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09-0107_FOUNDATIONFOR FORM ARCHITECTS_Personal Services AgreementPERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this 7th day of January, 2009, by and between the San Juan Capistrano Community Redevelopment Agency (hereinafter referred to as the "Agency") and Foundation ForForm Architects (hereinafter referred to as the "Consultant"). RECITALS: WHEREAS, Agency desires to retain the services of the Consultant to conduct a site study of the property, part of APN 121-050-21, on the northwest corner of Junipero Serra Road and Camino Capistrano and prepare three conceptual site plan sketches for the Agency's review; and, WHEREAS, Consultant is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, Agency and Consultant mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by the Consultant 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 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 Seven Thousand Four Hundred Fifty Dollars ($7,450) total contract amount including expenses, as set forth in Exhibit 'A" attached and incorporated herein by reference. Page 1 of 7 0 0 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 Agency will pay monthly progress payments based on approved invoices in accordance with this Section. 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 Agency. Section 4. 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 5. Limitations Upon Subcontractina 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 6. Changes to Scope of Work. For extra work not part of this Agreement, a written authorization from Agency 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 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 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 Page 2 of 7 9 0 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 Agency, it shall immediately inform the Agency of this and shall not proceed with further work under this Agreement until written instructions are received from the Agency. 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 Agency at least one (1) copy of any final reports and/or notes or drawings containing Consultant's findings, conclusions, and recommendations with any support documentation. All reports submitted to the Agency shall be in reproducible format, or in the format otherwise approved by the Agency 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 Agency. All such reports, information, data, and exhibits shall be the property of the Agency and shall be delivered to the Agency upon demand without additional costs or expense to the Agency. The Agency 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 Agency and its elective or appointive boards, officers, agents, and Page 3 of 7 0 0 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 Agency, is due to the negligence, recklessness and/or wrongful conduct of Agency, or any of its elective or appointive boards, officers, agents, or 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 Agency, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the Agency. 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). Page 4 of 7 0 0 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 naming Agency, 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 Agency, its officers, employees, agents, or volunteers. 14.5 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 Agency, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 14.6 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.7 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 15. Termination. Agency 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 Page 5 of 7 0 0 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 Agency: San Juan Capistrano Community Redevelopment Agency 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Douglas D. Dumhart To Consultant: Foundation ForForm Architecture & Development 830 25th Street Suite 200 San Diego, CA 92102 Attn: Mike Burnett 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 Aureement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. [SIGNATURE PAGE FOLLOWS] Page 6 of 7 0 E IN WITNESS WHEREOF, the parties hereto have executed this Agreement. APPROVED AS TO FORM: Omar Sand6val, Agency Counsel SAN JUAN CAPISTRANO COMMUNITY REDEVEOPMENT AGENCY 0"- 9;, EaLnnt' Dave Adams, Executive Director CONSULTANT Ew.�/ 'loai Page 7 of 7 0 0 FoundationForForm A R C H I T E C T S Agreement for Conceptual Design Services 830 2e Street Suite 200 San Diego, California 92102 T 619 906 4006 F619.906.4007 Date: November 25, 2008 Project: Camino Capistrano and Junipero Serra Rd Affordable Apartments San Juan Capistrano, California Client/Owner: City of San Juan Capistrano Housing / Redevelopment Department Attn: Laura Stokes 32400 Paseo Adelanlo San Juan Capistrano, CA 92675 Project Description: The project is for the site plan study of 24+ units of affordable rental housing located on a 2.3 acre site in San Juan Capistrano, Califomia. The project site is at the northwest comer of Camino Capistrano and Junipero Sena Rd. This proposal is for conceptual site design services necessary to study the potential for 24+ residential units, automobile parking, fire access, services and utilities. Study will include feasibility to accommodate either 5-6 four-plex buildings or apartment complex typology with the following unit quantities/types/sizes: (6) one bedroom units (760sf+/-) (12) two bedroom units (900sf+/-) (6) three bedroom units (1050sf+/-) Scope of Services: The Architect will provide services consisting of the following phases and tasks. Task One: This initial portion of the work is to identify and develop the major design criteria to be Pre -Design used as the basis for this design work. 1.1: MEETINGS Attend two meeting with the Client or Client's representatives to discuss vision, issues, goals, objectives, architectural program and site plan alternatives to test. This includes one meeting with the Development Services Department to review municipal code, zoning, fire and planning department requirements 1.2: SITE ANALYSIS Visit and analyze the site and its surroundings to understand existing climatic Conditions, context, topography, views, visibility and access. Gather accurate survey information from Client including accurate property line, any easements, setbacks and physical limitations. 1.3: PROGRAM DEVELOPMENT Confirm and formalize with the Client the development program of space requirements outlining residential unit/building types and sizes, amenities, common areas, parking strategies and any special features or characteristics. Task Two: The intent of this phase is to provide study drawings for use by the Owner in Site Concept determining the potential number of units, street/parking requirements and Studies general building layouts. 2.1: SITE PLANNING STUDY Arrange vehicular & pedestrian circulation, parking, open space, common use areas and buildings. Address the street edge, waterway and rail line conditions. Incorporate information obtained from Client Meeting and City staff during visit to City of San Juan Capistrano Development Services Department. Exhibit A 0 0 Agreement for Conceptual Design Services Camino Capistrano and Junipeni Sane Rd Affordable Apartments Page 2 of 5 2.2: FLOOR PLATE STUDY Block out unit/building footprints (perimeters) using the square footages developed in the Pre -Design phase. Study building access and cirwlation (both for pedestrians and vehicles). 2.3: CONCEPT STUDY EXHIBITS Prepare up to three concept site plan sketches summarizing the potential layout including number/size of units and number of parking spaces. These sketches will convey in rough form the essential elements of the proposed project. 2.4: MASSING) ELEVATION STUDY Prepare concept elevation/ massing sketches showing major building articulation elements including shade/shadow and entourage including scale figures for clarity and review. 2.5: MEETINGS Attend a maximum of two meetings with the Owner or Owner's representatives to discuss the progress of the project design. -Task Three: Conceptual "' Additional Service" Design Based upon the work from the previously completed tasks, and upon the approval by the Client, the Architect will begin the Conceptual Design phase. 3.1: SITE PLANNING Develop the site plan incorporating me unitslbuildings and common uses. Refine pedestrian circulation, parking, private and common outdoor space, and building amenities. 3.2: UNIT PLANS/BUILDING FOOTPRINT Develop typical unit plans/building footprints. Incorporate the impacts of building elevation studies on the unit plans. Finalize building access and circulation. 3.3: BUILDING ELEVATIONSIMASSING Develop the building mass and general form in concert with development of the unit plans. Explore the architectural character and building materials. Design building facades regarding overall form, openings, materials and use of color. 3.4: CONCEPTUAL DESIGN DRAWINGS FOR SUBMISSION Prepare a set of drawings for submittal to the City. These drawings will be those required by the City. These include building plans, a site plan, a section (if required) and major elevations with color and indicating proposed materials. All other materials requested by the City are to be provided by the Owner or their consultants. These drawings will not include renderings or 3-D modeling although these can be provided as an additional service if requested. 3.5: MEETINGS Attend a maximum of four meetings with the Client, Client's representatives or City staff to discuss the project design. This Includes two hearings at the City. '"Additional —Additional services include, but are not limited to: Services Task Three as outlined above Meetings with the Owner or the Owner's representafive(s) beyond those listed above; Preparation of models, renderings or other exhibits not specifically included above; and/or Revisions and changes to the program or work contrary to previous direction or as a consequence of City requested changes. 0 0 Agreement for Conceptual Design Services Camino Capistrano and Junipem Serra Rd Affordable Apartments Page 3 of 5 Additional services will be performed on an hourly basis at the following rates: Principal Architect 175.00 Project Manager/Lead Designer 135.00 Job Capitan 105.00 Technical/Design Support/Admin 85.00 These consultant services are specifically not included in this scope of service: Services Not Included -Cost Estimating -Landscape Design -Geotechnical Engineering -Environmental Engineering -Civil Engineering -Traffic Engineering -Mechanical/Electrical/Plumbing -Acoustical Engineering -Utility Company Coordination -Structural Engineering -Schematic Design, Design Development or Construction Drawings FEES The basic scope of services outlined above for Task One & Two will be completed for a fixed fee of $7,450. All work shall be considered under a'Time is of the essence' importance and shall be expedited to the fullest extent possible. The professional fees are based on the Project Description and Scope of Services outlined above. The fee shall be modified correspondingly if there is significant revision to either. Reimbursable expenses are in addition to the fixed fee stated above and will be billed at 1.15 times actual expense of the Architect's costs and will include: any sub -consultants not included in the basic scope of work, reprographics, blueprinting, delivery service, postage and similar expenses. Mileage will be billed at the current I.R.S. accepted reimbursable amount. Additional Services billings shall occur monthly and are due and payable within 30 days of the date of invoice. A 1.5% late charge will be added to all balances past due and will be increased 1.5% every 30 days thereafter until the total amount is paid in full. The Architect may stop work, without penalty, if any balance is outstanding after 60 days from date of invoice. Additional Provisions REPRESENTATION The Owner and Architect eacn agree to designate one person to act on their behalf as their representative agent in regard to communicating all direction and decisions relevant to this work. AVAILABILITY OF PREDEVELOPM ENT FUNDS The Owner hereby states that funds to pay the Architect for this work have been designated and are now available and accessible and will remain so throughout the duration of this work. OWNERSHIP OF INSTRUMENTS OF SERVICE The Owner acknowledges the Architect's documents, including electronic files, as instruments of professional service. Nevertheless, the final documents prepared under this agreement shall become the property of the Owner upon completion of the services and payment in full of all monies due the Architect. The Owner shall not reuse or make any modification to these documents without the prior written authorization of the Arohilecl. The Owner agrees, to the fullest extent permitted by law, to indemnify and hold harmless the Architect, its oRioers, directors, employees and sub -consultants (collectively the "Architect") against any damages, liabilities or costs, including reasonable attorneys' fees and defense costa, arising from or allegedly arising from or In any way connected with the unauthorized reuse or modification of the documents by the Owner or any person or entry that acquires or obtains the documents from or through the Owner without the written authorization of the Architect. LIMITATION OF LIABILITY In recognition of the relative risks and benefits of the project to both the Owner and the Architect, the risks have been allocated such that the Client agrees, to the fullest extent permitted by law, to limit the liability of the Design Professional and his or her subconsubants to the Client and to all construction contractors and subcontractors on the project for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including attorney's fees and cost and expert -witness fees and costs, so that the total aggregate liability of the Architect and his or her subconsultanls to all those named shall not exceed the Architect's total fee for services rendered on this 0 9 Agreement for Conceptual Design Services Camino Capistrano and Junipero Sena Rd Affordable Apartments Page 4 of 5 project. Such claims and causes include, but are not limited to negligence, professional errors or omissions, strict liability, breach of Contract or warranty. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, udless otherwise prohibited by law. The Owner agrees, to the fullest extent permitted by law, to indemnify and hold the Amhitact harmless from any damage, liability, or cost (including reasonable aftomeys' fees and cost of defense) to the extent caused by the Owners negligent acts, enors or omission in the performance of professional services under this Agreement and those of his or her subconsultants or consultants anyone for whom the Owner is legally liable, and arising from the project that Is the subject of this Agreement. The Architect is not obligated to indemnify the Owner in any manner whatsoever for the Owners own negligence OWNER'S CONSULTANTS Unless otherwise indicated, design services contracted separately by the Owner shall be performed by licensed professional consuftanls who shall affix their seals on the appropriate documents prepared by them. The contracts between the Owner and Owner's consultants shall require the consultants to coordinate their drawings and other instruments of service with those of the Architect and to advise the Architect of any potential conflict. The Architect shall have no responsibility for the components of the Project designed by the Owners consu Rants. Review by the Architect of the consultants' drawings and other Instruments of service is solely for consistency with Architects design concept for the Pmject. The Architect shall be entitled to rely on the technical sufficiency and timely delivery of documents and services furnished by the Owners consultants, as well as on the computations performed by those consultants in connection with such documents and services, and shall not be required to review or verify those computations or design for compliance with applicable laws, statues, building codes, and rules and regulations. The Owner shall indemnify and hold harmless the Architect, Architect's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of the services performed by the other consultants of the Owner. ENTIREAGREEMEN7 This Agreement, and any exhibits attached hereto, represents the entire Agreement between the parties in connection with the transactions contemplated hereby and the subject matter hereof and this agreement supersedes and replaces any and all prior and contemporaneous agreements, understandings and communications between the parties, whether oral or written, with regard to the subject matter hereof. There are no oral or written agreements, representations or inducements of any kind existing between the parties relating to this transaction that are not expressly set forth herein. This Agreement may not be modified except by a written agreement signed by both parties. CONSTRUCTION This Agreement has been negotiated at arms length, and each party has consulled with or been given NII opportunity to consult with such party's own legal counsel with respect to such party's rights and obligations under this agreement. Accordingly, any rule of law (including, without limitation, California Civil Code Section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party drafting R is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the intent of the parties and the purpose of this Agreement. NO THIRD PARTY BENEFICIARY RIGHTS This Agreement is entered into for the sole benefit of the parties hereto and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. CORPORATE ENTUY It is intended by the parties to this Agreement that the Architect's services In connection with the Project shall not subject the Architect's individual employees, officers or directors to any personal legal exposure for the risks associated with this Project. Therefore, and notwithstanding anything to the contrary contained herein, the Owner agrees that as the Owners sole and exclusive remedy, any claim, demand or suit shall be directed and/or asserted only against the Architect, a Calilom Is corporation, and not against any of the Architect's individual employees, officers or directors. 0 Agreement for Conceptual Design Services Camino Capistrano and Junipeno Same Rd Affordable Apartments Page 5 of 5 Agreed Upon By: Name: Laura Title: On Behalf of: City of San Juan Capistrano Housing and Redevelopment Department Date: Name: Mike Burnett Title: Principal On Behalf of: FoundationForFonn Architecture California State License: C31648 Date: 0