03-0116_NICHOLS CONSULTING ENGINEERS_Personal Services AgreementPERSONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this l Aday of
2003, by and between the City of San Juan Capistrano (hereinafter referred to s the
"City") and Nichols Consulting Engineers (hereinafter referred to as "Consultant").
RECITALS:
WHEREAS, City desires to retain the services of Consultant regarding the City's
proposal to prepare plans and specifications for City Street Repairs 2003-2004,2004-2005
and 2005-2006; 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.
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 July 31, 2003 in
accordance with the time schedule set forth in "Exhibit D,"attached and incorporated herein
by reference.
Section 3. Compensation.
3.1 Amount.
Total compensation for the scope of services for this Project shall not exceed
Fourteen Thousand Nine Hundred and Seventy Dollars ($14,970), as set forth in Exhibit
"B," attached and incorporated herein by reference.
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3.2 Rate Schedule.
The services shall be billed to the City at the hourly rate set forth in Exhibit
"C," 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 City 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 City. The City 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 City
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 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
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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.
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 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 City, it shall immediately inform City of this and shall not
proceed with furtherwork 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.
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 City 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
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submitted to the City shall be in reproducible format.
All services to be rendered hereunder shall be subject to the direction and approval
of the City.
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.
Consultant agrees to protect, defend and hold harmless City, 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 arising out of or in connection with the
negligent work, operation or activities of Consultant, its agents, employees and
subcontractors in carrying out its obligations under this Agreement and for errors and
omissions committed by consultant.
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 Comprehensive General Liability.
Throughout the term of this Agreement, Consultant shall maintain in full force
and effect Comprehensive General Liability coverage 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
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contractual period.
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
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 Proof of Insurance Requirements/Endorsement.
Prior to beginning any work under this Agreement, Consultant shall submit
the insurance certificates, including the deductible or self -retention amount, and an
additional insured endorsement to the Consultant's general liability and umbrella liability
policies using ISO form CG 20 10 1185 (in no event with an edition date later than 1990)
to the City's General Counsel for certification that the insurance requirements of this
Agreement have been satisfied.
14.5 Errors and Omissions Coverage
Throughout the term of this Agreement, Consultant shall maintain Errors and
Omissions Coverage (professional liability coverage) in an amount of not less than One
Million Dollars ($1,000,000). Prior to beginning any work under this Agreement, Consultant
shall submit an insurance certificate to the City's General Counsel for certification that the
insurance requirements of this Agreement have been satisfied.
14.6 Notice of Cancel lation/Term!nation of Insurance.
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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.
14.7 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
City has issued a written "Notice to Proceed" verifying that Consultant has complied with
all insurance requirements of this Agreement.
Section 15. Termination.
City 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.
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: Director of Engineering & Building
To Consultant: Nichols Consulting Engineers
1101 Pacific Avenue #300
Santa Cruz, Ca 95060
Attn: Shahid Khan
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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.
CITY OF SAN JUM CAPISTRANO
City Manager
CONSULTANT
'e. EA4�
LarryTehin
Nichols Consulting Engineers
ATTEST:
ar aret R. Monahan, City Clerk
APPROVED AS TO FORM:
9
John R. Sh w, City Attorney
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Exhibit A
Proiect Understanding
It is NCE's understanding that the City of San Juan Capistrano has completed a review
of the 90% plans, specifications and estimate for the 2001-2002 City Street Repairs
submitted December 12, 2001.
The City now wants to reschedule some of the streets to later years and split the 90%
PS&E package into separate packages for FY 2003-04, FY 2004-2005 and FY 2005-
2006. The City also wants to add approximately twenty-five (25) new street sections to
FY 2002-03 and seven (7) new street sections to FY 2004-05 and FY 2005-06, and
change the treatment for seven (7) sections to overlay from slurry seal. The City has
requested two fee proposals from NCE for completing this additional work, both of which
will encompass following scope of services:
Scope of Services
Task 9. Kick -Off Meeting/Field Review
Kick -Off Meeting
NCE's Project Manager and Project Engineer will meet with the City to review the new
scope of work and other project details. NCE will be responsible for collecting and
reviewing all data and existing information pertaining to the new project as well as
reviewing field conditions. NCE will obtain from the City any necessary information it
may have that will assist with this task including:
• As -built plans and other data
• Mylar of City streets in 1" = 600' to be reproduced and scanned.
• Improvement Plans
Aerial photographs and electronic data
Information from the City's pavement management system
Field Review
NCE staff will conduct a field investigation of each new street to ascertain existing site
conditions. NCE will identify and estimate the quantity of asphalt to be removed and
replaced prior to overlay or slurry, and will summarize the quantities of all utility
structures requiring adjustment on streets to be overlayed. NCE will also note all
locations where cross -gutters or other appurtenances need to be protected during slurry
seal application.
Task 2. Striping/ Pavement Markings Survey
NCE will collect a field data on all project streets in order to produce striping plans. For
residential streets, the striping and pavement markings will be either shown on the plans
or in a table, depending on the extent of the striping/markings to be replaced. For
collector and arterial streets, the striping plans will be at a scale of 1" = 40' or at a scaled
agreed upon by the City. It is anticipated that the striping plans will include all areas
where re -cutting of traffic signal loops will be required.
Task 3. Plans, Specifications and Engineer's Estimates - 90.0
NCE will develop the project plans for additional streets included in the project, using the
available drawings and aerial photographs provided by the City. NCE will develop
AutoCAD drawings in AutoCAD DXF layered format of the roads within the project.
Plans will include existing striping, edge of roadway, and other existing improvements as
required. Based on conversations with City staff, there are no electronic base maps of
the City streets and therefore the drawings will be developed using the Mylar drawings
and aerials provided by the City.
For the overlay streets, it is understood that the overlay thickness will be 0.15' of asphalt
concrete. As part of the overlay plans, NCE will show appropriate details and note those
areas where end and side cold -planing is required. In addition, a tabular count of
manholes and water valves to be raised to grade will be prepared.
Plans and specifications will be submitted at 90% and 100% completion. It is estimated
that approximately seventeen (17) new plan sheets will be required for the FY 2002-03
project and five (5) new plan sheets total will be required for projects FY 2003-04, FY
2004-05 and FY 2005-06. To develop the plans and specifications, NCE will identify
base failures and other pavement repairs as necessary to address localized pavement
problems. Repairs will be incorporated into the project plans and specifications.
Technical Provisions will be prepared that are consistent with the rehabilitation treatment
and project plans. Some examples of items, which may be included in the Technical
Provisions along with the slurry seal and asphalt overlay specifications, are as follows:
• Base repairs
• Crack filling
• Striping removal
• Traffic striping and pavement markers
• Traffic control
• Utility facility adjustments
• Traffic signal loop detector replacement
Particular attention will be paid to the following issues of concern:
• Seal coat material control
• Inspection requirements
• Contractor quality control and testing
NCE will prepare new preliminary project cost estimates for the revised projects for each
of the years as required by the City at the 90% completion point and a final estimate
following the completion of the plans, specifications and contract documents. The
Engineer's Estimate will include descriptions, quantities, unit costs and total costs as
required summarized in tabular format in the sequence of construction activities. To
assist with this task, the City will provide NCE with all relevant project bid summaries for
projects bid within the last 12 months.
Task 4. Plans, Specifications and Engineer's Estimates — 100%
NCE will meet with the City to review any comments or questions on the 90% plans,
specifications and cost estimate. Based on the City's comments, NCE will prepare final
plans, specifications and estimate following the completion of any modifications. The
Engineer's Estimate will include descriptions, quantities, unit costs and total costs as
required.
The project deliverables will be as follows:
• One set of reproducible plans on Mylar and an electronic copy in AutoCAD DXF
format for each year
• One hard and one electronic copy of the specifications (Microsoft Word) for each
year
One hard and one electronic copy of the final engineer's estimate (Microsoft
Excel) for each year
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Exhibit C
NCE FEE SCHEDULE
Effective March 1, 2002
Time Plus Expenses Basis
Principal
QC/QA Manager
Project Manager
Senior Engineer
Project Engineer
Staff Engineer
Resident Construction Engineer
CADD Designer
Technician
Clerical
Expert Witness
Falling Weight Deflectometer with Operator (1/2 day minimum)
Falling Weight Deflectometer Mobilization/Demobilization
NCE vehicles
A premium will be charged if the client's requirements make overtime work necessary.
Reimbursable Expenses
Hourly Rate
$190.00
$150.00
$150.00
$125.00
$ 90.00
$ 80.00
$ 80.00
$ 70.00
$ 70.00
$ 60.00
$ 500.00 (4 hour minimum)
$ 2,000/day
$1.60/mile
$ 60/day
Cost plus 15% will be charged on all reimbursable expenses. The following are examples of such expenses but are not limited to those
shown:
a. Actual travel and subsistence expenses including rental vehicles incurred by employees and principals when away from the
home office on business connected with the client's work.
b. Actual communication expenses, such as long distance telephone, telegraph, cable, courier, express and postage directly
applicable to the client's work.
c. Invoice costs for outside services directly applicable to the client's work, such as computer programming, special
consultants, soils testing and laboratory services.
d. Actual special drafting and stenographic supply costs directly applicable to the client's work, as distinguished from supplies
and expenses applicable to administrative activities.
e. Actual reproduction costs directly applicable to the client's work, such as blueprinting, photographs, multi -copy printing
and binding.
f. Miscellaneous direct costs applicable to the client's work.
A new schedule of charges is issued effective Much 1 of each year or when otherwise dictated by inflationary pressures. Unless other
arrangements have been made, charges for all work, including continuing projects initiated in the prior year, will be based on the
latest schedule of charges.
Negotiated Fee Basis
Where preferable to a Time Plus Expenses agreement, fees may be negotiated on an alternate basis such as lump sum, or cost plus
fixed fee.
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