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08-0429_DEREK OSTENSEN_Personal Services Agreement0 0 PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this, -/ _day of A&? 2008, by and between the City of San Juan Capistrano (hereinafter referred to as the 'City") and Derek Ostensen (hereinafter referred to as the "Consultant"). RECITALS: WHEREAS, City desires to retain the services of Consultant regarding the City's proposal to research, identify, coordinate and make application for grant and other private funding related to the preservation and acquisition of open space lands; 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 City 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 of this Agreement and services required hereunder shall continue until notified that said services are no longer required, subject to 15 days notice of termination. Section 3. Compensation. 3.1 Amount. Total compensation for the services hereunder shall not exceed $15,000, payable at the rates set forth in Exhibit "A," attached and incorporated herein by reference. 3.2 Method of Payment. Subject to Section 3.1, Consultant shall submit monthly invoices based on total services which have been satisfactorily completed for such monthly period. The City will pay monthly progress payments based on approved invoices in accordance with this Section. 0 0 3.3 Records of Expenses. Consultant shall keep 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 City. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor and not an agent or employee of City, and shall obtain no rights to any benefits which accrue to City's employees. Section 5, Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for 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 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 extra 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(s), and is aware of all conditions there; and (3) it understands the facilities, difficulties and restrictions of the work to be performed under this Agreement. Should Consulta6t 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. 0 0 Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law. Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. 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. 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 any way 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 3 0 0 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 Admitted 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 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 - owned vehicles in an amount not less than one wallinn dollars per occurrence (�1 eee ess eek. f S00(o0c), do UV 14.2 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.3 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 fifteen (15) days' advance written notice of termination to Consultant. In addition, this Agreement may be terminated by any party for cause by providing 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. 4 0 0 Section 16. Notice. All notices 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: Cindy Russell To Consultant: Derek Ostensen 785 Wendt Terrace Laguna Beach, CA 92651 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 parry 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. [SIGNATURE PAGE FOLLOWS] 5 u IN WITNESS WHEREOF, the parties hereto have executed this Agreement. ATTEST: D AS TO FORM: 0 ,u J"JAJ City Attorney I CITY OF SAN JUAN CAPISTRANO By: x -11 CO4 Dave Adams, City Manager CONSULTANT By: Derek Os ensen 0 0 EXHIBIT "A" SCOPE OF WORK For Derek Ostensen City of San Juan Capistrano 1. Research and Identify Public and Private Funding Availability with Respect to Open Space Preservation and Acquisition and the Open Space Master Plan Rate $40 per hour • Assemble and review current and in -progress open space master plan documents, properties identified for preservation/acquisition and projects to determine compatibility with existing funding sources. • Work with City staff and the Open Space Committee to tailor the open space master plan in a manner that balances both suitability for obtaining outside funding sources and the recreation needs of City residents 2. Identify, Coordinate and Apply for Grant Funds Rate - $95 per hour • Consultant will work closely with City and its lobbyists to identify appropriate funding sources from local, State and Federal sources. • As directed, and in a way that does not conflict with lobbyists' scope of work, Consultant will coordinate application materials and submittals for appropriate grant funds • Consultant will coordinate meetings and materials to obtain agency or fundor endorsement of City open space projects so as to obtain monies for targeted City acquisitions or restorations • Review current projects and assist the City with potential and ongoing funding of acquisitions or restorations as needed or directed by City 3. Develop Restoration and Funding Plans and Opportunities for Shea Acquisition, Laguna HOA property and other future acquisitions or related properties Rate - $95 hour Consultant will work with City planners and the Open Space Committee to create open space and restoration plans, identify potential funding sources, and help coordinate restoration or enhancement of the recent Shea acquisition, the Laguna HOA property and other future acquisitions or related properties. Focus will be on obtaining local, State or Federal funding to improve the properties and/or their habitat, while retaining appropriate community recreation uses. � I 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAX www.sanjuancapistrano.org May 1, 2008 Derek Ostensen 785 Wendt Terrace Laguna Beach, CA 92651 Dear Mr. Ostensen: Jwar, ! /0j� licit 616111 ' Iiun11119 i 1961 1776 MEMBERS OF THE CITY COUNCIL / SAM ALLEVATO THOMAS W. HRISAR MARK NEILSON JOE SOTO DR. LONDRES USO A Personal Services Agreement related to grant funding opportunities for the preservation and acquisition of open space lands is in the process of being executed. It will be issued upon receipt of required documentation related to contract terms under Section 14. Insurance. Insurance evidence may be faxed to (949) 493-1053 — ATTENTION CITY CLERK -- followed by original signed documents. I have enclosed a copy of the agreement terms for your reference in supplying this documentation. If you have questions specific to the contract, please contact Cynthia L. Russell, Assistant City Manager (949) 443-6301. Please call Maria Morris, Deputy City Clerk (949) 443-6309 if you have questions regarding the r mi�rrance needed. %� Thank you, \ fir' Me Mona an, MMC , r CClerk cc: Cynthia L. Russell, Assistant City Manager San Juan Capistrano: Preserving the Past to Enhance the Future 01, Printetl on 100% recycleG paper 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 Admitted 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 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 - owned vehicles in an amount not less than one million dollars per occurrence ($1,000,000.00). 14.2 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.3 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 fifteen (15) days' advance written notice of termination to Consultant. In addition, this Agreement may be terminated by any party for cause by providing 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. n