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07-0423_CULBERTSON ADAMS & ASSOCIATES, INC_Personal Services Agreement0 0 PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into thi�-day of 21 2007, by and between the City of San Juan Capistrano (hereinafter referred to as the "City") and CULBERTSON ADAMS AND ASSOCIATES, INC., (hereinafter referred to as "Consultant"). RECITALS: WHEREAS, City desires to retain the services of Consultant regarding the City's proposal to biological monitoring services for the 760 S 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", 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 April 30, 2008. 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 Twenty -Three Thousand Seven Hundred Fifty Dollars ($23,750) as set forth in Exhibit "A", attached and incorporated herein by reference. 3.2 Rate Schedule. The services shall be billed to the City as set forth in Exhibit "A" attached and 1 0 0 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. K 0 0 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. Consultant shall complete the Scope of Services as set forth in the schedule included in Exhibit "A", attached and incorporated herein by reference. 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 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. R 0 0 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, 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 14. 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. 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 contractual period. 14.2 Comprehensive Automobile Liability. rd 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 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. 14.6 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. 14.7 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 0 9 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: Public Works Director To Consultant: Shawna Schaffner Culbertson Adams and Associates, Inc. 85 Argonaut, Suite 220 Aliso Viejo, CA 92656 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. A u n U 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. APPROVED AS TO FORM: John R.IShaw, City Attorney r� CITY OF SAN JUAN CAPISTRANO Dave Adams, City Manager CONSULTANT • C� CULBERTSON, ADAMS & ASSOCIATES PLANNING CONSULTANTS March 23, 2007 Mr. Peter Salgado, P.E. Public Works City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 SUBJECT: Proposal for Professional Planning Services and Biological Monitoring and Reporting Relating Monitoring Year Two at the 760 Reservoir Site in the City of San Juan Capistrano Dear Mr. Salgado: Culbertson, Adams & Associates, Inc. (CAA) appreciates the opportunity to submit this proposal for the second year of Biological Monitoring and Reporting relating to the 760 Reservoir Site. As you know, CAA has been working on the 760 Reservoir project since December 2003. The habitat restoration was completed in 2006, and we are nearing the close of our first year of biological monitoring and reporting. While the habitat creation project has been largely successful, there have also been a number of issues on the site, which must be addressed, in order to ensure the success of the project. Specifically, restoration sites No. 6 and No. 7 have not flourished, and site No. 8 will need to be replanted. There have also been problems with the amount of irrigation that is supplied to specific habitat areas. While CAA had originally anticipated a reduced monitoring schedule for the second year of monitoring, we feel that it is important for the long-term viability of the habitat project. Therefore, we are proposing 15 days of field monitoring, as opposed to the seven days that we had originally anticipated for year two. In addition to the 15 days of biological field monitoring, we will prepare monthly status reports to the City and the City's Maintenance Contractor. We will also prepare yearly Monitoring Reports in accordance with the conditions of the City's Resource Agency Permits. We will submit the Monitoring Reports to the respective Resource Agency, and provide copies of all correspondence to the City. We will provide on-going project management including coordination efforts with the Maintenance Contractor. The project management task will also include analysis of data gathered during field monitoring to adjust or fine tune maintenance techniques for each restoration site. Finally, we will provide necessary coordination with the Resource Agencies on the City's behalf. An outline of our proposed tasks, along with the estimated fee, is provided below. EXH I BIT A 0 Mr. Peter Salgado March 23, 2007 Page 2 of 4 Project Tasks and Estimated Fee 0 No. Task Cost 1. Field Monitoring (15) days and monthly status reports to City and City's Maintenance Contractor $ 15,750.00 2. Monitoring Report Preparation $ 3,500.00 3. Project Management including data analysis, coordination with the maintenance contractor, strategic coordination with City and Resource Agencies $ 4,500.00 Total $ 23, 750.00 CAA personnel assigned to this effort will include Shawna Schaffner as Principal -in- Charge and Tom Mathews. 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 and attending meetings. Dr. Jeffrey Froke will provide all biological assistance. Prior to initiation of the second year of biological monitoring, Dr. Froke will submit a field monitoring schedule to the City and to the City's maintenance contractor. This schedule will promote effective communication between Dr. Froke and the maintenance contractor, and will enable any maintenance efforts requiring Dr. Froke's supervision to be planned in a cost- effective manner. Compensation At this time, we believe that a time and materials approach, as set forth in the attached General Provisions and Schedule of Fees for Professional Services, for an estimated fee of $23,750.00 will provide an effective working relationship for the successful completion of this project. All reimbursable expenses including printing, postage and word processing are in addition and will be billed at cost. Invoices will be submitted monthly for prior month's services. 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: 1. 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. �J Mr. Peter Salgado March 23, 2007 Page 3 of 4 n u 3. 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. 5. 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. This proposal will be considered valid for a commence -work date up to May 1, 2007 and is valid for a project completion date of April 30, 2008. 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 continuing our work with the City on this important project. Should you have any questions regarding this proposal, please contact me or Tom Mathews at (949) 581- 2888. Sincerely, CULBERTSON, ADAMS & ASSOCIATES, INC. V, V Shawna L. Schaffner Chief Executive Officer Attachment: Schedule of Fees 0 Mr. Peter Salgado March 23, 2007 Page 4 of 4 AUTHORIZATION TO PROCEED: Signature: Name: Title: Date: Place of Execution: U It CULBERTSON. ADAMS & ASSOCIATES PLANNING CONSULTANTS General Provisions and Schedule of Fees for Professional Services Standard Billing Rates Effective January 1, 2006 Billing rates are subject to revision effective January I 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 1 100.00 Associate Planner 11 85.00 Graphics Manager 75.00 Assistant Planner 65.00 General Conditions 1. 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. 2. Automobile mileage outside Orange County will be billed at $0.485 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 • 949.581.2888 • Fax 949.581.3599 0 0 GENERAL PROVISIONS AND SCHEDULE OF FEES FOR PROFESSIONAL SERVICES (Continued) 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. 7. 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 if the 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.