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08-0603_GLENN LUKOS ASSOCIATES_Personal Services Agreement 0 0 -75.2 , c-,o0eL_0-' PERSONAL SERVICES AGREEMENT , �T IS AGREEMENT is made, entered into, and shall become effective*is y o#M}ay-2008, by and between the City of San Juan Capistrano (hereinafter reterred to as the"City") and Glenn Lukos Associates (GLA) (hereinafter referred to as the"Consultant'). RECITALS: WHEREAS, City desires to retain the services of Consultant to provide additional biological resources services to support compliance with the California Environmental Quality Act(CEQA)for Capital Improvement Project 122, Del Obispo Bridge Widening and Circulation Improvements; 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 the City shall consist of those tasks as set forth in Exhibit'A,"attached and incorporated herein by reference. To the extent that there are any conflicts between the provisions described in Exhibit "A" and those provisions contained within this Agreement, the provisions in this Agreement shall control. Section 2. Term. This Agreement shall commence on the effective date and shall terminate, and all services required hereunder shall be completed, no later than December 31, 2008. Section 3. Compensation. 3.1 Amount. Total compensation for the services hereunder shall not exceed$25,140(twenty-five thousand, one-hundred and forty dollars and no cents), as set forth in Exhibit"B" attached and incorporated herein by reference. 3.2 Method of Payment. Subject to Section 3.1, Consultant shall submit monthly invoices based on total services which have been satisfactorily completed for such monthly period. The City will pay monthly progress payments based on approved invoices in accordance with this Section. CIP 122, Del Obispo Bridge Widening Personal Services Agreement 1 of 7 May 2008 0 0 3.3 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. For extra work not part of this Agreement, a written authorization from City is required prior to Consultant undertaking any extra 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/or Construction Site. By executing this Agreement, Consultant warrants that: (1) it has investigated the work to be performed; (2) if applicable, it has investigated the work site(s), and is aware of all conditions there; and (3) it understands the facilities, difficulties and restrictions of the work to be performed 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 the 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. CIP 122, Del Obispo Bridge Widening Personal Services Agreement 2 of 7 May 2008 0 • Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law. Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. Section 10. Conflicts of Interest. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the services contemplated by this Agreement. No person having such interest shall be employed by or associated with Consultant. Section 11. Copies of Work Product. At the completion of the work, Consultant shall have delivered to City at least one(1) copy of any final reports and/or notes or drawings containing Consultant's findings, conclusions, and recommendations with any supporting documentation. All reports submitted to the City shall be in reproducible format, or in the format otherwise approved by the City in writing. 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. To the fullest extent permitted by law, Consultant agrees to protect, defend, and hold harmless the City and its elective and appointive boards, officers, agents, 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 damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence, recklessness and/or intentional wrongful conduct of Consultant, Consultant's agents, officers, employees, subcontractors, or independent contractors hired by Consultant in the performance of the Agreement. The only exception to Consultant's responsibility to protect, defend, and hold harmless the City, is due to the negligence, recklessness and/or wrongful conduct of the City, or any of its elective or appointive boards, officers, agents, or CIP 122, Del Obispo Bridge Widening Personal Services Agreement 3 of 7 May 2008 employees. This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Section 14. Insurance. On or before beginning any of the services or work called for by any term of this Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration of the agreement, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Consultant shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Consultant has also been obtained for the subcontractor. 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 an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit. 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 an amount not less than one million dollars per occurrence ($1,000,000.00). 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 CIP 122, Del Obispo Bridge Widening Personal Services Agreement 4 of 7 May 2008 0 0 insurance certificates, including the deductible or self-retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insureds as respects each of the following: Liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. 14.5 Errors and Omissions Coverage Throughout the term of this Agreement, Consultant shall not be required to maintain Errors and Omissions Coverage. 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. 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 shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Consultant. In addition, this Agreement may be terminated by any party 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 CIP 122, Del Obispo Bridge Widening Personal Services Agreement 5 of 7 May 2008 used for delivery of service of process: To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: To Consultant: Glenn C. Lukos, President Glenn Lukos Associates 29 Orchard Lake Forest, CA 92630-8300 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. This agreement voids and replaces the July 31, 2006 agreement between the City and Consultant. [SIGNATURE PAGE FOLLOWS] CIP 122, Del Obispo Bridge Widening Personal Services Agreement 6 of 7 May 2008 0 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO By: c Dave Adams, City Manager Glenn Lukos Associates By: Glenn C. Lukos, President ATTEST: �MargtLl�'[L ahan, City Clerk APPRAS TO FORM: Loa4 A7,44" Omar Sando 'a , City Attorney Exhibits: Exhibit A, Scope of Work. Exhibit B, Payment for Services. CIP 122, Del Obispo Bridge Widening Personal Services Agreement 7 of 7 May 2008 GLENN LUKOS ASSOCIATES Regulatory Services April 1,2008 [Revised April 10,2008] RECEIVED Mr. William Ramsey APR '1 1 2008 City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 PLANNING DEPT SUBJECT: Revised Request for Change Order Number 1 to Purchase Order Number 20855 to Provide Supplemental Biological and Regulatory Support Services for Del Obispo Bridge Improvements at Trabuco Creek in San Juan Capistrano,Orange County, California. Dear Mr. Ramsey: Glenn Lukos Associates, Inc. (GLA)is requsting a change order to existing purchase order number 20855 to perform supplemental biological and regulatory support services for the subject project site. This proposal provides for 1)a site visit to verify that biological conditions mapped during the 2006 biological assessment have not changed,2)to update the literature review for the site, 3)to revise the report to incorporate the additional site visit and refute the impact analysis when final engineering details are made available,4)to update the jurisdictional delineation based upon the recent Corps guidance on the Supreme Court's decision in the consolidated cases United States v. Rapanos and Carabell v. U. S. Army Corps of Engineers. (Rapanos),and 5)to process authorizations through(a)the U.S. Army Corps of Engineers(Corps)pursuant to Section 404 of the Clean Water Act and(b)the California Department of Fish and Game(CDFG)pursuant to Section 1602 of the California Fish and Game Code. PERSONNEL Mr. Glenn C. Lukos will lead a staff of carefully selected environmental professionals in conducting the work proposed in the attached scope. Mr. Lukos has over 28 years of experience in the regulatory field, four of which were spent managing the regulatory program for the U.S. Army Corps of Engineers in Southern California and Arizona. His principal focus at the Corps was supervision of the Section 10 and 404 programs for this region,including permit processing, jurisdictional determination,policy formulation,and preparation of Environmental Assessments and Environmental Impact Statements. 29 Orchard ■ Lake Forest ■ California 92630-8300 Telephone: (949) 837-0404 Facsimile: (949) 837-5834 William Ramsey City of San Juan Capistrano April 1,2008 [Revised April 10,2008] Page 2 COST The proposed fee for performance of the attached scope of work is$25,140 including direct costs, but not including meetings or other tasks not specifically addressed in the scope of work. This amount is in addition to the$11,670 previously authorized, for a total of$36,810. Should you have any questions regarding this proposal please call me at(949)837-0404. Sincerely, GLENN LUKOS ASSOCIATES,INC. Glenn C. Lukos President s:0752-ld2.pro.doc IC SCOPE OF WORK SUPPLMENTAL BIOLOGICAL AND REGULATORY SUPPORT SERVICES FOR DEL OBISPO BRIDGE IMPROVEMENTS OVER TRABUCO CREEK SAN JUAN CAPISTRANO,ORANGE COUNTY,CALIFORNIA TASK II. PROJECT COORDINATION A GLA biologist will coordinate with the project team as needed. This scope of work assumes attendance at one meeting and coordination with the project engineers who are preparing the 401 Certification. TASK III. VERIFY THAT BIOLOGICAL RESOURCES MAPPED IN 2006 HAVE NOT SIGNIFICANTLY CHANGED A GLA biologist will conduct a site visit to verify that the biological resources occurring,or with potential to occur,on site are accurately reflected in the 2006 Biological Technical Report text and exhibits. If biological resources, including jurisdictional limits and vegetation composition,have changed significantly,then additional data will be collected as needed. The biologist will photo document the current conditions of the site. This task does not include focused surveys for special status species. TASK IV. CONDUCT LITERATURE REVIEW The most recent edition of California Natural Diversity Data Base will be consulted to determine whether any previously unidentified sensitive species and/or communities are known to occur on or near the property. Any sensitive biological resources identified for the site or its near vicinity,and not previously addressed,will be evaluated for their potential to occur on site and will be discussed in the final report. TASK V. REVISE REPORT AS NEEDED The Biological Technical Report prepared in 2006 shall be revised to include observations from the above site visit and to refine the impact analysis when final engineering details are made available. TASK VI. RE-EVALUATE CORPS JURISDICTION A field team of regulatory specialists will re-evaluate Corps jurisdictional boundaries within the project site. Relative to Rapanos the field team will document specific conditions relating to jurisdictional criteria necessary for a"Significant Nexus"determination by the Corps including such factors as volume,duration and frequency of flow,watershed size, average annual precipitation,distance from traditional navigable waters(TNW),biological characteristics, connectivity to Trabuco Creek,and TNW's. In addition GLA will review the existing delineation relative to wetland vegetation indicator species,hydric soils,and appropriate hydrology,all as outlined in the 2006 Interim Arid Southwest Regional Supplement and the 2007 U.S.Arany Corps of Engineers Jurisdictional Determination Form Instructional Guidebook. The Rapanos analysis will include review of aerial photography,USGS topographic maps and existing on-site functional capacity data to determine the extent to which the features on site contribute significantly to the chemical,physical,or biological integrity of downstream traditional navigable waters. Because Trabuco Creek exhibits perennial flows,and therefore clearly subject to Corps jurisdiction pursuant to Rapanos,a detailed"significant nexus"analysis is not necessary. If necessary,revised limits of Corps jurisdiction,based on GLA's evaluation will be depicted on aerial photographs or topographic maps as appropriate. A regulatory specialist will revise the existing letter report to document the findings concerning Corps jurisdiction on the site in light of the new Corps Guidelines and Supreme Court rulings. The report will document the extent of jurisdiction,assess wetland-related biological resources,and discuss permitting strategies. Documentation will consist of(1)field data sheets(as an appendix), (2)color photographs of representative jurisdictional areas(and non jurisdictional areas that could be mistaken for jurisdiction), (3)a topographic map(at the scale provided by the client,but not less than 200-scale)of the limits of jurisdictional areas(the map will show all points at which measurements were made and soil pits examined),and,if applicable, (4)a table showing the area of Corps and CDFG jurisdiction for each drainage and tributary. TASK VII. PROCESS SECTION 404 AUTHORIZATION The current nationwide permits(NWP)became effective on March 19,2007 and will expire on March 18,2012. The proposed work will cause the loss of less than %acre of jurisdictional waters and cause the loss of less than 1/3 acre of jurisdictional wetland,complies with the terms and conditions of NWP number 14,and is not subject to(restricted by)any of the Regional Conditions issued by the District office of the Corps. When impacts to wetland are proposed,this NWP requires case-by-case verification from the Corps that the work is authorized by NWP. GLA will prepare a Pre-Construction Notification in accordance with Corps regulations and,upon review and approval by the client, submit it to the Corps for approval. TASK VIII. PREPARE STREAMBED ALTERATION NOTIFICATION A 1602 Streambed Alteration Notification will be completed in accordance with CDFG standards and submitted to the CDFG for review. The notification to CDFG will include,at a minimum: • detailed description of the proposed project,including grading plans provided by the client; • detailed description of the property(especially wetlands)to be impacted by the proposed project,as extracted from other reports and documents provided by the client. • discussion of approvals and certifications being obtained from other federal, state,or local agencies; • conceptual mitigation plan as discussed above; and • a completed notification form as required by CDFG. Please be aware that CDFG generally will not accept a notification unless accompanied by a recently certified CEQA document. TASK X. COORDINATE PROCESSING The 404 permit application and the 1602 notification will be coordinated with the Corps and CDFG throughout processing to ensure that any potential problems are made known to the client and resolved at the earliest possible opportunity. Please note that the Corps will not issue its 404 authorization until the Regional Board has issued its 401 water quality certification. The 401 water quality certification is being processed by the project engineers and is not included in this proposal. DIRECT EXPENSES GLA's direct expenses shall be those costs incurred directly for the CLIENT'S project, including, but not limited to,necessary transportation costs including mileage by automobile at the current rate allowed by IRS,meals and lodging, laboratory tests and analyses,retention and management of technical consultants,printing, and binding charges. Reimbursement for these expenses shall be on the basis of actual charges when furnished by GLA. An administrative charge of 15%shall be applied to all direct expense charges. The table below has been developed to aid us in estimating the total cost of the proposed work and is provided for your information only. Unless otherwise arranged with the client,the cost of each task is not meant to be precise and we may find it necessary to shift costs between tasks as the work proceeds. TASK TOTAL COSTS Pro'ect Coordination $1,750 . Site Visit $1,340 Literature Review $1,110 Revise Report $3,500 Re-evaluate Corps jurisdiction $1,800 Process 404 Authorization $5,790 Prepare Streambed Alteration Notification $5,790 Coordinate processing $4,060 TOTAL $25,140 • �„�,� • x2400 PA9EO ADELANTO i MEMBERS OF THE CITY COUNCIL SAN JUAN CAPISTRANO, CA 92675 / SAMAL% TO (949) 493-1171 /,jam THOMAS W.HR (949) 493-1053 FAX • }T BRINeDFe THOMAS W.HRIBAR FBe111319 I 1961 MARK NEILSON wvmsanjuancapistrano.org 1776 JOESOTO DR.LONDRES USO TRANSMITTAL June 9, 2008 TO: Glenn C. Lukos, President Glenn Lukos Associates 29 Orchard Lake Forest, CA 92630-8300 FROM: Meg Monahan, MMC — City Clerk (949) 443-6308 RE: Personal Services Agreement— CEQA for Del Obispo Bridge Widening & Circulation Improvements. Enclosed: (1) fully executed original agreement for your records. You may begin work under this agreement in coordination with the project manager, Bill Ramsey, Principal Planner (949) 443-6334. San Juan Capistrano: Preserving the Past to Enhance the Future 04 Printed on 100% nxycletl papa(