. MARYOTT PAM PArrERSON. ESQ. DEREK REEVE This letter shall be our Agreement ("Letter Agreement") regarding the Biological Monitoring Services described below ("Services") to be provided by Hamilton Biological Inc. ("Consultant") as an independent contractor to the City of San Juan Capistrano (the "City") for the City's Eastern Irrigation Water System Project ("Project"). Consultant is retained as independent contractor and is not an employee of the City. City and Consultant are sometimes referred to herein as "Party" or "Parties." The Services to be provided include the following: The Services to be provided are more particularly described in the Scope of Services attached hereto as Exhibit "A" and are incorporated herein by reference. Services on the Project shall begin immediately and shall be completed by June 1, 2019, unless extended by the City in writing. Consultant shall perform all Services under this Letter Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California, and consistent with all applicable laws. Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Letter Agreement. Consultant has represented to the City that certain key personnel will perform and coordinate the Services under this Letter Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of equal competence upon written approval of the City. In the event that the City and Consultant cannot agree as to the substitution of key personnel, the City shall be entitled to terminate this Letter Agreement for cause. The key personnel for performance of this Letter Agreement are as follows: Robb Hamilton. Compensation shall be based on the actual amount of time spend in adequately performing the 61147.02100\24471675.3 Updated April 2018 «Hamilton Biological Inc.)) May 16, 2018 Page 2 of 6 Services and shall be billed at the hourly rate(s) described in the Consultant's rate sheet, attached hereto as Exhibit "B" and incorporated herein by reference. The total compensation shall not exceed $8,540 without written approval of the CITY MANAGER. Consultant's invoices shall include a detailed description of the Services performed. Invoices shall be submitted to the City on a monthly basis as performance of the Services progresses. The City shall review and pay the approved charges on such invoices in a timely manner. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Letter Agreement upon request. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all sub -consultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and l 815) and debarment of contractors and subcontractors (Labor Code Sections 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. If the Services are being performed as part of an applicable "public works" or "maintenance" project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all sub - consultants performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any sub -consultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant's sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant's performance of services, including any delay, shall be Consultant's sole responsibility. Any delay arising out 61147.02100\24471675.3 2 «Hamilton Biological Inc.» May 16, 2018 Page 3 of 6 of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor. Consultant shall provide proof of. A. Commercial General Liability Insurance, of at least $1,000,000 per occurrence/$2,000,000 aggregate for bodily injury, personal injury and property damage, at least as broad as Insurance Services Office Commercial General Liability most recent Occurrence Form CG 00 01; B. Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non -owned and hired vehicles, of at least $1,000,000 per occurrence for bodily injury and property damage, at least as broad as most recent Insurance Services Office Form Number CA 00 01 covering automobile liability, Code 1 (any auto); C. Workers' Compensation in compliance with applicable statutory requirements and Employer's Liability Coverage of at least $1,000,000 per occurrence; and D. Consultants providing professional services shall provide Professional Liability (Errors and Omissions) Insurance of at least $1,000,000. Insurance carriers shall be licensed to do business in California and maintain an agent for process within the state. Such insurance carrier shall have not less than an "A -:VII" rating according to the latest Best Key Rating unless otherwise approved by the City. The City, its officials, officers, employees, agents and authorized volunteers shall be named as Additional Insureds on Consultant's policies of Commercial General Liability and Automobile Liability insurance and such coverage provided to the City as an Additional Insured shall apply on a primary and non-contributory basis. Waiver of subrogation endorsements in favor of the City shall be provided on Consultant's policies of Commercial General Liability, Automobile Liability and Workers' Compensation/Employer's Liability insurance. The City may terminate this Letter Agreement at any time with or without cause. If the City finds it necessary to terminate this Letter Agreement without cause before Project completion, Consultant shall be entitled to be paid in full for those Services adequately completed prior to the notification of termination. Consultant may terminate this Letter Agreement only upon 30 calendar days' written notice to the City only in the event of City's failure to perform in accordance with the terms of this Letter Agreement through no fault of Consultant. To the fullest extent permitted by law, Consultant shall defend (with counsel of City's choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant's services, the Project or this Letter Agreement, including without limitation the payment of all damages, expert witness fees and attorney's fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers. If Consultant's obligation to defend, indemnify, and/or hold harmless arises out of Consultant's 61147.02100\24471675.3 3 «Hamilton Biological Inc.» May 16, 2018 Page 4 of 6 performance of "design professional" services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant's indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant's liability for such claim, including the cost to defend, shall not exceed the Consultant's proportionate percentage of fault. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements; all emissions limits and permitting requirements imposed by the California Air Resources Board (CARB) or other governmental agencies; and all water quality laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the City. By executing this Letter Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Consultant shall maintain records of its compliance, including its verification of each employee, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Consultant's compliance with the requirements. To the same extent and under the same conditions as Consultant, Consultant shall require all of its subcontractors, sub -subcontractors and consultants performing any work relating to the Project or this Letter Agreement to make the same verifications and comply with all requirements and restrictions provided herein. Consultant's failure to comply or any material misrepresentations or omissions relating thereto shall be grounds for terminating this Letter Agreement for cause. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. Finally, Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment in violation of state or federal law. As provided for in the indemnity obligations of this Letter Agreement, Consultant shall indemnify City against any alleged violations of this paragraph, including, but not limited to, any fines or penalties imposed by any governmental agency. This Letter Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Letter Agreement, the action shall be brought in a state or federal court situated in Orange County, State of California. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to 61147.02100\24471675.3 4 «Hamilton Biological Inc.)) May 16, 2018 Page 5 of 6 filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City. Consultant shall not assign, sublet, or transfer this Letter Agreement or any rights under or interest in this Letter Agreement without the written consent of the City, which may be withheld for any reason. This Letter Agreement may not be modified or altered except in writing signed by both parties. Except to the extent expressly provided for in the termination paragraph, there are no intended third party beneficiaries of any right or obligation of the Parties. This is an integrated Letter Agreement representing the entire understanding of the parties as to those matters contained herein, and supersedes and cancels any prior oral or written understanding or representations with respect to matters covered hereunder. Since the Parties or their agents have participated fully in the preparation of this Letter Agreement, the language of this Letter Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. The captions of the various paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Letter Agreement. Consultant warrants that the individual who has signed this Letter Agreement has the legal power, right and authority to make this Letter Agreement and bind the Consultant hereto. If you agree with the terms of this Letter Agreement, please indicate by signing and dating where indicated below. 61147.02100\24471675.3 5 «Hamilton Biological Inc.» May 16, 2018 Page 6 of 6 CITY OF SAN JUAN CAPISTRANO Appro ed By: Steve May, Public W s and Utilities Director Date Atte$t�d ' aria.Morris, C' Jerk Approved As To Form: City Altorney 61147.02100\24471675.3 HAMILTON BIOLOGICAL INC. Si nature Pri Name e Title Date EXHIBIT "A" SCOPE OF SERVICES Eastern Irrigation Water System Project - CIP 17808 Biological Monitoring - Scope of Work and Fee Hamilton Biological, Inc. Task 1 - Nesting Bird Surveys. The work associated with this task must comply with Mitigation Measure SC 4-3 of the attached MMRP. This task is for the qualified biologist to perform a nesting bird survey no more than 3 days prior to the start of construction, and then weekly thereafter for the duration of construction. It is anticipated that 3 nesting bird surveys will be required at the Point of Delivery Site, and 3 more at the Blending Facility Site, for a total of 6 nesting bird surveys. It is further assumed that each nesting bird survey will take 2 hours, for a total of 12 hours for this task. Travel time, mileage, and documentation time will increase the time to 4 hours per survey, for a total of 24 hours for this task. Hours and Fee for Task 1: 24 hours @ $90 per = $2,160; $40/day mileage x 6 days = $240. Total estimated cost for Task 1 is $2,400. Task 2 - Pre Construction Surveys. The work associated with this task must comply with Mitigation Measures MM 4-2 and 4-3 of the attached MMRP. This task is for the qualified biologist to perform pre -construction surveys, one at the Point of Delivery Site and one at the Blending Facility Site, for a total of two pre -construction surveys to identify special status species, as well as least Bell's Vireo, Arroyo Toad, and Southwestern Willow Flycatcher. This task assumes that each pre -construction survey will take three hours, with an additional 2 hours to prepare a summary report of findings for submittal to the City, for an estimated total of 8 hours for this task. Travel time will increase this to 12 hours for this task. *Note: MM 4-1 states: "Exclusionary fencing shall be installed around the project site boundaries prior to initiation of construction in order to prevent arroyo toads from entering work areas." This proposal specifies that the City or its other contractors shall be responsible for installing/ maintaining this required fencing. Hours and Fee for Task 2: 12 hours @ $90 per = $980; $40 mileage x 1 day = $40. Total estimated cost for Task 2 is $1,020. Task 3 - Construction Monitoring. The work associated with this task must comply with Mitigation Measures SC 4-3, MM 4-2 and 4-3 of the attached MMRP. This task is for the qualified biologist to perform construction monitoring services, shall they be deemed necessary to ensure that potential impacts to nesting birds, special status species, Least Bell's Vireo, Southwestern Flycatcher, and Arroyo Toad (should they be present) are avoided. In the event that it is required, it is assumed that 40 hours of construction monitoring will be sufficient for this task. Hours and Fee for Task 3: 40 hours @ $90 per = $3,600; $40 mileage x 5 days = $200. Total estimated cost for Task 3 is $3,800. Project Management Tasks: 6 hours @ $90 per = $540 Total Estimated Not -to -Exceed Fee for this Scope of Work = $7,760 This total represents the maximum estimated budget for the specified scope of work. All work would be completed by personnel experienced in biological monitoring and nest -searching on a time -and -materials basis at an hourly rate of $90, with $40/day allowance for mileage. Hourly rate applies to drive time from Long Beach to/from project site, in addition to time spent on the site. Hourly rate schedule attached for the City's reference. EXHIBIT "B" HOURLY RATE SHEET Hamilton Biological, Inc., Hourly Rate Schedule Biological Monitoring, Eastern Irrigation Water System Project Position Hourly Rate Biologist $90