11-0819_CENTER FOR NATURAL LANDS MANAGEMENT_Personal Services AgreementPERSONAL SERVICES AGREEMENT
THIS AGREEMENT is made, entered into, and shall become effective this �P d y
of August, 2011, by and between the San Juan Capistrano (hereinafter referred to as the
"City") and Center for Natural Lands Management (hereinafter referred to as the
"Consultant").
WHEREAS, City desires to retain the services of Consultant regarding the City's
need for professional services related to the preparation of a Property Analysis Record
(PAR) for the Pacifica San Juan Habitat Restoration Area, and,
WHEREAS, Consultant is qualified by virtue of experience, training, education and
expertise to accomplish such services.
NOW, THEREFORE, City and Consultant mutually agree as follows:
Section 1. Scope of Work.
The scope of work to be performed by the Consultant shall consist of those tasks as
set forth in Exhibit 'A" attached and incorporated herein by reference. To the extent that
there are any conflicts between the provisions described in Exhibit "A" and those provisions
contained within this Agreement, the provisions in this Agreement shall control.
Section 2. Term.
This Agreement shall commence on the effective date and shall terminate, and all
services required hereunder shall be completed, no later than December 31, 2011.
Section 3. Compensation.
3.1 Amount.
Total compensation for the services hereunder shall not exceed $4,600 (four -
thousand, six -hundred dollars) as set forth in Exhibit "A". City acknowledges that it in order
for Consultant to proceed with work under this contract, City shall initially deposit 60% of
the total contract amount, $2,300 (two -thousand, three -hundred dollars) with Consultant.
3.2 Method of Payment.
Subject to Section 3.1, Consultant shall submit monthly billing statements
based on services which have been satisfactorily completed for said monthly period.
3.3 Records of Expenses.
Consultant shall maintain complete and accurate records of all costs and
expenses incidental to services covered by this Agreement. These records will be made
available at reasonable times to the City. Billing statements shall be addressed as
provided for in Section 16 below.
Section 4. Independent Contractor.
Consultant shall act and be an independent contractor and not an agent or
employee of the City, and shall obtain no rights to any benefits which accrue to City's
employees.
Section 5. Limitations 'U on Subcontracting and Assi nment.
The experience, knowledge, capability and reputation of Consultant, its principals
and employees were a substantial inducement for the City to enter into this Agreement.
Consultant shall not contract with any other entity to perform the services required without
written approval of the City. This Agreement may not be assigned, voluntarily or by
operation of law, without the prior written approval of the City. If. Consultant is permitted to
subcontract any part of this Agreement by City, Consultant shall be responsible to the City
for the acts and omissions of its subcontractor as it is for persons directly employed.
Nothing contained in this Agreement shall create any contractual relationships between
any subcontractor and City. All persons engaged in the work will be considered employees
of Consultant. City.will deal directly with and will make all payments to Consultant.
Section 6. Changes to Scope of Work.
For any work not part of this Agreement, a written authorization from City is required
prior to Consultant undertaking any extra work. In the event of a change in the Scope of
Work provided for in the contract documents as requested by the City, the Parties hereto
shall execute an addendum to this Agreement setting forth with particularity all terms of the
new agreement, including but not limited to any additional Consultant's fees.
Section 7. Familiarity with Work and/or Construction Site.
By executing this Agreement, Consultant warrants that: (1) it has investigated the
work to be performed; (2) if applicable, it has investigated the work site($) and is aware of
all conditions therein; and (3) it understands the facilities, difficulties and restrictions of the
work to be performed under this Agreement. Should Consultant discover any latent or
unknown conditions materially differing from those inherent in the work or as represented
by City, it shall immediately inform the City of this and shall not proceed with further work
under this Agreement until written instructions are received from the City.
Section 8. Time of Essence.
K
Time is of the essence in the performance of this Agreement.
Section 9. Compliance with Law; E -Verify.
9.1. Compliance with Law.
Consultant shall comply with all applicable laws, ordinances, codes and
regulations of federal, state and local government.
9.2. E -Verify.
If Consultant is not already enrolled in the U.S. Department of Homeland
Security's E -Verify program, Consultant shall enroll in the E -Verify program within fifteen
days of the effective date of this Agreement to verify the employment authorization of new
employees assigned to perform work hereunder. Consultant shall verify employment
authorization within three days of hiring a new employee to perform work under this
Agreement. Information pertaining to the E -Verify program can be found at
http://www.uscis.%oy, or access the registration page at https:l/e-verify.uscis.gov/enroll/.
Consultant shall certify its registration with E -Verify and provide its registration number
within sixteen days of the effective date of this Agreement. Failure to provide certification
will result in withholding payment until full compliance is demonstrated.
Section 10. Conflicts of Interest.
Consultant covenants that it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the
performance of the services contemplated by this Agreement. No person having such
interest shall be employed by or associated with Consultant.
Section 11. Copies of Work Product.
At the completion of the work, Consultant shall have delivered to City at least one
(1) copy of any final reports and/or notes or drawings containing Consultant's findings,
conclusions, and recommendations with any supporting documentation. All reports
submitted to the City shall be in reproducible format, or in the format otherwise approved
by the City in writing.
Section 12. Ownership of Documents.
All reports, information, data and exhibits prepared or assembled by Consultant in
connection with the performance of its services pursuant to this Agreement are confidential
to the extent permitted by law, and Consultant agrees that they shall not be made available
to any individual or organization without prior written consent of the City. All such reports,
information, data, and exhibits shall be the property of the City and shall be delivered to the
City upon demand without additional costs or expense to the City. The City acknowledges
such documents are instruments of Consultant's professional services.
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Section 13. Indemnity.
To the fullest extent permitted by law, Consultant agrees to protect, defend, and
hold harmless the City and its elective and appointive boards, officers, agents, and
employees from any and all claims, liabilities, expenses, or damages of any nature,
including attorneys' fees, for injury or death of any person, or damages of any nature,
including interference with use of property, arising out of, or in anyway connected with the
negligence, recklessness and/or intentional wrongful conduct of Consultant, Consultant's
agents, officers, employees, subcontractors, or independent contractors hired by
Consultant in the performance of the Agreement. The only exception to Consultant's
responsibility to protect, defend, and hold harmless the City, is due to the negligence,
recklessness and/or wrongful conduct of the City, or any of its elective or appointive
boards, officers, agents, or employees.
This hold harmless agreement shall apply to all liability regardless of whether any
insurance policies are applicable. The policy limits do not act as a limitation upon the
amount of indemnification to be provided by Consultant.
Section 14. Insurance.
On or before beginning any of the services or work called for by any term of this
Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration
of the agreement, and provide proof thereof that is acceptable to the City, the insurance
specified below with insurers and under forms of insurance satisfactory in all respects to
the City. Consultant shall not allow any subcontractor to commence work on any
subcontract until all insurance required of the Consultant has also been obtained for the
subcontractor. Insurance required herein shall be provided by Insurers in good standing
with the State of California and having a minimum Best's Guide Rating of A- Class VII or
better.
14.1 Comprehensive General Liability.
Throughout the term of this Agreement, Consultant shall maintain in full force
and effect Comprehensive General Liability coverage in an amount not less than one
million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks
associated with the work contemplated by this agreement. If a Commercial General
Liability Insurance form or other form with a general aggregate limit is used, either the
general aggregate limit shall apply separately to the work to be performed under this
agreement or the general aggregate limit shall be at least twice the required occurrence
limit.
14.2 Comprehensive Automobile Liability.
Throughout the term of this Agreement, Consultant shall maintain in full force
and effect Comprehensive Automobile Liability coverage, including owned, hired and non -
El
owned vehicles in an amount not less than one million dollars per occurrence
($1,000,000.00).
14.3 Worker's Compensation.
If Consultant intends to employ employees to perform services under this
Agreement, Consultant shall obtain and maintain, during the term of this Agreement,
Worker's Compensation Employer's Liability Insurance in the statutory amount as required
by state law.
14.4 Proof of Insurance Requirements/Endorsement.
Prior to beginning any work under this Agreement, Consultant shall submit
the insurance certificates, including the deductible or self -retention amount, and an
additional insured endorsement naming City, its officers, employees, agents, and
volunteers as additional insureds as respects each of the following: Liability arising out of
activities performed by or on behalf of Consultant, including the insured's general
supervision of Consultant; products and completed operations of Consultant; premises
owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed
by Consultant. The coverage shall contain no special limitations on the scope of protection
afforded City, its officers, employees, agents, or volunteers.
14.5 Notice of Cancellation/Termination of Insurance.
The above policy/policies shall not terminate, nor shall they be cancelled, nor
the coverages reduced, until after thirty (30) days' written notice is given to City, except that
ten (10) days' notice shall be given if there is a cancellation due to failure to pay a
premium.
1.4.6 Terms of Compensation.
Consultant shall not receive any compensation until all insurance provisions
have been satisfied.
14.7 Notice to Proceed.
Consultant shall not proceed with any work under this Agreement until the
City has issued a written "Notice to Proceed" verifying that Consultant has complied with all
insurance requirements of this Agreement.
Section 15. Termination.
City shall have the right to terminate this Agreement without cause by giving thirty
(30) days' advance written notice of termination to Consultant.
In addition, this Agreement may be terminated by any party for cause by providing
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ten (10) days' notice to the other party of a material breach of contract. If the other party
does not cure the breach of contract, then the agreement may be terminated subsequent
to the ten (10) day cure period.
Section 16. Notice,
All notices and billing statements shall be personally delivered or mailed to the
below listed addresses, or to such other addresses as may be designated by written notice.
These addresses shall be used for delivery of service of process:
To City: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: William Ramsey, AICP, Principal Planner
To Consultant: Rebecca Kramer
Center for Natural Lands Management
215 West Ash Street
Fallbrook, CA 92028
Section 17. Attorneys' Fees.
If any action at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which he may be entitled.
Section 18. Dispute Resolution.
In the event of a dispute arising between the parties regarding performance or
interpretation of this Agreement, the dispute shall be resolved by binding arbitration under
the auspices of the Judicial Arbitration and Mediation Service ("JAMS").
Section 19. Entire Agreement.
This Agreement constitutes the entire understanding and agreement between the
parties and supersedes all previous negotiations between them pertaining to the subject
matter thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
ATTEST:
Maria Morrish CityC erk
APPROVED AS TO FORM:
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CONSULTANT
By:
David R. Brunner,
Executive" Director
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EXHIBIT A
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Property Analysis Record PAR for the
Pacifica San Juan Project Tract 15609 P255
Scope of Work
Property Information
Property Name: Pacific San Juan Mitigation Site (Tract 15609)
Property Ownership: LV Pacific Point, LLC
City: San Juan Capistrano
County: Orange
State: California
Acres: approximately 17.6 acres habitat restoration area
2. Contact Information
William (Bill) A. Ramsey, AICP, Principal Planner
Development Services Department
City of San Juan Capistrano
Project Proponent 32400 Paseo Adelanto
San Juan Capistrano, California 92675
(949) 443-6334
BRamsey@sanjuancapistrano.org
www.sanjuancapistrano.org
Rebecca Kramer
Director, Conservation Acquisitions
Center for Natural Lands Management
215 West Ash Street
CNLM Pallbrook, CA 92028
i (510) 725-4691 Phone/Pax
rkramer@cnlm.org
Deborah L. Rogers, Ph. D.
Director of Conservation Science
Center for Natural Lands Management
CNLM Scope and Budget
P255- Pacifica SJ PAR FINAL
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215 West Ash Street
Fallbrook, CA 92428
(514) 799-7741
drogers@cnim.org
3. Services
Project Proponent requires the services of a qualified consultant to perform the following:
a. Prepare and provide a Property Analysis Record (PAR) report ("PAR Report") as
annotated by an accompanying communication ("PAR Leiter") using CNLM's
specific due diligence process and PARD software. CNLM will provide the
Project Proponent these documents in draft form for the Project Proponent's
review and comment.
b. Review existing documentation on the Property including the 2446 PAR
documentation, a current Preliminary Title Report and related underlying
documents provided by a title company, and any other documentation or reports
CNLM may deem useful and helpful including but not limited to the Project
Proponent's operational cost structure and associated rates for management of
the current Property and its associated endowment.
C. Perform at least one (1) visit to the Property to provide current information as to
the biological condition of the Property and surrounding areas, the purpose of
which is to determine the following features, including, but not limited to: physical
features, onsite structures, access, adjoining land uses, status of habitats and
wetland areas
d. Participate in at least one (1) meeting with the Project Proponent.
e. Review existing documentation related to the physical and biological history and
condition of the Property.
f. Review any existing monitoring and/or management plans for the Property.
CNLM will use its best efforts to complete this Scope of Work within 90 business days
from the Commencement Date, defined below, unless provided otherwise as described in
Exhibit B (Work Schedule).
4. Project Proponent Document Production
The following list of documents and data indicated by an °x" represents those sources of
information (if available and applicable) believed by CNLM as necessary to effectively estimate the
costs of managing habitat associated with the Property. If Project Proponent has additional
documents and/or data which it believes relevant to the CNLM's analysis under this Agreement, such
information should also be provided. CNLM requests that all information be provided to CNLM both
as hard copy and in digital format (e -files via e-mail or CD/DVD depending on file size) whenever
possible.
a. x Current Preliminary Title Report (PTR) including underlying documents and
plotted easements map (Preferably provided via link from title company files)
b. x Recent Property tax bill
CNLM Scope and Budget
P255- Pacifica SJ PAR FINAL
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C. x Restoration plans and maps
d. x Habitat Management Plan
e. x Mitigation and Monitoring Plan
f. x Biological assessments and maps
g. x Identification of all manmade features on or adjacent to the habitat, including
any buildings, roads, trails, power lines, pipelines, wells, revetments,
manufactured slopes, and similar modification to the natural condition of the
habitat
h. x Utility and other easements with a map showing exact location(s)
i. Water Quality Report (most recent, and with date indicated)
j. x Environmental Impact Report (EIR)/Environmental Assessment (EA)
k. Hazardous Materials Evaluation (minimum ASTM Phase I Study, and Phase
II as may be further required)
1. x Conservation Easement(s) (existing or in draft form)
m. Homeowners' Association/Commercial Owners' Association documents
(current CC&R`s, other documents pertaining to current legal issues, etc.)
n. — ACOE 404 Permit (Clean Water Act)
o. — USFWS Endangered Species Take/Biological Opinion
P, , CDFG 2081 (Endangered Species Permit)
q. — CDFG 1601/1603 (Streambed Alteration Agreement)
r. x CEQA/NEPA document (if different from EIR)
S. x Cultural resources survey or similar information
t. x Management/Implementation Agreements
U. x Aerial photographs (orthorectified/georeferenced digital format preferred)
showing parcel boundary overlay
V. x GIS data (biological resources including sensitive species locations and
vegetation coverage, cultural resources, project boundary, and adjacent
development footprint including fuel modification zones)
W. x Topographic maps
X. x Tract maps
Y. x Other agreements between landowner(s) and third party(ies).
To the extent not provided above, other pertinent agreements, documents such as
approved USFWS/CDFG 4(d) Interim Habitat Loss Plan, reports, maps, and photographs that
might relate to supplementing CNLM understanding of the project such as title and survey
matters, historical land uses, zoning, and current land uses, jurisdiction of special purpose
government over the habitat, leases, fuel modification requirements, encumbrances, natural
resources inventories, baseline biological survey data, other site characteristics (e.g., threats to
conservation and constrains on management), and future growth that may present management
problems.
CNLM Scope and Budget
P255- Pacifica SJ PAR FINAL
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Please note that all materials should be dated and the source indicated. if any one of
these documents is contained within another, please note the number of that item and provide
an explanation via e-mail or transmittal.
5. Tasks and. -Expenses not included in Scope of Work
The following are tasks and expenses are not included in this Scope of Work:
a. Revisions to the completed, final PAR or cost analysis with the exception of
revisions or to correct errors or omissions by CNLM.
b. Participation in meetings, administrative proceedings, and/or negotiations with
regulatory agencies, or special purpose or general purpose governments.
C. Additional Project Proponent meetings (in-person).
d. Resolving new issues or creating/evaluating new documents not identified in this
Scope of Work.
G. 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. Project
Proponent will authorize proposed changes in writing as soon as possible.
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 Exhibit A.
C. Project Proponent agrees to compensate CNLM for costs and expenses incurred
by CNLM in preparing revisions, with the exception of revisions or to correct errors or omissions
by CNLM, to a completed PAR requested by the Project Proponent which shall be paid by the
Project Proponent at the applicable rate according to above Compensation 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 specified in Exhibit A (Scope of Work) at the applicable rate
according to the Compensation Rates detailed in Exhibit C (Compensation, Deposit, and
Payment Schedule) plus direct expenses would apply, provided CNLM will advise City if such
requested work is outside the scope of work.
Work Schedule
Commencement Date
The Commencement Date is defined as the date CNLM will be in possession of all of the
following items: (a) executed Agreement: (b) Initial Deposit; (c) documents and/or data
requested under Section 4 of above (Scope of Work); and (d) written permission to access the
Property by the current landowner(s).
Once the Commencement Date is established, CNLM will schedule a site visit to the
Property, undertake review of documents and data provided by Project Proponent, and prepare
CNLM Scope and Budget
P255- Pacifica SJ PAR FINAL
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a draft PAR that will be submitted to Project Proponent for review. CNLM will employ best
efforts to complete the draft PAR within ninety (90) days of the Commencement Date.
Budget: Compensation, Deposit, and Payment Schedule
1. Compensation
Under this Agreement, CNLM will prepare a Property Analysis Record (PAR) and/or
other cost analyses services on a time and materials basis, i.e., it will be compensated at
agreed rates, for actual work performed (including legal expenses incurred in preparing,
reviewing, and amending the terms and conditions of the Agreement), travel time, expenses
incurred, and materials used in performing the Services in the Scope of Work.
Fees will be charged to Project Proponent at the rates shown under Compensation
Rates below, and/or as provided via invoices presented to CNLM by its subcontractors, if any.
Project Proponent agrees to pay CNLM the sum of Four Thousand Six Hundred dollars
($4,600), 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 ("Compensation Rates")
Executive Director
$93.60
General Counsel
$72.50
Director of Conservation Science
$72.50
Director of Conservation Acquisitions
$72.50
Director of Administration
$72.50
Preserve Manager/Senior Biologist
$52.50
Administrative Staff
$26.40
b. Other Costs and Expenses
The proposal includes and CNLM will request reimbursement for expenses
incurred including, but not limited to, mileage, travel, lodging, meals and incidental,
postage/shipping and copies.
Fifty percent (50%), or Two Thousand Three Hundred dollars ($2,300), 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. All amounts invoiced not
credited against the Initial Deposit shall be considered due and payable upon receipt.
Payments delinquent thirty (30) days or more will accrue interest at the annual rate of 12% on
the balance due until paid in full. Payments delinquent 45 days or more will be cause for CNLM,
CNLM Scope and Budget
P255- Pacifica SJ PAR FINAL
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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 mold CNLM harmless from all liability that
may arise as a result of suspension of work due to Project Proponent's non-payment of flees.
CNLM Scope and Budget
P255- Pacifica SJ PAR FINAL
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