17-0509_HAMILTON BIOLOGICAL_Letter Agreement32400 PASEO ADELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493-1171
(949) 493.1053 FAx
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MAY 9, 2017
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 PATTERSON, ESO.
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 Riding
Park Water & Sanitary Sewer Facilities 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 May 15, 2018, 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.
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Hamilton Biological Inc.
May 9, 2017
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Compensation shall be based on the actual amount of time spent in adequately performing the
Services, and shall be billed at the hourly rate(s) of $80.00. The total compensation shall not
exceed $18,220 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. 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 elected
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.
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. 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.
Consultant shall provide proof of commercial general liability, and business auto liability
insurance to the City in amounts and with policies, endorsements and conditions required by the
City for the Services. The City, its elected 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. If Consultant is an employer or otherwise hires one
or more employees during the term of this Project, Consultant shall also provide proof of
workers compensation coverage for such employees, which meets all requirements of State law,
with endorsements and conditions required by the City.
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
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Hamilton Biological Inc.
May 9, 2017
Page 3 of 5
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, indemnify and hold the City, its
directors, 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 alleged acts, errors or omissions of Consultant, its officials,
officers, employees, sub -consultants, 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 consequential damages, expert witness fees and attorneys' fees and other related
costs and expenses. Notwithstanding the foregoing, to the extent Consultant's Services are
subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required
by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of the Consultant. Consultant's obligation to indemnify shall
survive expiration or termination of this Letter Agreement, and shall not be restricted to
insurance proceeds, if any, received by the City, its officials, officers, employees, agents, or
volunteers.
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 (GARB) 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
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Hamilton Biological Inc.
May 9, 2017
Page 4 of 5
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
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.
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Hamilton Biological Inc.
May 9, 2017
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CITY OF SAN JUAN CAPISTRANO
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61147,02100\14471675.1
HAMILTON BIOLOGICAL INC.
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Title
Date
Rancho Mission Viejo Riding Park
Water & Sanitary Sewer Facilities Project
Biological Monitoring — Scope of Work and Fee
Task 1— Clearly Delineate the Sensitive Resource Areas. The Rancho Mission Viejo Riding Park is
adjacent to "Sensitive Resource Areas" as identified in the sub -regional Habitat Conservation Plan (HCP)
as discussed on page 5 of the Initial Study for the project. This task requires that the Sensitive Resource
Areas be clearly delineated in the field for compliance with item BR -2 of the Mitigation Monitoring and
Reporting Plan (MMRP) for the project (attached for reference). The fee for this task shall include two
separate delineations during two separate field visits. This is required because the City's vendor will be
digging potholes above the alignments identified in the Initial Study in order to complete the design.
This is expected to occur in the next two weeks. The second field visit and delineation will occur prior to
construction, which is anticipated to begin in July 2017. This task assumes that all of the original
delineations will need to be re-established on the second field visit. If this is not the case, then the
consultant shall only charge the City to delineate the areas that are not clearly marked.
Hours and Fee for Task 1= 12 hours @ $80 per = $960; $40/day mileage; $20 for materials = $1,060
(6 hours per day x 2 days = 12 hours; $40/day x 2 days = $80; $20 one-time expense)
Task 2 — Nesting Bird Survey. The work associated with this project must comply with Mitigation
Measure BR -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. Mitigation Measure BR -3 also requires the
qualified biologist to be present during construction to ensure that nesting birds are not disturbed. It is
anticipated that there will be 3 separate mobilizations to complete the work, one for construction of the
recycled water line (anticipated duration is 15 days), one for construction of the domestic waterline
(anticipated duration = 20 days), and one for construction of the sewer line (anticipated duration = 45
days). This task assumes that spot monitoring the work for two hours per day three times per week will
be sufficient to verify that birds are not being disturbed and that the sensitive resource area remains
clearly delineated. This task further assumes that the qualified biologist will conduct a "worker
environmental awareness program" once for each mobilization, for a total of 3 programs, each with an
anticipated duration of 1 hour. Presently each mobilization is anticipated to begin in July, August, and
September respectively.
Hours and Fee for Task 2, Mobilization 1 = 10 days @ $480 per 6 -hour day + $40/day mileage = $5,200
(One day for nesting bird survey; 9 days of monitoring including Worker Education Program)
Hours and Fee for Task 2, Mobilization 2 = 13 days @ $480 per 6 -hour day + $40/day mileage = $6,760
(One day for nesting bird survey; 12 days of monitoring including Worker Education Program)
Hours and Fee for Task 2, Mobilization 1 = 10 days @ $480 per 6 -hour day + $40/day mileage = $5,200
(One day for nesting bird survey; 9 days of monitoring including Worker Education Program)
Total Hours and Fee for this Scope of Work = $18,220
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 $80, with $40/day allowance for mileage expense and a one-
time expense of $20 for flagging or other similar materials to be used to delineate sensitive habitat areas
and jurisdictional areas. Hourly rate applies to drive time from Long Beach to/from project site, in addition
to time spent on the site and documenting/reporting results.
Exhibit A
Hamilton Biological, Inc., Hourly Rate Schedule
Biological Monitoring, Rancho Mission Viejo Riding Park
Water & Sanitary Sewer Facilities Project
Position Hourly Rate
Nest Searcher/Bio Monitor $80