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09-0901_OSTENSEN , DEREK_Personal Services AgreementPERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this day of September 2009, 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 to assist the City with the grant funding process and associated activities related to the acquisition, management, conservation and/or preservation of open space lands in the City of San Juan Capistrano; 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 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 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 $24,985 (twenty-four thousand, nine -hundred, and eighty-five dollars and no cents), as set forth in Exhibit "B," attached hereto 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. 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 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. 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 hp://www.uscis.aov, or access the registration page at hftps://www.vis-dhs.com/emploverregistration. 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. 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 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 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-half million dollars per occurrence ($500,000.00). 0 14.2 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. 14.3 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. 14.4 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.5 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 ten (10) days' notice to the other party of a material breach of contract. If the other parry 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 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 A. Ramsey, AICP, Principal Planner To Consultant: Derek Ostensen Derek Ostensen & Associates 1278 Glenneyre, Suite 260 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 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. 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO By: oe T t, Interim City Manager CONSULTANT By: Derek Os ensen Derek Ostensen & Associates A E Cit C EXHIBIT "A" SCOPE OF WORK for City of San Juan Capistrano Open Space Master Plan Grant Writing and Conservation Planning Services 1. Identify, Coordinate and Apply for Third Party Grant Funds Rate - $95 per hour a. Consultant will assist the City and its lobbyists with identifying all appropriate funding sources from local, State and Federal sources for the purposes of acquiring, preserving, managing and/or conserving open space lands within the City of San Juan Capistrano. b. Consultant will provide guidance and recommendations to City staff, City Council, the Open Space Committee and its Subcommittees, as requested/directed by City staff, to determine potential projects for grant funding, including lands suitable or prioritized for acquisition or restoration. c. As directed by City staff, and in coordination with the City's open space lobbyists, Consultant will identify potential grant funding sources, prepare grant application materials and submittals, and be responsible for the timely submission of grant applications to grant funding organizations/agencies. d. Consultant will arrange and attend pre -application (grant) meetings and materials to obtain agency staff support of funds endorsement of City open space projects so as to obtain grant monies for targeted City acquisitions or restorations. e. Consultant will prepare Measure M funding applications, including coordination with the Measure M Environmental Oversight Committee, OCTA staff and City staff. f. As determined necessary and as directed by the City on a case-by-case basis, Consultant will prepare marketing materials for potential open space habitat restoration plans or open space land easement/acquisitions so as to attract additional grant funding opportunities and/or public support. g. As requested by the City on a case-by-case basis, Consultant will review proposed development plans for open space projects and identify potential and/or ongoing grant funding opportunities for acquisitions and/or restorations associated with such projects. h. As requested by City staff, Consultant will attend periodic Open Space Committee, OSC Planning Subcommittee, and City Council meetings to provide status reports on consultant work. 2. Assist with the Development of Restoration, Acquisition, and/or Use/Management Plans for Acquired City Open Space Lands Rate - $95 hour As determined necessary and directed by the City staff, Consultant will work with City staff and the Open Space Committee to create open space restoration and acquisition plans, identify potential funding sources, and help coordinate restoration or enhancement of open space properties identified by the City. The focus of such efforts will be on developing restoration, acquisition, and use/management plans that meet local, State or Federal grant funding criteria. page 2 of 5 EXHIBIT "B" SCOPE OF WORK DELIVERABLES for City of San Juan Capistrano Open Space Master Plan Grant Writing and Conservation Planning Services Potential Third Party Grant Applications As directed by City staff with guidance from City Council and the Open Space Committee, Consultant will coordinate with the City, and prepare and submit grant application materials and submittals for appropriate grant funds, including but not necessarily limited to the following potential grants opportunities: Grant Deadline Habitat Conservation Fund October, 2009 Open Rivers Initiative October, 2009 River Parkways November, 2009 Measure M December, 2010 Five Star Restoration Program February, 2010 American Rivers Restoration March, 2010 Orange County Community Foundation March, 2010 Steelhead Fishery Restoration May, 2010 Section 6 Endangered Species June, 2010 Land and Water Conservation Funds June, 2010 Coastal Conservancy Programs Quarterly Wildlife Conservation Board Programs Quarterly Storm Water Pollution Program Quarterly Consultant will be responsible for developing a schedule for the preparation of draft grant applications and meeting all milestones with respect to preparing and submitting the draft grant application, scheduling grant submissions for Open Space Committee recommendation and City Council action, and submitting the complete grant applications to the appropriate organization/agency prior to the grant deadline. Grant Solicitation Marketing Materials At the direction of City staff, and prior to making formal grant applications, Consultant will prepare preliminary information booklets, which include representative photos, text descriptions and maps, valued by potential grantors as a way for grantors to learn more about potential funding opportunities involving San Juan Capistrano open space. Once specific acquisitions and/or restorations are approved by the City Council, delivery of each marketing booklet will take approximately two weeks. page 3 of 5 Community Support A key component of successfully attracting third party grant funds is obtaining additional public and non-profit endorsement of the application. The following entities would be appropriate sources of endorsement for City of San Juan Capistrano restorations and acquisitions. Entity Delivery of Letter San Juan Open Space Foundation November, 2009 County of Orange November, 2009 Laguna Canyon Foundation November, 2009 Nature Reserve of Orange County November, 2009 Irvine Ranch Conservancy November, 2009 The Nature Conservancy November, 2009 Sea and Sage Audubon November, 2009 Laguna Greenbelt November, 2009 Trout Unlimited November, 2009 The Great Park Corporation November, 2009 City of Laguna Niguel November, 2009 City of Ladera Ranch November, 2009 City of Mission Viejo November, 2009 Consultant will meet with the Boards, Executive Directors and staff of the above groups to educate them on the benefits of San Juan Capistrano's conservation plans and solicit their endorsement, which is crucial to open space grant applications, including Measure M. (note: Irvine Ranch Conservancy's Marketing Booklet for their Measure M submission included over 10 of these endorsement letters which are a major component of their application). Budget Task Hours Rate Budget Measure M Application 130 $95.00 $12,350 Additional Grant Applications 60 $95.00 $5,700 Community Support 16 $95.00 $1,520 Committee Meetings 22 $95.00 $2,090 Marketing Materials 25 $95.00 $2,375 Restoration and Acquisition Plans 10 $95.00 $950 262 page 4 of 5 Total $24,985 STATEMENT OF OFFER/TERMS OF AGREEMENT All work described in this proposal will be performed for an estimated not -to -exceed budget of $24,985. This offer is valid for a period of sixty (60) days. These costs are based upon the assumptions made on the scope of work for the project. I will perform no work that is outside the approved scope -of -work (SOW) without prior written authorization. Derek Ostensen, Principal, is the individual authorized to bind the offer made above. Offer Presented By: Derek Ostensen, Derek Ostensen & Associates page 5 of 5 0 • 9/1/2009 MEMORANDUM D11 TO: Joe Tait, City Manage !� FROM: Steven Apple, AICP, ((Community Development Director SUBJECT: Consideration of a Contract with Derek Ostensen & Associates for Grant Writing and Open Space Conservation Services Related to the City's Open Space Acquisition and Restoration Efforts By motion, authorize the City Manager to execute a contract with Derek Ostensen & Associates for grant writing and open space conservation services related to the City's open space acquisition and restoration efforts not to exceed $25,000. SITUATION In November 2006, Orange County voters approved a renewal of the Y2 cent sales tax for funding transportation improvements projects. Renewed Measure M, dubbed M2, is projected by the Orange County Transportation Authority (OCTA) to raise $11.9 billion over the thirty years life of the program. In the Fall of 2008, OCTA allocated $243.5 million to mitigate the environmental impacts of freeway improvements through the Mitigation and Resource Protection Program (MRPP) and allocated $237.2 million to provide a competitive grant process through the Environmental Cleanup Program to help local agencies clean up highway and street runoff and meet Clean Water Act standards. Both programs are administered by oversight committees to make recommendations to the OCTA Board of Directors on how each program is to be designed and implemented. OCTA's Environmental Oversight Committee (EOC) is now completing the details on implementation of the Mitigation and Resource Protection Program (MRPP) and how the $243.5 million will be spent for environmental mitigation. Recently, the EOC has recommended to the OCTA board that 20% of MRPP funds be designated for open space and habitat restoration and 80% be designated for open space acquisition. These funds will be awarded through a competitive grant process. The City's current and past open space bond efforts and open space acquisition uniquely position the City to compete for matching grant funds for open space restoration and acquisition. In order to compete for this grant funding, City staff have identified the need for retaining expertise in the field of grant writing and open space conservation and have secured a proposal for services from Derek Ostensen & Associates. Over the past six years, Ostensen has successfully negotiated eight land acquisitions totaling 238 acres of Agenda Report Page 2 March 3. 2009 open space and has raised more than $150,000 in charitable contribution for Laguna Canyon Foundation. Mr. Ostensen is uniquely qualified to assist the City in securing approval of open space -related grants from not only OCTA's Mitigation and Resource Protection Program (MRPP), but also other Federal, State, and non-profit grants. FINANCIAL CONSIDERATIONS The City has non-operating budget, reserve funding available to cover the cost of this contract. PUBLIC NOTIFICATION Public notification is provided through posting of the meeting agenda. RECOMMENDATION By motion, authorize the City Manager to execute a contract with Derek Ostensen & Associates for grant writing and open space conservation services related to the City's open space acquisition and restoration efforts not to exceed $25,000. Respectfully Prepared by: Steven A.e, P William A. Ramsey, AICP Community Development Director Principal Planner Attachment: Professional Services Agreement with Derek Ostensen & Associates. PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this day of September 2009, 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 to assist the City with the grant funding process and associated activities related to the acquisition, management, conservation and/or preservation of open space lands in the City of San Juan Capistrano; 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 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 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 $24,985 (twenty-four thousand, nine -hundred, and eighty-five dollars and no cents), as set forth in Exhibit "B," attached hereto and incorporated herein by reference. ATTACHMENT 1 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. 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 Consultant discover any latent or 2 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. 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.gov, or access the registration page at https://www.vis-dhs.com/emploverre-gistration. 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, 3 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 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 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-half million dollars per occurrence ($500,000.00). 4 14.2 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. 14.3 Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, norshall 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. 14.4 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.5 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 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 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 A. Ramsey, AICP, Principal Planner 5 To Consultant: Derek Ostensen Derek Ostensen & Associates 1278 Glenneyre, Suite 260 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 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: City Clerk APPROVED AS TO FORM: City Attorney CITY OF SAN JUAN CAPISTRANO 0 Joe Tait, Interim City Manager CONSULTANT 0 7 Derek Ostensen Derek Ostensen & Associates EXIMIT "A" SCOPE OF WORK for City of San Juan Capistrano Open Space Master Plan Grant Writing and Conservation Planning Services 1. Identify, Coordinate and Apply for Third Party Grant Funds Rate - $95 per hour a. Consultant will assist the City and its lobbyists with identifying all appropriate funding sources from local, State and Federal sources for the purposes of acquiring, preserving, managing and/or conserving open space lands within the City of San Juan Capistrano. b. Consultant will provide guidance and recommendations to City staff, City Council, the Open Space Committee and its Subcommittees, as requested/directed by City staff, to determine potential projects for grant funding, including lands suitable or prioritized for acquisition or restoration. c. As directed by City staff, and in coordination with the City's open space lobbyists, Consultant will identify potential grant funding sources, prepare grant application materials and submittals, and be responsible for the timely submission of grant applications to grant funding organizations/agencies. d. Consultant will arrange and attend pre -application (grant) meetings and materials to obtain agency staff support of funds endorsement of City open space projects so as to obtain grant monies for targeted City acquisitions or restorations. e. Consultant will prepare Measure M funding applications, including coordination with the Measure M Environmental Oversight Committee, OCTA staff and City staff. f. As determined necessary and as directed by the City on a case-by-case basis, Consultant will prepare marketing materials for potential open space habitat restoration plans or open space land easement/acquisitions so as to attract additional grant funding opportunities and/or public support. g. As requested by the City on a case-by-case basis, Consultant will review proposed development plans for open space projects and identify potential and/or ongoing grant funding opportunities for acquisitions and/or restorations associated with such projects. h. As requested by City staff, Consultant will attend periodic Open Space Committee, OSC Planning Subcommittee, and City Council meetings to provide status reports on consultant work. Exhibit A 2. Assist with the Development of Restoration, Acquisition, and/or Use/Management Plans for Acquired City Open Space Lands Rate - $95 hour As determined necessary and directed by the City staff, Consultant will work with City staff and the Open Space Committee to create open space restoration and acquisition plans, identify potential funding sources, and help coordinate restoration or enhancement of open space properties identified by the City. The focus of such efforts will be on developing restoration, acquisition, and use/management plans that meet local, State or Federal grant funding criteria. page 2 of 5 EXHIBIT "B" SCOPE OF WORK DELIVERABLES for City of San Juan Capistrano Open Space Master Plan Grant Writing and Conservation Planning Services Potential Third Party Grant Applications As directed by City staff with guidance from City Council and the Open Space Committee, Consultant will coordinate with the City, and prepare and submit grant application materials and submittals for appropriate grant funds, including but not necessarily limited to the following potential grants opportunities: Grant Deadline Habitat Conservation Fund October, 2009 Open Rivers Initiative October, 2009 River Parkways November, 2009 Measure M December, 2010 Five Star Restoration Program February, 2010 American Rivers Restoration March, 2010 Orange County Community Foundation March, 2010 Steelhead Fishery Restoration May, 2010 Section 6 Endangered Species June, 2010 Land and Water Conservation Funds June, 2010 Coastal Conservancy Programs Quarterly Wildlife Conservation Board Programs Quarterly Storm Water Pollution Program Quarterly Consultant will be responsible for developing a schedule for the preparation of draft grant applications and meeting all milestones with respect to preparing and submitting the draft grant application, scheduling grant submissions for Open Space Committee recommendation and City Council action, and submitting the complete grant applications to the appropriate organization/agency prior to the grant deadline. Grant Solicitation Marketing Materials At the direction of City staff, and prior to making formal grant applications, Consultant will prepare preliminary information booklets, which include representative photos, text descriptions and maps, valued by potential grantors as a way for grantors to learn more about potential funding opportunities involving San Juan Capistrano open space. Once specific acquisitions and/or restorations are approved by the City Council, delivery of each marketing booklet will take approximately two weeks. page 3 of 5 Exhibit B Community Support A key component of successfully attracting third party grant funds is obtaining additional public and non-profit endorsement of the application. The following entities would be appropriate sources of endorsement for City of San Juan Capistrano restorations and acquisitions. Entity Delivery of Letter San Juan Open Space Foundation November, 2009 County of Orange November, 2009 Laguna Canyon Foundation November, 2009 Nature Reserve of Orange County November, 2009 Irvine Ranch Conservancy November, 2009 The Nature Conservancy November, 2009 Sea and Sage Audubon November, 2009 Laguna Greenbelt November, 2009 Trout Unlimited November, 2009 The Great Park Corporation November, 2009 City of Laguna Niguel November, 2009 City of Ladera Ranch November, 2009 City of Mission Viejo November, 2009 Consultant will meet with the Boards, Executive Directors and staff of the above groups to educate them on the benefits of San Juan Capistrano's conservation plans and solicit their endorsement, which is crucial to open space grant applications, including Measure M. (note: Irvine Ranch Conservancy's Marketing Booklet for their Measure M submission included over 10 of these endorsement letters which are a major component of their application). Budget Task Hours Rate Budget Measure M Application 130 $95.00 $12,350 Additional Grant Applications 60 $95.00 $5,700 Community Support 16 $95.00 $1,520 Committee Meetings 22 $95.00 $2,090 Marketing Materials 25 $95.00 $2,375 Restoration and Acquisition Plans 10 $95.00 $950 262 page 4 of 5 Total $24,985 STATEMENT OF OFFER/TERMS OF AGREEMENT All work described in this proposal will be performed for an estimated not -to -exceed budget of $24,985. This offer is valid for a period of sixty (60) days. These costs are based upon the assumptions made on the scope of work for the project. I will perform no work that is outside the approved scope -of -work (SOW) without prior written authorization. Derek Ostensen, Principal, is the individual authorized to bind the offer made above. Offer Presented By: Derek Ostensen, Derek Ostensen & Associates page 5 of 5 Today's Date:_ CIP No. (if any): 9/1/2009 CONTRACT TRANSMITTAL Transmittal Routing (Check All That Apply) ® City Attorney ❑ City Manager ® City Clerk Project Manager's Last Name: Ramsey Phone Extension: 6334 Council or CRA Meeting Date (if applicable): 9/01/09 APPROVING AUTHORITY: (Check One) wMayor EICRA Chair City Manager Provide (1) executed original contract for each signing party, including the City. If the agreement is to be recorded — only (1) original will be recorded with certified copies going to other parties. Please provide the mailing address of any party to receive an agreement — unless the mailing address is included within the body of the agreement: Names Street ity St Zi OTHER INSTRUCTIONS: Please sign and forward to the next applicable department. Thank you. Form Date: 01-2004 D-7