15-017 David J Powers & Associates for consultant services for Jurisdictional Delineation at Stevens Creek OFFICE OF THE CITY CLERK
CITY HALL
10300 TORRE AVENUE•CUPERTINO, CA 95014-3255
TELEPHONE:(408)777-3223•FAX: (408)777-3366
C U P E RT I N O WEBSITE:www.cupertino.org
March 26, 2015
David J. Powers & Associates, Inc.
Attention: Ms.Jodi Starbird
1871 The Alameda, Suite 200
San Jose, CA 95126
Re: Agreement for contract services.
Enclosed is a fully executed copy of the above stated agreement with the City of Cupertino.
If you have any questions or need additional information, please contact the Recreation and
Community Services department at 408-777-3120.
Sincerely,
Andrea Sanders
Senior Office Assistant
City Clerk's Office
Enclosure
cc: Recreation and Community Services
pis -I
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND
DAVID J. POWERS &ASSOCIATES INC. FOR CONSULTANT SERVICES
FOR JURISDICTIONAL DELINEATION AT STEVENS f-72EEK
THIS AGREEMENT, for reference dated March 12, 2015, is by and
between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to
as "City"), and David J. Powers & Associates, Inc., a California corporation,
whose address is 1871 The Alameda, Suite 200, San Jose, CA 95126 (hereinafter
referred to as "Consultant"), and is made with reference to the following:
RECITALS:
A. City is a municipal corporation duly organized and validly existing
under the laws of the State of California with the power to carry on its business
as it is now being conducted under the Constitution and the statutes of the State
of California and the Cupertino Municipal Code.
B. Consultant is specially trained, experienced and competent to
perform the special services which will be required by this Agreement; and
C. Consultant possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this Agreement
on the terms and conditions described herein.
D. City and Consultant desire to enter into an agreement for
upon the terms and conditions herein.
NOW, THEREFORE, it is mutually agreed by and between the
undersigned parties as follows:
1. TERM:
The term of this Agreement shall commence on the date this agreement is
executed and shall terminate on December 31, 2016, unless terminated earlier as
set forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perform each and every service set forth in Exhibit"A".
titled "Scope of Services" which is attached hereto and incorporated herein by
this reference.
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3. SCHEDULE OF PERFORMANCE:
The Services of Consultant are to be completed according to the schedule
set out in Exhibit B, titled "Schedule of Performance ", which is attached hereto
and incorporated herein by this reference.
4. COMPENSATION TO CONSULTANT:
The maximum compensation to be paid to Consultant under this
agreement shall not exceed Twenty One Thousand Dollars ($21,000.00). The rate
of payment is set out in Exhibit C, titled "Compensation', which is attached
hereto and incorporated herein.
Consultant shall furnish to City a detailed statement of the work performed for
compensation during the term of this Agreement. Consultant may submit
monthly invoices for interim progress payments during the course of each phase,
clearly stating as a minimum the total Contract amount, amount paid to date,
percent complete and amount due.
5. TIME IS OF THE ESSENCE:
Consultant and City agree that time is of the essence regarding the
performance of this Agreement.
6. STANDARD OF CARE:
Consultant agrees to perform all services hereunder in a manner
commensurate with the prevailing standards of like professionals in the San
Francisco Bay Area and agrees that all services shall be performed by qualified
and experienced personnel who are not employed by the City nor have any
contractual relationship with City.
7. INDEPENDENT PARTIES:
City and Consultant intend that the relationship between them created by
this Agreement is that of employer-independent contractor. The manner and
means of conducting the work are under the control of Consultant, except to the
extent they are limited by statute, rule or regulation and the express terms of this
Agreement. No civil service status or other right of employment will be acquired
by virtue of Consultant's services. None of the benefits provided by City to its
employees, including but not limited to, unemployment insurance, workers'
compensation plans, vacation and sick leave are available from City to
Consultant, its employees or agents. Deductions shall not be made for any state
or federal taxes, FICA payments, PERS payments, or other purposes normally
associated with an employer-employee relationship from any fees due
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Consultant. Payments of the above items, if required, are the responsibility of
Consultant.
8. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Consultant assumes any and all responsibility for verifying the identity
and employment authorization of all of his/her employees performing work
hereunder, pursuant to all applicable IRCA or other federal, or state rules and
regulations. Consultant shall indemnify and hold City harmless from and
against any loss, damage, liability, costs or expenses arising from any
noncompliance of this provision by Consultant.
9. NON-DISCRIMINATION:
Consistent with City's policy that harassment and discrimination are
unacceptable employer/employee conduct, Consultant agrees that harassment or
discrimination directed toward a job applicant, a City employee, or a citizen by
Consultant or Consultant's employee or subcontractor on the basis of race,
religious creed, color, national origin, ancestry, handicap, disability, marital
status, pregnancy, sex, age, or sexual orientation will not be tolerated.
Consultant agrees that any and all violations of this provision shall constitute a
material breach of this Agreement.
10. PROJECT COORDINATION
CITY: Director of Recreation and Community Services shall be
representative of City for all purposes under this Agreement. Gail Seeds is
hereby designated as the Director of Recreation and Community Services'
designee and Project Manager, and shall supervise the progress and execution of
this Agreement.
CONSULTANT: Consultant shall assign a single Consultant Project
Manager to have overall responsibility for the progress and execution of this
Agreement for Consultant. Should circumstances or conditions subsequent to
the execution of the Agreement require a substitute Consultant Project Manager
for any reason, the Consultant Project Manager designee shall be subject to the
prior written acceptance and approval of the City Project Manager. The
designated Consultant Project Manager shall be Jodi Starbird.
11. HOLD HARMLESS:
Indemnification:
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A. Claims for Professional Liability. Where the law establishes a
standard of care for Consultant's professional services, and to the extent
the Consultant breaches or fails to meet such established standard of care,
or is alleged to have breached or failed to meet such standard of care,
Consultant shall, to the fullest extent allowed by law, with respect to all
services performed in connection with the Agreement, indemnify, defend,
and hold harmless the City and its officers, officials, agents, employees
and volunteers from and against any and all liability, claims, actions,
causes of action or demands whatsoever against any of them, including
any injury to or death of any person or damage to property or other
liability of any nature, that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of Consultant or
Consultant's employees, officers, officials, agents or independent
contractors. Such costs and expenses shall include reasonable attorneys'
fees of counsel of City's choice, expert fees and all other costs and fees of
litigation. Consultant shall not be obligated under this Agreement to
indemnify City to the extent that the damage is caused by the sole
negligence or willful misconduct of City, its agents or employees.
B. Claims for Other Liability. Consultant shall, to the fullest extent
allowed by law, with respect to all services performed in connection with
the Agreement indemnify, defend, and hold harmless the City and its
officers, officials, agents, employees and volunteers from and against any
and all liability, claims, actions, causes of action or demands whatsoever
against any of them, including any injury to or death of any person or
damage to property or other liability of any nature, that arise out of,
pertain to, or relate to the performance of this Agreement by Consultant
or Consultant's employees, officers, officials, agents or independent
contractors. Such costs and expenses shall include reasonable attorneys'
fees of counsel of City's choice, expert fees and all other costs and fees of
litigation.
12. INSURANCE:
On or before the commencement of the term of this Agreement,
Consultant shall furnish City with certificates showing the type, amount, class of
operations covered, effective dates and dates of expiration of insurance coverage
in compliance with paragraphs 12A, B, C, D and E. Such certificates, which do
not limit Consultant's indemnification, shall also contain substantially the
following statement: "Should any of the above insurance covered by this
certificate be canceled or coverage reduced before the expiration date thereof, the
insurer affording coverage shall provide thirty (30) days' advance written notice
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to the City of Cupertino by certified mail, Attention: City Manager." It is agreed
that Consultant shall maintain in force at all times during the performance of this
Agreement all appropriate coverage of insurance required by this Agreement
with an insurance company that is acceptable to City and licensed to do
insurance business in the State of California. Endorsements naming the City as
additional insured shall be submitted with the insurance certificates.
A. COVERAGE:
Consultant shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liabili
Commercial general liability coverage in the following
minimum limits:
Bodily Injury: $500,000
each occurrence
$1,000,000
aggregate- all other
Property Damage: $100,000 each occurrence
$250,000 aggregate
If submitted, combined single limit policy with aggregate
limits in the amounts of$1,000,000 will be considered
equivalent to the required minimum limits shown above.
(3) Automotive:
Comprehensive automotive liability coverage in the
following minimum limits:
Bodily Injury: $500,000 each occurrence
Property Damage: $100,000 each occurrence
or
Combined Single Limit: $500,000 each occurrence
(4) Professional Liability:
Professional liability insurance which includes coverage for
the professional acts, errors and omissions of Consultant in
the amount of at least$1,000,000.
B. SUBROGATION WAIVER:
Consultant agrees that in the event of loss due to any of the perils for
which he/she has agreed to provide comprehensive general and automotive
liability insurance, Consultant shall look solely to his/her insurance for recovery.
Consultant hereby grants to City, on behalf of any insurer providing
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comprehensive general and automotive liability insurance to either Consultant or
City with respect to the services of Consultant herein, a waiver of any right to
subrogation which any such insurer of said Consultant may acquire against City
by virtue of the payment of any loss under such insurance.
C. FAILURE TO SECURE:
If Consultant at any time during the term hereof should fail to secure or
maintain the foregoing insurance, City shall be permitted to obtain such
insurance in the Consultant's name or as an agent of the Consultant and shall be
compensated by the Consultant for the costs of the insurance premiums at the
maximum rate permitted by law and computed from the date written notice is
received that the premiums have not been paid.
D. ADDITIONAL INSURED:
City, its City Council, boards and commissions, officers, employees and
volunteers shall be named as an additional insured under all insurance
coverages, except any professional liability insurance, required by this
Agreement. The naming of an additional insured shall not affect any recovery to
which such additional insured would be entitled under this policy if not named
as such additional insured. An additional insured named herein shall not be
held liable for any premium, deductible portion of any loss, or expense of any
nature on this policy or any extension thereof. Any other insurance held by an
additional insured shall not be required to contribute anything toward any loss
or expense covered by the insurance provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being
sufficient to protect Consultant. Consultant is advised to confer with
Consultant's insurance broker to determine adequate coverage for Consultant.
13. CONFLICT OF INTEREST:
Consultant warrants that it is not a conflict of interest for Consultant to
perform the services required by this Agreement. Consultant may be required to
fill out a conflict of interest form if the services provided under this Agreement
require Consultant to make certain governmental decisions or serve in a staff
capacity as defined in Title 2, Division 6, Section 18700 of the California Code of
Regulations.
14. PROHIBITION AGAINST TRANSFERS:
Consultant shall not assign, sublease, hypothecate, or transfer this
Agreement, or any interest therein, directly or indirectly, by operation of law or
otherwise, without prior written consent of City. Any attempt to do so without
said consent shall be null and void, and any assignee, sublessee, hypothecate or
transferee shall acquire no right or interest by reason of such attempted
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assignment, hypothecation or transfer. However, claims for money by
Consultant from City under this Agreement may be assigned to a bank, trust
company or other financial institution without prior written consent. Written
notice of such assignment shall be promptly furnished to City by Consultant.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general partner
or joint venturer or syndicate member or cotenant, if Consultant is a partnership
or joint venture or syndicate or cotenancy, which shall result in changing the
control of Consultant, shall be construed as an assignment of this Agreement.
Control means fifty percent (50%) or more of the voting power of the
corporation.
15. SUBCONTRACTOR APPROVAL:
Unless prior written consent from City is obtained, only those people and
subcontractors whose names are included in this Agreement shall be used in the
performance of this Agreement.
In the event that Consultant employs subcontractors, such subcontractors
shall be required to furnish proof of workers' compensation insurance and shall
also be required to carry general, automobile and professional liability insurance
in reasonable conformity to the insurance carried by Consultant. In addition,
any work or services subcontracted hereunder shall be subject to each provision
of this Agreement.
16. PERMITS AND LICENSES:
Consultant, at his/her sole expense, shall obtain and maintain during the
term of this Agreement, all appropriate permits, certificates and licenses
including, but not limited to, a City Business License, that may be required in
connection with the performance of services hereunder.
17. REPORTS:
A. Each and every report, draft, work product, map, record and other
document, hereinafter collectively referred to as "Report", reproduced, prepared
or caused to be prepared by Consultant pursuant to or in connection with this
Agreement, shall be the exclusive property of City. Consultant shall not
copyright any Report required by this Agreement and shall execute appropriate
documents to assign to City the copyright to Reports created pursuant to this
Agreement. Any Report, information and data acquired or required by this
Agreement shall become the property of City, and all publication rights are
reserved to City. Consultant may retain a copy of any report furnished to the
City pursuant to this Agreement.
B. All Reports prepared by Consultant may be used by City in
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execution or implementation of:
(1) The original Project for which Consultant was hired;
(2) Completion of the original Project by others;
(3) Subsequent additions to the original project; and/or
(4) Other City projects as appropriate.
C. Consultant shall, at such time and in such form as City may
require, furnish reports concerning the status of services required under this
Agreement.
D. All Reports required to be provided by this Agreement shall be
printed on recycled paper. All Reports shall be copied on both sides of the paper
except for one original, which shall be single sided.
E. No Report, information or other data given to or prepared or
assembled by Consultant pursuant to this Agreement shall be made available to
any individual or organization by Consultant without prior approval by City.
F. Electronic and hard copies of Consultant's work product shall
constitute the Project deliverables. Plans to be in CAD and PDF formats, and
other documents to be in Microsoft Word and PDF formats. City holds
Consultant harmless for any modifications to the documents.
18. RECORDS:
Consultant shall maintain complete and accurate records with respect to
sales, costs, expenses, receipts and other such information required by City that
relate to the performance of services under this Agreement.
Consultant shall maintain adequate records of services provided in
sufficient detail to permit an evaluation of services. All such records shall be
maintained in accordance with generally accepted accounting principles and
shall be clearly identified and readily accessible. Consultant shall provide free
access to such books and records to the representatives of City or its designees at
all proper times, and gives City the right to examine and audit same, and to
make transcripts therefrom as necessary, and to allow inspection of all work,
data, documents, proceedings and activities related to this Agreement. Such
records, together with supporting documents, shall be kept separate from other
documents and records and shall be maintained for a period of three (3) years
after receipt of final payment.
If supplemental examination or audit of the records is necessary due to
concerns raised by City's preliminary examination or audit of records, and the
City's supplemental examination or audit of the records discloses a failure to
adhere to appropriate internal financial controls, or other breach of contract or
failure to act in good faith, then Consultant shall reimburse City for all
reasonable costs and expenses associated with the supplemental examination or
audit.
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19. NOTICES:
All notices, demands, requests or approvals to be given under this
Agreement shall be given in writing and conclusively shall be deemed served
when delivered personally or on the second business day after the deposit
thereof in the United States Mail, postage prepaid, registered or certified,
addressed as hereinafter
provided.
All notices, demands, requests, or approvals from Consultant to City shall
be addressed to City at:
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
Attention: Director of Recreation and Community Services
All notices, demands, requests, or approvals from City to Consultant shall
be addressed to Consultant at:
David J. Powers & Associates, Inc.
1871 The Alameda, Suite 200
San Jose, CA 95126
Attention: Ms. Jodi Starbird
20. TERMINATION:
In the event Consultant fails or refuses to perform any of the provisions
hereof at the time and in the manner required hereunder, Consultant shall be
deemed in default in the performance of this Agreement. If such default is not
cured within the time specified after receipt by Consultant from City of written
notice of default, specifying the nature of such default and the steps necessary to
cure such default, City may terminate the Agreement forthwith by giving to the
Consultant written notice thereof.
City shall have the option, at its sole discretion and without cause, of
terminating this Agreement by giving seven (7) days' prior written notice to
Consultant as provided herein. Upon termination of this Agreement, each party
shall pay to the other party that portion of compensation specified in this
Agreement that is earned and unpaid prior to the effective date of termination.
In the event of termination, Consultant shall deliver to City, copies of all
reports, documents, and other work performed by Consultant under this
Agreement.
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21. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances,
rules and regulations enacted or issued by City.
22. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of
the State of California excepting any choice of law rules which may direct the
application of laws of another jurisdiction. The Agreement and obligations of the
parties are subject to all valid laws, orders, rules, and regulations of the
authorities having jurisdiction over this Agreement (or the successors of those
authorities.)
Any suits brought pursuant to this Agreement shall be filed with the
courts of the County of Santa Clara, State of California.
23. ADVERTISEMENT:
Consultant shall not post, exhibit, display or allow to be posted, exhibited,
displayed any signs, advertising, show bills, lithographs, posters or cards of any
kind pertaining to the services performed under this Agreement unless prior
written approval has been secured from City to do otherwise.
24. WAIVER:
A waiver by City of any breach of any term, covenant, or condition
contained herein shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant, or condition contained herein, whether of
the same or a different character.
25. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every
kind or nature whatsoever between the parties hereto, and all preliminary
negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions
hereof. Any modification of this Agreement will be effective only by written
execution signed by both City and Consultant.
26. GIFTS:
A. Consultant is familiar with City's prohibition against the
acceptance of any gift by a City officer or designated employee, which
prohibition is found in City Administrative Procedures.
B. Consultant agrees not to offer any City officer or designated
employee any gift prohibited by the Administrative Procedures.
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C. The offer or giving of any prohibited gift shall constitute a material
breach of this Agreement by Consultant. In addition to any other remedies, City
may have in law or equity, City may terminate this Agreement for such breach as
provided in Section 19 of this Agreement.
27. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the
Agreement shall be deemed to be enacted herein, and the Agreement shall be
read and enforced as though each were included herein. If through mistake or
otherwise, any such provision is not inserted or is not correctly inserted, the
Agreement shall be amended to make such insertion on application by either
party.
28. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of
the Agreement and in no way affect, limit or amplify the terms or provisions of
this Agreement.
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P.O. No.: g l) 9s'
v
IN WITNESS WHEREOF, the parties have caused the Agreement to be
executed.
CONSULTANT CITY OF CUPERTINO
David J. Powers & Associates Inc. A Municipal Corporation
By gyG _.
Carol Atwood, Director of Recreation&
Community Services
Name�� --tet lT 1�.1��l�Y
Date -15
Title m1'�:PA L
Date
Tax I.D. No.: -7' OZ << 5`1 -7
APPROVED AS TO FORM:
Address:
1871 The Alameda, Suite 200 jWkUVA-/"
San Jose, CA 95126
Carol Korade, City Attorney
ATTEST:
For Grace Schmidt, City Cl
Contract Amount: $21,000.00
Account No. : loo•
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EXHIBIT A
SCOPE OF SERVICES
UN11 DAVID J. POWERS
mom
MIME '
March 12, 2015
Carol Atwood
Director of Recreation and Community Services
City of Cupertino Public Works
10300 Torre Avenue
Cupertino, CA 95014
RE: Work Scope for a Wetland Delineation for the Stevens Creek Corridor Park
Dear Carol:
David J. Powers & Associates (DJP&A) proposes the following scope of work to assist the City with
preparing a Wetland Delineation for the Stevens Creek Corridor between Stevens Creek Boulevard
and McClellan Road. We have prepared a scope and cost for providing a technical wetland
delineation and jurisdictional waters report for the creek reach between McClellan Road and Stevens
Creek Boulevard, including the area near the Blackberry Farm Golf Course Ponds.
H.T. Harvey and Associates, Consulting Ecologists, (HTH)will be responsible for the preparation of
the wetland delineation. Tasks to be accomplished include the following:
1. A review of background information related to biotic resources that occur in the study area.
Site maps and aerial photos will be prepared for surveys and ultimately used to generate
wetland maps.
2. Field surveys will be conducted of areas that meet the regulatory definition of Waters of the
U.S. within the survey areas. Two categories of jurisdictional waters will be identified
according to the USA CE Wetland Delineation Manual and Regional Supplement to the Corps
of Engineers Wetland Delineation Manual:Arid West Region: Wetlands and Other Waters.
Data will be collected in the field relative to vegetation, soils, and hydrology. Ordinary high
water will be field checked, as necessary.
3. An administrative draft report of jurisdictional waters will be prepared according to the
requirements of the USACE and submitted to the City for review prior to preparation of a
Jurisdictional Waters Report for submittal to USACE.
4. A. Jurisdictional Waters Report will be prepared that summarizes the methods
and results of the field survey of jurisdictional waters. The report will be prepared according
to the requirements of the USACE and will be of sufficient detail for agency review and a
jurisdictional determination. A description of existing conditions, field techniques, wetland
data, will be included.
B. Maps of the delineation will be provided to City which are at a scale and
provide sufficient detail to clearly communicate limits of jurisdiction at the site for use by
operations and maintenance staff. City will coordinate prior with DJP&A and HTH
Stevens Creek Corridor Wetland Delineation
City of Cupertino 1 March 12.2015
EXHIBIT A
SCOPE OF SERVICES
regarding preparation of suitable maps, and will provide its available information regarding
topography and site features.
5. DJP&A and HTH staff will meet in the field with USACE representatives in the field to
verify the delineation of jurisdictional waters.
6. Revisions will be made to the Jurisdictional Waters Report based on the results of the field
meeting, as necessary, and to the maps of the delineation. The report will be submitted in
electronic versions as acceptable to City, and including data that are GIS/CAD-compatible
for the maps.
DJP&A will provide coordination and consultation services during completion of this task.
Cost: $19,900
The cost estimates are not-to-exceed amounts for all work described in the task. If changes to the
project reach are made after authorization to proceed is received, additional funds will be necessary
to revise the documents.
If this proposal is acceptable to you, this scope can be attached to a City of Cupertino Contract for
mutual signature.
We appreciate your consideration of our firm for this work and look forward to working with you on
this worthwhile project. Please let me know if you have any questions about this proposal or need
any additional information.
Sincerely,
Jodi Starbird
Principal
Stevens Creek Corridor Wetland Delineation
City of Cupertino 2 March 12. 2015
EXHIBIT B
COMPENSATION
Stevens Creek Corridor Jurisdictional Delineation
Basic Services
TOTAL BASIC SERVICES: NTE $19,900
Additional Services
TOTAL ADDITIONAL SERVICES ALLOWANCE: NTE$1,100
To be expended only upon advance City authorization, in writing
COMPENSATION SUMMARY
Basic Services $19,900
Reimbursable Expenses—included in Basic Services fee $0
Basic Services,Not to Exceed: $19,900
Additional Services Allowance: $1,100
TOTAL CONTRACT, Not to Exceed: $21,000
Exhibit B,Compensation
Page I
EXHIBIT C
Schedule of Performance
Stevens Creek Corridor Jurisdictional Delineation
Work to prepare a Jurisdictional Waters Report suitable for agency review and a jurisdictional
determination, as described in Exhibit A Scope of Services, will be completed by June 30, 2015 or as
otherwise acceptable to City.
A field review will be held thereafter, per regulatory agency availability and schedule.
Work to revise, finalize and submit the Jurisdictional Waters Report and maps will be completed
within one month of the field review date and associated input by regulatory agency staff.
Exhibit C,Schedule of Performance
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