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HomeMy WebLinkAboutCWP Red Jacket Inn Contract 2026 1 COASTAL WATERBIRD MANAGEMENT AGREEMENT COASTAL WATERBIRD MANAGEMENT AGREEMENT dated as of 23 January 2026 (the “Agreement”), by and between Massachusetts Audubon Society, Inc., a Massachusetts nonprofit corporation (“Mass Audubon”) exempt from Federal taxes under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and the RED JACKET BEACH RESORT AND SPA, (the “CLIENT” 1 Shore Drive, South Yarmouth, MA 02664). WHEREAS, Mass Audubon, through its Coastal Waterbird Program, has expertise in coastal nesting bird monitoring and management; and WHEREAS, the CLIENT desires the services of Mass Audubon to assist the CLIENT in monitoring and management of coastal nesting birds within the borders of the CLIENT; and WHEREAS, Mass Audubon, through its Coastal Waterbird Program, desires to perform such services for the CLIENT: NOW, THEREFORE, in consideration of the mutual promises contained herein and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Mass Audubon and the CLIENT, Mass Audubon and the CLIENT hereby agree as follows: (1) Term: The term of this Agreement, unless earlier terminated as provided in Section (2)(c) below, shall commence on March 28, 2026, and shall end on 30 September 2026. (2) Services: (a) During the term of this Agreement, the CLIENT hereby engages Mass Audubon, through its Coastal Waterbird Program, to perform the services described in Exhibit A attached hereto (the “Services”). 2 (b) Mass Audubon hereby agrees to devote its best efforts to the performance of the Services. All Services shall be performed by Mass Audubon at times that are mutually agreeable to Mass Audubon and the CLIENT. (c) During the term of this Agreement, either Mass Audubon or the CLIENT may terminate the engagement of Mass Audubon under this Agreement at any time for any reason without recourse to any party hereto by giving written notice at any time to the other party stating its election to terminate this Agreement thirty (30) days after the date of receipt by the other party of such written notice. In the event of such termination, Mass Audubon shall be entitled to be paid through such thirty (30) day period and any compensation paid to Mass Audubon for services to be performed by Mass Audubon beyond such thirty (30) day period shall be promptly returned by Mass Audubon to the CLIENT. The terminating party shall promptly provide written notice of such termination to Massachusetts Division of Fisheries & Wildlife Natural Heritage & Endangered Species Program and US Fish and Wildlife Service. (3) Compensation: For the performance of the Services by Mass Audubon, the CLIENT hereby agrees to pay to Mass Audubon the compensation set forth in Exhibit B attached hereto in accordance with the payment schedule and procedures set forth therein. (4) Indemnification: To the extent permitted by law, each party hereto will indemnify, defend, and hold harmless the other party, and its officers, directors, employees, volunteers, and agents, from and against any and all claims, actions, losses, damages, liabilities, obligations, costs, expenses, and reasonable attorneys’ fees in connection with the loss of life, personal injury, and/or damage to property arising from or out of (a) the 3 negligence or intentional acts or omissions of the indemnifying party or (b) the failure of the indemnifying party to comply with or perform any of its obligations under this Agreement. (5) Insurance: During the term of this Agreement, Mass Audubon shall have issued in its name, at its sole cost and expense, commercial general liability insurance in the amount of not less than $1,000,000 each occurrence and $2,000,000 in the aggregate, and shall provide to the CLIENT upon request, an up-to-date certificate of insurance listing such insurance policy, and which shall name the CLIENT as an additional named insured on such insurance policy. (6) Notice: Any and all notices under this Agreement shall be in writing and shall be duly given if sent by registered or certified mail, postage prepaid, return receipt requested, or by a recognized overnight delivery service, such as Federal Express, providing evidence of delivery, if to Mass Audubon addressed to Massachusetts Audubon Society, Inc., P.O. Box 275, Cummaquid, MA 02637, Attention: Lyra Brennan, Coastal Waterbird Program Director, with a copy to Adrienne Frazier, Chief Financial and Administrative Officer, Massachusetts Audubon Society, Inc., 208 South Great Road, Lincoln, MA 01773, and if to CLIENT addressed to: 1 Shore Drive, South Yarmouth, MA 02664 (7) Miscellaneous: This Agreement and any of the rights and obligations under this Agreement may not be assigned or transferred in whole or in part by any party hereto. The provisions of Exhibit A and Exhibit B shall be incorporated in this Agreement by reference as if set forth in their entirety in this Agreement. This Agreement constitutes the entire agreement of the parties hereto as to the subject matter hereof and supersedes all previous oral or written agreements between the parties hereto as to the subject matter 4 hereof. This Agreement may be changed or amended only in writing signed by both parties hereto. This Agreement shall be governed by, and construed in accordance with, the internal laws of The Commonwealth of Massachusetts without regard to its conflict of laws principles. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as an instrument under seal, all as of the day, month, and year first written above. MASSACHUSETTS AUDUBON SOCIETY, INC By: ______________________________________ By: Adrienne Frazier Title: Chief Financial and Administrative Officer RED JACKET BEACH RESORT AND SPA By: ______________________________________ By: Title: 5 EXHIBIT A Description of Services 1. Mass Audubon staff will monitor the presence of and minimize disturbance to coastal birds (including federally-and state-listed Piping Plovers, Least, Common and Roseate Terns). The tasks involved in this work include the following in accordance with state and federal guidelines (MA NHESP 1993 Guidelines for Managing Recreational Use of Beaches to Protect Piping Plovers, Terns and their Habitats in Massachusetts and USFWS 1994 Guidelines for Managing Recreational Activities in Piping Plover Breeding Habitat on the US Atlantic Coast to Avoid Take under Section 9 of the Endangered Species Act). 2. At the start of the field season (by April 1) install, monitor and manage symbolic fencing and signage to protect nests and scrapes, as needed, on site based on the presence of potential nesting habitat and/or the presence of birds. a. Install specific regulatory signs to alert the public to the presence of nesting shorebirds and educate them about their natural history and the protection initiatives being implemented; engage in opportunities to interact with and educate the public. b. Dependent on habitat, nest site locations, and predator abundance, install predator exclosures, and/or low predator/high predator fencing to protect nests. c. Maintain records of coastal bird breeding locations, reproductive success where possible and factors affecting nest loss, (including predation or disturbance); provide records to Town of Yarmouth and Mass Natural Heritage Endangered Species Program in interim by September 30, 2026 and final reports by January 31, 2027. d. Provide weekly updates of all nesting activity and any signs of predation or human disturbance. e. Provide the required raking monitoring 1 time per week during the field season. No raking or vehicle use is permitted (as per NHESP) to occur without a Mass Audubon monitor present. f. Mass Audubon is not obligated to perform any work beyond that described in this contract. If unforeseen circumstances result in the need to complete additional work, the parties will execute an amendment to this contract and no work shall commence until that amendment is completed and signed by both parties. g. For purposes of effective communication and management of staff, Mass 6 Audubon and the RED JACKET BEACH RESORT AND SPA representative will exchange the cell phone numbers and email addresses of all staff designated to represent the respective organizations/departments in the carrying out of this agreement. 7 EXHIBIT B Compensation The fee for the Services set forth in Exhibit A will not exceed $4,935.00 in 2026. This assumes time on the site for a qualified monitor billed at the rate of $75/hour to complete monitoring and protection requirements, time to complete required reporting to NHESP, raking monitoring, and fencing and equipment. This also includes mileage reimbursement at $0.70/mile to the site from Mass Audubon’s Long Pasture Sanctuary in Barnstable. All invoices will include an accounting of hours spent. All payments will be due within thirty (30) days of receipt of invoice in the fall of 2026.