02-1105_DAVID LUBMAN & ASSOCIATES_Personal Services AgreementPERSONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this day of� , 2002,
by and between the Capistrano Valley Water District (hereinafter referred to as the
"District") and David Lubman & Associates, (hereinafter referred to as "Consultant').
RECITALS:
WHEREAS, District desires to retain the services of Consultant to provide
acoustical consulting services for pile driving activities at the Desalter Facility; and
WHEREAS, Consultant is qualified by virtue of experience, training, education
and expertise to accomplish such services.
NOW, THEREFORE, District 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.
Consultant warrants that all of its services shall be performed in a competent,
professional and satisfactory manner and in accordance with the prevalent standards of
its profession.
Section 2. Term.
This Agreement shall commence on the effective date of this Agreement and
services required hereunder shall be completed by no later than sixty (60) days from the
effective date of this agreement.
Section 3. Compensation.
3.1 Amount.
Total compensation for the scope of services for this Project shall not
exceed four thousand two hundred eighty dollars ($4280), as set forth in Exhibit "A,"
attached and incorporated herein by reference.
3.2 Rate Schedule.
The services shall be billed to the District at the hourly rate set forth in
Exhibit 'A," attached and incorporated herein by reference. Included within the
compensation are all the Consultant's ordinary office and overhead expenses incurred
by it, its agents and employees, including meetings with the District representatives and
incidental costs to perform the stipulated services. Submittals shall be in accordance
with Consultant's proposal.
3.3 Method of Payment.
Consultant shall submit monthly invoices based on total services which
have been satisfactorily completed and specifying a percentage of projected completion
for approval by the District. The District will pay monthly progress payments based on
approved invoices in accordance with this Section.
For extra work not part of this Agreement, a written authorization from
District is required prior to Consultant undertaking any extra work.
3.4 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 District.
Section 4. Independent Contractor.
It is agreed that Consultant shall act and be an independent contractor and not
an agent or employee of District, and shall obtain no rights to any benefits which accrue
to District'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 District to enter into this Agreement.
Consultant shall not contract with any other entity to perform the services required
without written approval of the District. This Agreement may not be assigned,
voluntarily or by operation of law, without the prior written approval of the District. If
Consultant is permitted to subcontract any part of this Agreement by District, Consultant
shall be responsible to District 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 District. All persons engaged
in the work will be considered employees of Consultant. District will deal directly with
and will make all payments to Consultant.
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Section 6. Changes to Scope of Work.
In the event of a change in the Scope of Work provided for in the contract
documents as requested by the District, 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 Construction Site.
By executing this Agreement, Consultant warrants that: (1) it has investigated
the work to be performed; (2) it has investigated the proposed construction site,
including the location of all utilities, and is aware of all conditions there; and (3) it
understands the facilities, difficulties and restrictions of the work under this Agreement.
Should Consultant discover any latent or unknown conditions materially differing from
those inherent in the work or as represented by District, it shall immediately inform
District of this and shall not proceed with further work under this Agreement until written
instructions are received from the District.
Section 8. Time of Essence.
Time is of the essence in the performance of this Agreement.
Section 9. Compliance with Law.
Consultant shall comply with all applicable laws, ordinances, codes and
regulations of federal, state and local government.
Section 10. Conflicts of Interest.
Consultant covenants that it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the
performance of the services contemplated by this Agreement. No person having such
interest shall be employed by or associated with Consultant.
Section 11. Copies of Work Product.
At the completion of the contract period, Consultant shall have delivered to
District at least one (1) copy of any final reports and architectural drawings containing
Consultant's findings, conclusions, and recommendations with any support
documentation. All reports submitted to the District shall be in reproducible format.
All services to be rendered hereunder shall be subject to the direction and
approval of the District.
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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
District. All such reports, information, data, and exhibits shall be the property of the
District and shall be delivered to the District upon demand without additional costs or
expense to the District. The District acknowledges such documents are instruments of
Consultant's professional services.
Section 13. Indemnity.
Consultant agrees to protect, defend and hold harmless District, its elected and
appointed officials 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
damage to property or interference with use of property and for errors and omissions
committed by Consultant arising out of or in connection with the work, operation or
activities of Consultant, its agents, employees and subcontractors in carrying out its
obligations under this Agreement.
Section 14. Insurance.
Insurance required herein shall be provided by Admitted Insurers in good
standing with the State of California and having a minimum Best's Guide Rating of A -
Class VII or better.
14.1 Not Applicable
14.2 Comprehensive Automobile Liability.
Throughout the term of this Agreement, Consultant shall maintain in full
force and effect Comprehensive Automobile Liability coverage, including owned, hired
and non -owned vehicles in the following minimum amounts:
$500,000 property damage;
$500,000 injury to one person/any one occurrence/not limited to
contractual period;
$1,000,000 injury to more than one person/any one occurrence/not limited
to contractual period
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14.3 Worker's Compensation.
If Consultant intends to employ employees to perform services under this
Agreement, Consultant shall obtain and maintain, during the term of this Agreement,
Worker's Compensation Employer's Liability Insurance in the statutory amount as
required by state law.
14.4 Not Applicable
14.5 Not Applicable
14.6 Notice of Cancel lation/Term!nation 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 District,
except that ten (10) days' notice shall be given if there is a cancellation due to failure to
pay a premium.
14.7 Terms of Compensation.
Consultant shall not receive any compensation until all insurance
provisions have been satisfied.
14.8 Notice to Proceed.
Consultant shall not proceed with any work under this Agreement until the
District has issued a written "Notice to Proceed" verifying that Consultant has complied
with all insurance requirements of this Agreement.
Section 15. Termination.
District and Consultant shall have the right to terminate this Agreement without
cause by giving thirty (30) days' advance written notice of termination to the other party
In addition, this Agreement may be terminated 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.
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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 District: Capistrano Valley Water District
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Public Works Director
To Consultant: David Lubman & Associates
14301 Middletown Lane
Westminster, CA 92683
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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
ATTEST:
CAPISTRANO VA4LEY WATER DISTRICT
M
General Manager
CONSULTANT
By:
David Lubman & Associates
of the Board
APPROVED AS TO FORM:
A A 6) 1 PJaJA1&,'A
mar SaIAIVII Ogg J1AA1 11
do al, Deputy Ge eral Counsel
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David Lubmran
& ssoceates
14301 Middletown Lane - Westminster - CA 92683
Voice/Fax: 714 / 373.3050
Email: diubman@ix.netcom.com
Mr. Eric Bauman
City of San Juan Capistrano
Dept. of Public Works
CONSULT/NG A RESEARCH /N ACOUSTICS
27 -Sep -02
By Fax to 949.493.3955
Proposal for Acoustical Demonstration of Pile Driving Sounds
Dear Mr. Bauman:
Thank you for requesting my proposal for a sound demonstration for the SJC City
Council. The demonstration is intended to assist the public in making an informed
choice of pile -driving options.
Objective of Proposal
The intent is to. provide realistic and accurate sound, samples of pile driver
options, as heard at three distances both outdoors and within a residence.
Sounds should be presented at about their natural sound level: that which would
be heard if the listener were standing at the specified distances. Most important,
relative sound levels must be rendered accurately in order for listeners to judge
meaningfully between the options.
Scope of Effort
David Lubman & Associates (DLA) will make actual recordings of actual pile
driver noise levels. By electronically processing these recordings, DLA will
produce simulations of the noise that would be heard at each desired distance
and under either outdoor or indoor conditions. Simulations will be burned into a
CD as standard ".WAV" files. Most modern computers will be able to play these
files. This CD may be replicated and distributed to the public, However, for the
most accurate presentation, the files should be played back under controlled
conditions.
DLA will present these sound files to the Department of Public Works (DPW) with
headphone ,listening under controlled conditions. When approved by DPW, DLA
will demonstrate these sounds for the SJC City Council. The demonstration will
allow listeners to audit any of the chosen sound files, enabling rapid "A -B"
comparisons.
Experience has shown that each sample should be as short as possible (not
more than about 5-10 seconds each.) Auditors can make meaningful
comparisons-6nly of sound pairs, e.g., A -B comparisons. The second sound of
each pair should be presented with little time delay.(not more than about 2-4
seconds). If time and budget allow, simultaneous identical demonstration to two
or more auditors can be arranged.
EXHIBIT "A"
Certified Acoustical Consultant: INCE-hoard (national) & Orange County, CA
Fellow, Acoustical Society of America (FASA) .:. MembCr of American Society for Testing & Materials (ASTM)
Institute of Noise Control Engineering (INCE) ... National Council of Acoustical Consultants (NCAC)
The DLA headphone demonstration will simulate binaural listening. This provides
a very realistic simulation. Auditors will have the sense of sounds coming from
their left, right, and behind. The auditory image will be "externalized", unlike the
normal listening experience.
An option for discussion is sound presentation by loudspeakers. This is
psychoacoustically less desirable than binaural recording and presentation.
Technical Proposal
DLA will make high quality (16-bit, 48KHz sampling rate) digital tape recordings
of an operating D30 pile driver at a site to be chosen by the DPW. Optionally,
DLA will also make recordings of a D30 pile driver. The three noise options to be
recorded (preferred) or simulated (absent opportunity for live recording) are:
D30 pile driver
D30 pile driver with sound blanket
Drilled pile driver
The three listening distances for recording or simulation are 100, 200, and 300 ft
Outdoor noise measurement and recording will be made in the presence of
normal ambient noise. Simulated indoor noise will be obtained by processing
outdoor -noise recordings. Typical outdoor -to -indoor attenuation vs. frequency
data will be used. Recordings will also be filtered to simulate the frequency -
sensitive attenuation of a sound blanket. For this purpose, the DPW will provide
the contractor with estimated attenuation vs. frequency data.
Since as many as 18 conditions may be simulated, up to 18 sound files may be
needed. If indoor listening is desired at only one distance (300 ft) the number of
sound files can reduced to 12. It is requested that DPW choose the minimum
acceptable number of sound conditions to reduce contractor effort and provide a
simpler demonstration.
Recordings will employ two high-quality microphones.
A 1/2" precision calibrated monaural instrumentation microphone mounted on a
CEL Type 593 Sound Analyzer will ensure absolute sound spectrum levels. The
advantage of the monaural instrumentation microphone is certifiable accuracy.
A high-quality head -worn binaural microphone will be used for simulations. The
advantage of binaural microphone recording and headphone reproduction is that
auditors have a great sense of being embedded in the recorded noise event.
2
Presentation Options
The options for sound reproduction are loudspeaker or headphone. Headphone
reproduction is recommended for greatest accuracy and controllability.
One limitation of loudspeaker presentation is that the noise may seem much
louder in the ambience of a quiet room than in the field. (To some extent this can
be countered by including several seconds of ambient noise before and after
each noise event.) Another limitation is that monaural data prevents auditors
from feeling a full auditory presence at the event. The aural impression will
depend to a modest extent on acoustical conditions of the listening room.
Stereophonic loudspeaker reproduction of events recorded with a binaural
microphone can provide the auditor with a limited sense of presence at the event,
but the reproduction realism will depend on arbitrary judgments of microphone
and loudspeaker choice and placement.
Schedule
It is understood that time is of the essence. DLA will begin work on the day of
receipt of a purchase order or a retainer check for $1500. If the recommended
special headphones and headphone amplifier (for multiple listening) are desired,
my order must be placed almost immediately to ensure delivery within 3 working
days. However, an adequate binaural headphone, amplifier, and computer for
demonstration will be provided at no extra charge.
If I can answer any questions about this proposal, please do not hesitate to
phone me at 714.373.3050 or after business hours at 714.898.9099.
Sincerely yours,
David Lubman, FASA
Acoustical Consultant
(Orange County and INCE Bd Certified)
3
David Lubman & 'ssociates CONSULTING)
14301 Middletown Lane • Westminster • CA 92683
Voice/Fax: 714 / 373.30SO
Email: dlubman@ix.netcom.com
Cost Proposal
Labor
Recordings 8 hrs
Instrument preparation
1 hr.
Time on-site
2 hrs.
Travel
2 hrs.
Transcription of binaural
2 hrs.
recordings to computer
2 hrs.
Printout & analysis of calibrated
1 hr
sound analyzer recordings .
1 hr.
Editing/Processing 11 hrs
Selection of timed samples
2 hrs.
Simulation of distance
2 hrs.
Simulation of Noise Blanket
2 hrs.
Simulation of out/indoor atten.
2 hrs.
Create .wav files of
2 hrs.
edited samples
Burn CD
1 hr.
Presentation 9 hrs
Presentation to DPW 3 hrs.
Rework and burn CD #2 2 hrs.
Presentation to City Council 4 his.
Total
28 hrs @ $150/hr $4200
'Misc.
Travel: 2 round trips of 80 miles
@ $.40/mi
DAT Tape& blank CDs
41
$64
$16
RESEARCH IN ACOUSTICS
Total Cost $4280
(Optional Material) ($600 + $250 each additional headphone)
Open Binaural Headphone $250 ea.
Headphone amplifier $350 (for up to 5 headphones)
Terms: $1500 at start of project. Remainder due upon completion.
A 1-112% per month service charge is added to late payment.
Certified Acoustical Consultant: INCEfoard (national) & Orange County, CA
Fellow, Acuustical Society of America (FASA) ... Mcmb r of American Society for 'besting & Materials (ASTM)
Institute of Noise Control Engineering (INCE) ... National Council of Acoustical Consultants (NCAC)