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06-0820_HODGE & ASSOICATES_Professional Services Agreement0 • PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 30th day of August, 2006, by and between the San Juan Capistrano Community Redevelopment Agency, a public body, corporate and politic (hereinafter referred to as the "Agency") and Hodge & Associates (hereinafter referred to as "Consultant"). RECITALS: Whereas, The Agency is authorized and empowered under the Community Redevelopment Law, California Health and Safety Code Section 33000, et seq. (the "Community Redevelopment Law"), to assist in the redevelopment of real property within a redevelopment project area in conformity with a redevelopment plan adopted for such area; and, Whereas, Agency is planning on retaining professional consulting services for the preparation of an Initial Study (IS) and resulting California Environmental Quality Act (CEQA) declaration; and, Whereas, Agency desires to engage Consultant to provide said services for conducting CEQA review of a proposed Purchase and Sale Agreement for the acquisition of APN 666-241-07, and a proposed Disposition and Development Agreement by and between the Agency and San Juan Capistrano Housing Investors ll, LP for the proposed addition of 38 -units to the Season's Senior Affordable Housing complex; and, Whereas, Consultant possesses the skill, experience, ability, background, certification, technical expertise, and knowledge to provide the services described in this Agreement; and, Whereas, Agency 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. SAD Page 1 of 15 For extra work not part of this Agreement, a written authorization from Agency 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 Agency. Section 4. Project Mananer Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to Agency at all reasonable times during the Agreement term. Consultant has designated Cheryle L. Hodge 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 Agency. Agency's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of Agency, shall remove from the Project any of its personnel assigned to the performance of services upon written request of Agency. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. Section S. 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 Agency, nor have any relationship with Agency. 5.2 Consultant represents and warrants to Agency that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant further represents and warrants to Agency 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 Agency to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by Agency, contractors, or governmental agencies. Page 3 of 15 0 0 Section 6. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor and not an agent or employee of Agency, and shall obtain no rights to any benefits which accrue to Agency'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 Agency to enter into this Agreement. Consultant shall not contract with any other entity to perform the services required without written approval of the Agency. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the Agency. If Consultant is permitted to subcontract any part of this Agreement by Agency, Consultant shall be responsible to Agency 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 Agency. All persons engaged in the work will be considered employees of Consultant. Agency 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 Agency, 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 Proposed DDA. By executing this Agreement, Consultant warrants that: (1) it has investigated the work to be performed; (2) it has investigated the proposed DDA, including the location of the proposed project, and is aware of all conditions there; and (3) it understands the 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 Agency, it shall immediately inform Agency of this and shall not proceed with further work under this Agreement until written instructions are received from the Agency. 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 Page 4 of 15 0 • 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 Agency. 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 Agency. Consultant shall indemnify and hold harmless Agency 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 the proposed project site. Section 13. Copies of Work Product. All services to be rendered hereunder shall be subject to the direction and approval of the Agency. At the completion of the contract period, Consultant shall have delivered to Agency at least one (1) hard copy and one (1) electronic digital copy of any final reports containing Consultant's findings, conclusions, and recommendations with any supporting documentation. All reports submitted to the Agency 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 Agency, and Agency 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 Agency 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 Agency 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 Agency's sole risk and without liability to Consultant. Page 5 of 15 0 Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by Agency or persons other than Consultant is waived against Consultant and Agency assumes full responsibility for such changes unless Agency has given Consultant prior notice and has received from Consultant written consent for such changes. 13.2 Computer Deliverables CADD data delivered to Agency shall include the professional stamp of the engineer or architect in charge of or responsible for the work. Agency agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification of misuse by Agency, or anyone authorized by Agency, 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, Agency 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 Agency in the version of AutoCAD used by AGENCY in "dwg" file format on a CD, and should comply with the Agency's digital submission requirements for Improvement Plans. The Agency will provide AutoCAD file of Agency Title Sheets. All written documents shall be transmitted to Agency in the Agency's latest adopted version of Microsoft Word and Excel. Section 14. General Indemnity. Consultant agrees to protect, defend and hold harmless Agency, 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 Agency, 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 Page 6 of 15 better. 0 16.1 Comprehensive General Liability. 0 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 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. 16.3 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. 16.4 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 1185 (in no event with an edition date later than 1990) to the Agency's General Counsel 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 Agency, except that ten (10) days notice shall be given if there is a cancellation due to failure to pay a premium. Page 7 of 15 16.6 Terns of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 16.7 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the Agency has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 17. Termination. Agency 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 Agency: San Juan Capistrano Community Redevelopment Agency Attn: Douglas D. Dumhart 32400 Paseo Adelanto San Juan Capistrano, CA 92675 To Consultant: Hodge and Associates Attn: Cheryle L. Hodge 24040 Camino Del Avion, Suite A247 Monarch Beach, CA 92629 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 attomeys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. Page 8 of 15 0 0 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 Agency 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 Agency. 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 Agency. 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 Agmement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. Page 9 of 15 Pi IN WITNESS WHEREOF, the parties hereto have executed this Agreement. ATTEST: TT/ �[ A R. Monahan, Agency Secretary AS TO FORM: John R. aw, Agency Counsel SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY Dave Adams, Executive Director CONSULTANT OL��Li `� Cheryle L. Hcldge r.v,- '3 Page 10 of 15 0 0 Exhibit A HODGE & ASSOCIATES Environmental Planning 24040 Camino Del Avion, #A247, Monarch Beach, California 92629 (949)661-6488 August 28, 2006 Mr. Douglas D. Dumhart CITY OF SAN JUAN CAPISTRANO 32400 Paseo Adelanto San Juan Capistrano, CA 92675 SUBJECT: Proposal for CEQA Consultant Services - Proposed Seasons Senior Affordable Apartment Complex (Seasons Phase 11). Dear Mr. Dumhart: Hodge & Associates is pleased to present to you this proposal for environmental consultant services for the above referenced project. The following describes our understanding of the request for environmental services based upon our review of the project information provided to us and visiting the project site. Brief Project Description The project site is a 1.2 acre vacant parcel located at the northwest corner of Rancho Viejo Road and Paseo Espada. The project consists of the development of 38 new units (30 one - bedroom and 8 two bedroom units) as well as off-street parking. The 38 units would have access to the existing Seasons (Phase 1) amenities (i.e. swimming pool, spa and social room). The site is currently designated at General Commercial per the City's General Plan which would need to be amended to Affordable Family/Senior Housing. In addition to the General Plan Amendment (GPA), the project will require an Architectural Control (AC) Application and Zoning concession for set -back. State law requires the City to allow up to two zoning concessions from City development standards for affordable housing projects. The proposed project would request only one concession. The current zoning requires a 30 -foot setback from the property line on Rancho Viejo Road. As conceptually configured a zoning concession to a 20 -foot setback along this property line is necessary to maintain 38 units and 38 off-street parking spaces on the site. The property is currently zoned Planned Community (PC) and is controlled by Comprehensive Development Plan (CDP 84-1). At this time, the proposed project approvals requested include a General Plan Amendment and Disposition and Development Agreement (DDA) and a Purchase and Sale Agreement for APN 666-241- 07. Page 11 of 15 Mr. Douglas D. Dumhart City of San Juan Capistrano August 28, 2006 Page 2 of 3 It is anticipated that an Initial Study/Mitigated Negative Declaration will be appropriate for the CEQA determination for proposed project. The proposed project will be subject to consideration by the City Council. Scope of Services The following identifies the project scope of services to be provided to the City of San Juan Capistrano: ■ Initial Study/Mitigated Negative Declaration — Preliminary analysis, research and IS/MND preparation ■ Preparation of Mitigation Monitoring & Reporting Program ■ Consultation with City staff and public agencies ■ Preparation of Public Notices (includes CEQA notice and Notice of Determination) ■ Filing/Posting of Public Notices (City Clerk, County Clerk, posting site with notice) ■ Preparation of Response to Comments (proposal assumes minor public comments). ■ Preparation/posting of Notice of Determination following Public Hearing ■ Attendance by Cheryle Hodge of Hodge & Associates at Public Hearing(s) (maximum two (2) hearings per this proposal). Technical Studies This proposal does not include preparation of any technical studies (i.e. traffic study etc.). It is our understanding that preparation of a traffic study analyzing the project has already commenced. It is anticipated that any technical/specialized studies required by the City would be provided to Hodge & Associates for use in preparation of the CEQA documentation. Schedule It is anticipated that a draft CEQA document would be submitted to City staff for review no later than 1 week from our receipt of the completed technical studies (i.e. traffic study). The ability to meet this schedule will depend on response to requests for information and/or material. In compliance with the CEQA Guidelines, the CEQA document would be subject to a minimum 20 -day public review period. Page 12 of 15 • Mr. Douglas D. Dumhart City of San Juan Capistrano August 28, 2006 Page 3 of 3 11 Cost Estimate Hodge & Associates proposal is for time and materials in accordance with the Schedule of Fees and general conditions attached to this proposal. Reimbursable expenses such as printing, graphics, word processing, and deliveries are billed at cost. We have budgeted approximately $1,200.00 for reimbursable expenses. Our hourly billing rate for preparation and processing of the CEQA documentation is $120.00 per hour. Our estimate for the total cost of services presented in this proposal is a not -to -exceed amount of1$ 4,900.00. Our scope of services and budget presented herein is valid until September 29, 2006. Please call me at (949) 661-6488 or cell (714) 329-3838 if you have any questions regarding this proposal. Sincerely, Cheryle L. Hodge HODGE AND ASSOCIATES Page 13 of 15 0 Exhibit B HODGE & ASSOCIATES SCHEDULE OF FEES & GENERAL CONDITIONS 2006 Billing rates are subject to revision effective January 1 of each year Staff Hourly Rates Project Director $ 150.00 Project Manager $ 145.00 Project Planner $ 120.00 Graphics $ 75.00 Clerical $ 45.00 GENERAL CONDITIONS: Hourly rates apply to work time as well as travel time which occur at public hearings and scheduled meetings. Travel, reproduction and supplies outside of a scope of work are billed at cost. Auto mileage will be billed at $0.39 cents per mile. 2. Billing invoices will be submitted monthly for work in progress or upon completion of work. All invoices are payable within thirty (30) days of the invoice date. Any invoice unpaid after thirty (30) days will be subject to interest allowable by State law. 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 their entire agreement, and, upon written notice, the duties, obligations, and responsibilities of consultant under this agreement are suspended. 3. Client hereby agrees that the balance in a billing invoice is correct and binding unless the client notifies the consultant in writing within ten (10) days of the date of the billing and informs consultant of alleged incorrect billing. 4. Consultant makes no warranty as to his/her finding, except that the work is performed using generally accepted methods. Consultant makes no warranty that the project will be approved by any governmental agency, nor endorsed by any citizens group. 5. All documents produced as a result of this agreement shall remain the property of the consultant and may not be used by the client without consent from the consultant unless they become part of the public record. 6. The client agrees to limit the consultant's liability to the client, because of professional negligent acts, errors, or omissions by the consultant, to the consultants fee. 7. Any controversy or claim arising out of or relating to this contract or the breach thereof shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgement upon the award rendered by the arbitration may be entered in any Page 14 of 15 • 0 court having jurisdiction thereof. In the event either party commences legal action to enforce this Agreement of the General Conditions, the prevailing parry 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. 8. 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. Page 15 of 15 CITY CLERK'S DEPARTMENT -ACTION REMINDER TO: 040jWt FROM: Christy Swanson, Secretary DATE: September 25, 2006 SITUATION: On August 30, 2006, the City Community Redevelopment Agency entered into a Personal Services Agreement with Hodge & Associates to provide to assist in the redevelopment of real property with redevelopment project area in conformity with the redevelopment plan adopted for such area. ACTION REQUESTED: Said Agreement states services shall be completed by no later than ten working days from the receipt of required technical studies. Please notify our office if agreement has been completed or will be extended. ACTION TO BE TAKEN: DATE WHEN NEXT ACTION (S) SHOULD BE TAKEN: SIGNATURE OF OFFICIAL TAKING ACTION: DATE SIGNED: Q/ — Z dcn "`FOR CITY CLERK'S DEPARTMENT USE ONLY"` Tickler Date: 09/25/06 Deadline Date: 09/30/06 (600.30/hodge) SEP 2 6 2006 0 CITY CLERK'S DEPARTMENT - ACTION REMINDER TO: Douglas Dumhart, Economic Development Manager FROM: Christy Swanson, Secretary DATE: December 15, 2006 SITUATION: On August 30, 2006, the City Community Redevelopment Agency entered into a Personal Services Agreement with Hodge & Associates to provide to assist in the redevelopment of real property with redevelopment project area in conformity with the redevelopment plan adopted for such area. ACTION REQUESTED: Said Agreement states services shall be completed by no later than ten working days from the receipt of required technical studies. On September 26, 2006, dp"*V*ir oh 420tI3A96 s Please notify our office if agreement has been completed or will be extended. ACTION TO BE TAKEN: DATE WHEN NEXT ACTION (S) SHOULD BE TAKEN: SIGNATURE OF OFFICIAL TAKING ACTION: DATE SIGNED: "`FOR CITY CLERK'S DEPARTMENT USE ONLY"' Tickler Date: 09/25/06 12/15/06 Deadline Date: 09/30/06 12/31/06 (60 /hodge) " `C =AN CAN CIPSITRIN. 3 f e CITT OF SAN $UkN CAPISTRANOi San Juan Capistrano Community Redevelopment Agency TRANSMITTAL TO: Hodge and Associates Atten: Cheryle L. Hodge 24020 Camino Del Avion, Ste A247 Monarch Beach, CA 92629 FROM: Meg Monahan, MMC — City Clerk/CRA Agency RE: Personal Services Agreement — preparation of Initial Ace declaration -- Community Redevelopment Agency (949)443-6308 CA Environmental Quality An original executed agreement is enclosed for your records and your insurance documentation is in order. You may proceed with the scope of work under this agreement with the Project Manager, Douglas Dumhart, Economic Development Manager (949) 443-6316. CC: Douglas Dumhart, Economic Development Manager 32400 Paseo Adelanto San Juan Capistrano California 92675 949493-1171