07-0101_DAVID H. LEE & ASSOCITES, INC_Personal Services AgreementPERSONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into thi4/� day of�Vl (%
00?72-99e; by and between the City of San Juan Capistrano (hereinafter refer d to
as the "City") and David H. Lee & Associates, Inc., (hereinafter referred o as
"Consultant").
RECITALS:
WHEREAS, City desires to retain the services of Consultant regarding the City's
proposal to provide Engineering, Building, and Grading Plan Check; Map Check,
Geotechnical Review; and Engineering and Architectural Services; temporary in-house
or field consulting work required by the City; 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 performing and
executing Engineering, Building, and Architectural Services including Building and
Engineering plan check services, consulting, inspection, and other related services as
required. Specific project details will be presented to the consultant, when necessary,
to be accounted for in the deliverables and compensation.
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 be for a period of three (3) years. The City will consider
extending the agreement for up to two additional one (1) year extensions based upon
mutual agreement of the parties.
Section 3. Compensation.
3.1 Amount.
Consultant contract billings may be submitted on the consultant's forms
and, at a minimum, should contain the following:
Title or project(s)
Purchase order number
Total approved purchase order amount
1
Amount paid to date
Amount requested
Amount remaining on purchase order
Breakdown of amounts by project type or account number
Total cost to City for Consultant's fees shall not exceed $50,000 per project
proposal for each annual period. The amount stipulated above is not a guarantee by
the City to Consultant that said amount will be received by Consultant. Rather, it
represents the maximum authorization permitted without further Council approval.
Consultant may not, dependent upon availability of projects, receive any work.
3.2 Rate Schedule.
The services shall be billed to the City up to the stipulated amount agreed
to at the hourly rate set forth in Exhibit 'A,„ attached and incorporated herein by
reference, or as agreed to in writing. 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.
The City shall issue purchase orders equal to the anticipated Consultant
fees on a project basis, which shall constitute Consultant's authorization to proceed.
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. These invoices should be submitted to: City of
San Juan Capistrano, Attention: Engineering and Building Department (City Project
Manager), 32400 Paseo Adelanto, San Juan Capistrano, CA 92675.
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.
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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.
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 further work 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
.i7
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 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 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 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:
V
$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.
14.2 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 Employers 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 to the City Clerk's office 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 Clerk of the Board's office for
certification that the insurance requirements of this Agreement have been satisfied.
I
14.6 Notice of CancellationfTermination 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.
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 Administrative Services
To Consultant: David H. Lee & Associates, Inc.
Attn: David Lee
23011 Moulton Parkway, Suite D-11
Laguna Hills, CA 92653
0
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CITY OF SAN JUAN CAPISTRANO
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By: �/ , �4&z
David M. S erdiin, Mayor
CONSULTANT
APPROVED AS TO FORM:
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John R. 9haw, City Attorney
VA
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DAVID ASSOCIATES,
GEOTECHNICAL ENGINEERING + ENGINEERING GEOLOGY
-
nnu.�imw. D • ' PROFESSIONAL
DHLA EFFECTIVE: January 1, 0r
& Associates, Inc.
HOURLY CHARGES
Princi al Engineer/ Geologist
$175.00
ro'ect Engineer/ Geologist
$140.00
taff Engineer/ Geologist
$100.00
enior Engineering Technician
$90.00
Engineering Technician
$65.00
echnical Support
$55.00
L L. abor2torV Testinq
$75.00
echnical Illustrating
$60.00
Clerical
$48.00
* Unless fees are quoted on a per test basis as shown on the Laboratory
Testing Fee Schedule.
OVERTIME RATES
An overtime charge of 1.5 times the hourly rate will be added for (a) time in
excess of eight hours per normal work day and (b) all time charged on
Saturdays. The overtime rate will be charged at 2.0 times the hourly rate for
work performed on Sundays and holidays.
LITIGATION FEES
Service in conjunction with travel for, and testifying at, depositions and, 'trials will
be charged at the rate of $2,400.00 per day and $1,200.00 per. half day
($300.00 per hour) for company principals, and $2,000.00 per jday and
$1,000.00 per half day ($250.00 per hour) for professional staff. Atteldance at
mediation and arbitration conferences, and preparation and research for
deposition, mediation, arbitration and trial will be billed at our standard hourly
rate.
Payment to the professional engineer or geologist testifying shall be made
promptly, and shall not be contingent upon the results of any legal action,
arbitration or settlement
EXPENSES
All direct expenses (e.g., field equipment rental, aerial photos, travel,
subsistence, permits, insurance, consultants, outside printing, etc.) will be
charged at our cost with no handling fee.
Our invoices include ordinary and customary accounting and administrative
expenses associated with terms and conditions of payment. We customarily
provide one original invoice with an itemized statement of services. In the
event it becomes necessary to provide additional copies of past invoices,
compiled statements, re -billing, etc., an administrative charge will be applied for
those services pursuant to our fee schedule.
Page 1 EXHIBIT A
FEE SCHEDULE FOR PROFESSIONAL SERVICES
EFFECTIVE: January 1, 2005
EXPENSES (continued)
Mileage will be charged at $0.45 per mile for transportation (a) to and from project sites, (b) to
meetings and (c) during vehicle use on project sites. Travel time is charged portal-to-portal from our
Laguna Hills office.
Water manometers and Osterberg samplers will be charged at the rate of $30.00 per day.
Nuclear density testing gauges will be charged at the rate of $50.00 per day.
Tiltmeter and inclinometer readout instrumentation will be charged at the rate of $100.00 per day.
The use of a pneumatic pressure indicator for reading pore pressure transducers is billed at $35.00
per day.
OTHER CHARGES
The minimum fee for professional services is $500.00. The fee for field services will be a two hour
minimum.
All projects require a minimum 45% retainer based on the total cost estimate prior to work
commencing, unless otherwise specified or arranged in advance of the commencement of work.
Project soil samples stored for more than 30 days by David H. Lee & Associates, Inc., will be billed on
a per project basis.
OTHER CONDITIONS
Proposals are valid for 90 days from the date thereon, and a retainer is required, unless otherwise
arranged.
David H. Lee & Associates, Inc., reserves the right not to proceed with consulting services until such
time as a signed proposal or contract and retainer are received and/or any past due balance of the
fee is paid.
Invoices are due and payable upon presentation, and will be deemed accepted unless written
objections are received within 30 days of.the invoice date. A late charge of 1.5% (annual percentage
rate of 16%) will be added to accounts not paid within 30 days.
Reports and other work prepared by David H. Lee & Associates, Inc., remain our property until all
fees for such reports and other work have been paid. The client agrees that all reports and other
work furnished to the client, or his or her agents, not paid for in a timely or otherwise agreed manner
will be returned upon demand, and will not be used for licensing, permits, design and/or construction.
We reserve the right to suspend or terminate all work if agreed payments of monthly invoices are not
made. It is also the policy of David H. Lee & Associates, Inc., to pay up -front vendor costs within 30 -
days of the services performed and to bill those costs against the retainer monies received.
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