Consultant - 2009 - Environmental Conservatiuon Services - 1/21/2009
MASTER CONSULTING SERVICES AGREEMENT
This agreement ("Agreement"), with an effective date of
City of Eagle ("CLIENT") and Environmental Conservation
In consideration of the mutual covenants and promises contained herein, the parties agree as follows:
1 SCOPE OF SERVICES
1.1 CONSULTANT shall provide Wildlife Habitat and Mitigation Plan Review services for the
City. The services to be performed by CONSULTANT under this Agreement ("Services") shall be
set forth in individual task orders using the general format set forth in Attachment A ("Task
Order"), attached hereto and incorporated herein by reference.
1.2 Wildlife Habitat and Mitigation Plan Review services for specific applications.
CONSUL T ANT shall provide the requisite expertise which shall include a qualified ecologist,
wildlife biologist, and a botanist who shall review and evaluate specific large land development
applications proposed within the City and surrounding areas in order to review, draft, and analyze
impacts to wildlife and habitat assessments, plan communities, special status species (plant and
animal), as well as associated mitigation plans for specific development applications.
Required services include but are not limited to:
1. Recommend application and submittal requirements for the various development application
types.
2. Recommend means to avoid or reduce adverse effects to wildlife habitat, protect wildlife
habitat, native plant communities, and special status species, and/or mitigate the impacts to
habitat as a result of land use changes in or adjacent to critical habitat or development
adjacent to preservation areas.
3. Review and analyze wildlife and habitat assessment and Wildlife Mitigation Plans, based on
the applicant-developed technical reports and recommendations.
4. Review and analyze submitted Mitigation Plans addressing, where applicable:
a. Wetlands mitigation plan;
b. Noxious weed abatement plan;
c. Conservation plan alleviating Idaho-listed species of habitat conservation concerns.
5. Coordinate and consult, on behalf ofthe City, with all applicable agencies where applicable.
1.3 General Wildlife Habitat and Mitigation Consulting Services.
CONSULTANT shall additionally provide general advisory services in addition to specific
application project review. General advisory services may include the drafting of municipal policy
and ordinance provisions and review and interpretation of statutory, regulatory, or other applicable
legislation. CONSULTANT shall assist and represent the City with interaction with respective
governmental entities, regulatory agencies, public interest groups, or other interested parties.
2 TASK ORDER PROCESS
2.1 Upon the request of CLIENT, CONSULTANT shall prepare a Task Order contammg an
identification of the project ("Project"), description of the Services, compensation to be paid to
CONSULTANT for the performance of the Services ("Compensation"), and a proposed schedule for the
Agreement (Rev 8/10/06)
performance ("Project Schedule") for the Services consistent with the scope of services of paragraph 1.1
herein.
2.2 Upon mutual agreement of the parties, the Task Order shall be finalized and executed by the parties.
The effective date of the task order will be as set forth in the individual Task Order.
2.3 Changes to the Task Order shall be made in writing and signed by both parties.
3 INVOICING AND PAYMENT
3.1 CONSULTANT shall submit its standard monthly invoice describing the Services performed and
expenses incurred during the preceding month. CLIENT shall make payment of all undisputed portions of
such invoice and provide written justification for the withholding of any disputed portions to
CONSULTANT within 30 calendar days after receipt of CONSUL T ANT's monthly invoice.
3.2 Payment for services shall be based upon the CONSULTANT staff member's level of
expertise, years of experience, and education. CONSULTANT agrees that where a lower level staff
member has the requisite expertise to address a certain task, such a member shall be utilized for less
involved aspects of the review process to reduce costs and increase efficiency.
Senior Level Ecologist (Charles Baun)
Senior Level GIS (Brandt Elwell)
Mid-Level Biologists (Kenn Hardin, Hilary Heist, Danielle Maguire
Administrative
$85/hr
$75/hr
$65/hr
$45/hr
All rates include mileage
4 PERIOD OF PERFORMANCE
4.1 This Agreement shall have an effective date as set forth above and shall remain in effect until
terminated earlier pursuant to this Agreement.
5 CLIENT'S RESPONSffiILITIES
5.1 The Zoning Administrator as authorized by the City Council shall act as CLIENT's representative
with respect to this Agreement. Such person will have such authorization to transmit instructions, receive
information and interpret and define CLIENT's policies and decisions consistent with said authority from the
City Council.
5.2 CLIENT shall furnish to CONSULTANT all applicable information and technical data in CLIENT's
possession or control which CLIENT may lawfully release, including but not limited to, applications, the
applicant's submitted mitigation plans, maps, surveys, drawings, soils or geotechnical reports, and any other
information relating to the Services and requested by CONSULTANT. CONSULTANT shall be entitled to
reasonably rely upon the information authored by CLIENT, CLIENT's representatives, or from generally
accepted sources without independent verification except to the extent such verification is expressly
included in the Scope of Services.
5.3 CLIENT shall examine all studies, reports, sketches, drawings, specifications, and other documents
presented by CONSULTANT, seek legal advice, or other consultant( s), as CLIENT deems appropriate for
such examination. If any document requires CLIENT to approve, comment, or to provide any decision or
direction, such approval, comment, decision or direction shall be provided within a reasonable time within
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Agreement (Rev 8/1 0/06)
the context of the temporal sensitivity of the Services provided.
5.4 CLIENT shall arrange for access to and make all provisions for CONSULTANT to enter upon
public and private property as required for CONSULTANT to properly perform the Services.
6 CONSULTANT'S RESPONSffiILITIES
6.1 Charlie Baun will serve as CONSULTANT'S responsible task manager for the performance
of all Services. He will keep the City Zoning Administrator and Attorney current on all project-
related matters that are within his management role. Mr. Baun will meet with City staff on an as
needed basis to review and coordinate progress of pending tasks.
6.2 CONSULTANT shall perform the Services as an independent contractor and not as CLIENT's agent
or employee. CONSULTANT shall be solely responsible for the compensation, benefits, contributions and
taxes, if any, of its employees and agents.
6.3 The standard of care applicable to CONSULTANT's Services will be the degree of skill and
diligence normally employed by professional consultants performing the same or similar services at the time
and location said Services are performed. CONSULTANT will re-perform any Services not meeting this
standard without additional compensation.
6.4 When CONSULTANT provides on-site monitoring personnel at a project site as part of its Services,
the on-site monitoring personnel will notifY CLIENT of any observed errors, violations, and/or defects in the
Work; will otherwise make reasonable efforts to guard CLIENT against defects and deficiencies in the work
of a particular client as it pertains to Wildlife Habitat and Mitigation Plan concerns and will help to
determine if the provisions of the applicable mitigation plans are being fulfilled. The providing of on-site
monitoring personnel will not, however, cause CONSULTANT to be responsible for those duties and
responsibilities which belong to an applicable developer or contractor.
6.5 CONSULTANT has provided a list of prior clients that may be deemed a potential conflict of
interest. CONSULTANT shall be on a continuing duty to timely advise the CLIENT of any potential
conflicts of interest. Should the CLIENT determine that a conflict of interest exists, CONSULTANT shall
follow the client measures identified herein to wit:
6.5.1 Secondary Assessment Protocol. CONSULTANT shall prepare a secondary assessment
protocol including two components; the purpose of which is to verifY that all application reviews are
consistent with the services typically provided by CONSULTANT by a qualified, un-biased third party. The
first component will be a Client-approved standardized evaluation process where by CONSULTANT
identifies the nature of the task, the baseline information required, the format of any required reports, and a
quantifiable way to assess if the mitigation actions proposed by an applicant adequately address the impacts.
The second component will be a set of suitable third party non-biased consultant recommendations provided
by CONSULTANT to the CLIENT in order to find a qualified professional replacement. The secondary
assessor will be required to utilize the analysis format and standardized assessment protocol developed by
CONSULTANT and approved by CLIENT, but would make all comments and recommendations directly to
the CLIENT. The final authority to selection secondary assessors that will serve in such occasions rests
wholly with the CLIENT.
7 FORCE MAJEURE
7.1 Neither party shall be responsible for a delay in its performance under this Agreement, other than a
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Agreement (Rev 8/10/06)
delay in payment for Services already performed, if such delay is caused by extraordinary weather
conditions or other natural catastrophes war, riots, strikes, lockouts or other industrial disturbances, acts of
any governmental agencies or other events beyond the reasonable control ofthe claiming party.
8 CONFIDENTIALITY
8.1 CONSULTANT shall treat as confidential and proprietary all information and data delivered to it by
CLIENT ("Confidential Information"). Confidential Information shall not be disclosed to any third party,
other than CONSULTANT's subcontractors or subconsultants, during or subsequent to the term of this
Agreement. Nothing contained herein shall preclude CONSULTANT from disclosing non-confidential
information or data: (i) in the public domain without breach of this Agreement; (ii) developed independently
by CONSULTANT; (iii) received by CONSULTANT on a non-confidential basis from others who had a
right to disclose such non-confidential Information; or (iv) where disclosure or submission to any
governmental authority is required by applicable statutes, ordinances, codes, regulations, consent decrees,
orders, judgements, rules, and all other requirements of any and all governmental or judicial entities that
have jurisdiction over the Services ("Law"), but only after actual prior written notice has been received by
CLIENT and CLIENT has had a reasonable opportunity to protect disclosure of such Confidential
Information.
9 RIGHTS IN DATA
9.1 All work products provided by CONSULTANT to CLIENT shall be deemed to be work-for-hire and
shall belong to CLIENT ("Work Product"). Methodologies and other instruments of service used to prepare
the Work Product shall remain the property of CONSULTANT. Any modification or reuse of the Work
Product without written verification or adaptation by CONSULTANT for the specific purpose intended will
be at CLIENT's sole risk and without liability or legal exposure to CONSULTANT or to CONSULTANT's
subcontractors and subconsultants.
10 INSURANCE
10.1 CONSULTANT will furnish to CLIENT copies of insurance certificates evidencing that it maintains
the following coverage's while performing Services, subject to the terms and conditions of the policies:
TYPE
AMOUNT
Workers Compensation
Statutory
Employers' Liability
$1,000,000 policy limit
Commercial General Liability
$1,000,000 per occurrence for bodily injury, including death and
property damage, and $1,000,000 in the aggregate
Automobile Liability
$1,000,000
Professional Liability (E&O) and
Professional Pollution Liability
$1,000,000
10.2 CONSUL T ANT will furnish CLIENT with certificates of insurance verifYing the above referenced
coverages and stating that the insurance carrier will provide CLIENT with thirty days prior written notice of
insurance cancellation or reduction below the above listed requirements. CONSULTANT shall list CLIENT
as an additional insured for the Commercial General Liability and the Automobile Liability insurance.
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Agreement (Rev 8/1 0/06)
11 INDEMNITY
11.1 To the fullest extent permitted by law, CONSULTANT agrees to indemnifY CLIENT, its officers,
directors, employees, and agents from loss or damage for bodily injury or property damage, ("Claims"), to
the extent caused by the negligence, omissions, or willful misconduct of CONSULTANT, its officers,
directors, employees, agents, and consultants in the performance of the Services. This obligation to
indemnifY CLIENT shall not impose any obligation on CONSULTANT that exceeds the Limitation of
Liability provisions set forth below.
12 LIMITATION OF LIABILITY
12.1 IN RECOGNITION OF THE RELATIVE RISKS AND BENEFITS OF THE PROJECT TO BOTH
CLIENT AND CONSULTANT, THE PARTIES AGREE, TO THE FULLEST EXTENT PERMITTED BY
LAW, TO LIMIT TO ACTUAL DAMAGES NOT TO EXCEED ONE MILLION DOLLARS
($1,000,000.00); THE AGGREGATE LIABILITY OF CONSULTANT, ITS PARTNERS AND
SUBCONTRACTORS, AND THEIR RESPECTIVE PARTNERS, OFFICERS, EMPLOYEES AND
AGENTS. THIS LIMITATION OF LIABILITY SHALL APPLY TO ALL SUITS, CLAIMS, ACTIONS,
LOSSES, COSTS AND DAMAGES OF ANY NATURE, INCLUDING BUT NOT LIMITED TO LEGAL
FEES AND EXPENSES, ARISING FROM OR RELATED TO THIS AGREEMENT AND WITHOUT
REGARD TO THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS IMPOSED.
12.2 BY ENTERING INTO THIS AGREEMENT, THE PARTIES ACKNOWLEDGE THAT THIS
LIMITATION OF LIABILITY CLAUSE HAS BEEN REVIEWED, UNDERSTOOD, IS A MATERIAL
PART OF THIS AGREEMENT, AND EACH PARTY HAS HAD THE OPPORTUNITY TO SEEK
LEGAL ADVICE REGARDING THIS PROVISION.
13 SUSPENSION
13.1 CLIENT may, at any time and without cause, suspend the Services of CONSULTANT, or any
portion thereof for a period of not more than 90 days by notice in writing to CONSULTANT.
CONSULTANT shall resume the Services on receipt from CLIENT of a written notice of resumption of the
Services. In the event that the period of suspension exceeds 90 days, the contract time and compensation are
subject to renegotiation.
14 TERMINATION
14.1 CLIENT may terminate all or part of this Agreement for CLIENT's convenience by providing 10
days written notice to CONSULTANT. In such event, CONSULTANT will be entitled to Compensation for
the Services performed up to the effective date of termination plus compensation for reasonable termination
expenses. CONSULTANT will not be entitled to compensation for profit on Services not performed.
15 DISPUTES RESOLUTION - ARBITRATION
15.1 Any dispute arising between the parties concerning this Agreement or the rights and duties of either
party in relation thereto shall first be submitted to a panel consisting of at least one representative of each
party who shall have the authority to enter into an agreement to resolve the dispute. The disputes panel shall
be conducted in good faith, either physically or electronically, within two weeks of a request by either party.
No written, verbal or electronic representation made by either party during the course of any panel
proceeding or other settlement negotiations shall be deemed to be a party admission.
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Agreement (Rev 8/1 0/06)
15.2 If the panel fails to convene within two weeks, or if the panel is unable to reach resolution of the
dispute, then either party may submit the dispute for binding arbitration to be held in accordance with the
Construction Industry Rules of the American Arbitration Association ("Association") in effect at the time
that the demand for arbitration is filed with the Association or other binding arbitration process agreed to by
the parties. Either party may issue a Demand for Arbitration upon the other party at any time. The arbitrator
or arbitrators shall have the power to award to either party to the dispute such sums, costs, expenses, and
attorney's fees as the arbitrator or arbitrators may deem proper.
16 NOTICE
16.1 Any notice or communication required or permitted by this Agreement shall be deemed sufficiently
given if in writing and when delivered personally or 48 hours after deposit with a receipted commercial
courier service or the U.S. Postal Service as registered or certified mail, postage prepaid, and addressed as
follows:
CLIENT
City of Eagle
600 E. Civic Lane
Eagle, ill 83616
Attn: William E. Vaughan, Zoning Administrator
CONSULTANT
Environmental Conservation Services, Inc.
4900 N. Rosepoint Way, Suite C
Boise, ill 83713
Attn: Charles Baun
or to such other address as the party to whom notice is to be given has furnished to the other party(ies) in the
manner provided above.
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Agreement (Rev 8/10/06)
17 SURVIVAL OF CONTRACT TERMINATION
17.1 The Articles relating to Indemnification and Limitation of Liability shall survive termination the
completion of the Services, payment in full of the Compensation and termination of this Agreement.
18 NUSCELLANEOUS
18.1 Governing Law. The validity, construction and performance of this Agreement and all disputes
between the parties arising out of this Agreement or as to any matters related to but not covered by this
Agreement shall be governed by the laws, without regard to the laws as to choice or conflict of laws, of the
State of Idaho.
18.2 Assignment. Neither this Agreement nor any rights under this Agreement may be assigned by any
party without the prior written consent of the other party(ies).
18.3 Binding Effect. The provisions of this Agreement shall bind and inure to the benefit of the parties
and their respective successors and permitted assigns.
18.4 Parties in Interest. Nothing in this Agreement, expressed or implied, is intended to confer on any
person or entity other than the parties any right or remedy under or by reason of this Agreement.
18.5 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute a single agreement.
18.6 Amendment and Waiver. This Agreement may be amended, modified or supplemented only by a
writing executed by each of the parties. Any party may in writing waive any provisions ofthis Agreement to
the extent such provision is for the benefit of the waiving party. No action taken pursuant to this
Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver
by that party of its or any other party's compliance with any provisions of this Agreement. No waiver by
any party of a breach of any provision of this Agreement shall be construed as a waiver of any subsequent or
different breach, and no forbearance by a party to seek a remedy for noncompliance or breach by another
party shall be construed as a waiver of any right or remedy with respect to such noncompliance or breach.
18.7 Venue. Jurisdiction and Process. The parties agree that any arbitration proceeding arising out of this
Agreement or for the interpretation, performance or breach of this Agreement, shall be instituted in Ada
County, Idaho where the Project is located, and each party irrevocably submits to the jurisdiction of such
proceeding and waives any and all objections to jurisdiction or venue that it may have under the laws of that
state or otherwise in such proceeding.
18.8 Severability. The invalidity or unenforceability of any particular provision of this Agreement shall
not affect the other provisions, and this Agreement shall be construed in all respects as if any invalid or
unenforceable provision were omitted.
18.9 Preparation of Agreement. All provisions of this Agreement have been subject to full and careful
review by and negotiation between CONSULTANT and CLIENT. Each such party has availed itself of such
legal advice and counsel as it, respectively, has deemed appropriate. The parties hereto agree that neither
one of them shall be deemed to be the drafter or author of this Agreement, and in the event this Agreement is
subject to interpretation or construction by a court of law or panel of arbitration, such court or panel shall
not construe this Agreement or any portion hereof against either party as the drafter of this Agreement.
Agreement (Rev 8/10/06)
18.10 Entire Agreement. This Agreement embodies the entire agreement and understanding between the
parties pertaining to the subject matter of this Agreement, and supersedes all prior agreements,
understandings, negotiations, representations and discussions, whether verbal or written, of the parties
pertaining to that subject matter.
Phil Bandy, Mayor
I / :21 J 0 r
,
Date
ATTEST:
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State of Idaho
CONSULTANT
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Charlie Baun
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Agreement (Rev 8/1 0/06)
2
TASK ORDER NO.
City of Eagle
(Client)
and
Environmental Conservation Services, Inc.
4900 N. Rosepoint Way, Suite C
Boise, Idaho 83713
(ECS)
PROJECT NAME:
CLIENT CONTACT:
TELEPHONE:
FAX:
ECS CONTACT:
TELEPHONE:
FAX:
SCOPE OF WORK:
ECS shall provide a detailed description of professional
services in the Scope of Work attached and incorporated herein
by reference as Exhibit A.
COMPENSATION:
o LUMP SUM. Compensation for these services shall be a Lump Sum of$
o TIME AND MATERIALS. Compensation for these services will be based on the following List of
Hourly Rates (Senior Level Ecologist $ 85/hr, Senior Level GIS $75/hr., Mid-level Biologists $65/hr,
Administrative $45/hr.) and Reimbursable Expenses plus one percent (1 %).
SCHEDULE OF PAYMENTS: ECS shall be paid monthly on the basis of invoices submitted as set forth in
the Master Consulting Services Agreement dated . ECS shall be paid for all invoices within thirty
(30) days of submittal. In the event Client disputes the invoice or any portion thereof, the undisputed portion
shall be paid to ECS. Disputed invoices or portions of invoices shall first be resolved informally prior to any
party filing a claim. Therefore, interest shall not accrue on any disputed invoice amounts in whole or in part.
Invoices not in dispute and unpaid after sixty (60) days may accrue interest at the rate of the statutory rate of
interest currently established by the Treasurer of the State ofIdaho in effect as of the date of this invoice.
EXECUTION: Execution of this document was made by duly authorized representatives of ECS and Client.
This Task Order is governed by the terms set forth herein and the terms of the Master Consulting Services
Agreement and are construed to be the entire agreement between the parties hereto and supersede all prior
negotiations, representations, or agreements, either written or oral. This Agreement may be amended or
modified by written instrument, but such instrument is valid only upon signature by both parties. Neither ECS
nor Client shall assign, transfer, or encumber any rights, duties, or interests accruing from this Agreement
without the express prior written consent of the other.
CONFLICT OF INTEREST: ECS reserves the right to not accept work resulting in a conflict of interest with
existing clients or teaming partners on existing projects.
Page -1-
CITY OF EAGLE ENVIRONMENTAL CONSERVATION SERVICES,
INC.
BY: Phil Bandv Bv: Charles Baun
SIGNATURE: SIGNATURE:
TITLE: Mavor TITLE: Lead Ecolo2:istlPrincioal
DATE: DATE:
ATTEST:
Sharon Bergmann, City Clerk
[SEAL]
Page -2-
NOTICE OF PERSONAL SERVICES CONTRACT
NOTICE IS HEREBY GIVEN That the City Council of the City of Eagle, Idaho, has entered
into a personal services contract with Environmental Conservation Services Inc. in the hourly
rates of: Senior level Ecologist $85/hr
Senior level GIS $75/hr
Mid-level Biologists $65/hr
Administrative $45/hr
and reimbursable expenses plus I %
to review habitat mitigation plans submitted to the City in association with development
applications in the City of Eagle.
cJllfj ~~
Tracy E. sborn, CMC
Sr. Deputy Clerk/Treasurer
Published: March 30, 2009