2019/11/01 Kimley-Horn and Associates, Inc. Biological Resources Support of the Paloma Wash Maintenance ProjectCITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
BIOLOGICAL RESOURCES SUPPORT OF THE PALOMA WASH
MAINTENANCE PROJECT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and effective
this I ';'/n day ofuliJtr!i.,1, 2019 ("Effective Date") by and between the CITY OF MENIFEE,
a Califomia municipal corporation, ("City") and Kimlev-Horn & Associates. Inc., a North
Carolina Corporation ("Consultant"). City and Consultant may sometimes herein be relerred to
individually as a "Party" and collectively as the "Parties."
SECTION I, SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to
City the services described in the Scope of Services, attached hereto as Exhibit A and incorporated
herein by this reference (the "Services"). Consultant will perform subsequent task orders as
requested by the Contract Administrator (as defined below), in accordance with the Scope of
Services. ln the event ofa conflict in or inconsistency between the terms ofthis Agreement and
Exhibit A, this Agreement shall prevail.
1.2 Standard of Performance Consultant represents and warrants that Consultant is
experienced in performing the Services contemplated herein and, in light of such status and
experience, Consultant shall perform the Services required pursuant to this Agreement in the
manner and according to the standards observed by a competent practitioner ofthe profession in
which Consultant is engaged in the geographical area in which Consultant practices its profession
and to the sole satisfaction ofthe Contract Administrator.
1.3 Assienment of Personnel. Consultant shall assign only competent personnel to
perform the Services pursuant to Agreement. In the event that City, in its sole discretion, at any
time during the term of this Agreement, desires the reassignment ofany such persons, Consultant
shall, immediately upon receiving notice from City ofsuch desire of City, reassign such person or
persons.
1.4 Time. Consultant shall devote such time to the performance of the Services
pursuant to this Agreement as may be reasonably necessary to satisfy Consultant's obligations
hereunder.
1.5 Authorization to Perform Services. Consultant is not authorized to perfonn any of
the Services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
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l.l Tenn ofServices. The term ofthis Agreement shall begin on November 1,2019
and shall end on June 30, 2020 unless the term of this Agreement is otherwise terminated or
extended as provided for in Section 8. The time provided to Consultant to complete the Services
required by this Agreement shall not affect City's right to terminate this Agreement, as provided
for in Section 8.
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed THIRTEEN THOUSAND
FM HUNDRED DOLLARS AND ZERO CENTS ($13,500.00) notwithstanding any contrary
indications that may be contained in Consultant's proposal, for the Services to be performed and
reimbursable costs incurred under this Agreement. ln the event of a conflict between this
Agreement and Exhibit A, regarding the amount of compensation, this Agreement shall prevail.
City shall pay Consultant for the Services rendered pursuant to this Agreement at the time and in
the manner set forth herein. The payments specified below shall be the only payments from City
to Consultant for the Services rendered pursuant to this Agreement. Consultant shall submit all
invoices to City in the manner specified herein. Except as specifically authorized in advance by
City, Consultant shall not bill City for duplicate services performed by more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this
Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to
the invoice date. lnvoices shall contain the following information:
a. Serial identifications ofprogress bills; i.e., Progress Bill No. I for the first
invoice, etc.;
b. The beginning and ending dates ofthe billing period;
c. A "Task Summary" containing the original contract amount, the amount of
prior billings, the total due this period, the balance available under this Agreement, and the
percentage of completion;
d. At City's option, for each item in each task, a copy ofthe applicablc time
entries or time sheets shall be submitted showing the name of the person performing the
Services, the hours spent by each person, a brief description of the Services, and each
reimbursable expense;
e. The total number of hours of work performed under this Agreement by
Consultant and each employee, agent, and subcontractor of Consultant perlorming the
Services hereunder necessary to complete the Services described in Exhibit A;
Receipts for expenses to be reimbursed;
The Consultant Representative's signature.
lnvoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
2.2 Monthly Payment. Ci ty shall make monthly payments, based on invoices received,
for the Services satisfactorily performed, and for authorized reimbursable costs incurred. City
f.
5.
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2.4 Total Pavment. Cit y shall not pay any additional sum for any expense or cost
whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City
shall make no payment for any extra, further, or additional service pursuant to this Agreement.
2.5 Hourlv Fees. Fees for the Services performed by Consultant on an hourly basis
shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable ex penses are included within the maximum
amount of this Agreement.
2.7 Payment ofTaxes. Consultant is solel y responsible for the payment of employment
taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that City or Consultant tenninates this
Agreement pursuant to Section 8. City shall compensate Consultant for all outstanding costs and
reimbursable expenses incurred for Services satislactorily completed and for reimbursable
expenses as ofthe date of written notice oftermination. Consultant shall maintain adequate logs
and timesheets in order to verify costs and reimbursable expenses incurred to that date.
Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all
facilities and equipment necessary to perform the services required by this Agreement. City shall
make available to Consultant only physical facilities such as desks, filing cabinets, and conference
space, as may be reasonably necessary for Consultant's use while consulting with City employees
and reviewing records and the information in possession of City. The location, quantity, and time
of fumishing those facilities shall be in the sole discretion of City. In no event shall City be
required to fumish any facility that may involve incurring any direct expense, including but not
limited to computer, Iong-distance telephone or other communication charges, vehicles, and
reproduction facilities.
SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and expense,
shall procure the types and amounts of insurance checked below and provide Certifioates of
Insurance, indicating that Consultant has obtained or currently maintains insurance that meets the
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shall have thirty (30) days from the receipt ofan invoice that complies with all ofthe requirements
above to pay Consultant.
2.3 Final Pavment. City shall pay the last five percent (5oZ) of the total amount due
pursuant to this Agreement within sixty (60) days after completion ofthe Services and submittal
to City of a final invoice, ifall ofthe Services required have been satisfactorily performed.
In no event shall Consultant submit any invoice for an amount in excess of the
maximum amount of compensation provided above either for a task or for the entirety of the
Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior
to the submission of such an invoice.
SECTION 3. FACILITIES AND EQUIPMENT.
requirements of this section and which is satisfactory, in all respects, to City. Consultant shall
maintain the insurance policies required by this section throughout the term of this Agreement.
The cost of such insurance shall be included in Consultant's compensation. Consultant shall not
allow any subcontractor, consultant or other agent to commence work on any subcontract until
Consultant has obtained all insurance required herein for the subcontractor(s) and provided
evidence thereofto City. Verification olthe required insurance shall be submitted and made part
of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover
inter-insured suits between City and other Insureds.
4.1 Workers' Compensation. Consultant shall , at its sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability lnsurance for any and all
persons employed directly or indirectly by Consultant pursuant to the provisions ofthe Califomia
Labor Code. Statutory Workers' Compensation Insurance and Employer's Liability Insurance
shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per
accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION
DOLLARS ($1,000,000.00) disease per policy. In the altemative, Consultant may rely on a self-
insurance program to meet those requirements, but only ifthe program of self-insurance complies
lully with the provisions of the Califomia Labor Code. Determination of whether a self-insurance
program meets the standards ofthe Califomia Labor Code shall be solely in the discretion ofthe
Contract Administrator. The insurer, if insurance is provided, or Consultant, ifa program ofself-
insurance is provided, shall waive all rights of subrogation against City and its officers, officials,
employees, and authorized volunteers for loss arising from the Services performed under this
Agreement.
4.2 Commercial General and t'n it Liabili lnsurance
a. General requircme nts Consultant, at its own cost and expense, shall
maintain commercial general and automobile liability insurance for the term of this Agreement in
an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurence, combined
single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO
MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MII,LION
DOLLARS ($2,000,000.00) products/completed operations aggregate. Il a Commercial General
Liability Insurance or an Automobile Liability Insurance form or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to the Services to
be performed under this Agreement or the general aggregate limit shall be at least twice the
required occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting therefrom, and
damage to property resulting from the Services contemplated under this Agreement, including the
use ofhired. owned, and non-owned automobiles.
b. Minimum sco e of coverage. Commercial general coverage shall be at least
as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001.
Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability
fbnn CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
c. Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
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a. The insurance shall cover on an occurrence or an accident basis, and
not on a claims-made basis.
b. Any failure ofConsultant to comply with reporting provisions ofthe
policy shall not affect coverage provided to City and its o{Iicers, employees, agents,
and volunteers.
4.3 ProfessionalLiabilitvlnsurance.
a. General requirements. Consultan t, at its own cost and expense, shall
maintain for the period covered by this Agreement professional liability insurance for licensed
professionals performing the Services pursuant to this Agreement in an amount not less than ONE
MILLION DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions.
Any deductible or self-insured retention shall be shown on the Certificate. If the deductible or
self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be
approved by City.
b. Claims-made limitations. The following provisions shall apply if the
professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be no
later than the commencement ofthe Services.
b. lnsurance must be maintained and evidence of insurance must be
provided for at least five (5) years after the expiration or termination of this
Agreement or completion of the Services, so long as commercially available at
reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with
another claims-made policy form with a retroactive date that precedes the Effective
Date of this Agreement, Consultant must provide extended reporting coverage for
a minimum of five (5) years after the expiration or termination of this Agreement
or the completion ofthe Services. Such continuation coverage may be provided by
one ofthe following: (l) renewal ofthe existing policy; (2) an extended reporting
period endorsement; or (3) replacement insurance with a retroactive date no later
than the commencement ofthe Services under this Agreement. Cityshall have the
right to exercise, at Consultant's sole cost and expense, any extended reporting
provisions ofthe policy, ifConsultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to
City prior to the commencement of the Services under this Agreement.
4.4 All Policies Requirements.
a. Acceptab ilitv of insurers.All insurance required by this Section is to be
placcd with insurers with a Bests' rating of no less than A:VII and admitted in California.
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b. Verillcation of coverage. Prior to be ginning the Services under this
Agreement. Consultant shall fumish City with Certificates of Insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies of all
policies, including complete certified copies of all endorsements. All copies of policies and
certified endorsements shall show the signature of a person authorized by that insurer to bind
coverage on its behalf. The Certificate of Insurance must include the following reference:
BIOLOGICAL RESOURCES SUPPORT OF THE PALOMA WASH MAINTENANCE
PROJECT. The name and address for Additional Insured endorsements, Certificates of Insurance
and Notice of Cancellation is: City of Menifee,29844 Haun Road, Menifee, CA 92586. City must
be endorsed as an additional insured for liability arising out ofongoing and completed operations
by or on behalf of Consultant.
c. Notice of Reduction in or Cancellation of Coverage. Consultant shall
provide written notice to City within ten ( l0) rvorking days ii (l) any ofthe requircd insurance
policies is tenninated; (2) the lirnits ofany ofthe required polices are reduced; or (3) the deductible
or self insured retention is increased.
d. Additional insured: primarv insurance. Ci ty and its officers. cmployees.
agents, and authorized volunteers shall be covered as additional insureds with respect to each of
the following: liability arising out of the Services performed by or on behalf of Consultant,
including the insured's general supervision of Consultant; products and completed operations of
Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles
owned, leased, or used by Consultant in the course of providing the Services pursuant to this
Agreement. The coverage shall contain no special limitations on the scope of protection afforded
to City or its officers, employees, agents, or authorized volunteers. The insurance provided to City
as an additional insured must apply on a primary and non-contributory basis with respect to any
insurance or self-insurance program maintained by City. Additional insured status shall continue
for one ( I ) year after the expiration or termination ofthis Ageement or completion ofthe Services.
A certified endorsement must be attached to all policies stating that coverage is
primary insurance with respect to City and its officers, officials, employees, and volunteers, and
that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss
under the coverage.
Deductibles and Self-insured Retentions. Consultant shall obtain thec
written approval of City for the self-insured retentions and deductibles before beginning any ofthe
Services.
During the term of this Agreement, only upon the prior express written
authorization of the Contract Administrator, Consultant may increase such deductibles or sell-
insured retentions with respect to City, its ofTicers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond guaranteeing payment oflosses
and related investigations, claim administration, and defense expenses that is satisfactory in all
respects to each of them.
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f. Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall fumish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all ofthe requirements stated
herein.
g. Variation. The Contract Administrator may, but is not required to, approve
in writing a variation in the loregoing insurance requirements, upon a determination that the
coverage, scope, limits, and forms of such insurance are either not commercially available, or that
City's interests are otherwise fully protected.
4.5 Remedies. In addition to an y other remedies at law or equity City may have if
Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent
and within the time herein required, City may, at its sole option, exercise any of the following
remedies, which are alternatives to other remedies City may have and are not the exclusive remedy
for Consultant's breach:
a. Obtain such insurance and deduct and retain the amount ofthe premiums
for such insurance from any sums due under this Agreement;
b. Order Consultant to stop work under this Agreement or withhold any
payment that becomes due to Consultant hereunder, or both stop work and withhold any
payment, until Consultant demonstrates compliance with the requirements hereof; and/or
Terminate this Agreementc
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liabilitv. Where the law establishes a
professional standard of care for performance of the Services, to the fullest extent permitted by
law, Consultant shall indemnifo, protect, defend (with counsel selected by City), and hold harmless
City and any and all of its officers, employees, officials, volunteers, and agents from and against
any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action
(whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards,
assessments, fines, or penalties of any kind (including reasonable consultant and expert fees and
expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a
defense for City, the legal costs of counsel retained by City) and any judgment (collectively,
"Claims") to the extent same are caused in whole or in part by any negligent or wrongful act, error,
or omission of Consultant, its officers, agents, employees, or subcontractors (or any entity or
individual that Consultant shall bear the legal liability thereof) in the performance ofprofessional
services under this Agreement.
5.2 Indemnification for Other than Professional Liabili tv Other than in the
performance of professional services and to the full extenl permitted by law, Consultant shall
indemnify, protect, delend (with counsel selected by City), and hold harmless City, and any and
all of its officers, employees, officials, volunteers, and agents from and against any and all Claims,
where the same arise out of, are a consequence of, or are in any way attributable to. in whole or in
part, the performance of this Agreement by Consultant or by any individual or entity for which
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Consultant is legally liable, including but not limited to officers, agents, employees
subcontractors of Consultant.
or
5.3 Limitation ol Indemnification The provisions of this Section 5 do not apply to
claims occurring as a result of City's sole or active negligence. The provisions of this Section 5
shall not release City from liability arising from gross negligence or willful acts or omissions of
City or any and all of its officers, officials, employees, and agents acting in an official capacity.
SECTION 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At alltimes durin g the term ofthis Agreement, Consultant
shall be an independent contractor and shall not be an employee of City. City shall have the right
to control Consultant only insofar as the results of the Services rendered pursuant to this
Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City
shall not have the right to control the means by which Consultant accomplishes the Services
rendered pursuant to this Agreement. The personnel performing the Services under this
Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and
control. Consultant shall not at any time or in any manner represent that it or any of its officers,
employees, or agents is in any manner officers, officials, employees, or agents of City. Consultant
shall not incur or have the power to incur any debt, obligation, or liability whatever against City,
or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement.
City shall not pay salaries, wages, or other compensation to Consultant for performing the Services
hereunder for City. City shall not be liable for compensation or indemnification to Consultant for
injury or sickness arising out of performing the Services hereunder. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any
of its employees, agents, and subcontractors providing services under this Agreement shall not
qualify for or become entitled to any compensation, benefit, or any incident of employment by
City, including but not limited to eligibility to enroll in the California Public Employees
Retirement System ("PERS") as an employee of City and entitlement to any contribution to be
paid by City for employer contributions and/or employee contributions for PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Goveming Law. The laws of the State of California shall govem this Agreement.
7 ,2 Comnliance with Applicable Laws. Consultant and an y subcontractor shall comply
with all applicable local, state, and federal laws and regulations applicable to the performance of
the work hereunder. Consultant shall not hire or employ any person to perform work within City
or allow any person to perform the Services required under this Agreement unless such person is
properly documented and legally entitled to be employed within the United States. Any and all
work subject to prevailing wages, as determined by the Director oflndustrial Relations ofthe State
of California, will be the minimum paid to all laborers, including Consultant's employee and
subcontractors. It is understood that it is the responsibility of Consultant to determine the correct
scale. The State Prevailing Wage Rates may be obtained from the Califomia Department of
Industrial Relations ("DIR") pursuant to California Public Utilities Code, Sections 465,466, and
467 by calling 415-703-4774. Appropriate records demonstrating compliance with such
requirement shall be maintained in a safe and secure location at all times, and readily available at
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City's request. Consultant shall indemnify, defend, and hold City and its elected and appointed
boards, members, officials, officers, agents, representatives, employees, and volunteers harmless
from and against any liability, loss, damage, cost or expenses (including but not limited to
reasonable attomeys'fees, expert witness fees, court costs, and costs incurred related to any
inquiries or proceedings) arising from or related to (i) the noncompliance by Consultant or any
pany performing the Services ofany applicable local, state, and/or federal law, including, without
limitation, any applicable federal and/or state labor laws (including, without limitation, the
requirement to pay state prevailing wages and hire apprentices); (ii) the implementation ofSection
I 781 of the Labor Code, as the same may be amended lrom time to time, or any other similar law;
and/or (iii) failure by Consultant or any party performing the Services to provide any required
disclosure or identification as required by Labor Code Section 1781, as the same may be amended
from time to time, or any other similar law. [t is agreed by the Parties that, in connection with
performance ofthe Services, including, without limitation, any and all public works (as defined
by applicable law), Consultant shall bear all risks ofpayment or non-payment ofprevailing wages
under Califomia law and/or the implementation of Labor Code Section I 78 I, as the same may be
amended from time to time, and/or any other similar law. Consultant acknowledges and agrees
that it shall be independently responsible for reviewing the applicable laws and regulations and
effectuating compliance with such laws. Consultant shall require the same olall subcontractors.
SECTION 8. TERMINATION AND MODIFICATION.
8.2 Termination by Consultant. Consultant ma y cancel this Agreement upon 30 days'
written notice to City
8.1 Consequences of Tcrmination. In thc event of termination. Consultant shall bc
cntitled to compensation for the Services perfonned up to the date of termination; City, however,
may condition payment of such compensation upon Consultant delivering to City any or all
documents, photographs, computer soflware, video and audio tapes, and other materials provided
to Consultant or prepared by or for Consultant or City in connection with this Agreement.
8.4 Extension. City may, in its sole and exclusive discretion, extend the end datc of
this Agreement beyond that provided for in Subsection l.l. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and agrees
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7.3 Licenses and Permits. Consultant represents and warrants to City that Consultant
and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and
approvals of whatsoever nature that are legally required to practice their respective professions.
Consultant represents and warrants to City that Consultant and its employees, agents, and
subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of
this Agreement any licenses, permits, and approvals that are legally required to practice their
respective professions. ln addition to the foregoing, Consultant and any subcontractors shall obtain
and maintain during the term of this Agreement valid Business Licenses from City.
8. I Termination. City may cancel this Agreement at any time and without cause upon
written notifi cation to Consultant.
that, if City grants such an extension, City shall have no obligation to provide Consultant with
compensation beyond the marimum amount provided for in this Agreement. Similarly, unless
authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant
for any otherwise reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by
all the Parties.
8.6 Assignment and Subcontractinq. City and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a determination
of Consultant's unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the
professional reputation and competence of Consultant. Consultant may not assign this Agreement
or any interest therein without the prior written approval ofthe Contract Administrator. Consultant
shall not subcontract any portion ofthe performance contemplated and provided for herein, other
than to the subcontractors noted in Consultant's proposal, without prior written approval of the
Contract Administrator. In the event that key personnel leave Consultant's employ, Consultant
shall notify City immediately.
8,7 Survival. All obligations arising prior to the expiration or termination of this
Agreement and all provisions ofthis Agreement allocating liability between City and Consultant
shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. If Consultant materiall y breaches any ofl the
terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the
following:
a.lmmediately terminate th is Agreement;
b. Retain the plans, specifications. drawings, reports, design documents, and
any other work product prepared by Consultant pursuant to this Agreement;
c. Retain a different consultant to complete the Services described in
Exhibit A; and/or
d. Charge Consultant the difference between the cost to complete the Services
described in Exhibit A that is unfinished at the time of breach and the amount that City
would have paid Consultant pursuant to Section 2 if Consultant had completed the
Services.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part ol Clonsultant's Perfbrmance. All reports, data, maps,
models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records,
files, or any other documents or materials, in electronic or any other form that Consultant prepares
or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the
property of City. Consultant hereby agrees to deliver those documents to City upon the expiration
or termination of this Agreement. It is understood and agreed that the documents and other
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materials. including but not limited to those described above, prepared pursuant to this Agreement
are prepared specifically for City and are not necessarily suitable for any future or other use. Any
use ofsuch documents for other projects by City shallbe without liability to Consultant. Cityand
Consultant agree that, until final approval by City, all data, plans, specifications, reports, and other
documents are confidential and will not be released to third parties without prior written consent
of both Parties unless required by law.
9.2 Licensing of Intellectual Prope(y. This A greement creates a non-exclusivc and
perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs,
rights of reproduction, and other intellectual property embodied in plans, specifications, studies,
drawings, estimates, test data, survey results, models, renderings, and other documents or works
of authorship fixed in any tangible medium of expression, including but not limited to, physical
drawings, digital renderings, or data stored digitally, magnetically, or in any other medium, which
are prepared or caused to be prepared by Consultant under this Agreement ("Documents and
Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-
exclusive and perpetual license for any Documents and Data the subcontractor prepares under this
Agreement. Consultant represents and warrants that Consultant has the legal right to license any
and all Documents and Data. Consultant makes no such representation and warranty in regard to
Documents and Data which were prepared by design professionals other than Consultant or
provided to Consultant by the City. Cityshall not be limited in any way in its use of the Documents
and Data at any time, provided that any such use not within the purposes intended by this
Agreement shall be at City's sole risk.
9.3 Consultant's Books and Records. Consultant shall maintain an y and all ledgers,
books ofaccount, invoices, vouchers, canceled checks, and other records or documents evidencing
or relating to charges for the Services or expenditures and disbursements charged to City under
this Agreement for a minimum ofthree (3) years, or for any longer period required by law, from
thedateoffinal payment to Consultant under this Agreement. All such records shall be maintained
in accordance with generally accepted accounting principles and shall be clearly identified and
readily accessible.
9.4 lnspection and Audit of Records. An y records or documents that Section 9.3 of
this Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of City.
Under Califomia Covemment Code Section 8546.7, if the amount ofpublic funds expended under
this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be
subject to the examination and audit ofthe State Auditor, at the request of City or as part ofany
audit of City, for a period ofthree (3) years after final payment under this Agreement.
SECTIONlO. MISCELLANEOUSPROVISIONS.
I 0. I Attomeys' Fees. If either Pa rty to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret thc provision of this Agreement, the prevailing
Party shall be entitled to reasonable attomeys' t'ees and expenses including costs, in addition to
any other reliefto which that Party may be entitled; provided, however. that the attomeys' fees
awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services
multiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the
267V03t858-000t
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litigation. The court may set such fees in the same action or in a separate action brought for that
purpose.
10.2 Applicable Law: Venue. The internal laws of the State of Califomia shall govem
the interpretation and enforcement of this Agreement. ln the event that either Party brings any
action against the other under this Agreement, the Parties agree that trial of such action shall be
vested exclusively in Riverside County.
10.3 Severability. If any provision of this Agreement is held invalid, the remainder of
this Agreement shall not be affectcd thereby and all other parts of this Agreement shall
neve(heless be in full force and effect.
10.4 Section Headinss and Subheadings The section headings and subheadings
contained in this Agreement are included for convenience only and shall not limit or otherwise
affect the terms of this Agreement.
10.5 No Implied Waiverof Breach. The waiverofany breach ofa specific provision of
this Agreement does not constitute a waiver ofany other breach ofthat term or any other term of
this Agreement.
10.6 Successors and Assigns. The provisions ofthis Agreement shall inure to the benefit
ofand shall apply to and bind the successors and assigns ofthe Parties.
10.7 Consultant Representative. All mafters under this Agreement shall be handled for
Consultant by Kevin Thomas, Senior Environmental Manager ("Consultant's Representative").
The Consultant's Representative shall have full authority to represent and act on behalf of
Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise
and direct the Services, using his best skill and attention, and shall be responsible for all means.
methods, techniques, sequences, and procedures and for the satisfactory coordination of all
portions of the Services under this Agreement.
10.8 City Contract Administration. This Agreement shall be administered by a City
employee, Jonathan Smith, Public Works Director/City Engineer ("Contract Administrator"). All
correspondence shalI be directed to or through the Contract Administrator or his designee. The
Contract Administrator shall have the power to act on behalf of City for all purposes under this
Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction
or orders lrom any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
Kimley -Horn & Associates, lnc.
Attn: Kevin Thomas, Senior Environmental Manager
3880 Lemon Street, Suite 420
Riverside, CA 92501
Any written notice to City shall be sent to the Contract Administrator at:
2671r011858-000r
7630,421 .2 .0429!19
Citv of Menilee
-12-
29844 Haun Road
Menifee, CA 92586
Attn: Jonathan Smith, Public Works Director/City Engineer
City Clerk
City of Menifee
29844 Haun Road
Menifee. CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract
Administrator, the first page ofa technical report. first page ofdesign specifications, and each page
of construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the repor design preparation. The stamp/seal shall be in a block entitled "Seal and
Signature of Registered Professional with report/design responsibility," as in the following
example.
Seal and Signature of Registered Professional with
report/desi gn responsibility.
l0.ll Riehts and Remedies. Ex cept with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies ofthe Parties are cumulative
and the exercise by either Party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, ofany other rights or remedies for the same default
or any other default by the other Party.
10.12 lntesration. This Agreement, including the scope ofservices attached hereto and
incorporated herein as Exhibit A, represents the entire and integrated agreement between City and
Consultant and supersedes all prior negotiations, representations, or agreements, either written or
oral. 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
this Agreement or any other rule of construction which might otherwise apply.
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
10.14 Execution ofContract. The persons executing this Agreement on behalfofeach of
the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they
are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so
executing this Agreement, such Party is formally bound to the provisions of this Agreement, and
(iv) that entering into this Agreement does not violate any provision of any other Agreement to
which said Party is bound.
l0.l 5 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors,
assigns, and all persons claiming under or through them, that in the performance ofthis Agreement
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with a copy to:
there shall be no discrimination against or segregation of, any person or group of persons on
account of any impermissible classification including, but not limited to, race, color, creed,
religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.16 No Third Partv Beneficiaries. With the exception of the specific provisions set
forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and
no such other third parties shall have any rights or obligations hereunder.
I 0.1 7 Nonliability of City Officers and Employees. No ofJicer , official, employee, agent,
representative, or volunteer of City shall be personally liable to Consultant, or any successor in
interest, in the event ofany default or breach by City or for any amount which may become due to
Consultant or to its successor, or for breach ofany obligation ofthe terms of this Agreement.
10.18 No Undue Influence. Consultant declares and warrants that no undue influence or
pressure is used against or in concert with any officer or employee of City in connection with the
award, terms or implementation ofthis Agreement, including any method ofcoercion, confidential
financial arrangement, or financial inducement. No officer or employee of City shall receive
compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of
Consultant, in connection with the award olthis Agreement or any work to be conducted as a result
of this Agreement.
10.19 No Benefit to Arise to City Employees. No member, officer, or employee of City,
or their designees or agents, and no public official who exercises authority over or has
responsibilities with respect to this Agreement during his/her tenure or for one ( I ) year thereafter,
shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds
thereof, for the Services to be performed under this Agreement.
ISignatures on Following Page]
2671/01t858-0001
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IN WITNESS WHEREOF,
Agreement as of the Effective Date.
CITY OF ME
the Parlies hereto have exccutcd and entered into this
CONS
Kt
Chad Phillips,ior Vice President
\FCh
19
Armando C.la. City Manager
S A. Manw al'rn ity Cl
Approv to Form:
Margit Allen, AICP. Assistant Secretary
[Note:2 officer's signatures required if
Consultant is a corporation, unless provided
a certificate of secretary in-lieu]J Melching, City Atto
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n4
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7630.121 2 a08/29l19
EXHIBIT A
EXHIBIT A
SCOPE OF SE,RVICES
Kimley>Horn
october 7, 2019
M5. Cheryl Kitaerow, Community Development Direclor
City of Menifee
29844 Haun Road
Menifee, C-A 92585
RE: P.oposaltor Eiologlcal Rerources support for the Palomarwash Malnterance ProJect
oear Mi l(itrerow:
PuBUant to your request, please find attached our proposalto assist the city of Menitee in bringin8 the
City's maintenance practices current in relationghip to sensitive resources for the PalomarWash. lt is our
understanding that Palomar wash was hiatorically maintained by the Riverside countv Flood control
District. The city later became responsible for the maintena nce of t his reach of the wash. I n 2 019, at was
discovered that birrrowing owl lAthene cunlaulotio, IBUOWI) occupy the wash. Klmley.Horn has
partnered with Jericho Systems,lnc. to provide support servicesforthis project.
The BUow is a ground.dwelling ovvl typically found in arid p,airies, fields, and open areas where
vegetation is sparce and low to the Sround. The BUow it heavily dependent upon the presence of
lnammal bu(ows, with Sround 5quirrel burrows beinS a common choice, in its habitat to provide shelter
from p.edators, inclement weather and to provide a nesting place (Coulornbe 1971). ln California,
california ground squirrel lspemophilus beechel, burrows are frequently used by BUOW- TheY are also
known to make uge oI human-areated 3tructu,es, suah as cement culvertt and pipes, for burrows- They
are active durint the day and night and are generally observed in the early morning hours or at twilitht.
The breedingseason for SUOW is Feb.uary l through August 31-The BtOw is nol lisled underthe State
or fede.al EsA but is considered both a State and federal sp€ties of Special Conaern (sSC). The BUow is
a migrato.y bird proteatedbv the internatiorEl tr.aty under the Mi8ratory Bi.dTreaty Act of 1918 and by
State law t nder the crlifomia tish and Game code (cDfG codef3513 & 13503.5).
The following scope of work is based on City dir€clion given during a aonference call on October 1, 2019.
Scope of Work
Taskl-tialdsurvay
Jericho's biologists will conduct a guow aensus su ey in accordance wilhlhe"Slof! Repott on Ewrcwing
Owl MitiqatioL" Slate of California Natural Resources Agency, Department o, Fish and Garne, March 7,
2012. fieldwork contitts ofa pedest an sudeyofthe entire Projed area, inaludinga standard zoo.foot
burfer area. survey transects will be apaced to allow 10o percent visual covetage o, the Sround surface.
The diitdnce between tEnrect ce.ner lines will be no more than 30 teel apan and will te reduced to
account Ior difterences in terain. vegetatioi density, and gound surface visibility. Where EUOW are
@
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ITXHIBIl'A
3880 Lamon Stc4 Sun 420. Riv6G dc. ca 9250 t 95t 543 9858
Kimley>Horn
encountered, the surveyor will maintain a minimum dastance of 50 feet from any occupied burrows
Jericho willprepare a report ofthe findings, along with a site map ofthe burrow concentration areas.
Task 2 - Standard OperatlnB Procedures.nd StaffTraining
After gaining an understanding of the number of BIJOW potentially affected by routine maintenance,
lericho will prepaae a standard operating Procedure (soP) and handbook for future use by maintenance
staff. These materialr will provide staff with an unde.standing of the role5 and r6ponsibilitiea of
stewardship regarding BUowand other sensitive regources. Under this task, Jericho will also p.epare and
detivera presentation to the maintenance stafl for inhialtraining purposes.
Tasl 3 - Siological Monitorlng Du ng MaintenanEe
When maintenance resumes, Jeaicho willprovide a biological monitor to observethe owl's reaction to the
equipment. The monitor will ensure no adverse impads result. Please note that no-work buffers may be
required, depending on where the burrows are in relationship to the work and theh reaction to it.
Task4 - Bufiowihg OwlRelocation Plan
It may be determined that the BUOW are residents and cannot tolerate maintenance activities in close
proximity. ln this instance, we would prepare, process and execute a BUOW relocation plan. Prior to
execution ofthe plan,lericho would obtain approvalfrom the california Department of Fish and Wildlife
as required by law.
T.3k 5 - MaadnSs and contaranaa Call3
.lericho staff will be avallable to attend meetlnts and co nfererrce calls. Thi5 assumes up to 5 meetinSs and
5 conference calls.
Fee Estimate
ximley-Horn proposer to complete the above scope of work on a lump-sum basis with the assumptions
a! noted above, as follows:
Task 1- Field SuNey 51,000
Task 2 - SoP and Trainin8 53,500
Task 3 - Biological Monito.inS 52,000
Task 4 - Burrowing owl relocation plan (ifneeded) 55,000
Task 5 - Meetings and conference calls S2,0fi)
TOTAI: S13,50O
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7630421 2 a0000/00 -2-
3860 Lemon Street Suite 420 Rivecrde CA92501 951 543 S868
KimleyDHorn
We look forward to the opportunity to work with the Cityon this project. sholld you have any questions
or require additional information, please contact Project Manager KariCano at (951)543-9869 orvia email
at tair!.!9@&oLcvi.Qr@.
E*
Sincerely,
By:
{siSnatu.e)
(print name)
Title:
Date:
Kari Cano,Proiect Mana8er
' .tr
Kevin Thomas, Project Director
Approved:
City ol Menifee
@
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951 543 9868Iss1 543 rs6a
Kimley>Horn
Resumes of Key Staff
@
Professional
Cr€dehtials
. Master ofAns.
Political Science,
California State
Univorsity,
Fullefton
. Bachelor ofArts,
Political Science,
California State
University,
Fullerton
Prof€ssional
Affiliations
. Amedcsn Planning
Association
Kari Cano
Project Monaget
Kari Cano has 14 years of experienae as an environmental planner, and is
responsable for preparln8 and managing envkonmental and planning studies
for public and private sector clients, under the California Environmental
QualityAct (CEQA) and NationalEnvironmental PolicyAct {NEPA). She comes
to the field of plan nin&/environ me ntal plann ing from a diverse background in
urban development and politicalscience. With an in-depth understanding of
state and local policies, she provides CEQA compliance review and
environmental documentation, in addition to research, analysit and writing.
Her experience includes the analysis of commercial, recreational, industrial,
and residential p.ojects in the counties of san Bernardino, Los An8eles,
RiveBide, Ventura, San Dieto, and San loaquin.
Relevant Experience
On Call Environmental Support Services, As Needed. City of Menifee, -
Project Manager
Mill Creek Specific Plan EIR Peer Review, City of Menifee, CA- Project
Manager
Palomar Crossings EIR Peer Review, City of Menifee, CA-Project Manager
Rockpo{ Ranch EIR Peer Review, City of Menifee, CA-Project Manager
Haua and Holland MND Peer Review, City of Menifee, CA-Project
Manager
South 35 lnitial Study Peer Review, City of Menifee, CA-Projed Manager
Rockport Ranch EIR Peer Review, city of Menifee, cA-Project Manager
luotte Rancon lnitial Study Peer Review, City of Menifee, CA-Project
lranaSer
Forterra Pip€ lnitial Study/MitiSated Negative Declaration, City of
Menifee, CA Project Manager
2017-286 lnitial Study/Mitigated Negative De(laration, city of Menifee,
CA-Proiect ManaSer
Slover Warehouse Addendum ElR. City of Fontena, CA-Projed Manager
DcT LoSistics center Addendum ElR, City of Fontana, cr-Prorect ManaSer
l.Jnion Warehouse Addendum ElR, Cityof fontana, Cl-Project ManaSer
Monterado Residential Proiect IS/MND, City of Fontana, CA- Projed
Manager
The Retreat Residential Project IS/MND, Gty of Fontana, CA Project
Managet
Seville Parking cE, city of Fontana, CA Project Manager
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951 543 986E
KimleyDHorn
Live oak warehouse ls/MND. city of Fontana, cA-Project Manager
Beech Avenue Extension lS/MND, City of Fontana, cA-Projed Manager
Live Oak Warehouse lS/MN0, City of Fontana, CA-Project Manager
El Paseo lS/MND, City of Fontana, CA-Project Manager
Eloomington Business center flR, County ofSan Bernardino, CA " Projed
Manager
Western Realco ElR, County ofSan Bernardino, CA - Prolect Manager
Earvin Magic lohnson Recreation Park Master Plan ElR, County of Los
Angeles, CA- CECIA Task ManaSer
San Sevaine Trail ISMND, City of Fontana, CA - Project Manage.
Tracy Hills Specific Plan ElR, Caty ofTracy, CA - Environmental Planner
Oa.i5 Park ISMND, Community ofoasit cA - Project ManaSer
Oak View Estates ElR, City of Bradbury, CA- ctQA?ask Manager-
Encroachment Purchase Program lsMND, City of chino Hills, cA Project
ManaSer
Deep creek Homes ElR, CountyofSan Bernardino, CA- ProjectManaSer,
Ridge Fontana ONE Addendum ElR, City of Fontana, C.a - Project
ManaSer.
Ridgeline Commercial Development ISMND, City of San Eernardino, CA -
Projecl Manager.
Arrow Recovery Warehouse ISMND, City of Fontana, CA - Project
Nlanager.
North Shore Park ISMND, Salton Sea, CA - Projed ManaBer.
Serena Park EIR Peer Review, City of Palm Springs, CA - Project Mana8er.
Butterfield specifl. Plan ElR, Banning, CA - Environmental Planner
26?l/0318J8-0001
7630421 2 a00/00/00 -5-
3880 Lemon Stre€t SuitB 420. Riv€l3rde CAg2501 951 s43 9868
YsitjEitEEICH
Paoleiilonal
crcdcntlals
Srology, Occrdental
college Lo8
A ngeles CA
. Eachelor ol Arls
E nvron menlal
Sl!dres Unrvers(y
ol Ca[lornra Sania
Cruz
Wrldlrfe Servroe
F€doral 1O(a)
Recovery Permil -
San Bernardrno
kan9aroo ral
(Dipodo m ys
merramr parvua)
. US Frsh and
Wildlrte Servic€
Federal 10(a)
Recovery Permrl -
wrllow llyc atc hcr
(Emprdonax trelllll
. Calrlotnra
Oepsrtment ol F16h
Scrent lrc
Collectrng P.rmrt
. Cerlilied Wom a n'
Owned Busrness
Calrtornia P u blrc
Shoy Lowtey
Shay has more than 20 years of experience io environmental planning,
natural resource menaSement, sperial status gpecies surveY, regulatory
permittin& and aonstruation monitorinB. She has experjence in all project
types (public and privale)found in the lnland Empire, and has a provefl track
record in performing impact anaVses. she i5 known [or her abrlity to work
well with the regulatory atencies to achieve a balance between budgets,
timeframes and preservation-miti8atiofi. she has a working familiarity with
processes of numerout State and federal retulatory atencies ruah as U.S.
Forest Service(USFS), Brrreau of Land Manatement (BLM), Federal Hithrvays
Administration (fHWA), Federal Emer8ency Management Agency (FEMA),
Dep.rtment oI Hgmeland Security (DHs), Federal Airport Artho.ity (FAA),
U.S. Army Corps of En8ineers (Corps), U.S. Fish and Wildlife Service (USFWS),
State water Board (SWB), State nevolving Fund (SRt), California Arblic
lJtilit;es Comm;r5ion (CPUC), Re8ional Water Quality Control Board,
California Department of Fish and Wildlife (CDFW) etc, She is well versed in
both the Celifornia Environmental Quality Art (C[QA) and National
Envkonment.l Poli.y Act (NEPA). Mrs. Lawrey is skilled in NtPA complianre
analysis, documentation and has authored numerous lnitial Studies and
Environmental Aisessm€nts (EAsl. Ms. Lawrey is known throughout the
lnland Empire as someone who can deliver on projectr -!mallor lar8e. She
speaialiresin workingwith alients f.om con ception to construalion to ensure
the proiect runs smoothlv.
Relevant Experience
Plannint. P€rmittin& Cdrstrucdon Monitorln& lLbllat Resto.ation,
Gruenspot Road Bridt. Rrronstruction, Hithlard, CA - The new brldge
impacted 14 acres of significant resolrces ln the Santa Ana River floodplain
including critical habitat for San Bernardrno kangaroo rat {SBKR). Ms.
Lawrey's work on this project has 5panned from project conception to
construction - she condu.ted the fied surveys, negotiated with the
agencies, was named by the atencies as the construction monilor of record
durinS construction, and she i5 currentlythe lead forthe habitat rertoration.
wildlifc aiolo8ltt, Srn B.mardino lnt r.atidrC Ai.port CA - tead
conqJltins wildlife bioloSist for the San Bernardino lniemational Akpo^,
condurtinE eirport persoonel wildlife trainin& wildlife monitoring, assisting
with annual permit compliance.
951 5r3 9068
2671/031858-0001 6-
t
I
38€0 Lemon Streel Suite 4?0. Ri\Gr.id.. CA 92501
Siologlcal SurveF and ReSulatory Permittlnt, Vlctor Valley Waste Water Authorlly Upper Narrolrs
lntercepto. Raplacam3nt FEMA Project, CA - Severe storms in 2010 damaged a ponion ot a wastewater
trunk line in significant hatitat. Mi Lawrey prepared all of the permittinB and .onducted the bioloBical
monitorin8 aM documentation in compliance with ttMA She was also respontible fo. the r€Eulatory
permittin8 and coordination relative to nalural reaources issus with FEMA, Corp5, USFWS, CDFW,
Environmental Protection Agency, ReSionalwater Quality Conrol Board, San Manuel Mission Band of
lndiani, and CountyofSan Eernardino Flood Control Dstrict.
County of San Eernardlno Departrnent ofPubllc worti On.call Blolotkal servlces, C.]q - Shay is providing
a variety of bloloticalresource seNices. including surveys and reporting for numerour sensltive species,
.iurisd ictional waters delineations, various levels ofCEOA compliance documentation, nesting bkd surveys,
reEulatory agency interface/negotiation, and constru(tion comdiance monitoring-
26?1r031858-0001
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i.mley-horn com | 3s,so L.mo. sveet srfezzo R,vers,de cA 92501 951 543 986A