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05-1004_CULBERTSON ADAMS AND ASSOCIATES_Personal Services AgreementPERSONAL SERVICES AGREEMENT � /�� THIS AGREEMENT is made and entered into this t day of 6-"C-05, by and between the City of San Juan Capistrano (hereinafter referred to as the "City") and CULBERTSON ADAMS AND ASSOCIATES, (hereinafter referred to as "Consultant"). RECITALS: WHEREAS, City desires to retain the services of Consultant regarding the City's proposal to provide environmental consultant services for the 550 E Reservoir Project; 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" — Phase 1, 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 no later than June 30, 2006. Section 3. Compensation. 3.1 Amount. Total compensation for the scope of services for this Project shall be for a not to exceed fee of Seventeen Thousand Eight Hundred Twenty ($17,820) as set forth in Exhibit "A!'— Phase 1, attached and incorporated herein by reference. 3.2 Rate Schedule. 1 The services shall be billed to the City as 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 City representatives and incidental costs to perform the stipulated services. Submittals shall be in accordance with Consultant's proposal. 3.3 Method of Payment. Notwithstanding the payment terms outlined in Exhibit "A", 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 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. 2 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. Time of Essence. Time is of the essence in the performance of this Agreement. Consultant shall complete the Scope of Services as set forth in the schedule included in Exhibit "A", attached and incorporated herein by reference. Section 8. Compliance with Law. Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. Section 9. 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 10. 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 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 11. 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 3 professional services. Section 12. Indemnity. Consultant agrees to protect, and hold harmless City, its elected and appointed officials and employees from any and all liabilities, expenses or damages of any nature, including reasonable attorneys' fees, for injury or death of any person or damage to property or interference with use of property resulting from errors and omissions committed by Consultant arising from the negligent acts of Consultant, its agents, employees and subcontractors in carrying out its obligations under this Agreement. Section 13. Insurance. Insurance required herein shall be valid for a minimum of one year, or term of contract, whichever is longer, and it 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. 13.1 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 contractual period. 13.2 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 4 13.3 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. 13.4 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 to the City Clerk's office for certification that the insurance requirements of this Agreement have been satisfied. 13.5 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 Clerk of the Board's office for certification that the insurance requirements of this Agreement have been satisfied. 13.6 Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 13.7 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 13.8 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 14. 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 15. 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: Public Works Director To Consultant: Shawna Schaffner Culbertson Adams and Associates 85 Argonaut, Suite 220 Aliso Viejo, CA 92656-4105 Section 16. 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 17. 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 18. Entire Asareement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. R IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO By: C3.zn,.... Dave Adams, City Manager CONSULTANT By: Culbertson Adams and Associates, Inc. a California coroporation Kevin Culbertbon ATTEST: APPROVED AS TO FORM: John R. Shaftity Attorney CULBERTSON, ADAMS &ASSOCIATES PLANNING CONSULTANTS August 31, 2005 Ms. Amy Amirani c ' Director, Public Works City of San Juan Capistrano - 32400 Paseo Adelanto San Juan Capistrano, CA 92675 SUBJECT: Proposal for Professional Planning Services Relative to the Whispering Hills Property - Reclaimed Water Reservoir (PN 025-1615) Dear Ms. Amirani: Culbertson, Adams & Associates, Inc. (CAA) appreciates the opportunity to submit this proposal based on our recent discussions with Peter Salgado relating to the City's Reclaimed Water Reservoir on the Whispering Hills Property. Based upon the information you have provided to us, and our previous experience with this project, we understand the scope to be coordination with the Resource Agencies, Whispering Hills, LLC and Capistrano Unified School District to alter an existing draft conservation easement to accommodate a Reclaimed Water Reservoir site on one of two potential site locations. It is understood that the existing draft conservation easement does not accommodate the City's Water Master Plan, which includes this reservoir. The draft conservation easement and associated mitigation program are the result of over a year of work with two federal and two state agencies (Resource Agencies) and at this point, it will require additional coordination with the same Resource Agencies, Whispering Hills, LLC and the Capistrano Unified School District to revise the draft conservation easement. Once the draft conservation easement has been revised, and deemed acceptable by the Resource Agencies, additional environmental review will be necessary prior to constructing the reservoir in accordance with the California Environmental Quality Act (CEQA). In addition to CEQA compliance, the City will need to obtain appropriate permits from the Resource Agencies, and will need to develop a mitigation program to implement the mitigation measures identified in the CEQA documentation and permits. CAA personnel assigned to this effort will include M. Andriette Culbertson as Principal -in - Charge, Tom Mathews and Shawna Schaffner. Some individual task efforts will also be assigned to appropriate expert personnel within CAA, as deemed necessary and cost-effective. Ms. Schaffner will be the day-to-day leader of the project for CAA, and as such will be responsible for reporting to the City. It may be necessary to associate Dr. Jeffrey Froke for biological issues. If so, a separate proposal will be submitted to the City for that work. EXHIBIT A 85 Argonaut, Suite 220, Aliso Viejo, California 92656-4105 • (949) 581-2888 • Fax (949) 581-3599 Ms. Amy Amirani August 31, 2005 — Page 2 Proiect Task Components We anticipate three separate phases for the completion of the project. Following is a description of each phase, including identification of work effort and related cost estimates. Phase I The initial effort will consist of working with the Resource Agencies to amend the Conservation Easement to allow the placement of the reclaimed water reservoir, along with associated pipelines and equipment in compliance with the City's Water Master Plan. It is our understanding that the City is also desirous of revising the draft conservation easement to allow for the planned connection of the City's existing trail systems. TASK COST Research/Review of existing Conservation Easement to Determine Necessary Amendments, Draft New Language $ 1,500.00 Progress Meetings with City Staff to Review Staws/Developments 3 meetings) 4,000.00 Meet with Whispering Hills & CUSD 1 meeting) 1,500.00 Meet with appropriate Resource Agencies to Discuss Proposed Amendments 2 meetings) 2,800.00 On-going Coordination Efforts 5,200.00 Finalize and Record Easement 1,200.00 10% Contingency 1,620.00 TOTAL $17,820.00 Phase II This phase of the project will consist of the preparation of environmental compliance documentation for the construction of the reclaimed water reservoir. This documentation will consist of an Initial Study (IS) and Mitigated Negative Declaration (MND) which will identify environmental impacts and propose mitigation measures to reduce those impacts. Furthermore, we believe that by preparing a comprehensive CEQA document, including a mitigation plan which addresses impacts to Coastal Sage Scrub and the California Gnatcatcher, important cost saving efficiencies will be realized that could not be realized with respect to obtaining Resource Agency permits on the 760 Zone Reservoir project because of CAA's late involvement in that project. We believe CAA is qualified to undertake this effort due to our previous preparation of the Addendum related to the San Juan Hills High School and the SCG&E Transmission Line temporary relocation. TASK COST Kick off meeting with Cit /CAA staff $ 1,200.00 Review existing documentation/Research and Analysis 900.00 Preparation of Draft Initial Study/MND 8,200.00 Screencheck Review of Draft/Incorporate City Comments 2,000.00 Circulate Draft 1,000.00 Ms. Amy Amirani August 31, 2005 Page 3 Prepare Responses to Comments and Final Document 3,000.00 Attend Planning Commission Meeting 1,600.00 Attend City Council Meeting 1,600.00 Prepare and Post Notice of Determination 400.00 Prepare Mitigation Monitoring and Reporting Program 400.00 Team Meetings 1,300.00 Advancement of MND 1,800.00 Subtotal CAA $23,400.00 Sub -Consultants* Reproduction 500.00 Word Processing 1,500.00 Postage and Delivery 500.00 Subtotal - Reimbursables $ 2,500.00 10% Contingency $ 2,590.00 TOTAL $28,490.00 *CAA will need to rely upon the geotechnical information provided by the City. A biological consultant will be necessary to prepare an appropriate mitigation plan to compensate for the loss of coastal sage scrub. Based on the type of construction the City deems appropriate for the reservoir (above ground vs. partially buried), a view analysis may be required. As the scope of the project becomes more defined, additional sub -consultant technical studies may also be necessary. If such additional studies are necessary, CAA will notify the City immediately and advise the City of the costs. Phase III This phase will include consultation and coordination with Resource Agencies in order to obtain necessary permits. Cost analysis and task identification for this phase, should the City elect to involve CAA, will be provided as a separate proposal. However, please note that since we have already had preliminary contact with the Resource Agencies, and they appear to be supportive of this project, permits could likely be obtained in a rapid and highly efficient manner. Compensation We propose the work efforts identified in the scope of work in accordance with cost estimates identified herein and with the attached Schedule of Fees and General Conditions. This proposal will be considered valid for a commence -work date up to October 31, 2005 and is valid for a projected completion date of September 1, 2006. Limitations The proposal is based on the time parameters and estimated fees set forth herein, and the narrative outlining the scope of work. Changes in the schedule or scope of work assumptions may result in costs beyond those currently anticipated. Major changes include, but are not limited to: Ms. Amy Amirani August 31, 2005 Page 4 Changes in the project by the City, State, or other approving body which cause revisions of printed documentation or plans beyond those covered by the scope of work. 2. Changes in the schedule by the City, State, or other approving body, beyond the parameters set forth in this proposal. Expansion of the project area under study by the City, State, or other approving body. 4. Additional planning entitlements, permits or processing requested by the City. Appeal of project determinations (e.g. project approval or denial) by the City, State, or other approving body, or other person, group or organization. If one or more of the above incidents occurs, CAA shall be entitled to request a contract amendment. In the event a contract amendment cannot be mutually agreed upon or is denied, CAA shall be entitled to withdraw from the project and terminate the contract/agreement, and be paid by the Client for all amounts owed/pending up to the date of termination of the contract/agreement for the work performed. Conclusion We believe that Culbertson, Adams & Associates, Inc. can provide the best representation for the City on this project. Should you find this proposal acceptable, our authorization to proceed will be satisfied by signing where indicated on the following page and returning the original of this letter to my attention. We look forward to working with you on this project. Should you have any questions regarding this proposal, please contact Shawna Schaffner me at (949) 581-2888. Sincerely, TBMA (PN 025-1615) Attachment: Schedule of Fees Selected Resumes INC. Ms. Amy Amirani 1 August 31, 2005 �° = Page 5 AUTHORIZATION TO PROCEED: Signature: Name: Title: Date: Place of Execution: CULBERTSON, ADAMS Sc ASSOCIATES PLANNING CONSULTANTS General Provisions and Schedule of Fees for Professional Services Standard Billing Rates Effective January 1, 2005 Billing rates are subject to revision effective January 1 of each year Classification Hourly Rates Principal $275.00 Principal Planner I 150.00 Principal Planner II 145.00 Senior Project Manager 135.00 Project Manager 125.00 Engineering Coordinator 125.00 Senior Planner 110.00 Associate Planner I 100.00 Associate Planner II 75.00 Graphics Manager 75.00 Assistant Planner 65.00 General Conditions Reimbursable expenses (travel accommodations including rental vehicles and regularly scheduled commercial airline flights, food and lodging, blueprinting and reproduction, delivery/courier, supplies, extensive mailing postage, etc.) are billed at cost and are in addition to the estimated fee for the project. Automobile mileage outside Orange County will be billed at $0.405 per mile. 3. Hourly rates apply to work time as well as travel time and waiting time that occurs at public hearings. Rates increase 50% for depositions or court testimony. 4. Statements will be submitted monthly for work in progress or upon completion of work. Statements are payable upon receipt. Any statement unpaid after thirty (30) days shall be subject to the maximum monthly interest charge provided by law on amounts thirty (30) days past due. If Client fails to pay Consultant within sixty (60) days after invoice is rendered, client agrees Consultant shall have the right to consider such default in payment a material breach of the entire agreement, and, upon written notice, the duties, obligations, and responsibilities of Consultant under this agreement are terminated. 85 Argonaut, Suite 220, Aliso Viejo, California 92656-4105 • (949) 581-2888 • Fax (949) 581-3599 GENERAL PROVISIONS AND SCHEDULE OF FEES FOR PROFESSIONAL SERVICES (Continued) 5. Client hereby agrees that the balance in a billing statement is correct and binding unless the Client notifies the Consultant in writing within ten (10) days of the date of billing and informs Consultant of alleged incorrect item; provided however, that the foregoing shall apply only to the description of work performed as set forth in the billing statement and if after such ten (10) day period Client discovers a mathematical error in the billing statement, Client shall not be bound by the erroneous balance which Consultant hereby agrees to correct. 6. Consultant makes no warranty as to its findings, except that the work is performed using generally accepted methods. Consultant makes no warranty that the project will be approved by any governmental agency, nor endorsed by any citizens group. 8. Client agrees to limit the Consultant's liability to the Client and to all Contractors and Subcontractors on the project due to Consultant's material, willful, and grossly negligent acts, errors, or omissions, to the sum of $50,000 or to the Consultant's fee, whichever is less. 9. In the event either party commences legal action to enforce this Agreement of the General Conditions, the prevailing party shall be entitled to recover its reasonable attorney's fees and costs incurred in the action, in addition to all other relief to which the prevailing party is entitled. 10. In the event of a mid -phase contract suspension, billings will be prorated to reflect tasks in progress, except where a task was completed early, in which case it will be billed as ifthe task were complete. 11. Client agrees and concurs that Consultant is obligated to only Client to perform and/or receive direction or instructions on the project, and that Consultant is not obligated to perform and/or take direction or instructions from Client's other Consultants or Subconsultants without prior written notification and concurrence by Consultant.