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Contract - Kaplan - 2012-02-17 AGREEMENT FOR CONSULTANT SERVICES This Agreement is made and effective as of February 17 2012, between the Costa Mesa Sanitary District, a sanitary district ("District"), and Kaplan Consulting, a sole proprietorship ("Consultant"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: Recitals WHEREAS, the Costa Mesa Sanitary District administers a Regional and Recycling Diversion Grant from OC Waste and Recycling; and WHEREAS the grant being administered by the District is for composting education to schools and the public, scheduled by request; and WHEREAS on October 11 2010 the District entered into an Agreement with Consultant to provide composting and vermicomposting presentations to workshop participants; and WHEREAS the Agreement expired on October 12, 2011 and WHEREAS, Kaplan Consulting desires to enter into an agreement with the District to co-develop and provide composting and vermicomposting presentations to workshop participants NOW THEREFORE the parties hereto do hereby agree as follows: 1 TERM This Agreement shall commence on February 15 2012, and shall remain and continue in effect until tasks described herein are completed and shall terminate on February 14 2013, unless sooner terminated pursuant to the provisions of this Agreement. 2. SERVICES Consultant shall perform the tasks described and set forth in Exhibit A, attached hereto and incorporated herein as though set forth in full. Consultant shall complete the tasks according to the schedule of performance which is also set forth in Exhibit A. 1 3. PERFORMANCE Consultant shall, at all times, faithfully competently and to the best of his/her/its ability experience, and talent perform all tasks described herein. Consultant shall employ at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Consultant hereunder in meeting its obligations under this Agreement. 4 DISTRICT MANAGEMENT District's Manager and/or his/her designee shall represent District in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by Consultant, but not including the authority to enlarge the Tasks to be Performed or change the compensation due to Consultant. The District Manager and/or his/her designee shall be authorized to act on District's behalf and to execute all necessary documents which enlarge the Tasks to be Performed or change Consultant's compensation, subject to Section 5 hereof 5. PAYMENT (a) The District agrees to pay Consultant in accordance with the tasks as set forth in Exhibit A, attached hereto and incorporated herein by this reference as though set forth in full, upon completion of the task. This amount shall not exceed ten thousand Dollars ($10 000 00) for the total term of this Agreement unless additional payment is approved as provided in this Agreement. Said sum includes travel and other costs. (b) Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the District Manager Consultant shall be compensated for any additional services in the amounts and in the manner as agreed to by District Manager and Consultant at the time District's written authorized is given to Consultant for the performance of said services. The District Manager may approve additional work not to exceed the greater of two hundred Dollars ($200 00) or two percent (2%) of the total contract sum. Any additional work in excess of this cumulative amount shall be approved by the Board of Directors. (c) Consultant will submit invoices for actual services performed Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the District disputes any of Consultant's fees, it shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice. 2 6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE (a) The District may at any time, for any reasons, with or without cause, suspend or terminate this Agreement, or any portion hereof by serving upon the Consultant at least ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. If the District suspends or terminates a portion of this Agreement, such suspension or termination shall not make void or invalidate the remainder of this Agreement. (b) In the event this Agreement is terminated pursuant to this Section, the District shall pay to Consultant the actual value of the work performed up to the time of termination, provided that the work performed is of value to the District. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the District pursuant to Section 5 7 DEFAULT OF CONSULTANT (a) The Consultant's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, District shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Consultant. If such failure by the Consultant to make progress in the performance of work hereunder arises out of causes beyond the Consultant's control, and without fault or negligence of the Consultant, it shall not be considered a default. (b) If the District Manager or his/her delegate determines that the Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall cause to be served upon the Consultant a written notice of the default. The Consultant shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time, the District shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law in equity or under this Agreement. 8. OWNERSHIP OF DOCUMENTS (a) Consultant shall maintain complete and accurate records with respect to the professional services required by this Agreement and will produce the work product specified in Exhibit A and other such information required by District that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All 3 such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to the representatives of District or its designees at reasonable times to such books and records; shall give District the right to examine and audit said books and records; shall permit District to make transcripts therefrom as necessary. and shall allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. (b) Upon completion, termination or suspension of this Agreement, all work product reduced to any medium and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the District and may be used reused or otherwise disposed of by the District without the permission of the Consultant. With respect to computer files, Consultant shall make available to the District, at the Consultant's office and upon reasonable written request by the District, the necessary computer software and hardware for purposes of accessing, compiling, transferring and printing computer files. 9. INDEMNIFICATION (a) Indemnification for Professional Liability When the law establishes a professional standard of care for Consultant's services, to the fullest extent permitted by law Consultant shall indemnify protect, defend and hold harmless District and any and all of its officials, employees and agents ("Indemnified Parties') from and against any and all losses, liabilities, damages, costs and expenses, including attorney's fees and costs to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subconsultants (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement. (b) Indemnification for Other than Professional Liability Other than in the performance of professional services and to the full extent permitted by law Consultant shall indemnify defend and hold harmless District, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind whether actual, alleged or threatened, including attorneys fees and costs, court costs, interest, defense costs and expert witness fees), where the same arise out of are a consequence of or are in any way attributable to in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including, but not limited to officers, agent, employees or subconsultants of Consultant. 4 10. INSURANCE Consultant shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit B attached to and part of this Agreement. Such coverage shall provide automotive, commercial general liability and professional error coverage, if appropriate. 11 INDEPENDENT CONSULTANT (a) Consultant is and shall at all times remain as to the District a wholly independent Consultant. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither District nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the District. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatsoever against District, or bind District in any manner (b) No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement, District shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for District. District shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder 12. LEGAL RESPONSIBILITIES The Consultant shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Consultant shall at all times observe and comply with all such laws and regulations. The District, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Consultant to comply with this Section. 13. UNDUE INFLUENCE Consultant declares and warrants that no undue influence or pressure has been used against or in concert with any officer or employee of the Costa Mesa Sanitary District in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement or financial inducement. No officer or employee of the Costa Mesa Sanitary District will receive compensation, 5 directly or indirectly from Consultant, or from any officer employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling the District to any and all remedies at law or in equity 14 NO BENEFIT TO ARISE TO LOCAL EMPLOYEES No member officer or employee of District, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Project during his/her tenure or for one year thereafter shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceed thereof for work to be performed in connection with the Project performed under this Agreement. 15. RELEASE OF INFORMATION / CONFLICTS OF INTEREST (a) All information gained by Consultant in performance of this Agreement shall be considered confidential and shall not be released by Consultant without District's prior written authorization. Consultant, its officers, employees, agents or subconsultants, shall not without written authorization from the District Manager or unless requested by the District Counsel, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the District. Response to a subpoena or court order shall not be considered 'voluntary' provided Consultant gives District notice of such court order or subpoena. (b) Consultant shall promptly notify District should Consultant, its officers, employees, agents or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admissions, or other discovery request, court order or subpoena from any person or party regarding this Agreement and the work performed thereunder or with respect to any project or property located within the District. District retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with District and to provide the opportunity to review any response to discovery requests provided by Consultant. However District's right to review any such response does not imply or mean the right by District to control, direct, or rewrite said response. (c) Consultant covenants that neither he/she nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly or indirectly which will conflict in any manner or degree with the performance of their services hereunder Consultant further covenants that in the performance of this Agreement, no person having such interest shall be employed by them as an officer employee, agent or subconsultant. Consultant further covenants that Consultant has not contracted with nor is performing any services, directly or indirectly with any developer(s) and/or 6 property owner(s) and/or firm(s) and/or partnership(s) owning property in the District or the study area and further covenants and agrees that Consultant and/or its subconsultants shall provide no service or enter into any agreement or agreements with a/any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the District or the study area prior to the completion of the work under this Agreement. 16. NOTICES Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to Federal Express, which provides a receipt showing date and time of delivery or (Hi) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice. To District: Costa Mesa Sanitary District 628 West 19th Street Costa Mesa, California 92627 Attn: Management Analyst To Consultant: Kaplan Consulting Dr Francene Kaplan P O Box 10263 Costa Mesa, Ca 92627 17 ASSIGNMENT The Consultant shall not assign the performance of this Agreement, nor any part thereof nor any monies due hereunder without prior written consent of the District. Because of the personal nature of the services to be rendered pursuant to this Agreement, only Dr Francene Kaplan shall perform the services described in this Agreement. Dr Francene Kaplan may use assistants, under its direct supervision, to perform some of the services under this Agreement; however all client contact and interaction regarding professional services shall be provided by Dr Francene Kaplan. Consultant shall provide District fourteen (14) day's notice prior to the departure of Dr Francene Kaplan from Consultant's employ Should he/she leave Consultant's employ the District shall have the option to immediately terminate this Agreement, within three (3) days of the close of said notice period. Upon termination of this agreement, Consultant's sole compensation shall be payment for actual services performed up to and including, the 7 date of termination or as may be otherwise agreed to in writing between the Board of Directors and the Consultant. 18. LICENSES At all times during the term of this Agreement, Consultant shall have in full force and effect, all licenses required of it by law for the performance of the services described in this Agreement. 19. GOVERNING LAW The District and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the superior or federal district court with jurisdiction over the Costa Mesa Sanitary District. 20 ENTIRE AGREEMENT This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. 21 MODIFICATION No modification to this Agreement shall be effective unless it is in writing and signed by authorized representatives of the parties hereto 22. AUTHORITY TO EXECUTE THIS AGREEMENT The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder 8 23. INTERPRETATION In the event of conflict or inconsistency between this Agreement and any other document, including any proposal or Exhibit hereto, this Agreement shall control unless a contrary intent is clearly stated. 24. BUSINESS LICENSE Consultant shall obtain a business license from the City of Costa Mesa unless legally exempt. IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed this day and year first above written. COSTA MESA SANITARY DISTRICT yi District Manager S.•nature ATTEST Francene Kaplan Typed Name Distric/C J�lerk- "- = Owner Title APFROVED AS TO FORM: District Counsel 9 EXHIBIT A. CONSULTANT SERVICES, SCHEDULE AND COMPENSATION SERVICES Consultant shall perform the following services according to a flexible schedule determined by the District: 1 Pre-coordinate and recommend proposed educational materials to District representatives for acquisition, reproduction and distribution with the District. 2. Present approved composting instruction, public outreach and educational materials to school representatives and residents. 3 Promote the use of backyard compost bins to reduce landfill disposal of green waste. 4 Present approved vermicomposting instruction, public outreach and educational materials to school representatives and residents. 5 Promote the use of worm compost bins to reduce landfill disposal of kitchen green waste. 6 Distribute District provided public outreach and educational materials at the scheduled events. SCHEDULE. The schedule of presentations shall be co-developed with the District representative during this performance period Consultant shall recommend educational materials to the District to support the public outreach presentations. The District will provide all educational materials for distribution. COMPENSATION District shall compensate Consultant at the rate of Two hundred dollars ($200 00) per presentation given to schools and residents. The number of presentations is estimated to be fifty (50) resulting in a total possible compensation of Ten thousand dollars ($10,000.00) during the performance of this one year agreement. 10 EXHIBIT B. DISTRICT INSURANCE REQUIREMENTS General Liability $1 000 000 per occurrence for bodily injury personal injury and property damage. General Liability insurance shall endorse the Costa Mesa Sanitary District as an additional insured party An endorsement must accompany the certificate of insurance as proof Automobile Liability $1 000 000 per accident for bodily injury and property damage. Automobile Liability insurance shall cover 'any vehicle Workers' Compensation and Employer's Liability Workers Compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of $1 000 000 per accident for bodily injury or disease Acceptability of Insurers: All insurance must be placed with insurers with a current A.M. Best financial rating no less than A- VII licensed to do business in California, and satisfactory to the District. All insurance documents must be submitted and approved by the District's Risk Manager prior to execution of any Agreement with the Costa Mesa Sanitary District. 11