08-0819_BARBARA BUTLER ARTIST-BUILDER INC_Personal Services Agreement0 0
PERSONAL SERVICES AGREEMENT
THIS AGREEMENT is made, entered into, and shall become effective this 19"' day
of August, 2008, by and between the City of San Juan Capistrano (hereinafter referred to
as the "City") and Barbara Butler Artist -Builder, Inc. (hereinafter referred to as the
"Consultant").
RECITALS:
WHEREAS, City desires to retain the services of Consultant to provide fabrication,
delivery, installation, and certification of a play structure for the Los Rios Park & Parking Lot
Improvement Project located within the City's historic Los Rios District; 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. Tenn
This Agreement shall commence on the effective date of this Agreement and
services required hereunder shall continue until notified that said services are no longer
required, subject to 15 days notice of termination.
Section 3. Compensation.
3.1 Amount
Total compensation for the services hereunder shall not exceed One Hundred
Thirty Nine Thousand and Nine Hundred Dollars ($139,900) as set forth in Exhibit "A",
attached and incorporated herein by reference.
3.2 Method of Payment
Subject to Section 3.1, City shall pay to Consultant the below -listed sums
for the Work, subject to additions and deductions pursuant to contract change orders,
payable according to the following Payment Schedule:
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$ 69,950.00 First Payment (50%): Due within 10 days after signing the
contract to start construction.
$ 41,970.00 Second Payment (30%): Due 1 week prior to delivery.
$ 27,980.00 Third Payment (20%): Due upon completion of installation.
$ 139,900.00 Sum Total of Payments
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 Subcontracdna 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. Chanes 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 andfor 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 reasonably apparent 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
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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
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 copies of work
as set forth in Exhibit "A". 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.
Consultant hereby indemnifies and holds harmless the City, and each of its elective
and appointive boards, officers, employees, agents and representatives (altogether the
"City Parties") against and from any and all claims, liabilities, damages, fines, penalties or
costs of whatsoever nature (including reasonable attorneys' fees), and whether by reason
of death of or injury to any person or loss of or damage to any property or otherwise
("Claims") to the extent that such Claims are caused by Consultant's defective installation,
construction or design of the Work and do not solely arise from the inherently hazardous
nature of play structures. City acknowledges for itself and on behalf of the City Parties
that individuals will climb and play on the Work with and without direct supervision and that
there is an inherent risk that such individuals may be injured. City further acknowledges for
itself and on behalf of the City Parties that no design can eliminate all risks of harm and that
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Consultants indemnification for design flaws is intended to address actual defects in the
function of the Work for its intended use and not alleged risk -related defects such as, for
example, the height and number of barriers or the posting of warning signs. City
understands for itself and on behalf of the City Parties that all children should be supervised
by an adult at all times while using the Work. The obligations of each party under this
section shall survive termination of the Agreement.
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 cavy, 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 Insurers in good standing with the State of
California and having a minimum Bests 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.
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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 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
Intentionally omitted.
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, however City shall be
obligated to compensate Consultant for all current work in progress.
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.
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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: Khoon Tan, P.E.
To Consultant: Barbara Butler Artist -Builder Inc.
325 South Maple Avenue #37
South San Francisco, CA 94080
Attn: Barbara Butler
Section 17. Attomeys' 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CITY OF SAN JUAN CAPISTRANO
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BARBARA BUTLER ARTIST -BUILDER INC.
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arbara Butler eSe n j
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APPROVED AS TO FORM:
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EXHIBIT "A"
Barbara Butler Artist -Builder Inc.
325 South Maple Avenue 937, South San Francisco, CA 94080
July 28, 2008
Option #4 Features & Pricing
for Karen Crocker, Los Rios Historical Park, San Juan Capistrano
Description
Price
Square Tower
6' x 6'x 16' high 2 -story Square Tower at 6' deck height with 7' square double layered rustic tree-
$21,270.00
stake Gable roof, 36" high upper level fortress railings with cutouts, and open below with:
• Coil Climber
$2,600.00
• Commercial grade open spiral "Cobra Coil" Slide for 6' deck height with redwood 3' x 4'
$9,700.00
custom transition platform open below with 36" high upper level fortress railings.
Swinging Bridge
• S' long Swinging Bridge with 36" high hand-woven rope net railings
$9,730.00
Slide Tower (4'9" x 66" x 14' high overall dimension)
49" x 66" x 9' high 2 -story Slide Tower at 6' deck height with 5'6" x T6" double layered rustic
$13,800.00
tree -stake Gable roof, open below with 36" high upper level railings and with:
• Commercial grade open Triple Slide for 6' deck height
$5,200.00
• Angled Rung Ladder
$900.00
• "L" shaped ADA Handicap Transfer System with: Transfer Platform with Transfer
$19,860.00
Support, (4) steps with 36" high railings and ADA Handrails (closed below) , Transfer
Landing with 36" high railings (closed below), and 2 additional upper steps with 36" high
railings and ADA Handrails (open below).
Swing Set
• Free-standing 2 -Bay Swing Set (2 tot seats and 2 standard seats) with 2 swings per Bay and
$15,900.00
with buttress ends. Custom frame made from metal and faced with redwood lumer, stained in
the color palette of choice.
Play Structure Fabrication Total
$98,960.00
Custom Design: semi -custom play structure designed to substantially meet the ASTM 1487-05
Standards for Playground Equipment for Public Use as per attached Site Plan and Artist's Sketch.
The design style to reflect the character of the historical park. Artist's design hours charged at
$4,800.00
$95 per hour and AutoCAD Drafting hours charged at $55 per hour.
Structural Engineer: obtain signed and sealed stamp on AutoCAD construction drawings from
structural engineer.
$3,000.00
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Option 4 Features & Pricing for Los Rios Historical Park continued
Certification:
• Obtain 3rd party certification that Design substantially meets ASTM 1487-5 Standards for
Playground Equipment for Public Use based on AutoCAD plans submitted prior to
$2,700.00
construction.
• Obtain 3rd party on-site certification of play structure fabrication & installation after delivery
$5,700.00
& installation.
Delivery of your play structure will be by truck to your site on a day and time arranged with you
$4,948.00
in advance. For protection, our experienced crew will "blanket wrap" each modular piece and then
carefully load and secure it in the truck. Upon arrival, our drivers will carefully unload each piece
and walk it onto the site in preparation for installation.
Installation of your play structure by Barbara and her experienced crew: We provide all tools,
$19,792.00
materials, equipment, and labor needed to get the job done! Having pre -assembled your play
structure at least once in our shop, we are able to quickly and efficiently assemble on-site. Our
crew will layout the floors, dig the postholes, pour the concrete, assemble walls, and add the roofs,
trims & play features. We will apply stain touch-up to any nicks or scratches and apply a final coat
of clear tung-oil before leaving. When we leave, your site will look neat and clean, and your play
structure will look beautiful and be fully functional.
Play Structure Total
$139,900.00
Pricing does not include the following client costs:
• Resilient surfacing material
• Landscaping
Specified Materials:
• Lumber: All Redwood Construction Heart Grade or Better, grinded smooth
• Stain: Entire structure is stained completely inside and out with non-toxic tong oil stains and
finished with clear tong oil as a top coat
• Hardware: All fasteners are of exterior -grade quality
• Rope: High quality exterior grade Black Nylon 1/2" rope
' Metal: All powder -coated metal except stainless steel firepole
• Commercial Grade Cobra Coil Slide: Durable, UV -resistant vacuum formed polyethylene
• Commercial Grade Open Slides: Double wall rotomolded single -piece slide with solid base
www.barbarabutier.com • 415.864.6840
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