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HomeMy WebLinkAboutExecuted contract 4.2.2026 1 COASTAL WATERBIRD MONITORING AND MANAGEMENT AGREEMENT Red Jacket Beach Resort and Spa 2026 COASTAL WATERBIRD MONITORING AND MANAGEMENT AGREEMENT dated as of 4/1/2026 (the "Agreement"), by and between Massachusetts Audubon Society, Inc., a Massachusetts nonproflt corporation ("Mass Audubon") exempt from Federal taxes under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and (the "CLIENT") Red Jacket Beach; hereinafter “the Parties”. 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 at ; Red Jacket Beach Resort and Spa 1 Shore Drive, Blue Water Resort 291 & 301 S Shore Drive, and Riviera Beach Resort 327 S Shore Drive, all properties are located in South Yarmouth, Massachusetts. 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 considerations, the receipt and sufficiency of which are hereby acknowledged by Mass Audubon and the CLIENT, Mass Audubon and the CLIENT hereby agree as follows: 2 (I) Term: The term of this Agreement, unless earlier terminated as provided in Section (2)(c) below or unless extended by written agreement executed by the Parties, shall commence on 3/1/2026 and shall end on 9/30/2026. (2) Services: 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"). (a ) Mass Audubon hereby agrees to devote its best efforts to the performance of the Services but cannot and does not warrant or guarantee a particular result or outcome. All Services shall be performed by Mass Audubon at times that are mutually agreeable to Mass Audubon and the CLIENT. (b) 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 3 notice of such termination to the Massachusetts Division of Fisheries& Wildlife Natural Heritage& Endangered Species Program and the 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 here to 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 negligent 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 workers compensation insurance in at least statutory amounts. Mass Audubon shall provide to the CLIENT upon request, an up -to-date certiflcate of insurance listing such insurance policy, and which will name the CLIENT as an additional named insured on such insurance policy if the CLIENT so requests. (6) Notice: Any and all notices under this Agreement shall be in writing and shall be duly given if sent by registered or certifled mail, postage prepaid, return receipt requested, or by a recognized overnight delivery service, such as Federal Express, providing evidence of delivery to, Mass Audubon addressed to Massachusetts Audubon Society, Inc., P.O. Box 275, Cummaquid, MA 02637, Attention: Lyra 4 Brennan, Coastal Waterbird Program. Director, with a copy to Adrienne Frazier, Assistant Treasurer/CFAO, Massachusetts Audubon Society, Inc., 208 South Great Road, Lincoln, MA 01773, and if to the CLIENT addressed to: Attention: Christian Davenport, Red Jacket Beach Resort and Spa, 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 are attached hereto and incorporated herein. This Agreement constitutes the entire agreement of the Parties as to the subject matter hereof and supersedes all previous oral or written agreements between the Parties as to the subject matter of this Agreement. This Agreement may be changed or amended only in writing signed by the Parties hereto. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to confiict 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 flrst written above. MASSACHUSETTS AUDUBON SOCIETY, INC By: Title: RED JACKET PROPERTIES By: Title: CFAO/Assistant Treasurer General Manager 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 fleld season install, monitor and manage symbolic fencing and signage to protect nests and scrapes, as needed, at Red Jacket Beach Resort and Spa Blue Water Resort, and Riviera Beach Resort 3. based on the presence of potential nesting habitat and/or the presence of birds. a. Install speciflc 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, erect, 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 required records to the Mass Wildlife NHESP by 9/30/2026 and flnal reports 1/31/2027 6 d. Coordinate and cooperate with existing volunteer groups at the discretion of and in coordination with Red Jacket Beach Resort and Spa, Blue Water Resort, and Riviera Beach Resort e. Communicate and work together with the CLIENT. 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 Audubon and the CLIENT 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. EXHIBIT B Compensation The base fee for the Services set forth in Exhibit A to this Agreement is $4,935.00. This assumes time on the site for a qualifled monitor billed at the rate of $75/hour to complete monitoring and protection requirements. This also includes mileage reimbursement at $0.70/mile to the site.