06-0829_KHR ASSOCIATES_Personal Services Agreement0 0
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 29th day of August, 2006, by and
between the City of San Juan Capistrano, (hereinafter referred to as the "City") and
KHR Associates (hereinafter referred to as "Consultant").
RECITALS:
Whereas, City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California; and,
Whereas, City desires to retain professional consulting services for preparing plans
for a temporary parking lot at the former Walnut Grove Restaurant site; and,
Whereas, City wishes to engage Consultant to provide said services for preparing
plans for a temporary parking lot; and,
Whereas, Consultant possesses the skill, experience, ability, background,
certification, technical expertise and knowledge to provide the services described in this
Agreement; and,
Whereas, City has solicited and received a proposal from Consultant, has reviewed
the previous experience and evaluated the expertise of Consultant, and desires to retain
Consultant to render professional services under the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties 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 general standards of its
profession.
Section 2. Term and Termination.
This Agreement shall commence on the effective date of this Agreement and
services required hereunder shall be completed by no later than December 3, 2006.
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In the event that either party fails or refuses to perform any of the provisions of this
Agreement at the time and in the manner required, that party shall be deemed in default in
the performance of this Agreement. If such default is not cured within a period of two (2)
calendar days, or if more than two (2) calendar days are reasonably required to cure the
default and the defaulting party fails to give adequate assurance of due performance within
two (2) calendar days after receipt of written notice of default, specifying the nature of such
default and the steps necessary to cure such default, the non -defaulting party may
terminate the Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole discretion
and without cause, of terminating this Agreement at any time by giving seven (7) calendar
days prior written notice to Consultant. In the event of termination under this Section, City
shall pay Consultant for services satisfactorily performed and costs incurred up to the
effective date of termination for which Consultant has not been previously paid. On the
effective date of termination, Consultant shall deliver to City all reports, Documents and
other information developed or accumulated in the performance of this Agreement,
whether in draft or final form.
Section 3. Compensation.
3.1 Amount.
Total compensation for the scope of services for this Project shall not exceed
five thousand eight hundred dollars ($5,800.00), as set forth in Exhibit "A".
3.2 Rate Schedule.
The services shall be billed to the City at the hourly rate also set forth in
Exhibit "A". 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
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expenses incidental to services covered by this Agreement. These records will be made
available at reasonable times to City.
Section 4. Project Manager
Consultant shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable times during
the Agreement term. Consultant has designated James H. Kawamura to be its Project
Manager. Consultant shall not remove or reassign the Project Manager or any personnel to
the Project without the prior written consent of City. City's approval shall not be
unreasonably withheld with respect to the removal or assignment of non -key personnel.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City. Consultant
warrants that it will continuously furnish the necessary personnel to complete the Project
on a timely basis as contemplated by this Agreement.
Section 5. Standard of Care
5.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform all services in a manner commensurate with community
professional standards. All services shall be performed by qualified and experienced
personnel who are not employed by City, nor have any relationship with City.
5.2 Consultant represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that are
legally required of Consultant to practice its profession. Consultant further represents and
warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain
at all times during the term of this Agreement, any and all licenses, permits, insurance and
other approvals that are legally required of Consultant to practice its profession. Consultant
shall maintain a City of San Juan Capistrano business license during the term of this
Agreement.
5.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's work promptly, or delay or faulty performance by City,
contractors, or governmental agencies.
Section 6. 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 7. 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 8. 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 9. 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 further work under this Agreement until written instructions are received from
the City.
Section 10. Time of Essence.
Time is of the essence in the performance of this Agreement.
Section 11. Compliance with Law.
Consultant shall comply with all applicable laws, ordinances, codes and regulations
of federal, state and local government, whether now in force or hereinafter enacted. In
addition, all work prepared by Consultant shall conform to applicable City, county, state
and federal laws, rules, regulations and permit requirements and be subject to approval of
the Project Administrator and City.
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Section 12. Conflicts of Interest.
The Consultant or its employees may be subject to the provisions of the California
Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any
financial interest that may foreseeably be materially affected by the work performed under
this Agreement, and (2) prohibits such persons from making, or participating in making,
decisions that will foreseeably financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act. Failure
to do so constitutes a material breach and is grounds for immediate termination of this
Agreement by City. Consultant shall indemnify and hold harmless City for any and all
claims for damages resulting from Consultant's violation of this Section.
Consultant agrees that neither Consultant nor Consultant's Project Manager will for
the term of this Agreement enter into a contract with any person for services concerning
development of any real property within 1000 feet of City property.
Section 13. Copies of Work Product.
All services to be rendered hereunder shall be subject to the direction and approval
of the City.
At the completion of the contract period, Consultant shall have delivered to City at
least ten sets (10) of hard copies and one (1) electronic digital copy of drawings containing
Consultant's findings, conclusions, and recommendations with any supporting
documentation. All reports submitted to the City shall be in reproducible format.
13.1 Ownership of Documents
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its
officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Consultant shall, at Consultant's expense, provide such Documents to City
upon prior written request.
Documents, including drawings and specifications, prepared by Consultant pursuant
to the Agreement are not intended or represented to be suitable for reuse by City or others
on any other project. Any use of completed Documents for other projects and any use of
incomplete Documents without specific written authorization from Consultant will be at
City's sole risk and without liability to Consultant.
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Further, any and all liability arising out of changes made to Consultant's deliverables
under this Agreement by City or persons other than Consultant is waived against
Consultant and City assumes full responsibility for such changes unless City has given
Consultant prior notice and has received from Consultant written consent for such
changes.
13.2 Computer Deliverables
CADD data delivered to City shall include the professional stamp of the engineer or
architect in charge of or responsible for the work. City agrees that Consultant shall not be
liable for claims, liabilities or losses arising out of, or connected with (a) the modification of
misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or
readability of CADD data due to inappropriate storage conditions or duration this Project,
for the completion of this Project by others, or for any other Project, accepting only such
use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to
indemnify Consultant for damages and liability resulting from the modification or misuse of
such CADD data.
All original drawings shall be submitted to City in the version of AutoCAD used by
CITY in "dwg" file format on a CD, and should comply with the City's digital submission
requirements for Improvement Plans. The City will provide AutoCAD file of City Title
Sheets. All written documents shall be transmitted to City in the City's latest adopted
version of Microsoft Word and Excel.
Section 14. General 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 the negligent acts errors and
omissions committed by Consultant in connection with the work, operation or activities of
Consultant, its agents, employees and subcontractors in carrying out its obligations under
this Agreement.
Section 15. Intellectual Property Indemnity.
The Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement of any United
States' letter patent, trademark, or copyright infringement, including costs, contained in
Consultant's drawings and specifications provided under this Agreement.
Section 16. 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.
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16.1 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.
16.2 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
16.3 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.
16.4 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 11 85 (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.
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16.5 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.
16.6 Notice of Cancellation/Termination of Insurance.
The above policy/policies shall not terminate, nor shall they be canceled, 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.
16.7 Terms of Compensation.
Consultant shall not receive any compensation until all insurance provisions
have been satisfied.
16.8 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 17. 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 18. 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
Attn: Douglas D. Dumhart
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
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To Consultant: KHR Associates
Attention: James H. Kawamura, President
4100 Newport Place Drive — Suite 200
Newport Beach, A 92660
Section 19. 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 20. 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 21. Confidentiality.
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept confidential
unless City authorizes in writing the release of information.
Section 22. Opinion of Cost
Any opinion of the construction cost prepared by Consultant represents his/her
judgment as a design professional and is supplied for the general guidance of City. Since
Consultant has no control over the cost of labor and material, or over competitive bidding
or market conditions, Consultant does not guarantee the accuracy such opinions as
compared to contractor bids or actual cost to City.
This Agreement constitutes the entire understanding and agreement between the
parties and supersedes all previous negotiations between them pertaining to the subject
matter thereof.
Section 23. Waiver
A waiver by either party of any breach, of any term, covenant or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant or condition contained herein, whether of the same or a different
character.
Section 24. Entire Agreement.
This Agreement constitutes the entire understanding and agreement between the
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parties and supersedes all previous negotiations between them pertaining to the subject
matter thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
APPROVED AS TO FORM:
John R. S w, ity torney
M.
CITY OF SAN JUAN CAPISTRANO
Dave Adams, City Manager
CONSULTANT
Ja s . K ur , President
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EXHIBIT A
Ism
`►r. KHR ASSOCIATES
CONSULTING ENGINEERS/SURVEYORS/PLANNERS
August 21, 2006
Mr. Douglas Dumhart
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, California 92675
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SUBJECT: PROPOSAL TO PREPARE WALNUT GROVE PARKING LOT PLAN
(SAN JUAN CAPISTRANO, CALIFORNIA) — SENT VIA E-MAIL
Dear Mr. Dumhart:
Transmitted herein is a proposal by KHR Associates, Newport Beach, California, to
prepare a parking lot improvement plan for the recently demolished Walnut Grove
restaurant site. This L-shaped lot on which the restaurant once sat is currently fenced
off. The plan is to allow public parking on this site with direct access from the existing
driveway on EI Camino Real only, and a drive aisle to allow ingress only from the
adjacent Mission Inn site. The existing driveway onto the Walnut Grove site (i.e., from
Ortega Highway) would be eliminated and replaced with a new sidewalk and curb.
However, it should be noted that no sidewalk exists along the north side of Ortega
Highway east of the Walnut Grove site (i.e., adjacent to the Mission Inn site).
Scope of Work
KHR Associates will provide a new traffic signing and striping layout of the existing lot
that maximizes the number of parking spaces, complies with Americans with
Disabilities Act (ADA) standards for accessibility and handicapped parking, and
achieves the objectives of the City in controlling access and circulation. It is
understood that the City will provide a suitable topographic data in CADD format to
serve as the underlying base for the proposed plan.
Within the limits of the proposed scope of work, a limited survey will be conducted to
verify horizontal distances only. New paving (or re -paving existing surfaces) will be
restricted to the site of the former Walnut Grove restaurant, and will be of minimal
thickness. Landscaping "planters," if any, will be restricted to cut-out sections of
asphalt with a flush redwood header. The proposed method of "closing" the existing
driveway on Ortega Highway is to build an asphalt concrete curb and backfill the area
between the curb and the driveway with additional asphalt concrete to provide a level
sidewalk. Construction is not proposed within the street.
It is not anticipated that drainage and the affects of additional storm water runoff will be
a problem, and is therefore not included in the proposed scope of work. Should field
conditions dictate reconsideration of drainage and/or grading solutions, an amendment
4100 Newport Place Drive - Suite 200 (949) 756-6440
Newport Beach, California 92660 Fax(949)756-6444
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Mr. Douglas Dumhart
August 21, 2006
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to the scope of work (with an adjustment to the professional fee) will be provided.
Similarly, providing utilities to the site, including yard lighting, landscaping and
irrigation, and other amenities are not part of the proposed scope of work.
Professional Fee
KHR Associates proposes to provide the above consulting services for a time and
materials fee estimate of $5,800.00 (five thousand eight hundred dollars). Additional
consulting services (e.g., additional analyses, plans, meetings, preparation of other
exhibits or calculations, etc.) are not anticipated and therefore not included within this
estimate. However, additional services may be provided to the City at your request.
Schedule
KHR Associates proposes to complete a preliminary plan within two weeks of receipt
of a suitable topographic base. Depending on comments and/or revisions, the final
plan can be prepared and submitted within one additional week.
In Closing
KHR Associates appreciates this opportunity to again offer our engineering services
to the City of San Juan Capistrano. If there are any questions regarding our proposal,
please do not hesitate to contact me at your convenience.
Sincerely yours,
KHR Associates
James H. Kawamura, P.E.
President/CEO
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Mr. Douglas Dumhart
August 21, 2006
Page 3
Labor Classification
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Schedule of Standard Rates
(Effective January 1, 2006)
Project Manager ....................................................
Expert Witness ......................................................
CivilEngineer.........................................................
Traffic Engineer .....................................................
Land Surveyor.......................................................
Associate Engineer ...............................................
Senior Planner.......................................................
Engineering Supervisor .........................................
Engineering Assistant/Senior CADD Operator.....
CADDOperator .....................................................
Associate Planner/Permit Specialist .....................
Planning Assistant .................................................
Permit Runner .......................................................
Technical Aide .......................................................
Clerical...................................................................
One -Person Surveyor ...........................................
Two -Person Survey Crew .....................................
Three -Person Survey Crew ..................................
Reimbursable Costs
Vehicle Mileage ......................................
Plain Paper Photocopying ......................
8 1/2" x 11" Laser -Jet Originals ..............
11" x 17" Laser -Jet Originals ..................
Incoming Facsimile Transmissions........
Outgoing Facsimile Transmissions........
Plot on Opaque or Reproducible Bond..
Color Plots ..............................................
Plot on Reproducible Film ......................
Parking & User Tolls ...............................
Permit, Plan & Building Fees .................
Cellular & Long Distance Calls ...............
Postage/Special Delivery .......................
Outside Printing & Reproduction............
Other Outside Services ..........................
Hourly Rate
..... $185.00
....... 300.00
.......160.00
.......150.00
.......130.00
.......115.00
.......100.00
......... 90.00
......... 85.00
......... 75.00
......... 85.00
......... 75.00
......... 65.00
......... 55.00
......... 30.00
.......115.00
.......195.00
....... 250.00
Unit Rate
............................................ $ 0.50/Mile
............................................. 0.10/Page
............................................. 0.15/Page
............................................. 0.25/Page
............................................. 0.10/Page
............................................. 0.10/Page
........................................... 2.50/Sq. Ft.
...........................................4.00/Sq. Ft.
........................................... 6.00/Sq. Ft.
........................................... Cost + 10%
........................................... Cost + 10%
........................................... Cost + 10%
........................................... Cost + 10%
........................................... Cost + 10%
........................................... Cost + 10%
32400 PASEO ADEI ANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493-1171
(949) 493-1053 FAx
www.sanjuancapistrano.org
TRANSMITTAL
TO:
James H. Kawamura, President
KHR Associates
4100 Newport Place Drive, Suite 200
Newport Beach, CA 92660
DATE: September 1, 2006
//�� •�r1e�e
B1AILIS 1(1 1961
1776
FROM: Maria Guevara, Deputy City Clerk (949) 443-6309
MEMBERS OF THE CITY COUNCIL
SAMALLEVATO
DIANE BATHGATE
WYATT HART
JOE SOTO
DAVID M. SWERDLIN
RE: Preparing Plans for a Temporary Parking Lot at the former Walnut Grove Restaurant Site.
Thank you for forwarding documentation confirming compliance with the terms of the
agreement related to insurance.
Please keep in mind this documentation must remain current with our office during the term of
this agreement. If you have questions related to insurance requirements, please call me at
(949) 443-6309.
If you have questions concerning the agreement, please contact the project manager, Douglas
Dumhart, Economic Development Manager (949) 443-6316.
An original, executed agreement is enclosed for your records.
Cc: Douglas D. Dumhart, Economic Development Manager
San Juan Capistrano: Preserving the Past to Enhance the Future
_A Printed on 1011% R.c I.a Pana.