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HomeMy WebLinkAboutA6204 - CENTER FOR NATURAL LANDS MANAGMENT (CNLM) www.cnim.org CONSULTING SERVICES AGREEMENT Project Negotiations and Document Preparation Bogert Road Wash Conservation Easement FPN2571 THIS CONSULTING SERVICES AGREEMENT ("Agreement") is entered into as of kr eW rA. , 2012, by and between the Center for Natural Lands Management, a California 501(c)(3) nonprofit corporation (hereinafter"CNLM"or"Consultant")with a registered business address of 27258 Via Industria, Suite B,Temecula, CA 92590 and City of Palm Springs, a California charter city and municipal corporation with a registered business address of 3200 East Tahquitz Canyon Way Palm Springs, California 92262 (hereinafter"Project Proponent"). I. RECITALS A. CNLM is a nonprofit organization dedicated to the preservation of habitat and native species through effective long-term stewardship of both biological and financial resources. A critical aspect of this stewardship is proper initial planning regarding the necessary on-going and periodic tasks and associated costs. To facilitate this necessary planning, CNLM developed and employs the "Property Analysis Record" ("PAR") software system ("PAR©"). B. CNLM has the necessary expertise to perform the services described in this Agreement and desires to accept such engagement upon and subject to the terms and conditions of this Agreement. C. Project Proponent has received approval from the pertinent regulatory agencies related to the Bogert Bridge Trail Rehabilitation project("Project"). The Project is within the within Casey's June beetle 2009 Proposed Critical Habitat, and will impact approximately 0.96 acre of Casey's June beetle 2009 Proposed Critical Habitat. Among the measures to offset project impacts, the Project Proponent proposes to record a Critical Habitat conservation easement(parcel APN 512-190-027) in the wash, approximately 4.29 acres ("Property"). The Project location is in the Coachella Valley area of western Riverside County at the western end of the City of Palm Springs urban core. It is located within Section 35 of Township 4 South, Range 4 East on the Palm Springs 7.5 minute U.S. Geological Survey [USGS]quadrangle (USGS 2007); the Property is located directly upstream of the Project location. Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 1 of 18 ORIGINAL B0 ANDIOR AGR"FENIENT D. CNLM and Project Proponent entered into a Consulting Services Agreement on or about August 18, 2011 and an associated Purchase Order(#12-0350)on or about September 19, 2011. Pursuant to these documents, CNLM completed and provided a PAR for Project Proponent on December 16, 2011 determining and stating the costs and funds needed for CNLM to accept the responsibilities associated with holding a CE. E. Project Proponent requires the services of a qualified consultant to perform and complete the services described by this Agreement. II.TERMS AND CONDITIONS NOW THEREFORE, in consideration of the promises and mutual covenants contained herein, CNLM and Project Proponent hereby agree to enter into a time-and-materials contract as follows: 1. Services to be Performed by CNLM CNLM shall perform and complete the services described in Exhibit A(Scope of Work) attached hereto and incorporated herein by reference ("Services"). 2. Term of Services CNLM shall commence and diligently perform the Services to completion as provided in Exhibit B attached hereto and incorporated herein by reference (Work Schedule). 3. Compensation. Deposit. and Payment Schedule Project Proponent shall pay CNLM for the performance of the Services on a time-and- materials basis ("T&M") and, prior to commencement of Services by CNLM, Project Proponent shall provide CNLM with a deposit("Deposit") in the amount equal to fifty percent(50%) of the estimated total compensation for services("Estimated Cost")specked in Exhibit C (Compensation. Deposit. and Payment Schedule)attached hereto and incorporated herein by reference to serve as a source of payment for all or part of the Services performed under this Agreement. 4. Proiect Proponent Obligations and Acknowledgements With respect to this Agreement: a. Project Proponent acknowledges that CNLM intends to exercise due diligence on the Property and may interview, research,consult, and otherwise communicate with interested parties, including those employed by general and special purpose governments, state and federal agencies, and others, as appropriate. b. Project Proponent acknowledges that by entering into this Agreement, CNLM in no way obligates itself to either acquire or to enter into an agreement to acquire any interest in the Property . However, if at any time before the completion of the Service under this Agreement, CNLM determines it is unable or unwilling to acquire any interest in the Property, Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 2 of 18 CNLM agrees it shall immediately notify the Project Proponent and cease any further performance of the Services, so as to avoid any unnecessary expense to Project Proponent. C. Project Proponent acknowledges that this is not an exclusive services agreement and that CNLM has or may enter into similar agreements with individuals, government entities, and/or other business associations, including some which may share with Project Proponent similar business activities and/or North American Industry Classification System (NAICS)codes. d. The Project Proponent agrees to obtain CNLM's written permission before posting any document drafted by CNLM on an Internet website accessible by the general public. e. The Project Proponent will allow CNLM to review and approve any document or work product which uses or incorporates any portion of any work product produced by CNLM before releasing such document or work product to any person(s) except to the extent production is required pursuant to the California Public Records Act or such other applicable law The Project Proponent will further allow CNLM to correct any Project Proponent interpretation or representation of the technical content of the work produced by CNLM. 5. Revisions Any revision to any portion of this Agreement, including Exhibit A(Scope of Work), Exhibit B (Work Schedule), Exhibit C (Compensation, Deposit, and Payment Schedule), or Exhibit D (Insurance)shall be set forth in writing and signed by the parties. 6. Representations by CNLM CNLM represents that its Services under this Agreement shall be performed in a manner consistent with that level of care and skill ordinarily exercised by other professional consultants in its field of specialty under similar circumstances. 7. Confidentiality and Non-disclosure a. CNLM acknowledges that in the course of providing the Services hereunder, it may be exposed to certain confidential and proprietary information of Project Proponent. Such confidential and proprietary information is that information identified and designated by Project Proponent as "Confidential," "Confidential Business Information,"or"CBI". CNLM agrees to hold in strict confidence all such information. CNLM further agrees that CNLM: (1) shall not use such information or data other than for the purposes of this Agreement; (2)will take all reasonable steps to restrict the disclosure of such information or data within its own organization to those persons who are directly concerned therewith and who have been informed of CNLM's obligations hereunder; and (3)shall not disclose such information or data to any third party without the prior written consent of Project Proponent. b. CNLM's obligations under this Section 7 shall survive the expiration or termination of this Agreement, but shall not apply to information which: (1)was known to CNLM prior to any disclosure by Project Proponent, as evidenced by suitable written documentation; (2) is or shall become public information through no fault of CNLM; (3) is received by CNLM from a third party having no confidentiality obligation to Project Proponent; or(4)which CNLM is required by law to produce or reveal to any third party through a properly issued subpoena or Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 3 of 18 court order, in which event CNLM shall promptly notify Project Proponent of its receipt of such subpoena or court order. 8. Insurance and Liens At all times during the term of this Agreement, CNLM shall maintain, at its sole cost and expense, the insurance coverages covering activities performed under, and obligations undertaken in, this Agreement as described and defined in Exhibit D (Insurance), attached hereto and incorporated herein by reference. 9. Independent Contractor Status and Use of Subcontractors CNLM shall perform the Services as an independent contractor and is not, and shall not be deemed as, an agent, employee, or representative of Project Proponent. CNLM has no authority to assume or create any commitment or obligation on behalf of or to bind Project Proponent in any respect whatsoever and shall not represent that it has such authority or otherwise hold itself out as having such authority. CNLM may use subcontractors to perform Services under this Agreement. CNLM shall promptly provide to Project Proponent the names and business addresses of any subcontractors that it proposes to use. Any subcontractor used by CNLM shall not be or act as an agent, employee, or representative of Project Proponent. Any subcontractor used by CNLM shall be qualified and licensed to perform any Services or services as may be requested by CNLM. CNLM is solely responsible for ensuring that all of its contractors, subcontractors, agents, and/or employees abide at all times by the terms of this Agreement. 10. Prohibition against Assignment or Delegation Except as otherwise provided in this Agreement, CNLM shall not, without the prior express written consent of Project Proponent, assign,transfer, or delegate any of its obligations or duties under this Agreement. 11. Termination Project Proponent may terminate this Agreement for cause upon five (5)working days written notice to CNLM. Additionally,the Project Proponent may terminate this Agreement without cause upon providing CNLM thirty(30)days advance written notice. CNLM shall be entitled to all amounts due for Services performed, actual cost of services and materials purchased as of the date of termination, and commercially reasonable costs directly attributable to such termination. Upon receipt of notice of termination, CNLM shall obtain Project Proponent's prior written approval before performing any additional services under this Agreement. 12. Notices All notices required under this Agreement shall be in writing and shall be addressed to the recipient as set forth in Exhibit A(Scope of Work). All notices shall be deemed effectively given when delivered, if delivered personally or by couriered mail service; three (3)days after such notice has been deposited in the United States mail postage prepaid, if mailed certified or Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 4 of 18 registered U.S. mail, return receipt requested; or when received by the party for which notice is intended if given in any other manner. 13. Access Subject to the terms of this Agreement, Project Proponent will ensure that CNLM is granted appropriate licenses to perform such physical inspections, surveys, and studies, and review such other matters related to the Property as CNLM deems necessary or appropriate for its review of the Property. In connection therewith, Project Proponent shall ensure that CNLM has the legal right and reasonable ability to enter upon the Property during normal business hours for the purpose of conducting such inspections, surveys, and studies. CNLM shall not enter the Property without providing Project Proponent(or the landowner, if different than Project Proponent)with at least forty-eight(48) hours advance notice unless otherwise agreed by the parties to this Agreement. 14. Indemnity a. To the fullest extent permitted by law, CNLM shall defend (at CNLM's sole cost and expense), indemnify, protect, and hold harmless Project Proponent, its elected officials, officers, employees, and agents (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs,judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively"Claims'), including but not limited to Claims arising from injuries to or death of persons (CNLM's employees included), for damage to property, including property owned by Project Proponent, from any violation of any federal, state, or local law or ordinance, and from errors and omissions committed by CNLM, its officers, employees, representatives, and agents, that arise out of or relate to CNLM's performance under this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Project Proponent, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit CNLM's indemnification obligation or other liability under this Agreement. CNLM's indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. This provision is intended for the benefit of third party Indemnified Parties not otherwise a party to this Agreement. b. Project Proponent agrees to indemnify, defend, and hold harmless CNLM from and against any and all claims, liability, loss, cost, or expense, including without limitation, reasonable attorneys' fees, expenses, costs of litigation, and expenses reasonably incurred in investigating or attempting to avoid or oppose the imposition of damages or in enforcing this indemnity, of whatever kind or nature which CNLM may sustain by reason of any suits, claims, demand, litigation, proceeding, or matters caused by Project Proponent relating to or involving CNLM's access to the Property under this Agreement. 15. Disoute Resolution In the event a dispute shall arise between the parties to this Agreement that cannot be resolved by negotiating in good faith or through mediation, it is agreed that the dispute shall then be referred to an arbitration service selected by agreement of the parties. The arbitrator's Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 5 of 18 decision shall be final and legally binding and judgment may be entered thereon. Each party shall be responsible for its share of the arbitration fees in accordance with the applicable rules of arbitration. In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator's award, or fails to comply with the arbitrator's award, the other party is entitled to costs of suit, including reasonable attorney's fees for having to compel arbitration or defend or enforce the award. 16. Force Maieure Neither party hereto shall be liable to the other for its failure to perform under this Agreement when such failure is caused by strikes, accidents, acts of God,fire,war, flood, governmental restrictions, or any other cause beyond the control of the party charged with performance; provided that the party so unable to perform shall promptly advise the other party of the extent of its inability to perform. Any suspension of performance by reason of this Section shall be limited to the period during which such cause of failure exists. 17. Nonwaiver No provision of this Agreement shall be waived, by conduct or otherwise, except in writing signed by both parties. No assent or waiver,whether expressed or implied, of any breach of any one or more of the covenants, conditions, or provisions set forth in this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other covenant, condition, or provision hereof. 18. Successors This Agreement shall be binding on and shall inure to the benefit of the parties hereto and their respective successors, agents, representatives, heirs, and assigns. However, nothing herein shall be deemed to permit an assignment or delegation by CNLM in contravention of Section 10,above. 19. Nondiscrimination During the performance of this Agreement, CNLM and its subcontractors shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment on the basis of race, color, national origin, religion, creed, gender, physical or mental disability(including HIV and AIDS), medical condition (cancer-related or genetic characteristics), ancestry, marital status, age (40 and above), sexual orientation, citizenship, denial of family or medical care leave, or status as a covered veteran (special disabled veteran, Vietnam-era veteran, or any other veteran who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized). CNLM and subcontractors shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. CNLM and subcontractors shall comply with the provisions of the Fair Employment and Housing Act(Gov. Code§12990 (a-f) et seq.)and the regulations promulgated thereunder(California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 6 of 18 CNLM and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. CNLM shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this Agreement. 20. Applicable Law The validity of this Agreement and of its terms or provisions, as well as the rights and duties of the parties hereunder shall be governed and interpreted in accordance with the laws of the State of California. 21. Severability If any provision of this Agreement shall be adjudged invalid by any court, the remaining provisions of this Agreement shall remain valid and enforced to the full extent permitted by law. 22. Integrated Agreement This Agreement, including all Exhibits attached hereto, contains the entire understanding and agreement between the parties, sets forth all the rights and duties of the parties with respect to the subject matter hereof, and replaces and supersedes all previous agreements or understandings,whether written or oral, relating thereto. No modification of this Agreement or any of its terms shall be effective unless in writing and signed by the duly authorized representatives of the parties. 23. Time Time is expressly of the essence with respect to this Agreement. 24. Counterparts The parties may execute this instrument in two counterparts, which shall, in the aggregate, be signed by CNLM and Project Proponent; each counterpart shall be deemed an original instrument as against any party who signed it. The terms and conditions incorporated herein are a material part of this Agreement. CNLM and Project Proponent have read and fully understand each and all of the terms and conditions set forth above. SIGNATURES ON FOLLOWING PAGE Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 7 of 18 CENTER FOR NATURAL LANDS MANAGEMENT By signing this Agreement, the undersigned agrees that he/she is a duly authorized agent of CNLM and is authorized to enter into this Agreement. 6k'Z' 1Ckq4lx- 1 Date (p David R. Brunner Executive Director Center for Natural Lands Management 27258 Via Industria, Suite B, Temecula, CA 92590 (760) 731-7790 Phone (760) 731-7791 Fax dbrunner@cnlm.org www.cnlm.org TIN 68-0233573 PROJECT PROPONENT By signing this Agreement,the undersigned agrees that he/she is a duly authorized agent of the Project Proponent and is authorized to enter into this Agreement. Date Z7 Z- David Barakian Director of Public Works/City Engineer City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 APPROVED AS TO FORM (760) 323-8299 Phone ' L - www.ci.palm-springs.ca.us A omy Date � 7, /�— ATTEST. �1 rty Clerk APPROVED BY DEPARMENT HEAD Consul ng Services Agreement—PN and Documents V\k(,t City of Palm Springs PN257 Bogert Road Wash CE y Page 8 of 18 Exhibit A Scope of Work 1. Property Information Property Name: Palm Canyon Wash—Bogert Bridge Rehabilitation site Property Ownership: City of Palm Springs City: City of Palm Springs County: Riverside State: California Acres: approximately 4.29,western end of City of Palm Springs urban core, APN 512-190-027 2. Contact Information Marcus L. Fuller, P.E., P.L.S. Assistant City Engineer/ Assistant Director of Public Works City of Palm Springs (760)323-8253, ext. 8744 Project Proponent: Marcus.Fuller@palmspringsca.gov For General, Invoicing, and Project Consultant: Certificates of Sarah Jenkins, Environmental Manager Insurance purposes. Dokken Engineering, Iron Point Road, Suite 200 Folsom, CA 95670; (916)858-0642 (work); (916)858-0643(fax) (916)806-0642 (cell); s'enkins dokkenen ineerin .com Rebecca Kramer Director of Conservation Acquisitions CNLM: Center for Natural Lands Management For General purposes 27258 Via Industria, Suite B, Temecula, CA 92590 (510)725-4691 Phone/Fax rkramer@cnlm.org 3. Background/Assumptions The below tasks will be undertaken, and associated documents prepared, based upon the assumption that CNLM will (a)accept Conservation Easement(CE)over the Property and (b) accept, hold, and manage the monitoring endowment("Endowment') said funding to be Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 9 of 18 provided concurrently with the recording of the CE in favor of CNLM. CNLM shall not be obligated in any way to accept any interest in the Property until the completion and approval by CNLM of all due diligence investigations, review of transaction documents, and CNLM Board approval. 4. Services Project Proponent requires the services of a qualified consultant to perform the following: a. Prepare Consulting Services Agreement. CNLM will prepare this Consulting Services Agreement ("Agreement") between CNLM and Project Proponent. b. Review any new documents not previously provided relevant to the CE for the Property, which may include but are not limited to long term habitat management or maintenance plan(s). C. Review new, updated, or additional existing documentation not previously provided on the Property including a Preliminary Title Report and related underlying documents pertinent to the exceptions to title provided by a mutually agreeable title company. d. Conduct site visit to provide information for baseline documentation. e. Prepare Project Document(s): CNLM will draft, develop, review, and finalize Project Document(s) including, but not limited to: (1)Conservation Easement(CE), (2) Compliance Monitoring and Funding Agreement(CMFA); (3) Memorandum of Compliance Monitoring and Funding Agreement(Memo of CMFA); (4) Baseline Documentation Report; and (5) Escrow Instructions. To the extent available and practical, both parties anticipate using the legal and contract narrative(s) recently used in agency-approved agreements or documents.Additionally, CNLM and Project Proponent may base Project Document(s)on template(s)and or documents created as a result of other projects. Each Party agrees to make best efforts to respond to requests for information and to provide requested comments to the other Party within fifteen (15) business days of receipt of the most recent version of that Project Document, as that term is defined in this paragraph. f. Participate in Meeting(s): CNLM will participate in discussions and meetings as needed and agreed to by both parties as a productive contribution towards completing these tasks to the extent provided by staff time included in the Exhibit C. These discussions and meetings may be with the Project Proponent, at their request, and with the Project Proponent's consultant, with the approval of the Project Proponent. Unless additionally funded, as a normal practice,these meetings will be conducted via teleconference. Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 10 of 18 g. Prepare CNLM Documentation: CNLM will prepare documentation per CNLM's policies in order to satisfy internal policies and procedures, or Board requirements,to secure Board consideration and approval, as may be necessary; and as consistent with professional standards prior to any land transactions associated with this Agreement. h. Coordinate close of escrow. CNLM will use its best efforts to complete this Scope of Work as described in Exhibit B (Work Schedule). 5. Tasks and Exoenses not included in Scope of Work The following are tasks and expenses are not included in this Scope of Work: a. Major revisions to a completed PAR or cost analysis. b. Participation in meetings, administrative proceedings, and/or negotiations with regulatory agencies, or special purpose or general purpose governments. C. Client meetings(in-person). d. Resolving new issues or creating/evaluating new documents not identified in this Scope of Work. 6. Agreement Cost Changes a. Project Proponent agrees to work closely with CNLM and to coordinate regarding changes to the Scope of Work, including scheduling and unanticipated issues. Written confirmation of agreed upon changes will be provided by Project Proponent as soon as is reasonably possible. CNLM will not be required to continue work until written confirmation of changes has been received from Project Proponent. b. CNLM shall obtain prior written authorization from Project Proponent for any additional funds beyond the not-to-exceed amount required in order to complete the Scope of Work detailed in this Exhibit A. C. Revisions to a completed PAR requested by the Project Proponent in writing shall be paid by the Project Proponent at the applicable rate according to Hourly Rates detailed in Exhibit C (Compensation, Deposit. and Payment Schedule), plus other direct expenses. d. Project Proponent agrees to compensate CNLM should additional time and travel be required for site visits and/or meetings made at the specific written request of the Project Proponent and exceeding tasks specked in Exhibit A (Scope of Work)at the applicable rate according to the Hourly Rates detailed in Exhibit C (Compensation, Deposit. and Payment Schedule), plus direct expenses. Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 11 of 18 Exhibit B Work Schedule Commencement Date Unless otherwise agreed to by the Parties, the Commencement Date is defined as the date CNLM is in possession of all of the following items: (a)executed Agreement: (b) Initial Deposit; (c)documents and/or data requested under Section 4 of Exhibit A (Scope of Work); and (d)written permission to access the Property by the current Iandowner(s). Service(s) Timeline (business days) Service Description 1. Prepare Consulting N/A Agreement drafting, negotiations, Services Agreement and finalization. (Agreement) 2.a. Project Document: Within 45 days of CNLM will provide to Project Compliance Managemeni Commencement Date Proponent a draft CMFA for review. and Funding Agreement 2.b Project Document: Within 15 days of CNLM will provide Project Escrow Instruction finalization of CMFA Proponent with draft of Escrow Instructions. 2.c. Project Document: Within 15 days of CNLM will provide to Project Memorandum of finalization of escrow Proponent a draft Memo of CMFA Compliance Managemeni instructions for review. and Funding Agreement 2.d Project Document: Within 15 days of CNLM will provide to Project Conservation Easement finalization of escrow Proponent a draft CE for review instructions 2.e. Project Document: Within 30 days of Prepare and deliver for signature Baseline Documentation finalization of escrow Baseline Documentation Report. Report instructions 3. Meetings As needed Participation in discussions and meetings as required and by both parties in advance. 4. CNLM Governance and As needed CNLM will, consistent with its Documentation governance procedures, prepare all necessary documents in order to satisfy Board approved realty acquisition and stewardship policies. Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 12 of 18 5. Coordinate Close of As needed CNLM will facilitate and coordinate Escrow close of escrow. Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 13 of 18 Exhibit C Compensation. Deposit, and Payment Schedule 1. Compensation Under this Agreement, CNLM will provide services on a time-and-materials basis. Project Proponent agrees CNLM will be compensated at agreed rates, for actual work performed, travel time, expenses incurred, and materials used in performing the Services in Exhibit A(Scope of Work). Fees will be charged to Project Proponent at the rates shown under Hourly Rates below. Project Proponent agrees to pay CNLM up to the sum of Twelve Thousand Five Hundred dollars ($12,500), the estimated total compensation ("Estimated Cost'). This is a not- to-exceed without permission cost estimate based on the tasks covered in the Exhibit A(Scope of Work). a. Hourly Compensation Rates ("Hourly Rates") Position Not-for-Profit/ Government Executive Director $150.00 General Counsel $130.00 Director of Conservation Acquisitions $110.00 Director of Conservation Science $110.00 Director of Administration $110.00 Senior Biologist/Preserve Manager $90.00 Administrative Staff $40.00 Outside Consultant(s) Senior Consultant $185.00 Consulting Biologist $85.00 Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 14 of 18 b. Other Costs and Expenses CNLM will request reimbursement for expenses incurred including, but not limited to, mileage, travel, lodging, meals and incidental, postage/shipping and copies. 2. Deposit Fifty percent(50%), or Six Thousand Two Hundred Fifty dollars($6,250), of the Estimated Cost will be due upon Project Proponent's execution of this Agreement("Initial Deposit")to be applied against CNLM's invoices. No additional payments will be due to CNLM until the Initial Deposit is exhausted. 3. Payment Schedule CNLM will submit monthly invoices for services performed. Project Proponent will provide payment to CNLM within thirty(30)days of all properly billed invoices. Payments delinquent thirty (30)days or more will be cause for CNLM, at its sole discretion, to suspend all work on behalf of the Project Proponent until all outstanding invoices are paid in full. Project Proponent agrees to hold CNLM harmless from all liability that may arise as a result of suspension of work due to Project Proponent's non-payment of fees. Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 15 of 18 Exhibit D Insurance 1. Procurement and Maintenance of Insurance. Consultant shall procure and maintain public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Consultant's performance under this Agreement. Consultant shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of this Agreement. Consultant shall also carry workers' compensation insurance in accordance with California workers' compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Consultant's obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers. 2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement shall be as follows: a. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000)general aggregate; b. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence; C. Professional liability(errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000)annual aggregate: is required X is not required; d. Workers' Compensation insurance in the statutory amount as required by the State of California and Employer's Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Consultant has no employees, Consultant shall complete the City's Request for Waiver of Workers' Compensation Insurance Requirement form. 3. Primary Insurance. For any claims related to this Agreement, Consultant's insurance coverage shall be primary with respect to the City and its respective elected officials, officers, employees, agents, Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 16 of 18 and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Consultant's insurance and shall not contribute with it. For Workers' Compensation and Employer's Liability Insurance only, the insurer shall waive all rights of subrogation and contribution it may have against City, its elected officials, officers, employees, agents, and volunteers. 4. Errors and Omissions Coverage. If Errors& Omissions Insurance is required, and if Consultant provides claims made professional liability insurance, Consultant shall also agree in writing either(1)to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Consultant's services under this Agreement, or(2)to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Consultant's services under this Agreement. Consultant shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy. City agrees Errors and Omissions Insurance is not required for this Agreement. 5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best's Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City. 6. Verification of Coverage. Consultant shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, effecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Consultant's insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers' Compensation policies. Verification of Insurance coverage may be provided by: (1)an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or(2)an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: a. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured..." ("as respects City of Palm Springs Contract No._" or"for any and all work performed with the City" may be included in this statement). b. "This insurance is primary and non-contributory over any insurance or self-insurance the City may have..." ("as respects City of Palm Springs Contract No. " or"for any and all work performed with the City" may be included in this statement). Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 17 of 18 C. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, "endeavor to" mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. d. Both the Workers' Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage,whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Consultant's obligation to provide them. 7. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions for any insurance required pursuant to this Agreement must be declared to the City. Any deductibles or self-insured retentions in excess of ten thousand dollars ($10,000)must be approved by the City prior to commencing any work or services under this Agreement. In the event Consultant's insurance has deductibles or self- insured retentions in excess of$10,000, City shall have the option of requiring either of the following: (1)the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or(2) Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Certificates of Insurance must include evidence of the amount of any deductible or self-insured retention under the policy. Consultant guarantees payment of all deductibles and self-insured retentions. 8. Severability of Interests(Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer's liability. Consulting Services Agreement—PN and Documents City of Palm Springs PN257 Bogert Road Wash CE Page 18 of 18