05-1205_LAND CONCERN, LTD._Personal Services AgreementPERSONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 01day of December, 2005, by and between the City of San Juan Capistrano (hereinafter referred to as the "City") and Land Concern, Ltd. (hereinafter referred to as "Consultant"). RECITALS: WHEREAS, City desires to retain the services of Consultant to assist the City in reviewing and preparing alternative solutions for the Cal Trans SR 74 Widening Project; 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" attached and incorporated herein by reference. Consultant agrees that all of its services shall be performed in a competent, professional and satisfactory manner and in accordance with the prevalent standards of its profession. Section 2. Term. This Agreement shall commence on the effective date of this Agreement and services required hereunder shall be completed by no later than June 30, 2006, provided, however, that Consultant shall not be responsible for delays beyond its reasonable control. Section 3. Compensation. 3.1 Amount. Except for the Reimbursable expenses set forth on the attached Exhibit "A" and any additional services requested by the City, total compensation for the scope of services forthis Project shall not exceed Twenty Thousand Dollars ($20,000.00) annually, as set forth in Exhibit 'A" attached and incorporated herein by reference. -1- ! 6 3.2 Rate Schedule. The services shall be billed to the City at the rate set forth in Exhibit "A" attached and incorporated herein by reference. Included within the compensation are all of the Consultant's ordinary office and overhead expenses incurred by it, its agents and employees, including meetings with the City representatives and incidental costs to perform the stipulated services. Submittals shall be in accordance with Consultant's proposal. Reimbursable expenses shall be billed for the expenses listed and at the amounts set forth on the attached Exhibit "A". 3.3 Method of Payment. Consultant shall submit monthly invoices based on total services which have been satisfactorily completed and specifying a percentage of projected completion for approval by the City. The City will pay monthly progress payments based on approved invoices in accordance with this Section. For extra work not part of this Agreement, a written authorization from City 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 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 Subcontractina and Assionment. 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. -2- • 0 Section 6. Chan-ges 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 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 Construction Site. By executing this Agreement, Consultant agrees that: (1) it has investigated the work to be performed; (2) it has investigated the proposed site pursuant to the base information provided to it by City and as set forth on the attached Exhibit "A"; and (3) it understands the facilities, 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 City, it shall immediately inform City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law. Consultant shall perform in accordance 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 contract period and provided City has paid to Consultant all fees and expenses due and owing to Consultant, Consultant shall have delivered to City one (1) copy of any final reports and architectural drawings containing Consultant's findings, conclusions, and recommendations with any support documentation. All reports submitted to the City shall be in reproducible format. All services to be rendered hereunder shall be subject to the direction and approval of the City. -3- 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 agrees to protect, defend and hold harmless City, 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 and for errors and omissions committed by Consultant to the full extent caused by the negligent work, operation, or activities of Consultant, its agents, employees and subcontractors in carrying out its obligations under this Agreement. Section 14. 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 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 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. 14.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive Automobile Liability coverage, including hired and non -owned vehicles in the following minimum amounts: Imo! $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 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 to the Consultant's general liability and umbrella liability policies using a form as broad as ISO form CG 20 10 11 85 (in no event with an edition date later than 1990) to the City's General Counsel for certification that the insurance requirements of this Agreement have been satisfied. 14.5 Notice of Cancel Iation/Termination of Insurance. The above policy/policies shall not be cancelled 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. 14.6 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 City has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. -5- • Section 15. Termination. City 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, provided, however, that Consultant shall be entitled to prompt compensation for its fees and expenses incurred through the date of termination. 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, provided, however, that Consultant shall be entitled to prompt compensation for its fees and expenses incurred through the date of termination. 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: Planning Director To Consultant: Land Concern 1750 East Deere Avenue Santa Ana, CA 92705 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. The 'prevailing party' means the party determined by the court or arbitrator(s) to have most nearly prevailed, even if such party did not prevail in all matters, not necessarily one in whose favor a judgment or award is rendered. 9 Me 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"). The parties shall have all discovery rights provided by California law. The matter shall be arbitrated by one, neutral arbitrator. Consultant shall not be obligated to participate in any binding arbitration involving any claim or claims between Consultant and City in an aggregate amount in excess of $100,000. Section 19. Waiver of Consequential Damages. Consultant and City each waive any right to claim or to recover any consequential damages from the other concerning any breach or alleged breach of any duties or obligation pursuant or related to this Agreement, including without limitation the termination of this Agreement. Section 20. Liability for Professional Services. Consultant will be legally liable for only the design professional services provided pursuant to this Agreement, and not otherwise. Without limitation, Consultant will not be legally liable for delays beyond its reasonable control; for inaccurate information provided to it by City or other reasonably reliable sources; for the work of City's other consultants even if that work is incorporated into Consultant's Instruments of Service for ease of reference or otherwise; for site or soils conditions of which it was not informed; for the specification of products or equipment for purposes consistent with the manufacturer's published literature; for City's materials, plant and equipment decisions; for implementing City's lawful decisions; for the timeliness or quality of contractor performance or for the failure of any contractor to perform work in accordance with the Construction Documents or applicable functionality standards; or for actions or inaction of utility companies or governmental or quasi -governmental agencies. Section 21. Limitation of Actions — Parties. City acknowledges that Consultant is a corporation, and that Consultant's involvement with the project is not intended to subject Consultant's affiliated individuals to personal exposure for the risks attendant to that involvement. Therefore, any and all remedies of City and City's related individuals and business entities concerning the services performed pursuant to and/orthe obligations imposed by this Agreement shall be sought against only Consultant and any related business entities regardless of whatever legal or equitable theories or types or causes of loss are involved, and in no event shall damages or indemnification concerning this Agreement and/or the project ever be sought against Consultant's affiliated individuals. -7- Section 22. No Third Party Beneficiaries. This Agreement is not intended to create any rights in any third parties. Section 23. Risk Allocation. In light of the limited ability of Consultant to affect the risks inherent in the project, and of the disparity between Consultant's fees and the potential liability for problems or alleged problems with the project, and in consideration of Consultant's undertaking of the obligations imposed by this Agreement, City agrees to limit the total aggregate liability concerning or related to the Project of Consultant and Consultant's subconsultants, and their respective affiliated entities and individuals, on any and all legal or equitable theories and concerning any and all kinds of causes of losses, to the fullest extent allowed by law as to City and all third parties to the amount of $50,000, or Consultant's fees under this Agreement, whichever is greater. Section 24. 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. 0 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO By: 6, T C David F. Adams, City Manager LAND CONCERN, LTD. By: Robert M. SawyeAPresi Ept A IA ATTEST: R. Monahan, City Clerk AS TO FORM: John R haw, City Attorney J. City of San Juan Capistrano Project: Ortega Highway Proposed Widening Proposed Scope of Work for Land Concern's Landscape Architectural Services 1. A workshop with the City's Focus Group is to be held to present plans and photos collected during a recent site walk and analysis. All current data, plans, ideas and concerns of the Focus Group will also be collected at this time. 2. Based upon the information gathered at the first workshop, initial studies will be prepared addressing desires and concerns. These studies will be presented through plans, cross sections and imagery. 3. A second workshop will be held with the City's focus group to present the studies prepared for review and comments. 4. Based upon feedback received during the workshop. Studies will be refined and additional imagery collected if needed. 5. A third workshop will be held to review the refinements. 6. Based upon final approval, preparations will be made for a presentation to Cal Trans. 7. A presentation will be made of the final studies to Cal Trans with members from the City's focus group. EXHIBIT A 0 0 Pursuant to your request, Land Concern (in conjunction with EDAW?) is pleased to submit a proposal for streetscape design consulting services to the City of San Juan Capistrano. We understand that the City is seeking a consultant for preparation of design concepts for landscaping, walls, trails, and sidewalks along both sides of Ortega Highway from Calle Entradero east to the City limits. The City intends to use this material in order to provide input to Caltrans, to illustrate aesthetic design concepts for incorporation in the EIR/EIS being prepared by Caltrans for the widening of this segment of Ortega Highway (SR 74) from two lanes to four lanes. Further, the City desires that design concepts for this segment of SR 74 be designed to be complementary to and consistent with the streetscape design for the segment of SR 74 located between the City limits and La Pata/San Antonio Parkway, which are also being prepared by Land Concern for the Rancho Mission Viejo Company. Work to be Performed In conjunction with work already performed by Land Concern for Rancho Mission Viejo Company on design concepts for the Ortega Highway widening project, Land Concern has previously prepared an inventory of existing streetscape conditions for the roadway between I-5 and La Pata, which will be made available for review by City staff and the ad hoc task force without charge. Based on discussions between Mike Sweeney and Planning Director Molly Bogh, Land Concern proposes the following services for the City on this project: Attend and present conceptual design materials and concepts to an ad hoc task force formed by City staff, depicting existing and proposed alternatives for landscaping, fencing, walls, sidewalks, trails, and access drives along the north and south sides of Ortega Highway from Calle Entradero east to the City limits. At least three such meetings are included in the proposal, with additional meetings to be provided as directed by staff at on a time and materials basis. 2. Preparation of design drawings in presentation format as well as in the form of meeting handout materials, showing up to three design alternatives for the subject roadway, reflecting direction and input from the ad hoc task force and City staff. This material will include plans, cross sections, and imagery. 3. Attendance at up to three public meetings or workshops as directed by staff, which may include but are not limited to meetings of the Design Review Committee, Planning Commission, and City Council. Additional meetings may be authorized by staff and compensated on a time and materials basis. 4. Preparation of a written description of the proposed design concept and illustrative material in a form acceptable to Caltrans for consideration as documentation in the Aesthetics portion of the EIR/EIS currently being prepared by Caltrans for the SR 74 Widening Project. Presentation of this material to Caltrans staff at a meeting is included in this task. 5. The City will be charged only for meetings conducted and materials prepared solely in conjunction with the above -referenced tasks. All materials prepared for the City 0 0 for the subject roadway segment will become the property of the City upon completion of the work and payment in full for the services. Materials will be submitted in the form of digital files and reproducible hard copies. Designated Project Manager Mike Sweeney? - Attach resume or bio for all people working on project Cost of Services Give breakdown of tasks by person working on each task, and hourly rate (i.e. meetings, drafting of drawings, drafting of textual description of design concepts) Provide not -to -exceed cost of services, with provision that additional services must be as directed by staff in writing, based on a written estimate of additional services to justify change order. Schedule Work to commence upon issuance by City of a purchase order. Work to be completed in approximately 6? months, or as otherwise directed by staff. L A N D C O N C E R N LANDSCAPE ARCHITECTURE November 9, 2005 Ms. Molly Bogh Planning Director City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Dear Molly: Land Concern would like to take this opportunity to thank you for requesting our assistance in reviewing and preparing alternative solutions for Cal Trans SR 74 Widening Project. Please find enclosed our proposed scope of work, fees and Consultant Team Profile. We have structured the task descriptions based on the input we received from you on Friday, November 4 with some minor modifications to provide clarity. EDAW will be providing a peer review only of all concepts. Any expenditures will be covered under the contracts currently in place with Rancho Mission Viejo. If there is any additional information you may need or if you have any questions, please don't hesitate to contact me. Sincerely Michael J. Principal �z1t — ,:T (R— z,q(- 5'-(o5 RECEIVED 17/50 FAST DEERE AVENUE' SANTA ANA, CA 927/05' 949-250.4822 Nov 1 6 2005 E 949.952.2469 7 LA N U CONC E RN .1 OM PLANNING DEPT. R .... T M. SAwrI. MICHAEL T. imiA. Arv...w C.N. Bown MmxnEi J. SwIEICY R,, am . No 13N3 L0*,ni t,A ai.o+ No_ HBI ( fEnua R,"'al ,i Ivo- ISO! ce' R Inv.m- No2144 Aa_u,e Req ELni.Va IoJIN T�— Ri i. ai.on NE d ! ) L A N D C O N C E R N LANDSCAPE ARC HIT ECTURE Consultant Team Profile Mike Sweeney Principal — Project Manager ASLA California Registration #2144 A licensed Landscape Architect for over 23 years, Mike has participated in a wide range of projects related to the development of communities. His responsibilities range from team management to landscape and recreational master planning and implementation. Strong coordination and management skills have enabled him to fill the role of primary facilitator for a number of clients, providing review and coordination of builders, consultants and overall community infrastructure. Jill Sweeney Senior Associate — Lead Designer ASLA California Registration #3882 A licensed Landscape Architect for over 11 years, Jill has been responsible for the design and development of community landscape infrastructure, amenities, facilities and identity. tier strong attention to detail and grasp on project management, coordination and implementation has resulted in numerous successful Master Planned communities. The latest being Ladera Ranch. Chris Bradley Assistant Project Manager As a member of the Land Concern for over 5 years, Chris brings the strengths of communication and graphic presentation to the team. I%So E,A9'r DEERF AvFNDE' .SANTA ANA, CA 9271$' 949 151.4S22' E 949752,2469' I AND( ONCtRN.COM R.EEET M. S. —R toa R"! "I Nr 122. I"ON MmE.A.L T. Inur C- jor,u E j. Ir i, , iA, 1 191 Ar—n r Rq "aeon A'o_ 11170.1 ANDREW C.N. BOWDeN MICHAEL J. SWEENEY ISoI G. 1 R V .; a. .., Na. 21 .1.1 0 0 EXHIBIT "A" AGREEMENT FOR LANDSCAPE ARCHITECTURAL SERVICES This Agreement ("the Agreement") is entered into effective this eighth day of November, 2005, by and between LAND CONCERN, LTD. a corporation ("Landscape Architect"), and THE CITY OF SAN JUAN CAPISTRANO ("Client"), concerning landscape architectural services for ORTEGA HIGHWAY (SR 74) WIDENING ("Project"), which is located within the City of San Juan Capistrano in the County of Orange, California. The area under development for this Agreement shall be as follows: That portion of the Ortega Highway beginning at the intersection of Calle Entradero and continuing east to the City limits of San Juan Capistrano. Article I: Landscape Architect's Scope of Services Section 1: Basic Services The following shall be considered Basic Services included within the Basic Services fee set forth In Article III, Section 1 of this Agreement: A. Conceptual Design Phase Based upon discussions between Mike Sweeney, Principal and authorized representative of Landscape Architect, and Molly Bogh, Director of Planning and authorized representative of Client, the following services shall be performed by Landscape Architect and shall be included within these Basic Services: Presentation for the purpose of review and discussion by Client of a previously prepared Inventory of existing streetscape conditions relative to the portion of Ortega Highway between 15 and La Pats. This previously prepared Analysis Plan illustrates existing and proposed alternatives for walls, sidewalks, trails, planting areas, and access drives along the north and south sides of Ortega Highway from Calle Entradero east to the City limits for the purpose of determiningthe eventual design intentfor the Project. One (1) presentation meeting at the office of the City of San Juan Capistrano for presentation of the existing Analysis Plan is included within the this Agreement. Two (2) supplementary meetings are also included to present and discuss possible design concepts prior to preparation of the Conceptual Plan alternatives. Additional presentation meetings will be provided on an hourly fee basis pursuant to Landscape Architect's hourly fee schedule as set forth in Article III, Section 2 of this Agreement. Based upon Client's review of the Analysis Plan and subsequent determinations for possible design concepts, Landscape Architect will prepare Conceptual Plans illustrating three (3) design alternatives for the Project. Each alternative will include a plan view, cross sections, and imagery illustrating the proposed design for the aesthetic look of the walls (structural steel, expansion Joint locations, and footing designs are N.I.C. - BY OTHERS), sidewalks, trails, planting areas, and access drives within the Project. Presentation of Conceptual Plans to Client for the purpose of refining proposed design concepts. This Conceptual Plan Presentation Process will take place at a location to be determined by Client and may include members of governmental or quasi -governmental entities such as the Design Review -10- Committee, the Planning Commission, the City Council, and/or others. Three (3) presentation meetings are included within this Agreement. Additional presentation meetings will be provided on an hourly fee basis pursuant to Landscape Architect's hourly fee schedule as set forth in Article III, Section 2 of this Agreement. Pursuant to the decisions reached through the Conceptual Plan Presentation Process, Landscape Architect will prepare a written description of the proposed design concept and compile the approved illustrative materials for the Project in a format to be determined by Cal Trans for inclusion with the Aesthetics portion of the EIR/EIS currently being prepared for the SR 74 Widening project. If the Conditions of Approval requirethe inclusion of reduced -sized printed materials, then Landscape Architect will provide these reduced -sized materials. However, additional materials or formats shall be considered Additional Services and shall be billed separately to Client at an hourly rate pursuant to Landscape Architect's standard hourly fee schedule as set forth in Article III, Section 2 of this Agreement but only following authorization by a qualified representative of Client and the issuance of a Change Order. One (1) Meeting is included within this Agreement for the purpose of presentation to CI lent of the Conditions of Approval materials. Reimbursable expenses specifically relatingto the Project and which are listed in Article III, Section 3 of this Agreement are considered separate and apartfrom the scope of services indicated within the Basic Services section of this Agreement and shall be billed separately to Client at the rates specified in said Section. Landscape Architect shall utilize the services of OCB Reprographics for the purpose of reprographic production for the Project unless otherwise stipulated by Client. Section 2: Additional Services At Client's express request, Landscape Architect will provide any or all of the following additional services pursuant to the hourly fee schedule set forth in Article III, Section 2: A. Participation in design review processing as required by governmental or quasi -governmental entities in addition to that called for in the Basic Services of this Agreement. B. Preparation of colored renderings, theme boards, models, computer modeling, CADD files, or similar presentation materials in addition to that called for in the Basic Services of this Agreement. C. Providing the services of a professional agronomist, or testing or analysis of soil characteristics and constituents as they may affect plant performance. D. Preparation of contractor bid spread sheets. E. Verification of the accuracy or completeness of information provided by Client, other consultants, or other reasonably reliable sources. F. Preparation of a Project landscape maintenance manual. G. Documentation by video and/or photographs of the Project's landscaping at completion. H. Preparation for and attendance at meetings,presentations, or hearings as requested by Client as reasonably necessary to facilitate the Project beyond that called for by the Basic Services of this Agreement. I. Providing services in connection with proposals or claims submitted by contractors or others. -11- 0 0 J. Assisting Client in any reasonable and appropriate manner in preventing Client's competitors from plagiarizing the instruments of service and/or designs concerning the Project. H. Providing any other services not specifically included in the Basic Services of this Agreement as the parties may mutually agree. Section 3: Service Limitations Landscape Architect will provide only the design professional services specifically called for by this Agreement; and in particular and without limitation Landscape Architect: A. Will not provide any soils engineering or other geotechnical services whatsoever, or otherwise have any liability or responsibility for the Project's soils, subterranean water and/or subsurface conditions. B. Will not provide any civil engineering services whatsoever, or otherwise have any liability or responsibility of the Project's streets, utilities or surface drainage systems or the like. C. Will not provide any surveying services whatsoever, or otherwise have any liability or responsibility for the precise determination of grades, location of hardscape features, or the like. D. Will not provide any structural engineering services whatsoever, or otherwise have any liability or responsibility for the Project's structural engineering including without limitation the engineering concerning any perimeter and/or retaining walls. E. Will not provide any electrical engineering services whatsoever, or otherwise have any liability responsibility for the Project's electrical or lighting design. F. Will not provide any hazardous waste or toxic substances engineering or other such services, or otherwise have any liability or responsibility concerning compliance with any federal or state environmental or pollution laws, nor investigate any product for environmental or pollution hazards not identified in the published product promotional literature of the product's manufacturer. G. Will not be responsible for the accuracy or completeness of data and/or design work provided to Landscape Architect by Client, other design professionals, or other reasonably reliable sources, and will have no responsibility for such information even if it is incorporated into Landscape Architect's Instruments of Service for coordination, ease of reference, or any other purpose. H. Will not serve as, supervise, or have any responsibility for any contractor, and in particular will not have control or charge of and will not be responsible for construction means, methods, techniques, sequences, or procedures, including without limitation excavation, demolition, or erection procedures; for safety precautions and programs in connection with the Project; for the timeliness or quality of contractor performance or for the acts or omissions of any contractors or any other person performing any of the work of the Project, or for the failure of any of them to perform work in accordance with the Construction Documents. 1. Will not review shop drawings or other contractor submittals for any purpose other than for conformity with aesthetic design concepts, and in no event will Landscape Architect review shop drawings for accuracy or completeness, for serviceability or performance, for constructability, for code compliance, for coordination -12- among trades or compatibility with other Project components, or for contractor safety precautions all of which are the sole responsibility of the submitting contractor. J. Landscape Architect warrants that all of the services provided by and on its behalf pursuant to this Agreement will be performed with reasonable care, skill, and diligence in accordance with generally and currently accepted design professional principles and practices. This warranty is in lieu of all other warranties, either expressed or implied. In particular, and without limitation, Landscape Architect will use its best professional judgment in interpreting and applying the requirements of all laws applicable to the Project, but compliance with these laws as they may be eventually interpreted by others cannot be guaranteed. In no event will Landscape Architect guarantee cost estimates or projections, or any prognostications as to future events; and it is understood that when used in conjunction with the providingof services pursuant to this Agreement, such terms as "certify", "warrant", "verify", "confirm", "insure", "ensure", "assure", or the like do not constitute a guarantee, but rather a representation base on Landscape Architect's professional opinion or judgment. K. Landscape Architect will be legally liable for only the design professional services provided pursuant to this Agreement, and not otherwise. Without limitation, Landscape Architect will not be legally liable for delays beyond its reasonable control; for inaccurate information provided to it by Client or other reasonably reliable sources; for the work of Client's other consultants even if that work is incorporated into Architect's Instruments of Service for ease of reference or the like; for site or soils conditions of which it was not informed; for the specification of projects or equipment for purposes consistent with the manufacturer's published literature; for Client's materials, plant and equipment decisions; for implementing Client's lawful decisions; for the timeliness or quality of contractor performance or for the failure of any contractor to perform work in accordance with the Construction Documents; orfor actions or inaction of governmental or quasi -governmental agencies. Article II: Client's Responsibilities Section 1: The Client shall compensate the Landscape Architect pursuant to the terms and conditions of this Agreement. Section 2: Towards the mutual goal of a successful project, Client shall make all reasonable efforts to cooperate with Landscape Architect including without limitation: A. Designating a single representative with appropriate authority with whom Landscape Architect can deal, and responding to Landscape Architect's questions and requests for information and approval within a reasonable time. B. Providing full information regarding Project conditions and requirements, including without limitation reasonable and appropriate survey Information including legal descriptions and restrictions and all relevant utility and soils information, and such specific Information as Landscape Architect may reasonably request. C. Providing Landscape Architect with reasonable access to the Project site. D. Reviewing Landscape Architect's work for general accuracy of information such as basic design, specificsite locations and coordination with Project and site conditions, and promptly alerting Landscape Architect of any discrepancies or problems. E. Providing Project coordination, including appropriate arrangements for the coordination of Client's various -13- consultants. F. Taking reasonable and appropriate construction quality control measures, and requiring any Project landscape contractor to indemnify Landscape Architect to the same extent that indemnification is required to be provided to Client. Section 3: The Client further agrees that: A. The Landscape Architect is entitled to rely on the information provided by the Client or other reasonably reliable sources without independent review or evaluation, unless such analysis is specifically agreed to as part of Landscape Architect's scope of services. B. The Client will require that each contractor and subcontractor performing work on the Project be properly licensed and agree to indemnify, defend, and hold harmless Client and Landscape Architect, and their officers, agents, and employees, for claims, losses, expenses, including attorney's fees, and any damages arising in connection with such contractor's and/or subcontractor's performance; and maintain general liability insurance in annual limits of at least $1,000,000. per claim and aggregate with Client and Landscape Architect named as additional insureds. C. The Client will require that any assignee or buyer of the property which is the subject of the services of this Agreement will agree to and be responsible for construction and maintenance of the Project in a manner which will conform with the drawings and specifications prepared by the Landscape Architect as well as with proper maintenance and upkeep practices, and will require that any modifications or changes be prepared by properly licensed and experienced professionals. Section 4: Client's Responsibilities with regard to Landscape Selection and Maintenance A. If Client selects particular trees or other plants which Landscape Architect determines will require greater than typical maintenance such as aggressive pruning and trimming or early replacement, the Client shall make appropriate arrangements forsuch maintenance and release and Indemnify Landscape Architect and its affiliated entities and individuals to the fullest extent allowed by law concerning the consequences of Client's decision. B. Client acknowledges that Landscape Architect recommends that root barriers be installed on all trees in all areas within 10 feet of pavement or buildings, inasmuch as a lack of root barriers has become a standard allegation in construction defect litigation, whether merited or not. If Client elects to omit root barriers as Landscape Architect recommends, then Client shall release and indemnify Landscape Architect and its affiliated entities and individuals to the fullest extent allowed by law concerning the consequences of Client's decision. -14- 9 0 Article 111: Payments to the Landscape Architect Section 1• Basic Services The Landscape Architect shall be compensated for the performance of Basic Services set forth in Article I, Section 1, as follows: A. Analysis Plan $150.00/hr. • Attendance by Principal at three (3) meetings (estimated 9 hours including travel time) $1,350.00 B. Conceptual Plan $95.00/hr. • Principal (estimated 16 hours) $2,400.00 • Senior Associate/Designer (estimated 40 hours) $4,400.00 • Assistant Project Manager (estimated 60 hours) $4,200.00 • Clerical (estimated 3 hours) $150.00 C. Conceptual Plan Presentation Process $50.00/hr. • Attendance by Principal at three (3) meetings (estimated 9 hours Including travel time) $1,350.00 D. Cal Trans Presentation • Principal (estimated 8 hours) $1,200.00 • Senior Associate/Designer(estimated 16 hours) $1,760.00 • Assistant Project Manager (estimated 24 hours) $1,680.00 • Clerical (estimated 4 hours) $200.00 • Presentation to Cal Trans at one (1) meeting by Principal (estimated 5 hours including travel time) $750.00 ESTIMATED TOTAL: $19,440.00 E. Additional Services are those items requested by Client which are not part of the scope of services described within the Basic Services section of this Agreement, and which are compensated on an hourly rate basis and are not part of the total contract price as shown for A, B, C, and D, above. Additional Services shall be billed separately to Client at an hourly rate pursuant to Landscape Architect's standard hourly fee schedule as set forth in Article III, Section 2 of this Agreement but only following authorization by a qualified representative of Client and the issuance of a Change Order. • Additional Services Section 2: Additional Services Hourly The Landscape Architect shall be compensated for the performance of any additional services under this Agreement in accordance with the following hourly rates: Principal $150.00/hr. Senior Associate $110.00/hr. Associate $95.00/hr. Landscape Architect $90.00/hr. Project Manager $85.00/hr. Asst. Project Manager $70.00/hr. Designer/Draftsperson $60.00/hr. Clerical $50.00/hr. -15- These hourly rates are subject to change, with thirty (30) days prior written notice to Client of such change Section 3: Reimbursable Expenses The Landscape Architect shall be reimbursed for the following: A. Expenses of reproductions, postage, handling of drawings and specifications at 1.1 times actual cost to the Landscape Architect. B. Fees for outside consultants, if any, shall be billed at 1.2 times actual cost to the Landscape Architect. C. Expenses of transportation and living when traveling in connection with the Project, and long distance telephone calls. D. Fees paid as a Client accommodation forsecuring approval of authorities havingjurisdiction overthe Project at actual cost to the Landscape Architect. E. Any other costs, fees, or expenses authorized by the Client. Section 4: Fee Adjustments The Landscape Architect's fees shall be equitably adjusted If: A. The scope and/or difficulty of the Landscape Architect's performance of the Basic Services set forth in Article I, Section i, are increased by site conditions or other factors which were not reasonably anticipated by the Landscape Architect at the time this Agreement was entered Into, or by significant changes in the Project's scope, sequencing, or scheduling. B. The Project is delayed for more than six (6) months due to circumstances not reasonably within the Landscape Architect's control. Section 5• Invoices The Landscape Architect will bill the Client on a monthly basis for amounts due hereunder. Each invoice shall be due payable upon receipt, and delinquent 30 days after its date. In the event of delinquency, Interest shall accrue at the rate of 1.5% per month, compounded monthly, or at the highest rate allowed by law, whichever is lower, with payments applied first to accrued interest. In light of the obvious advantage of resolving questions and disputes regardingthe Landscape Architect's billings quickly and while recollections are fresh, Client will notify Landscape Architect of any questions or dissatisfaction which it may have regarding any particular invoice within 30 days of the Invoice date; and if Client falls to give Landscape Architect such notice, then Client will have waived its right to dispute the accuracy and appropriateness of the Invoice, and the invoice will be binding upon Client. Article IV: The General Provisions Section 1: Ownership of Documents Client acknowledges that the drawings, specifications, and other documentation (including that on electronic -16- 0 0 media) prepared by, or on behalf of, Landscape Architect for the Project are Instruments of professional service, and as such, are and shall remain Landscape Architect's property whether or not such instruments are submitted to public entities and/or the Project is constructed, and Landscape Architect shall retain all common law, statutory, and other reserved rights concerning such instruments of service and any related design, including any copyright thereto. In the event the Client requests preparation or modification of such instruments of professional service in a manner which Landscape Architect believes would be aesthetically inappropriate or with which the Landscape Architect would not care to be associated, then the Client agrees that the Landscape Architect may reject such request by the Client without liability for doing so. Upon completion of the Project, Client shall be permitted to retain copies of the Project's plans and specifications for information and reference In connection with use and occupancyof the Project, including reproducible copies; however, these instruments of service shall not be used on other projects or for additions of the completion of the Project without either Landscape Architect's participation or Landscape Architect's written consent. In the event of Client's unauthorized use of, or changes to, Landscape Architect's instruments of service, or should Client allow such use or changes, then any and all liability arising out of, or related to, such use and/or changes shall be assumed by Client and waived by Client against Landscape Architect. Client shall to the fullest extent allowed by law release, indemnify, defend, and hold harmless Landscape Architect and Landscape Architect's subconsultants, and their respective principals and employees, from and against any and all claims, liability, costs and/or loss related to such use and/or changes, including even claims, liability, costs, including attorney's fees and/or losses involving actual or alleged "active negligence" or "design defect", and in the event of such unauthorized use, Client shall also pay a reuse fee equal to the fee pursuant to this Agreement. It is expressly agreed that because Information stored in electronic form can be modified by others, intentionally or otherwise, without notice or indication of said modification, and In any event will deteriorate over time, Landscape Architect reserves the right to retain possession of all information contained In any electronic medium, to provide any materials in electronic medium in read-only format, and to remove all Indicia of its involvement from any information contained in an electronic medium. Section 2: Consultants Landscape Architect will coordinate the services called for by this Agreement, and will assist in Client's coordination of these services with those provided by Client's other consultants; but Client acknowledges that Landscape Architect lacks the training and expertise necessaryto perform or critique said services and that these services will necessarily be provided by independent professionals. Client shall have the right to disapprove of Landscape Architect's selection of Its subconsultants, provided that such disapproval is not unreasonable or arbitrary. In no event, however, will Landscape Architect have any legal liability for any professional errors or omissions committed by its or Client's other independent consultants. ection 3: Modifications Landscape Architect reserves the right to perform any and all modification to any plans, specifications, or other documents prepared by Landscape Architect for the Project. If unauthorized modifications are performed on such documents by others, Client agrees to waive any claims against Landscape Architect and defend, indemnify, and hold Landscape Architect, its consultants, and their respective principals and employees harmless to the fullest extent allowed by law from any and all claims, liabilities, costs, Including attorney's fees, and/or losses arising from such unauthorized modifications. Further, Landscape Architect may suspend its performance under this Agreement and withhold or withdraw any Instruments of service with no liability for doing so at anytime if Client allows a Landscape Architect Invoice to become delinquent. -17- 0 Section 4: Termination 0 Because of the importance of a good working relationship between the Client and the Landscape Architect, it is hereby agreed that either party may terminate this Agreement upon written notice to the other party provided only that such notice is given in the good faith belief that said working relationship is less than satisfactory. Further, if Client allows an invoice to become delinquent, then Landscape Architect may suspend performance pending payment with no liability for so doing. Upon the termination of this Agreement by either party, the Client shall pay the Landscape Architect all amounts then due in accordance with the terms of this Agreement. Any fixed fee or lump sum services which are incomplete shall be paid for on the basis of the hourly rates setforth in Article III, Section 2 for services rendered to the date of such termination. Section 5: Risk Allocation In light of the limited ability of Landscape Architect to affect the risks inherent in the Project, and of the disparity between Landscape Architect's fees and the potential liability for problems or alleged problems with the Project, and In consideration of Landscape Architect's undertaking of the obligations imposed by this Agreement, Client agrees to limit the total aggregate liability concerning or related to the Project of Landscape Architect and Landscape Architect's subconsultants, and their respective principals and employees, on any and all legal or equitable theories and concerning any and all kinds of causes of losses, to the fullest extent allowed by law as to Client and all third parties, to the amount of $50,000 or Landscape Architect's fees under this Agreement, whichever is greater. Section 6: Indemnity Client shall indemnify, hold harmless and defend Landscape Architect and Landscape Architect's subconsultants, and their respective principals and employees, to the fullest extent allowed by law concerning any and all claims, liability, costs and/or losses of any kind or cause whatsoever related to the Project even in situations Involving actual or alleged "active negligence" or "design defects"; provided, however, that this indemnification shall not apply to any Indemnitee concerning that indemnitee's sole negligence or willful misconduct. Section 7: Consequential Damages Landscape Architect and Client each waive any right to claim or to recover any consequential damages from the other concerning any breach or alleged breach of any duties or obligation pursuant or related to this Agreement, including without limitation the termination of this Agreement. Section 8: Limitation of Actions - Term No lawsuit or other formal legal action of any kind may be broughtagalnst Landscape Architect or its consultants, or their respective principals and employees, to recover damages or indemnification concerning the Project or any phase of the Project, more than three years after the Project or Project phase's substantial completion, or more than five years after the cessation of services by or on behalf of Landscape Architect or its consultants regarding the Project or Project phase, whichever occurs first. Section 9: Mediation In the event of dispute between Client and Landscape Architect, including potential third parties, they shall submit the dispute to mediation with a mutually agreeable reputable independent mediator, prior to instituting litigation. Client shall include mediation as prerequisite to litigation in all contracts relating to landscape work, including, without limitation, sales of property included in the Project. Failure to attempt mediation shall be 0 0 grounds for a stay as to litigation. Notwithstanding the above, no mediation effort shall be required, however, concerning a disputed claim for Indemnification asserted in a formal legal action in which both Landscape Architect and Client have been sued by some third party or parties, or regarding the collection of any undisputed fee claim. Section 10: Limitation of Action - Parties Notwithstanding anythingto the contrary contained herein, It is agreed, acknowledged, and understood thatthe Client's sole and exclusive claim, demand, suit, judgment or remedy concerning or arising out of the Agreement shall be directed and/or asserted only against Landscape Architect, a California corporation, and not against any of Landscape Architect's shareholders, landscape architects, directors, officers, or employees. Section 11: Independent Contractor The Landscape Architect is an independent contractor and nothing herein is intended to mean or to imply that Landscape Architect has an agency, employment, partnership, joint venture, or any other type of relationship with the Client excepting that of an independent contractor. Section 12: Integritv of Agreement This Agreement supersedes all negotiations and prior agreements concerningthe Project and is intended asthe complete and exclusive statement of the entire agreement between Client and Landscape Architect concerning the Project. This Agreement is being entered into and will be performed in Orange County, California; and it shall be Interpreted and enforced under and pursuant to the laws of the State of California. No failure to exercise or delay in exercising any right under this Agreement shall be construed as a waiver, and no waiver of a breach of any term of this Agreement shall be construed as a waiver of a subsequent breach of the same or other terms. In the event that this Agreement is for any reason terminated, then its risk allocation and indemnity provisions shall remain in full force and effect; and in the event that any provisions shall be prohibited by law, then the subject provisions shall not be void, but rather shall be interpreted as operating only to the fullest extent allowed by law. Any and all actual or alleged causes of action concerning any services rendered pursuant to this Agreement, including without limitation those for Indemnification, shall be deemed to have accrued for purposes of any statutes of limitation or repose as of the date of Landscape Architect's last invoice concerning the Project. This Agreement shall be binding upon and inner to the benefit of the parties hereto and their respective partners, joint venturersi, principals, heirs, estates, personal representatives, successors, and assigns; and the parties do not intend for this Agreement to bestow any rights on any third parties. Section 13• Counterpart Originals This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall be deemed one in the same instrument. -19- 0 32400 PASEO ADEIANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 PAx www.sanjuancapistrano.org December 9, 2005 Land Concern 1750 East Deere Avenue Santa Ana, CA 92705 Dear Sir or Madam: MEMBERS Or THE CIN COUNCIL SAM ALLEVATO DIANE BATHGATE WYATT HART JOE SOTO DAVID M. SWEROUN A fully executed, original Personal Services Agreement related to assisting the City in reviewing and preparing alternative solutions for the Cal Trans SR 74 widening project is enclosed for your records. Thank you for submitting documentation confirming current compliance with the terms of insurance under your agreement with the city. Please keep in mind that should this documentation lapse, all work under this agreement must stop and all payments will be withheld until we receive proper evidence of insurance. You may proceed with work under this agreement in coordination with the project manager, Lynnette Adolphson, Management Analyst II (949) 443-6324. Thank you, V�6 a� Mitz' Orti Deputy Ci y Clerk cc: Lynnette Adolphson, Management Analyst II San Juan Capistrano: Preserving the Past to Enhance the Future 0 Printed on recycled paper 0 32400 PASEO AOEL NTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAX Hit wsanjuancapislrano,org December 6, 2005 Land Concern 1750 East Deere Avenue Santa Ana, CA 92705 Dear Sir or Madam: Javan � ,�y 19 POR" RK10 mnwsem � 1961 1776 MEMBERS OF THE CITY COUNCIL SAM ALLEVATO DIANE BATHGATE WYATT HART JOE SOT0 DAVID M. SWERDUN A Personal Services Agreement related to assisting the city in reviewing and preparing alternative solutions to for the Cal Trans SR 74 widening project is in the process of being executed. It will be issued upon receipt of required documentation related to contract terms under Section 14. Insurance. Insurance evidence may be faxed to (949) 493-1053 — ATTENTION CITY CLERK -- followed by original signed documents. I have enclosed a copy of the agreement terms for your reference in supplying this documentation. If you have questions specific to the contact, please contact the project manager, Lynnette Adolphson, Management Analyst II, (949) 443-6324. Please call the Deputy City Clerk (949) 443-6310 if you have questions regarding the forms of insurance needed. Thank you, Meg M n, CMC cc: Lynnette Adolphson, Management Analyst II San Juan Capistrano: Preserving the Past to Enhance the Future