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18-1016_HDR ENGINEERING, INC._E7_Agenda Report1(r11612:01$ WT TO FROM SUBMITTED BY DATE SUBJECT City of San Juan Capistrano Agenda Report Honorable Mayor and Members of the City Council fin¡^ in Siegel, City Manager Jacob Green, Assistant City Mana n , /* Sam Penrod, Human Resources and RiSk Manager October 16,2018 Professional Services Agreement with HDR, lnc. for Specialized Consulting Services for Public Quiet Zone Rail Crossing Project RECOMMENDATION: 1)Approve and authorize the City Manager to execute a Professional Services Agreement with HDR, lnc. for specialized services for a potential public rail crossing and "QuietZone" at Rancho Capistrano; and 2)Approve a waiver of the requirement to use the Request for Proposal process for these services. DISCUSSION/ANALYSIS: On September 4, 2018, the City Council authorized a Deposit and Reimbursement Agreement with Saddleback Valley Community Church (SVCC) as part of the process of applying for a public rail crossing and potential "Quiet Zone" at the Rancho Capistrano private rail crossing. The process of submitting an application to the California Public Utilities Commission (CPUC) for conversion of a private crossing to a public crossing requires substantial interagency coordination and oversight of various technical studies that must be prepared and submitted to the applicable federal and state regulatory agencies. While the City is the applicant, all costs associated with the application and potential future transition are borne by the private property owner utilizing the approved Deposit and Reimbursement Agreement. HDR, based in lrvine, is currently serving as the lead consultant for the Orange County Transportation Authority (OCTA) San Juan Passing Siding Project (Siding Project). HDR has conducted all of the detailed design and environmental reviews of the engineering City Council Agenda Report October 16,2018 Paqe 2 of 3 and environmental documents for the Siding Project, which will add approximately 1.8 miles of passing siding railroad track between the Laguna Niguel/Mission Viejo Metrolink Station and Trabuco Creek in San Juan Capistrano and affect the private crossing in question. Additionally, HDR's background and experience includes assisting the City and OCTA with the San Juan Creek Bridge Replacement Project, as well as designing over 50 at-grade crossings improvements throughout the greater Southern California area during the last ten years, including multiple projects requiring CPUC Formal Applications for new at-grade crossings and Federal Railroad Administration (FRA) Quiet Zones. Due to HDR's extensive experience and familiarity with the Siding Project, HDR is uniquely positioned to assist the City in navigating all of the required steps to transition the crossing from private to public and working to ensure the crossing is designated a Quiet Zone. lf approved by Council, HDR would handle all project management and the majority of the required engineering and technical analysis required as part of the application process (Attachment'1 ). For the reasons noted above, staff recommends that the Council waive the Request for Proposal process, as authorized by San Juan Capistrano Municipal Code section 3- a.306(eX3). FISCAL IMPACT There is no fiscal impact to the City associated with the recommended action. lt is estimated that the services provided by HDR will not exceed $90,000. All costs associated with HDR's services would be the responsibility of SVCC, consistent with the Deposit and Reimbursement Agreement. ENVIRONMENTAL REVIEW ln accordance with the California Environmental Quality Act (CEQA), the recommended action is exempt from CEQA per CEQA Guidelines Section 15061(bX3), the general rule that CEQA applies only to projects which have the potentialfor causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Waiving the RFP process would not be an activity with potential to cause significant effect on the environment and is therefore exempt from CEQA. PRIOR CITY CO UNCIL REVIEW On September 4, 2018, the City Council approved a Deposit and Reimbursement Agreement with Saddleback Valley Community Church to initiate the process of applying for designation of the Rancho Capistrano private grade crossing as a future public rail crossing. City Council Agenda Report October 16,2018 Paqe 3 of 3 COMMISSION/C MITTEE/BOARD REVIEW AND RECOMMENDATI ONS: Not applicable. NOTIFICAT]ON: Art Leahy, Chief Executive Officer, Southern California Regional RailAuthority (Metrolink) Carl R. lce, President and Chief Executive Officer, Burlington Northern Santa Fe (BNSF) Alice Stebbins, Executive Director, California Public Utilities Commission (CPUC) Darrell E. Johnson, Chief Executive Officer, OCTA David Simpson, Principal Government Relations Representative, OCTA Gerard Reminiskey, Senior Program Manager, HDR Michael Recupero, Recupero and Associates, lnc. Lance M. Fritz, Chairman, President and Chief Executive Officer, Union Pacific Railroads (UPRR) Richard Anderson, President and co-Chief Executive Officer, Amtrak ATTACHMENT Attachment 1 - Draft Professional Services Agreement CITY OF SAN JUAN CAPISTRANO PROFESSIONAL SERVICES AGREEMENT This Agreement is made and entered into as of October 16, 2018, by and between the City of San Juan Capistrano, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675 ("City"), and HDR Engineering, lnc., a Corporation with its principal place of business at 3230 El Camino Real, Suite 200, lrvine, CA, 92602 (hereinafter referred to as "Consultant"). City and Consultant are sometimes individually referred to as "Party" and collectively as "Parties" in this Agreement. RECITALS A. City is a public agency of the State of California and is in need of professional services for the following project: Rail crossing and potential "Quiet Zone" at Rancho Capistrano (hereinafter referred to as "the Project"). B. Consultant is duly licensed and has the necessary qualifications to provide such services. C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein. AGREEMENT NOW, THEREFORE, ¡T IS AGREED AS FOLLOWS: 1. Services. Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit "A." 2. Compensation. a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit "8." b. The total amount paid for services rendered by Consultant under this Agreement is estimated not to exceed the sum of $90,000 (ninety{housand dollars). Periodic payments shall be made within 30 days of receipt of an invoice which includes a detailed description of the work performed. Payments to Consultant for work performed will be made on a monthly billing basis. 3. AdditionalWork. lf changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a 1 HDR Agreement October 20 I 8 ATTACHMENT I statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement. 4. Maintenance of Records. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City. 5. Time of Performance. Consultant shall perform its services in a prompt and timely manner and shall commence pedormance upon receipt of written notice from the City to proceed ("Notice to Proceed"). lt is anticipated that the Consultant will complete the services required hereunder within twenty-four months. The Notice to Proceed shall set forth the date of commencement of work. 6. Delavs in ance a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint. b. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. 7. Compliance with Law. a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Ca|/OSHA requirements. b. lf required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. c. lf applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement. HDR Agreement October 20 I 8 2 8. Standard of Care Consultant's services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. 9. Assiqnment and Subconsultant Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder. 10. lndependentConsultant Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. 11. lnsurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. ln addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. CommercialGeneral Liabilitv 0 t^" """*ant shalltake out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability lnsurance, in a form and with insurance companies acceptable to the City. (ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following: (1) lnsurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability lnsurance must include coverage for the following (1) (2) (3) (4) (5) (6) Bodily lnjury and Property Damage Personal I njury/Advertising I njury Premises/Operations Liability Prod ucts/Completed Operations Liability Aggregate Limits that Apply per Project Explosion, Collapse and Underground (UCX) exclusion deleted Contractual Liability with respect to this Contract 3 HDR Agreement October 20 I 8 (7) (8) Broad Form Property Damage(9) lndependentConsultantsCoverage (iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement. (v) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. Automobile Liabilitv (i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability lnsurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. (ii) Coverage for automobile liability insurance shall be at least as broad as lnsurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto). (iii) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. c. Workers'Compensation/Emplover's Liabilitv (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the "Workers' Compensation and lnsurance Act," Division lV of the Labor Code of the State of California and any acts amendatory thereof, and Employe/s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers' compensation coverage of the same type and limits as specified in this section. 4 HDR Agreement October 201 8 d. Professional Liabilitv (Errors and Omissions) At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. "Covered Professional Services" as designated in the policy must specifically include work performed under this Agreement. The policy must "pay on behalf of'the insured and must include a provision establishing the insurer's duty to defend. e. Minimum Policv Limits Required (i) The following insurance limits are required for the Agreement: Combined Sinqle Limit Commercial General Liability $1,000,000 per occurrence/$2,000,000 aggregate for bodily injury, personal injury, and property damage Automobile Liability $'1,000,000 per occurrence for bodily injury and property damage Employer's Liability $1,000,000 per occurrence Professional Liability $1,000,000 per claim and aggregate (errors and omissions) (¡i) Defense costs shall be payable in addition to the limits. (i¡l) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional lnsured pursuant to this Agreement. f. Evidence Required Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer's equivalent) signed by the insurer's representative and Certificate of lnsurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. HDR Agreement 5 October 20 I 8 g. Policv Provisions Required (¡) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. lf any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional lnsured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant's policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. (v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant's indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. h. Qual lnsurers (i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: (1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:Vll and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California lnsurance Code or any federal law. HDR Agreement October 201 8 6 Additional lnsu nce Provisions (i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (ii) lf at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. ln the alternative, City may cancel this Agreement. (i¡i) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. j. Subconsultant lnsurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 0413 or an endorsement providing the exact same coverage. lf requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 12. lndemnification. a. To the fullest extent permitted by law, Consultant shall defend (with counsel of City's choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant's services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney's fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers. b. lf Consultant's obligation to defend, indemnify, and/or hold harmless arises out of Consultant's performance of "design professional" services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section2782.8, which is fully incorporated herein, Consultant's indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent 7 HDR Agreement October 201 8 jurisdiction, Consultant's liability for such claim, including the cost to defend, shall not exceed the Consultant's proportionate percentage of fault. 13. California Labor Code Requirements. a. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects ("Prevailing Wage Laws"). lf the services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. lt shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4and1776), hoursof labor(LaborCodeSections 1813and 1815)anddebarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. b. lf the services are being performed as part of an applicable "public works" or "maintenance" project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of lndustrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of lndustrial Relations. lt shall be Consultant's sole responsibility to comply with all applicable registration and labor compliance requirements. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. c. This Agreement may also be subject to compliance monitoring and enforcement by the Department of lndustrial Relations. lt shall be Consultant's sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of lndustrial Relations against Consultant or any subcontractor that affect Consultant's performance of services, including any delay, shall be Consultant's sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of lndustrial Relations against Consultant or any subcontractor. 14. Verification of Emplovment Eliqibilitv. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the lmmigration Reform and ControlAct of 1986, as may be amended HDR Agreement October 20 I 8 from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same 15. Laws and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. lf any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Orange, State of California. 16. Termination or Abandonment a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. ln such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. lf said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work. b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days' written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant. 17. Documents. Except as otherwise provided in "Termination or Abandonment," above, all originalfield notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City. 18. Orqanization Consultant shall assign Gheorghe Rosca and Gerard Reminiskey as Project Managers. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City. 19. Limitation of Aqreement This Agreement is limited to and includes only the work included in the Project described above. 20. Notice Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to: I HDR Agreement October 201 8 CITY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Benjamin Siegel, City Manager CONSULTANT: HDR Engineering, lnc. 3230 El Camino Real, Suite 200 lrvine, CA 92602 Attn: Gheorghe Rosca, Associate VP and shall be effective upon receipt thereof 21. Third Partv Riqhts Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant. 22. EqualOpportunitvEmplovment. Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 23. Entire Aqreement This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement. 24. Severabilitv The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal. 25. Successors and Assiqns This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Consultant shall not assign or transfer by operation of law or othenryise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void. HDR Agreement October 2018 10 26. Non-Waiver None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing. 27. Time of Essence Time is of the essence for each and every provision of this Agreement. 28. Citv's Rioht to Emplov Other Consultants City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects. 29. Prohibited lnterests Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. IS|GNATURES ON FOLLOWING PAGEI HDR Agreement October 20 I 8 11 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND HDR lN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CITY OF SAN JUAN CAPISTRANO HDR Engineering, lnc. By:By: Its: Benjamin Siegel City Manager ATTEST By: City Clerk APPROVED AS TO FORM By: City Attorney HDR Agreement October 20 18 Sr. Vice President Printed Name Thomas T. Kim, PE 12 EXHIBIT A Scope of Services Rancho Capistrano Quiet Zone Support Services Proiect Description The Rancho Capistrano private at-grade crossing (Crossing) of the Southern California Regional Rail Authority (SCRRA) Orange Subdivision main line is located in the northerly limit ofthe City of San Juan Capistrano (City) as shown on Figure l, Vicinity Map. The Crossing is located within the limits of the Laguna Niguel/San Juan Capistrano Passing Siding Project (Passing Siding which will add a second track to the Cros F¡gure 1: Vicinity Map Rancho Capis$ano HDR Agreement 1010R-194.32-X 026782R SCRRA San Juan Capistrano One accident in 20t6 October 20 I 8 13 Task 1: Proiect Management Consultant shall facilitate ongoing communications with the City and stakeholders throughout the project. Regular coordination with the City and stakeholders will allow for timely project planning and decision-making. City staff will be responsible for preparing and distributing meeting notes. A project management plan will be developed that will include a scope, schedule, budget and monthly invoices and progress reports. Assumptions: a Consultant assumes that direct communication may be made with stakeholders without scheduling said communication in advance with the City. Deliverables:. Telephone records of substantive discussions with project stakeholders. o Monthly Invoices and Progress Reports Task 2: Stakeholder Coordination and Meetings Ten (10) meetings will be held with the City and/or project stakeholders. The purpose of the coordination meetings will be to obtain City's concurrence on the issues related to the grade crossing. The meetings will include reports on project progress and overall project status. Consultant will review City-provided meeting minutes. The minutes shall include an action item list, which shall be kept current and reported on at the meetings. Assumptions City staff will be available to attend stakeholder meetings'a Deliverables Meeting notes documenting substantive discussions and decisions made during the meeting. Task 3: Site Visit Field Observation Consultant will visit the project site to review existing conditions. City representatives will facilitate and schedule the freld observation. City staff will be responsible for data collection, including photographs and sketches to assist in developing concepts. Consultant's role in this task is to participate in the site visit and provide comments and recommendations. Assumptions: a Consultant assumes that a railroad flagger and associated right-of-entry permit with the railroad will not be required to conduct a site visit' Deliverables: Field inspection report consisting of photo log and sketches a a HDR Agreement October 20 I 8 14 Task 4: Concept Development Consultant will provide conceptual drawings and exhibits depicting proposed Supplemental Safety Measures (SSM). Assumptions: o Design-ready survey and mapping data will be made available from the Passing Siding Project for the purpose of preparing conceptual exhibits and drawings. Deliverables: o Concept-level drawings and exhibits to support the quiet zone implementation process. Task 5: CPUC Submittal In the State of California, the CPUC has regulations and standards governing many aspects of grade crossings design, construction, maintenance and operation. The Rail Crossing Engineering Branch (RCEB) of the CPUC is the primary point of contact within the CPUC for issues involving grade crossings. General Orders (GO) of the CPUC, combined with regulations contained in the California Manual on Uniform Traffic Control Devices (MUTCD), defines the requirements for application of warning devices and traffrc control. The construction or modification of any new highway-rail grade crossing also should comply with regulatory process defined in Sections 1201-1205 of the Public Utilities Code. Construction of improvements cannot begin until authorization is received from the CPUC. Consultant will provide a formal application for execution by the City. Assumptions: a Consultant assumes that for conversion of the subject crossing to public usage, a formal application will be required per the Public Utilities Code. Consultant assumes environmental clearance will be provided by others and not included in this scope of work. Consultant assumes that the Application will not be protested and therefore support services for a hearing are not included in this Scope. Consultant assumes the previous grade separation study will be provided by the City and updated by Consultant to include latest construction cost estimates. All other sections of the study will remain as is. Deliverables . Draft CPUC application. ¡ Final CPUC application. o Exhibits in support of the CPUC application. HDR Agreement a a a October 201 8 15 Task 6:osfic Meetins To make improvements to a crossing, construct a new crossing, or close a crossing, a diagnostic review will be necessary. The diagnostic team will consist of knowledgeable representatives of stakeholders in a grade crossing. Using highway-rail grade crossing safety management principles, the team will evaluate conditions at a highway-rail grade crossing to make determinations or recommendations concerning safety needs. At a minimum, this diagnostic will include the City, CPUC, UP, and possibly FRA. A separate meeting with FRA may be necessary in case they are not able to attend the first meeting. Consultant will attend the diagnostic meeting with all the stakeholders to obtain their comments and approval of the modifications at the grade crossing. Consultant will assist the City in its efforts to prepare and distribute the diagnostic meeting notes after City approval. The City will modify the initial drawings as per input received from the stakeholders Assumptions: a Although a diagnostic meeting was conducted by the Passing Siding ProjecÇ Consultant assumes that a follow-up diagnostic meeting will be required. Deliverables: Meeting notes and supporting materials to conduct a diagnostic meeting.a Task 7: FRA Submittals The U.S. Code of Regulations, Title 49 - Transportation; Parts 222 -Use of Locomotive Horns at Highway-Rail Grade Crossings; and Part 229 -Railroad Locomotive Safety Standards provide standards for the creation and maintenance of quiet zones within which locomotive horns need not be sounded. The Rule allows for a variety of methods for establishing a quiet zone. Most methods rely on a quantitative approach that compares key risk indices. Risk is calculated using a highway data, such as speed limit, number of lanes, and traffic counts, as well as railroad data including number of tracks, train day or night schedule, train speeds and train counts. These and other factors are entered into the quiet zone calculator on the Federal Railroad Administration (FRA) website that yields benchmark risk indices. The risk index can be lowered at the public grade crossings by the installation of Supplemental Safety Measures (SSMs), established in accordance with FRA. SSMs are effective substitute for the locomotive horn in the prevention of highway-rail casualties. Consultant will assist the City in its efforts to prepare FRA submittals required to establish a quiet zone. Assumptions:. Consultant assumes that the quiet zone for the subject crossing will be a standalone quiet zone that includes only one crossing as listed in Table 1' Deliverables: Notice of Intent [NOI) Notice of Establishment [NOE), FRA quiet zone calculations, and grade crossing inventory forms reflecting existing and proposed improvements at this crossing. 16 HDR Agreement October 201 8 a a a END OF SCOPE DOCUMENT HDR Agreement October 20 I 8 17 EXHIBIT B Schedule of Charges/Payments Consultant will invoice City on a monthly cycle on a percent complete basis. Task 1 - Project Management ($5,000) Task 2 - Meetings & Coordination ($20,000) Task 3 - Site Visit & Field Observation ($5,000) Task 4 - Concept Development ($15,000) Task 5 - CPUC FormalApplication ($25,000) Task 6 - Diagnostics Meeting ($5,000) Task 7 - FRA Quiet Zone Application ($15,000) TOTAL = $90,000 HDR Agreement October 201 8 18