SEPTEMBER 6, 2005 CONTRACT SERVICE AGREEMENT FOR ON-CALL BIOLOGICAL CONSULTING SERVICES SEPTEMBER 6, 2005 CONTRACT SERVICE AGREEMENT FOR ON-CALL BIOLOGICAL CONSULTING SERVICES SEPTEMBER 6, 2005 CONTRACT SERVICE AGREEMENT FOR ON-CALL BIOLOGICAL CONSULTING SERVICES

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT

DATE: SEPTEMBER 6, 2005

SUBJECT: CONTRACT SERVICE AGREEMENT FOR ON-CALL BIOLOGICAL CONSULTING SERVICES

Prepared By: Ara Michael Mihranian, Senior Planner

RECOMMENDATION

Authorize the Mayor and City Clerk to execute a professional service agreement with David Magney Environmental Consultants to provide on-call biological services on an as-needed basis to the City.

BACKGROUND

The Palos Verdes Peninsula is home to a number of sensitive plants and animal species that are protected by City, State and Federal Laws. Due to the unique environmental setting of the City, the Department of Planning, Building and Code Enforcement has found it necessary from time-to-time to seek professional services from biologists to assess potential impacts that may result from residential and commercial development projects. As such, the City seeks to execute a service agreement with a biological consultant to provide professional services on an on-call basis for the City. This agenda item is to consider executing a service agreement with David Magney Biological Consultants.

DISCUSSION

Basis for the Selection Process

On April 26, 2005, the City issued a Request for Proposal (RFP) to numerous consulting firms known to provide biological services in the general area. According to the RFP, the City was seeking a consultant that is familiar or has experience with the following:

As a result, the City received five (5) responses to the RFP. After reviewing the proposals, the City determined that the consulting firms who submitted proposals were equally qualified and maintained a billing rate that was generally the same across the board. The City decided to interview one consultant, David Magney Environmental Consultants, because this firm was recommended by local persons who are interested in City related environmental issues. As such, an interview was conducted with David Magney and associates from his firm. The interview panel consisted of City Staff members and a representative from the Palos Verdes Peninsula Land Conservancy (PVPLC). The PVPLC was invited to be a part of the interview process because it co-managers the City-owned Forrestal Nature Preserve and biological assessments will be prepared by the hired biologist for future trail improvement projects.

Based on the interview, the panel determined that David Magneyís consulting firm was highly qualified to provide the City with biological services. His firm was familiar with current laws regarding State and Federal protected plants and animals, as well as current laws relating to the Californian Environmental Quality Act (CEQA). He also proved to be reasonable and understanding of the unique setting of the City and the Palos Verdes Peninsula. In addition, his firm was able to provide liability insurance in the amounts required by the City. Therefore, David Magney was selected to perform as the Cityís biological consultant.

Scope of Work

As the Cityís on-call biologist, David Magneyís consulting firm will be asked to perform a variety of specialized services. These include reviewing biology reports prepared by private developers, preparing biology reports for City sponsored projects, conducting seasonal botanical and biological surveys, preparing environmental documents pursuant to CEQA, and providing the City with recommendations and mitigation measures regarding biological impacts.

CONCLUSION

David Magney Environmental Consultants is a highly qualified firm, with extensive experience and professional credentials, and is familiar with the unique environmental setting of the Palos Verdes Peninsula. As such, Staff supports executing a service agreement with David Magney Environmental Consultants for providing the City with on-call biological services.

ADDITIONAL INFORMATION

As noted earlier, the City received five (5) responses to the RFP from qualified consulting firms. At this time, City Staff is recommending entering into a service agreement with David Magney Environmental Consultants. However, the City intends to keep on file the remaining four (4) proposals for possible use in the future. In the event the need for additional biological consulting services is warranted, the City will select a biological consultant from the pool of proposals on file. A service agreement will be prepared and presented to the Council for consideration at that time.

FISCAL IMPACT

Costs associated with biological services provided by David Magney Environmental Consultants will not be borne by the City for development projects proposed by private developers. However, biological consultant costs for development or improvement projects that are sponsored by the City will be borne by the City. However, these costs will not be borne by the Cityís General Fund, but rather calculated as part of a projectís budget. Therefore, Staff does not expect costs associated with on-call biological services to be borne by the Cityís General Fund.

ALTERNATIVES

In addition to Staff's recommendation, the following alternatives are available for consideration by the City Council:

  1. Authorize the Mayor and City Clerk to execute a contract for only one year.
  2. Direct Staff to make additional modifications to the proposed contract and bring the revised contract back for further discussion at a future meeting.
  3. Direct Staff to issue a new Request for Proposal (RFP).

Respectfully submitted:

Joel Rojas

Director of Planning, Building and

Code Enforcement

Reviewed by:

Les Evans

City Manager

Attachments

 

PROFESSIONAL SERVICES AGREEMENT

FOR BIOLOGICAL CONSULTING SERVICES

THIS AGREEMENT is made and entered into this 6th day of September, 2005, by and between the CITY OF RANCHO PALOS VERDES, hereinafter referred to as "CITY", and DAVID MAGNEY ENVIRONMENTAL CONSULTANTS, INC., hereinafter 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 has represented that it has a unique and specialized knowledge and understanding of, and experience with, biological resources as it relates 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; and,

IN CONSIDERATION of the foregoing recitals and the covenants hereinafter set forth, the parties hereto mutually agree as follows:

ARTICLE I

SCOPE OF CONSULTANTíS SERVICES

Consultant shall, in a professional and timely manner, perform the following services, when requested by the City:

  1. Conduct Seasonal Botanical Surveys. Gather existing data on biological resources for a proposed project site and identify known and reported occurrences of rare plant species and sensitive habitats in the region based on a field survey. Submit to the City a written memorandum stating findings and recommendations.
  2. Conduct Biological Field Surveys. A biological field survey will be conducted to observe common and special status wildlife and plant species present at a project site.
  3. Conduct California Gnatcatcher Surveys. Surveys for the Federally listed threatened California Gnatcatcher are to be conducted in accordance to the United States Fish and Wildlife protocol. Fieldwork will be conducted during the breeding season of February 14th through August 31st unless otherwise directed. A written memorandum stating the findings and recommendations of the field survey shall be submitted to the City along with the methodology of the survey.
  4. Prepare CEQA Related Documents for Biological Resources. In accordance to 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 Checklist and Mitigated Negative Declaration. Said documents are to be prepared based on existing data and field surveys as they relate to the proposed project. Specific recommendations, including mitigation measures for all significant impacts to biological resources are to be included in a written report to the City.
  5. Peer Review of Biological Reports. The Consultant will 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. Such reports are to be reviewed in accordance with CEQA.

ARTICLE II

PERFORMANCE OF SERVICES

Consultant shall perform all services and duties pursuant to this Agreement in a professional and timely manner, at the direction of the Director of Planning, Building and Code Enforcement or Director of Public Works or the Directorsí designee. All directives, instructions, or other communications from City to Consultant shall be through only the Director of Planning, Building and Code Enforcement or Director of Public Works or the Directorsí designee. Consultant shall estimate the time frame to complete each project, which shall be subject to review and approval either by the Director of Planning, Building and Code Enforcement or Director of Public Works or the Directorís designee.

ARTICLE III

TERM

This Agreement shall commence on September 6, 2005, and shall terminate on September 6, 2006, unless otherwise extended by the parties hereto.

ARTICLE IV

COMPENSATION FOR SERVICES

City shall pay Consultant for its professional services rendered and costs incurred pursuant to this Agreement in accordance with the rates and amounts set forth in the fee and cost schedule attached hereto as Exhibit "A" and incorporated herein by reference. The schedule of hourly rates shall be effective through the term of this contract.

City may request in writing that Consultant perform additional services not covered by the specific Scope of Work set forth in this agreement, and Consultant shall perform such services and will be paid for such additional services in accordance with Consultantís schedule of hourly rates attached hereto as Exhibit "A" and incorporated herein by reference.

Consultant shall submit to City, by not later than the tenth (10th) day of each month, its bill for services rendered and costs incurred during the previous month. If Consultantís bill is properly prepared and received by City by not later than the tenth (10th) day of the month, City shall pay Consultant all uncontested amounts set forth in Consultantís bill by not later than 30 days from the date that the bill was received. All other properly billed and uncontested invoices received after the 10th of the month shall be paid by City not later than forty-five (45) days after receipt of Consultantís bill by City. It is further agreed that the periodic billings are correct, conclusive and binding unless Consultant is notified in writing by City twenty (20) days from the date of receipt of the billing of any alleged inaccuracies, discrepancies or errors in billing.

All payments due Consultant shall be paid to:

David Magney Environmental Consulting

P.O. Box 1346

Ojai, California 93024-1346

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 breach of this Agreement and may be terminated by Consultant without liability to Consultant upon ten (10) working days advance notice to City.

ARTICLE V

PERSONNEL

Consultant shall provide all personnel necessary to properly perform the services and duties required under this Agreement, and shall at all times direct such personnel in the performance of such services and duties. David L. Magney, Cher Batchelor, Ken Niessen, James Greaves, Lynee Kada, and Mark Cable Rains shall be principally responsible for Consultantís obligations and performance under this Agreement and shall serve as the principal liaisons between City and Consultant. Consultant shall not designate representatives or liaisons other than David L. Magney, Cher Batchelor, Ken Niessen, James Greaves, Lynee Kada, and Mark Cable Rains without the prior written consent of either the Director of Planning, Building and Code Enforcement or the Director of Public Works of City, except for temporary re-assignments in the case of vacation, illness or emergency, where consultant shall provide verbal notification to either the Director of Planning, Building and Code Enforcement or the Director of Public Works of City.

Consultant shall notify City in writing of its recommendation of the retention of any supplemental subconsultants and the need therefor. However, City shall have the exclusive authority to determine whether such subconsultants shall be retained pursuant to Consultantís recommendation.

ARTICLE VI

DUTIES OF CITY

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.

ARTICLE VII

OWNERSHIP OF DOCUMENTS

City and Consultant agree that all records, data, reports or other documentation prepared by, in response to, or as a result of the performance of this Agreement shall be the sole property of City, and are to remain confidential, and shall not be released or otherwise made available to any person, entity or organization without the express prior written approval of City. Copies of any data, records, reports or other documents held by Consultant shall be delivered to City upon demand. During the term of this Agreement, Consultant may retain one copy of each document for its records.

No reports, maps or other documents produced in whole or in part under this Agreement shall be the subject of an application for copyright by or on the behalf of Consultant. It is agreed that all records, data, reports or other documents generated by Consultant for City can only be used for the specific location and/or specific improvement without the written consent of Consultant.

ARTICLE VIII

CONFLICT OF INTEREST

Consultant agrees not to accept any employment or representation during the term of this Agreement which is or may likely make Contractor "financially interested" (as provided in California Government Code Sections 1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained pursuant to this Agreement.

Consultant also warrants that it is not, at the time this Agreement is entered into, engaged in any employment or representation which will or may likely make Consultant "financially interested" in any decision made by City on any matter in connection with which Consultant has been retained pursuant to this Agreement.

ARTICLE IX

INDEMNIFICATION AND INSURANCE

  1. Indemnification. Consultant will defend, indemnify and hold harmless City, its City Council, Boards, Commissions and its officers, employees and agents (collectively "CITY"), against any claim, loss or liability that arises because of the sole or primary negligence or willful misconduct of Consultant, its agents, officers or employees, in performing any of the services under this Agreement. City will indemnify and hold harmless Consultant, its agents, officers or employees against any claim, loss or liability that arises because of the sole or primary negligence or willful misconduct of City personnel or its other agents or if Consultant is named as a party in a lawsuit simply because Consultant is performing work on Cityís behalf and there is no allegation of any wrong doing on the part of the Consultant.
  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 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 Bestís Insurance Guide with a rating A VII or better.
  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 Bestís Insurance Guide with a rating of A VII or better.
  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 Bestís Insurance Guide with a rating of A VII or better.
  5. Workerís Compensation. Consultant agrees to maintain in force at all times during the performance of work under this Agreement workerís compensation insurance as required by the law. Consultant shall require any subcontractor similarly to provide such compensation insurance for their respective employees.
  6. Notice of Cancellation.
    1. 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.
    2. 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 reasonable cost, City may take out the necessary insurance and pay, at Consultantís expense, the premium thereon.
  1. 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.
  2. 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 workerís compensation and professional liability) shall include provisions for waiver of subrogation.

ARTICLE X

TERMINATION

This Agreement may be terminated at any time, with or without cause, by either party upon sixty (60) days prior written notice. Notice shall be deemed serviced upon deposit in the United States Mail or a certified or registered letter, postage prepaid, return receipt requested, addressed to the other party, or upon personal service of such notice to the other party, at the address set forth in Article XI.

In the event of termination or cancellation of the 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 done in accordance with all of the terms and provisions of this Agreement, Consultant shall be paid an amount equal to the amount of services performed prior to the effective date of termination or cancellation in accordance with the schedule attached hereto as Exhibit "A"; provided, in no event shall the amount of money paid under the foregoing provisions of this paragraph exceed the amount which would have been paid to consultant for the full performance of the services described in Article IV and the authorization to proceed for the uncompleted project(s).

In the event of such termination, all finished or unfinished documents, reports, charts, data, studies, surveys, in the possession of Consultant under this agreement shall be returned to City, at Cityís option.

ARTICLE XI

GENERAL PROVISIONS

  1. 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), whichever is more restrictive.
  2. Non-discrimination. Consultant shall not discriminate as to race, creed, religion, gender, color or national origin in the performance of its services and duties pursuant to this Agreement, and will comply with all rules and regulations of the City relating thereto.
  3. Legal Action.

i. Should either party to this Agreement bring legal action against the other, the case shall be handled in Los Angeles County, California,

and the party prevailing in such action shall be entitled to reasonable attorneyís fees, which shall be fixed by the judge hearing the case, and such fee shall be included in the judgment.

    1. 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.

  1. Compliance with Applicable Law. Consultant and City shall comply with all applicable laws, ordinances and codes of the Federal, State and local

Governments.

E. Assignment. This Agreement shall not be assignable by either party without the prior written consent of the other party. Notwithstanding the foregoing, Consultant may use the services of persons and entities not in its employ, when it is appropriate and customary to do so upon prior approval by City. Such persons and entities include, but are not limited to, specialized consultants. Consultantís use of others for additional services shall not be unreasonably restricted by City, provided Consultant notifies City in advance.

F. Independent Consultant. Consultant is and shall at all times remain, as to City, a wholly independent Consultant. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultantís employees, except as herein set forth. Consultant expressly warrants not to, at any time or in any manner, represent that it, or any of its agents, servants or employees, are in any manner the agents, servants or employees of City, it being distinctly understood that Consultant is, and shall at all times remain to City, a wholly independent contractor and Consultantís obligations to City are solely such as are prescribed by this Agreement.

G. Titles. That titles used in this Agreement are for general reference only and are not part of this Agreement.

H. Extent of Agreement. This Agreement and Exhibit "A" represents the entire and integrated Agreement between City and Consultant and supersedes all prior negotiations, representations or agreements, written or oral. This Agreement may be modified or amended only by a subsequent written agreement signed by both parties.

  1. Legal Construction

i. This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced and governed under the laws of the State of California.

    1. This Agreement shall be construed without regard to the identity of the persons who drafted its various provisions. Each and every provision of this Agreement shall be construed as though each of the parties participated equally in the drafting of same, and any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement.

iii. The article and section, captions and headings herein have been inserted for convenience only, and shall not be considered or referred to in resolving questions of interpretation or construction.

    1. Whenever in this Agreement the context may so require, each gender shall be deemed to refer to and include any other gender and the singular shall refer to and include the plural.

J. Notices. All notices pertaining to this Agreement shall be in writing and addressed as follows:

If to Consultant:

Mr. David L. Magney

President

David Magney Environmental Consultants

P.O. Box 1346

Ojai, California 93024

If to City:

Les Evans

City Manager

City of Rancho Palos Verdes

30940 Hawthorne Boulevard

Rancho Palos Verdes, California 90275

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.

DAVID MAGNEY ENVIRONMENTAL CONSULTANTS

By: _____________________________

_____________________________

(Title)

Dated: _____________________________

By: _____________________________

_____________________________

(Title)

Dated: _____________________________

CITY OF RANCHO PALOS VERDES

By: _____________________________

Mayor

Dated: _____________________________

Attest:

__________________________

City Clerk

EXHIBIT "A"

FEE SCHEDULE

 

DAVID MAGNEY CONSULTANTS

 

Personnel Classification

Rate

(per hour)

Principal / Project Manager

$100.00

Assistant Manager/Project Coordinator

$90.00

Senior Restoration Ecologist/Planner

$85.00

Senior Landscape Architect

$95.00

Landscape Architect

$85.00

Senior Biologist/Scientist

$95.00

*Biologist VI

$83.00

*Biologist III

$78.00

*Biologist II

$72.00

*Biologist I

$68.00

*Assistant Biologist

$60.00

Fluvial Geomorphologist IV/Wetland Scientist

$95.00

Hydrologist/Civil Engineer

$85.00

Senior Inspector/Monitor

$74.00

*Inspector/Monitor II

$60.00

*Inspector/Monitor I

$50.00

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

Graphic Illustrator/GIS Technician

$45.00

$65.00

Office Assistant

$30.00

Subcontractors

Cost plus 15 percent overhead fee

Cost plus 15%

Direct Expenses

Unit Rate ($)

Mileage

Automobile

Four-Wheel Drive

 

$.045/mile

$0.75/mile

Per Diem

Breakfast

Lunch

Dinner

Lodging

$165/day

$ 10/day

$ 15/day

$ 25/day

$115/day

Photo copies

Black and white (8.5"x11")

Color (8.5"x11")

Color (11"x17")

$0.10/page

$1.75/page

$2.50/page

Report Binding

$5.00/report

Compact Discs

$20.00/CD

Rental Equipment

Cost plus 10%

Other direct expenses

Cost plus 10%