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09-0616_CAA PLANNING_Personal Services Agreement0 0 PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this I t-Aay of JADL 2009, by and between the City of San Juan Capistrano (hereinafter referred to a e "City") and CAA Planning (hereinafter referred to as the "Consultant"). RECITALS: WHEREAS, City desires to retain the services of Consultant for the performance of Biological Monitoring and Reporting for 2009, at the 760 Reservoir Site; and, WHEREAS, Consultant is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Consultant mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by Consultant shall consist of those tasks as set forth in Exhibit' A," described as the Consultant's proposal of June 3, 2009, 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. Total compensation for the services hereunder shall not exceed $36,500 per year; including expenses, as set forth in Exhibit "A," 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. 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 S. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees and Sub -consultant Jeffery B. Froke were a substantial inducementfor 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. 2 0 0 Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law: E -Verify. 9.1. Compliance with Law. Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. 9.2. E -Verify. If Consultant is not already enrolled in the U.S. Department of Homeland Security's E -Verify program, Consultant shall enroll in the E -Verify program within fifteen days of the effective date of this Agreement to verify the employment authorization of new employees assigned to perform work hereunder. Consultant shall verify employment authorization within three days of hiring a new employee to perform work under this Agreement. Information pertaining to the E -Verify program can be found at http://www.uscis.gov, or access the registration page at https://www.vis-dhs.com/emploverregistration. Consultant shall certify its registration with E -Verify and provide its registration number within sixteen days of the effective date of this Agreement. Failure to provide certification will result in withholding payment until full compliance is demonstrated. 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. 0 0 Section 12. Ownership of Documents. All reports, information, data and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential to the extent permitted by law, and Consultant agrees that they shall not be made available to any individual or organization without prior written consent of the City. All such reports, information, data, and exhibits shall be the property of the City and shall be delivered to the City upon demand without additional costs or expense to the City. The City acknowledges such documents are instruments of Consultant's professional services. Section 13. Indemnity. 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 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 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 El 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 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 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 City's General Counsel for certification that the insurance requirements of this Agreement have been satisfied. 14.6 Notice of Cancel lation/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. 5 0 0 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 fifteen (15) 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 used for delivery of service of process: To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Joe Tait, Acting Utilities Director. To Consultant: CAA Planning 85 Argonaut, Suite 220 Aliso Viejo, California 92656 Attn: Shawna L. Schaffner, Chief Executive Officer 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. M 0 0 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. ATTEST: � VJQ-0 i v,�- Margaret R. Moohan, City Clerk APPROVED AS TO FORM: Omar Sandoval, City Attorney CITY OF SAN JUAN CAPISTRANO By: C7+ D X4n 1� Dave Adams, City Manager CONSULTANT By: AX hawna L. Scha er, Chief Executive ffice 7 CAA PLANNING June 3, 2009 Mr. Eric Bauman Water Engineering Manager Public Works Department City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 SUBJECT: Proposal for Professional Planning Services and Biological Monitoring and Reporting Relating Monitoring at the 760 Reservoir Site in the City of San Juan Capistrano Dear Mr. Bauman: CAA Planning (CAA) appreciates the opportunity to submit this proposal for the third year of Biological Monitoring and Reporting relating to the 760 Reservoir Site. CAA has been working on the 760 Reservoir project since December 2003. The habitat restoration is mainly on target for 2008-09, and we are entering FY 2009 biological monitoring and reporting. While the habitat creation project has been successful for the most part, there are a few issues on site that need to be addressed so that the project is successful. A detailed report on the status of the site was provided to you on December 1, 2008. Weed abatement is an anticipated task that will need to be conducted during the next year of monitoring. The availability of water is also a concern due to the lack of adequate rainfall thus far. The site will need to be monitored carefully to ensure that plant growth is successful on site. Due to the lack of adequate rain this year the 760 Reservoir Site has suffered shortfalls and challenges regarding plant growth. During 2008 Dr. Jeffrey B. Froke conducted approximately 20 days of biological field monitoring. Dr. Froke will need to continue to engage in biological field monitoring to improve the long-term viability of the project. Dr. Froke's tasks are anticipated to total 200 hours and include monitoring plant vigor/density, definition and monitoring of site maintenance, preparation of monthly field reports and annual report preparation. In addition to Dr. Froke's work, we will prepare monthly status reports to the City and the City's Maintenance Contractor. We will also prepare yearly Monitoring Reports in accordance with the conditions of the City's Resource Agency Permits. We will submit the Monitoring Reports to the respective Resource Agency, and provide copies of all correspondence to the City. We will provide on-going project management including coordination efforts with the Maintenance Contractor. The project management task will also include analysis of data gathered during field EXHIBIT "A" 85 Argonaut, Suite 220 • Aliso Viejo, California 92656 0 (949) 581-2888 • Fax (949) 581-3599 Mr. Eric Bauman June 3, 2009 Page 2 of 4 monitoring to adjust or fine tune maintenance techniques for each restoration site. Finally, we will provide necessary coordination with the Resource Agencies on the City's behalf. An outline of our proposed tasks, along with the estimated fee, is provided below. Proiect Tasks and Estimated Fee No. Task Cost 1. Field Monitoring, year-end reporting and monthly status reports $ 31,500 to City and City's Maintenance Contractor 2. Project Management including data analysis, coordination with $ 5,000 the maintenance contractor, strategic coordination with City and Resource Agencies Total $ 36,500 Prior to initiation of the new year of biological monitoring, Dr. Froke will submit a field monitoring schedule to the City and to the City's maintenance contractor. This schedule will promote effective communication between Dr. Froke and the maintenance contractor, and will enable any maintenance efforts requiring Dr. Froke's supervision to be planned in a cost- effective manner. Compensation At this time, we believe that a time and materials approach, as set forth in the attached General Provisions and Schedule of Fees for Professional Services, for an estimated fee of $36,500 will provide an effective working relationship for the successful completion of this project. All reimbursable expenses including printing, postage and word processing are in addition and will be billed at cost. Invoices will be submitted monthly for prior month's services. Limitations The proposal is based on the time parameters and estimated fees set forth herein, and the narrative outlining the scope of work. Changes in the schedule or scope of work assumptions may result in costs beyond those currently anticipated. Major changes include, but are not limited to: 1. Changes in the project by the City, State, or other approving body which cause revisions of printed documentation or plans beyond those covered by the scope of work. 2. Changes in the schedule by the City, State, or other approving body, beyond the parameters set forth in this proposal. 3. Expansion of the project area under study by the City, State, or other approving body. I Mr. Eric Bauman June 3, 2009 Page 3 of 4 4. Additional planning entitlements, permits or processing requested by the City. 5. Appeal of project determinations (e.g. project approval ori denial) by the City, State, or other approving body, or other person, group or organization. If one or more of the above incidents occurs, CAA shall be entitled to request a contract amendment. In the event a contract amendment cannot be mutually agreed upon or is denied, CAA shall be entitled to withdraw from the project and terminate the contract/agreement, and be paid by the Client for all amounts owed/pending up to the date of termination of the contract/agreement for the work performed. This proposal will be considered valid for a commence -work date up to July 31, 2009 and is valid for a project completion date of July 31, 2010. Conclusion We believe that CAA Planning can provide the best representation for the City on this project. Should you find this proposal acceptable, our authorization to proceed will be satisfied by signing where indicated on the following page and returning the original of this letter to my attention. We look forward to continuing our work with the City on this important project. Should you have any questions regarding this proposal, please contact me or Tom Mathews at (949) 581-2888. Sincerely, CAA Planning Shawna L. Schaffner Chief Executive Officer Attachment: Schedule of Fees 0 F:%-= . 0 Mr. Eric Bauman June 3, 2009 Page 4 of 4 AUTHORIZATION TO PROCEED: Signature: Name: Title: Date: Place of Execution: CAA PLANNING General Conditions and Schedule of Fees for Professional Services Standard Billing Rates Effective January 1, 2009* Classification Hourly Rate Principal $275 Principal Planner 1 $200 Principal Planner 11 $150 Senior Project Manager $135 Project Manager $125 Engineering Coordinator $125 Senior Planner $110 Associate Planner 1 $100 Associate Planner II $85 Graphics Manager $75 Assistant Planner $65 *Rates are subject to revision effective January 1 of each year General Conditions 1. Reimbursable expenses (travel accommodations including rental vehicles and regularly scheduled commercial airline flights, food and lodging, blueprinting and reproduction, delivery/courier, supplies, extensive mailing postage, etc.) are billed at cost and are in addition to the estimated fee for the project. 2. Automobile mileage outside Orange County will be billed at $0.585 per mile. 3. Hourly rates apply to work time as well as travel time and waiting time that occurs at public hearings. Rates increase 50% for depositions or court testimony. 4. Statements will be submitted monthly for work in progress or upon completion of work. Statements are payable upon receipt. Any statement unpaid after thirty (30) days shall be subject to the maximum monthly interest charge provided by law on amounts thirty (30) days past due. If Client fails to pay Consultant within sixty (60) days after invoice is rendered, client agrees Consultant shall have the right to consider such default in payment a material breach of the entire agreement, and, upon written notice, the duties, obligations, and responsibilities of Consultant under this agreement are terminated. 5. Client hereby agrees that the balance in a billing statement is correct and binding unless the Client notifies the Consultant in writing within ten (10) days of the date of billing and informs Consultant of alleged incorrect item; provided, however, that the foregoing shall apply only to the description of work performed as set forth in the billing statement, and if after such ten (10) day period Client discovers a mathematical error in the billing statement, Client shall not be bound by the erroneous balance, which Consultant hereby agrees to correct. 6. Consultant makes no warranty as to its findings, except that the work is performed using generally accepted methods. 7. Consultant makes no warranty that the project will be approved by any governmental agency, nor endorsed by any citizens group. 8. Client agrees to limit the Consultant's liability to the Client and to all Contractors and Subcontractors on the project due to Consultant's material, willful, and grossly negligent acts, errors, or omissions, to the sum of $50,000 or to the Consultant's fee, whichever is less. 9. In the event either party commences legal action to enforce this Agreement of the General Conditions, the prevailing party shall be entitled to recover its reasonable attorneys fees and costs incurred in the action, in addition to all other relief to which the prevailing party is entitled. 10. In the event of a mid -phase contract suspension, billings will be prorated to reflect tasks in progress, except where a task was completed early, in which case it will be billed as if the task were complete. 11. Client agrees and concurs that Consultant is obligated to only Client to perform and/or receive direction or instructions on the project, and that Consultant is not obligated to perform and/or take direction or instructions from Client's other Consultants or Subconsultants without prior written notification and concurrence by Consultant.