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11-0419_TWNIEMANN, INC._Personal Services AgreementI24ft-Tel O1=14&'14ATIC47*V_[c14 4�Aih14Iiii -_ _-___.._.. .._............... ......... ............... ._..._............._...3 THIS AGREEMENT is made, entered into, and shall become effective this day of _` , 2011, by and between the San Juan Capistrano (hereinafter referred to as the "City") and TWNiemann, Inc. (hereinafter referred to as the "Consultant"). RECITALS - WHEREAS, City desires to retain the services of Consultant regarding the City's proposal to provide construction management services for the Del Obispo Street Widening from Alipaz Street to Paseo Adelanto Project STPL 5372 (011) (CIP 07107); and WHEREAS, Consultant is qualified by virtue of experience, gaining, education and expertise to accomplish such services. NOW, THEREFORE, City and Consultant mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by the 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 and shall terminate, and all services required hereunder shall be completed, no later than May 1, 2012. Section 3. Compensation. 3.1 Amount. Total compensation for the services hereunder shall not exceed Three Hundred Twenty Two Thousand Nine Hundred and Seventy Dollars ($322,970.00) as set forth in Exhibit "B," attached and incorporated herein by reference. 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. 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 the City. Invoices shall be addressed as provided for in Section 16 below. Section 4. independent Contractor. It is agreed that Consultant shall act and be an independent contractor and not an agent or employee of the City, and shall obtain no rights to any benefits which accrue to Agency's employees. Section 5. Limitations Upon Subcontracting and Assi nment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the 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 the 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 Mork 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 Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law- E-Veri . 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://e-verify.uscis.gov/enroll/. 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. M 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 0 associated with the work contemplated by this agreement. If a Commercial Genera[ 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. 1.4.2 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. 14.6 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 Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. F'1 14.7 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.8 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 15. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Consultant. 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 ormailed 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: Nisha Patel, P.E. To Consultant: TWNiemann, Inc. 124 Avenida San Diego San Clemente, CA 92672 Attn: Todd Niemann, CCM 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. x 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. APPROVED AS TO FORM: Omar Sando a ,� Ci Attorney CITY OF SAN JUAN CAPISTRANO By: Dave Adams, Interim City Manager CONSULTANT By: — Todd Niemann, President TWNiemann, Inc. 7 Dear Ms, Patel: TW.N.i.emann,, Inc. (TVVN) is pleased, to present our Proposal to provide Professional Construction Maaagem6ntand Inspection.S.ervices.1n. support. oft.he. City of San Juan Capistrano's federallyfunded Del Obispo Street Widening. Flrojec.t Thrquoh.conversations with you and the design engineer, reviewing the plans and specifications, and visiting the project site, we have familiarized ourselves vith the. project and work. required, We understand that the work consists `of the construction.,of Del Obispo Bridge (Widening),over Trabuco Creek. The existing bridge is a three -span r einforced concrete "'r -girder structure, The existing bridge is to be widened by'appro.ximately-.28.-feet to the north with pre -cast., pre -stressed concrete "1 girders and a cast -in-placeconcrete bridge deck. The work also includes seismic retrofit of . 41he existing abutments.' The project will be chall gi 'd the pro challenging an per management of traffic cQntrol, construction operations, overhead/underground, utility conflicts, environmental mitigation measures and theprocesses involved in diverting the creek, Pre'paring the abutments and expansion of the bridge are critical. Meeting these challenges will .'require diligent monitoring, keen organizational skills and 'flawless coordination Wifh' the.Qty, contractors, regulatory 'agencies; utility companies and community,. Discussing ,this plan wi h th t e.Contractor ahead of mobilization is one of our proactive strategies to facilitate the'construction effort with the global idea of beino a "project advocaW'. Vyle will provide a competent experiericed team to meet these challenges and: :any'othersthat may arise. Our proven experience'and success on simflarprojects provides us with the'tools necessary to execute these tasKs. We recently prbvided similar services for the City of Dana Point othe n construction of their pre -cast, pre -stressed concrete '.T' -girders and GIP concrete bridge deck pedestrian bridg e, 'This Was also a federally funded project and administered by Caltrans. Our experience with every aspect of the work and our proactive approach ensures a seamless integration of 124 AVENbA 5AN DIEGO SAN CLCMIEWTEt CA 92672 P91764 71 9,19 2.16 .4772 VuS. Nisha A. Patel MarJ7 2, 2011 Page 2 this project into the community, Most important is our general philosophy to represent the Client in the best manner as an advocate for the project while creating a proactive warping environment with the Contractor. We have over 25 yearn of construction experience in Grange County and are known and respected by most public works contractors; This relationship immediately fasters trust and mutual respect, which in turn, bads tea rapid issue resolution, adherence to schedules and ultimately a successful project. We have a thorough understanding of Federally Funded projects including Labor Compliance and ' Prevailing Wage requirements. We; aro also experienced in Environmental and Sensitive Habitat compliance including Air, Water, and Noise pollution requirements, and of local conditions and permit. procedures.. Our team is tdilored'specifically to provide the City of San duan Capistrano with the resources and expertise to greet project goals — that means delivering a project that will be constructed per the plans and specifications and constructed on time and within budget. By selecting TWN for your professional construction m.ana einem and inspection servides, the City of San Juan Capistrano will benefit from a local highly qualiflod firm experienced in providing cost-effective solutions to municipaiifies, Specific benefits derived fr9m selecting us include: ✓ Successful recent experience in providing similar public works construction management & inspection services to the City of Dana Point for their federally funded bridge and road widening project; ✓ U nique amiliarity with the City of San Juan Capistrano as the proposed Construction Manager has successfully provided similar construction m nagement & public works 'ins gction services to tyre City; ✓ Professional Certified Construction Manager (CM,CI No, A1226) trained and certified in the practice of professional management applied to the planning, design an..d construction of projects from inception to corrmpletion for the purpose .of controlling time, scope, cost and quality, , ✓ Licensed General A & B Contractor (CSI. No, 78 780) with specialized experience in engineering and building construction means, n ethods'.. and practices thereby bringing the "Contractor's" perspective to the Owner's side of the`table; and ✓ Experienced staffwith a thorough knowledcge of construction activities, contract administration', construction . management; and duality: assurance services with resource to `pre \fide for immediate response to the City of San Juan Capistrano's needs. i i..que experience in providing sinZil r construction n management and inspection services for several federally funded and Caltrans administeredprojects. Our team.. is qualified, locally proven, competent, and professional. We will Meet the spacific challenges of this project. This project is our priority and our team is e✓cmmitted! We have enclosed th&followincg additional information for your review and consideration, Exhibit "K Ms. Nisha A. Pales Jlarc}7 2, 2011 Page 3 Scope of Services, Exhibit "B" Compensation, Exhibit "B-1 Fee Schedule, and R6sum4s of proposed staff. We have the experience, integrity, and desire to help in the coordination of your very important project and we are ready to start immediately. Thank you for the opportunity to submit this proposal, 1t look fo �rard to meeting with you to discuss flow e will meet the goals and objeoti . Of this very important praject, In ther antirr7e, should you have any questions, please contact me anytime at (9 9) 212-4231. Sincerely, Tadd Niemann, CCM Vice President Construction Manager Ca Filo Aftelchments, Exhibit "A" Scope of S rwces. Exhibit'B" Corripensatian Exhibit" -1" Fee Schedule Resumos Coi7sti-uctioii..Mriiiagelneti,t Semices Ma) ch 2, 2010 Del Obislyo Street Widening - CI: 122 page I EXHIBIT "A" SCOPE OF SERVICES T'WN!emann Inc (TWN) shall provide the following Professional Construction Management and Inspection Services for the City of San Juan Capistrano's Federally Funded Del Obispo Street Widening Project (CIP 122) at the request and direction of the City's Public Works Department: TASK I — PRE -CONSTRUCTION AND PROJECT SUPPORT SERVICES 1. Project & Design Team Kick-off Coordination Meeting 2. Project QA/QC Kick-off Review & Coordination Meeting 3. Pre -Job Kick-off Meeting with Contractor 4. Pre -Construction Conference Agenda, Coordination & Administration 5. Preparation and Distribution of Pre -Construction Meeting Minutes 6. Coordinate Submittal/Approval Process 7. Document Controls Protocols -to include documentation and. filing of project reports (daily diaries and weekly reports),, RFIs, change orders, and etc. per federal standards 8. Existing Condition Video & Photo Documentation - before, during, and after the project 9. Long Lead Item Identification 10. Utility Coordination TASK 2 — CONSTRUCTION SERVICES 1. Construction Management and Full Time Ins pection Services typical for a federally funded project 2. Construction Methodology & Logisfical/Site Utilization 3. Cost/Change Control Management, Evaluation & Reporting 4. Schedule Control Management & CPM. Construction Scheduling 5. Quality Control Coordination 6. Document Control typical for a federally funded project with Caltrans oversight 7. Construction Contract Administration typical for a federally funded project 8. Project Accounting, Funding Analysis & Reporting 9. Dispute Resolution & Change Order Negotiations 10. Weekly Progress Meeting Administration 11. Schedule & Monitor Survey and Testing 12. Utility Coordination & Scheduling 13. As -built Review and Approval 14. Coordinate, Log and Transmit Material Submittals and Shop Drawings Construction .A,Iai-wgeni,-nt,5eivices March 2,2010 Del Obisl)o Street Widening - CIP 122 Page 2 15. Prepare Progress Payment Estimates 16. Weekly Statement of Working Days Accounting 17. Requests for Information/Requests for Clarification (RFI/RFC) Coordination 18. Shop Drawings, Fabrication, and Mill Testing of Equipment and Materials Coordination 19. Assist in the Coordination and Testing of Equipment, Materials and Appurtenances for Conformance with the Design Concepts and Contract Documents 20. Review and Evaluate Test Results and Make Appropriate Recommendations to City Project Management Prior to the Installation of Equipment and Acceptance of the Constructed or Furnished Facilities 21. Prepare Supplementary Sketches and Details, as Required, to Resolve Field Construction Issues 22. Coordinate with City Staff and Representatives of Utilities, Government Agencies, and Community During Construction 23, Arrange for and Participate in Meetings, In Addition to Weekly Project Progress Meetings, with City Project Management to Review Progress of the Project and Exchange Ideas and Information 24, Measure and, Verify Work Progress and Earned Date Percentages/ Quantities 25. Ensure SWPPP Compliance 26. Ensure Labor Compliance TASK 3 - POST CONSTRUCTION SERVICES 1.. Preliminary and Final Punch -List Preparation, Coordination and Administration 2. Confirm Resolution of All Outstanding Claims & Landscape Maintenance & Plant Establishment Coordination & Monitoring 4. Warranty Program Review & Coordination , 5. Review As -built Plans for Accuracy & Turnover & Submit Final Construction File to City Project Manager Cuatr REspowslums I ) Provide access to the site as necessary. 2) Provide all applicable approved plans and related Contract Documents, 3) Obtain all necessary permits, 4) Acquire all required environmental clearances for the project. 5) Client will require any construction contractors to indemnify TWN!emann,. Inc. from any and all losses, damages, claims, expenses, including attorneys fees, and costs arising out of the contractor's work, excepting only losses, damages, claims, expenses including attorneys fees, and costs which are caused by the sole negligence or willful misconduct of TWN in performing it's services under this agreement. Client will require that the construction contractors add TWNiemann, Inc. (Consultant) as an additional insured in the comprehensive general liability, auto liability, workers' compensation and builders risk insurance coverage . required by Client. 6) All other work not specifically noted in this scope of services, Constniclion AYan.agenient Services Del Obispo Sheet Widening — CIP 122 arch. 2, 2010 Page. 7) Additional Construction Management, Inspection, and or Quality Assurance services will be performed, if requested, on an hourly basis for ani additional flee under a separate work authorization. xc.LusioNs Any work relating to the following is specifically excluded from the Scope of Services proposed herein and, if required, must be contracted for under a separate contract or as an addendum to this contract, 1) Utility potho€ing 2) Field office 3) Right -of -Entry or Agency permit processing 4) Hazardous waste investigations and management 5) Traffic control management 6) Construction survey 7) Any other work task not specifically in the Scope of Services Construction Management Services March 2, .X110 Del Obisiro Street Widenbr g— CII' 12.2 Page 4 EXHIBIT 6 I COMPENSATION TWN shall be compensated for the Scope of Services described herein on a time and materials basis according to the attached Fee Schedule (Exhibit "13-1 ") and budgets based upon estimated construction duration of three hundred (300) calendar days and one hundred twenty (120) calendar days for landscape maintenance and plant establishment: WORK TASK FEE Task 1 Pre -Construction & Project Support Services $11,930 Task 2 Construction Services $290,800 Task 3 Post Construction Services $20,240 TOTAL BUDGET $322,970 Progress billings will be forwarded to the Client on a monthly basis and net will be due within thirty (30) days of receipt. These billings will include the fees earned for the billing period plus all direct costs advanced by TWN. The hourly rate includes all gas, mileage and cell phone charges. The Client shall make every reasonable effort to review invoices within fifteen (1.5) calendar days from the.date of receipt of the invoices and shall notify TWN in writing of any particular item that is alleged to be incorrect. Due to ever-changing costs, the Hourly Rate is normally re-evaluated during the month of January of each year to determine the need for any changes to the rates in effect during the previous year. However, the fees noted herein shall apply until December: 31, 2012. Clue to ever-changing costs, TWN will increase those portions of the contract fee for which work must still be completed after December 31, 2012 by an amount agreeable with the City of San Juan. Capistrano. Subconsultant, reproduction, messenger service, delivery, and all other services required as a direct expense of the project will be charged as an additional cost plus 15%. caa oc�. C70Ca C) az� co rn m N w '¢i ' r � a ci c.F CN N jn p Ea�.4 C3 p CD (] Q O p ci"n LC) rn .r'- V�z 69 CO CO a7 q N 0 04tt LL A LL LLt L3.E CL.. rz CJ - p > C7 ( C} LU co L c� h � � [u o�- � c' tr. c Ccl7 CCs C�i CO €�fl c� Gni- 045 a 60 r. i (i GiJ Vi c3 co u� oLU E cr LU o ii T 44 �. C= v U `� m ~ o i uj U€ to Z 0 �, c Q o c N in 4 C> iL W Q3 li» • t r - F w 4 r � • r �A A► I' caa oc�. C70Ca C) az� co rn m N w '¢i ' r � a ci c.F CN N jn p Ea�.4 C3 p CD (] Q O p ci"n LC) rn .r'- V�z 69 CO CO a7 q N 0 04tt LL A LL LLt L3.E CL.. rz CJ - p > C7 ( C} LU co L c� h � � [u o�- � c' tr. c Ccl7 CCs C�i CO €�fl c� Gni- 045 a 60 r. i (i GiJ Vi c3 co u� oLU E cr LU o ii T 44 �. C= v U `� m ~ o i uj U€ to Z 0 �, c Q o c N in 4 C> iL W Q3 li» 1fP TWNiemann, Inc Attn: Todd Niemann, CCM 124 Avenida San Diego San Clemente, CA 92672 DATE: April 25, 2011 FROM: Christy Jakl, Deputy City Clerk (949) 443-6310 MEMBERS OF THE CITY COUNCIL SARA ALLIAT© LAURA FREESE LARRY KRAMER DEREK REEVE JOHN TAYLOR RE: Personal Services Agreement for Construction Management Support - Del Obispo Street Widening (CIP 07107) Thank you for providing documentation confirming compliance with the terms of the agreement related to insurance. Please keep in mind this documentation must remain current with our office during the term of this agreement. If you have questions related to insurance requirements, please call me at (949) 443-6310. If you have questions concerning the agreement, please contact Nisha Patel, P.E., Associate Engineer, at (949) 443-6350. An original agreement is enclosed for your records. Cc: Nisha Patel, P.C., Associate Engineer Scan Juan Capistrano.- r ese in the Past to Enhan e the utiire 0 Phoned an 100% recyded paper 4/19/2011 AGENDA REPORT ru" 12 TO: Dave Adams, Interim City Manager. FROM: gasser Abbaszadeh, Public Works Director SUBJECT: Consideration of Five Personal Service Agreement Awards for Construction Management and Construction Management Support Services for Del Obispo Street Widening from Alipaz Street to Paseo Adelanto STPL 5372 (011) (CIP No, 07107) (TWNiernann, Inc., RBF Consulting, Willdan Engineering, RBF Consulting, and Smith -Emery Laboratories) RECOMMENDATION By motion, approve Personal Service Agreements for: 1,) T11VNiemann, Inc. in the amount . of $322,970.00 to perform construction management, and authorize the City Manager to execute the agreement; and, 2.) RBF Consulting in the amount of $31,310.00 to perform construction management support in the form of material submittal and shop drawing review, and request for information and request for clarification support for structural related items, and authorize the City Manager to execute the agreement; and, 3.) Willdan Engineering in the amount of $10,200.00 to perform construction management support in the form of material submittal and shop drawing review, and request for information and request for clarification support for non-structural items, and authorize the City Manager to execute the agreement; and, 4.) RBF Consulting in the amount of $34,020.00 to perform SWPPP Development and Construction General Permit Compliance, and authorize the City Manager to execute: the agreement, and, a.) Smith Emery Laboratories in the amount of $71,914.00 to perform geotechnical services, and authorize the City Manager to execute the agreement for the Del Obispo Street Widening from Alipaz Street to Paseo Adelanto, SITUATION A. Summary The federal funding component of the bridge widening project requires specialized inspections, testing, documentation, and project review. To contract construction management and construction management support services for the Del Obispo Street Agenda Report Page 2. April 19, 20311 Widening from Alipaz Street to Paseo Adelanto, staff circulated separate requests for proposals (RFPs) to engage consultants to perform needed services. The full range of services will include construction management, and construction management support in the form of material submittal and shop drawing review, storm water pollution prevention plan (SWPPP) development and construction general permit compliance, and geotechnical testing and inspection services. The RFPs were sent to the following companies: Construction management: 1. TVIlNiemann, Inc. 2. RBF Consulting, Inc. 3. Willdan Engineering Material submittal and shop drawing review, and request for information and request for clarification support for structural items: 1. RBF Consulting 2. Willdan Engineering 3, PBS&J Material submittal and shop drawing review and request for information and request for clarification support for non-structural item: 1. RBI` Consulting Z. Willdan Engineering 3. PBS&J SWPPP development and construction general permit compliance: 1. RBF Consulting 2. Advanced Civil Group 3. Hall & Foreman Geotechnical testing and inspection services 1. Smith Emery Laboratories 2. Ninyo & Moore 3. Leighton Consulting, Inc 4. CMJ 5. Labelle Marvin Agenda Report Page 3 B.. Background April 19, 2011 The project consists of widening del Obispo Street between Alipaz Street and Paseo Adelanto, and widening the west side of Paseo Adelanto south of Ciel Obispo Street. The construction work includes concrete bridge widening, steel piles, concrete piers, debris wall and abutments, structure removal (portion), concrete railing, concrete channel reconstruction, steel sheet piles, access road reconstruction, storm drain reconstruction, water line removal and construction, coordination with utilities, joint utility trench construction, tree removal, landscaping and irrigation, retaining walls, asphalt paving, sidewalks, curb and gutter, grading, chain link fence, traffic signal modification, street lighting,. signing and striping, signing, BMP construction, and preparation and implementation. of a SWPPP, preparation and implementation of a construction phasing and traffic control pian, and conforming to the conditions of the environmental documents associated with this project. The City Council awarded the construction contract for this project to Peterson -Chase on March 1, 2011. Since the project has received a federal grant and the construction will be done under several environmental permits (the bridge substructure will be in the Creek), the project needs to follow strict requirements in keeping with federal and environmental regulations. Outside services are necessary to ensure project documentation and testing is properly addressed. Proposals were requested from qualified consultants to provide services for: i. Construction management; 2. Material submittal and shop drawing review, and request for information and request for clarification support for structural items; 3. Material submittal and shop drawing review, and request for information and request for clarification support for non-structural items; 4. SWPPP developm nt and construction general permit compliance; and 5. Geotechnical testing and inspection services. RBI= did not turn in a _proposal for the material submittal and shop drawing review, and request for information and request for clarification support for non-structural items; they responded they were not interested in doing the work, CHJ and Labelle Marvin did not submit proposals for the RFP to provide geotechnical services. All other consultants submitted proposals. Staff reviewed all the proposals with respect to the fallowing criteria: Familiarity with the project work Training, experience, and demonstrated ability of the designated individual, who will be the project manager. Training and experience of the support staff Staff recommences entering into a contract with TVV Niemann, Inc. in the amount of $322,970.00 to perform construction management, RIFF Consulting .in the amount of Agenda Report April 19, 2011 Page 4 $31,310.00 to- perform construction management support in the form of materia[ submittal and shop drawing review, and request for information and request for clarification support for structural related items, Willdan Engineering in the amount of $10,200.00 to perform construction management support in the farm of material submittal and shop drawing review, and request for information and request for clarification support for non-structural items, RBF Consulting in the amount of $35,120.00 to perform SWPPP development and construction general permit compliance, and Smith Emery Laboratories in the amount of $71,994.0.0 to perform geotechnical services for the Del Obispo Street Widening from Alipaz Street to Paseo Adelanto. FINANCIAL CONSIDERATIONS The project has an available construction budget of $6,289,463.20 in account 50-83399- 67401-07107-000. The City has secured $3,739,605.00 in federal grant funds for construction and contingencies. The federal grant requires the City to match funds an .equal amount as the grant pays out. The City will pay for construction management services out of City matching funds. Utility undergrounding of overhead utilities needs to be paid for out of local funds. The utility undergrounding portion of the project is planned to be paid with funds from CRA GIP No. 09910, which has a budget of $722.000.00. NOTIFICATION TWNiemann, Inc. RBI= Consulting Willdan Engineering PBS&d Advanced Civil Group Hall & Foreman Smith Emery Laboratories Ninyo & Moore Leighton Consulting, Inc. Agenda Report Page 5 By motion, approve Personal Service Agreements for: April 19, 2011 1 W. Ni rh nn, Inc i fh&amount cif .$322,970.00 to perform construction management, and authorize the City Manager to execute the agreement; and, 2) RBF Consulting in the amount of $31,310.00 to perform construction management support in the form of material submittal and shop drawing review, and request for information and request for clarification support for structural related items, and authorize the City Manager to execute the agreement; and, 3.) Willdan Engineering in the amount of $10,200.00 to perform construction management support in the form of material submittal and shop drawing review, and request for information and request for clarification support for non-structural items, and authorize the City Manager to execute the agreement; and, 4.) RBF Consulting in the amount of $34,020,00 to perform SWPPP Development and Construction General Permit Compliance, and authorize the City Manager to execute the agreement; and, 5.) Smith Emery Laboratories in the amount of $71,914.010 to perform geotechnical services, and authorize the City Manager to execute the agreement for the Del Obispo Street Widening from Alipaz Street to Paseo Adelanto. Respectfully submitted, Nasser Abbaszadeh, PE Public Works Director Prepared by, f Nisha A. Patel, PE Associate Engineer Attachments: 1. Personal Service Agreement- TWNiemann, Inc. 2. Personal Service Agreement- RBF Consulting 3. Personal Service Agreement- Wilidan Engineering 4. Personal Service Agreement- RBF Consulting 5. Personal Service Agreement- Smith Emery Laboratories PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this day of , 2011, by and between the San Juan Capistrano (hereinafter referred to as the "City") and TWNiemann, Inca (hereinafter referred to as the "Consultant"). RECITALS; WHEREAS, City desires to retain the services of Consultant regarding the City's proposal to provide construction management services for the Del Obispo Street Widening from Alipaz Street to Paseo Adelanto Project STPI_ 5372 (011) (CIP 07117); and WHEREAS, Consultant is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Consultant mutually agree as follows: Section 1. Scope of Work, The scope of work to be performed by the 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 previsions in this Agreement shall control. Section 2. Term. This Agreement shall commence on the effective date and shall terminate, and all services required hereunder shall be completed, no later than May 1, 2012. Section 3. Compensation. 3.1 Amount. Total compensation for the services hereunder shall not exceed Three Hundred Twenty Two Thousand Nine Hundred and Seventy Dollars ($322,970.00) as set forth in Exhibit "B," attached and incorporated herein by reference. 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. ATTACHMENT 1 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 the City. Invoices shall be addressed as provided for in Section 16 below. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor and not an agent or employee of the City, and shall obtain no rights to any benefits which accrue to Agency's employees. Section 5. Limitations Upon Subcontracting -and Assi nment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the 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 the 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. F4miliari with Work andlor Construction Site. Byexecuting this Agreement, Consultant warrants that: (1) it has investigated the work to be performed, (2) if applicable, it has investigated the work sites), 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 y 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 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 sof hiring a new employee to perform work ander this Agreement. Information pertaining to the E -Verify program can be found at Mtn://www.usci's.go , or access the registration page at https://e-vert.uscis.gMoy/enroll/. 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. 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. 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 duo 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 p6licies 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 Guice Rating of A- Class Vll 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 n 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 terra 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 goof 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 Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 5 14.7 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.8 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a Written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 15. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Consultant. In addition, this agreement may be terminated by any party for cause by providing ten (1.0) 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: Nisha Patel, P.E. To Consultant: TWNiemann, Inc. 124 Avenida San Diego San Clemente, CA 92672 Attn: Todd Niemann, CCM Section 17. Attorneys' Pees. 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. RM 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: Maria Morris, City Clerk APPROVED AS TO FORM - r Omar Sandoval, City Attorney CITY OF SAN JUAN CAPISTRANO By: Dave Adams, Interim City Manager CONSULTANT M 19 Todd Niemann, President TWNiemann, Inc, Due to .`largeexhibitsv. A agreement are available the .City Clerk's office. PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this day of , 2011, by and between the San Juan Capistrano (hereinafter referred to as the "City") and RBF Consulting (hereinafter referred to as the "Consultant"Y RECITALS: WHEREAS, City desires to retain the services of Consultant regarding the City's proposal to provide Construction Management Support for Structural Items in the form of Materials Submittal and Shop Drawing Review, and Request for Information and Request for Clarification Support for the Del Obispo Street Widening from Alipaz Street to Paseo Adelanto Project STPL 5372 (011) (CIP 07107); and WHEREAS, Consultant is qualified by virtue of experience, training, education and expertise to accomplish such services. t NOW, THEREFORE, City 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 and shall terminate, and all services required hereunder shall be completed, no later than May 1, 2012, Section 3. Compensation, 3.1 Amount. Total compensation for the services hereunder shall not exceed Thirty One Thousand Three Hundred and Ten Dollars ($31,310.00) as set forth in Exhibit "C," attached and incorporated herein by reference. 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 ATTACHMENT 2 will pay monthly progress payments based on approved invoices in accordance with this Section. 3.3 Records of Expenses. Consultant shall beep 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 the City. Invoices shall be addressed as provided for in Section► 16 below. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor and not an agent or employee of the City, and shall obtain no rights to any benefits which accrue to Agency's employees. Section 5. Limitations U12on Subcontracting and Assi nment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the 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 the 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_ . Chimes 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 2 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 Lave, E -Verify. 9.1. Compliance with Law. Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. 912. 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:/Iwww.uscis.goy, or access the registration page at https:Ile-verifv,uscis.govlenroll/. 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. 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. Indernnity. 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 anyway 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 farms 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 Vll 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 0 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,O00,000.00), 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 rewired by state law. 14.4 Proof of Insurance RequirementstEndorsomen't. 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 ($1,000,100). 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 Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. on 14.7 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.8 Notice to proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 15. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Consultant. 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 ether 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. Nisha Patel, P.E. To Consultant: RBF Consulting 14725 Alton Parkway Irvine, CA 92618 Attn: Sal Sheikh, P.E. 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 ether relief to which he may be entitled. 6 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. Enfire 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.partles hereto have executed this Agreement. ATTEST: Maria Morris, City Clerk APPROVED AS TO FORM: Omar S6ndo�al.'city Attorn , ey CITY OF SAN JUAN CAPISTRANO -2 Dave Adams, Interim City Manager CONSULTANT M1 7 Due to the large size, the exhibits to the agreement a the city Clerk's office. PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this day of , 2011, by and between the San Juan Capistrano (hereinafter referred to as the "City") and VVilldan Engineering (hereinafter referred to as the "Consultant"). RECITALS: WHEREAS, City desires to retain the services of Consultant regarding the City's proposal to provide Construction Management Support for Non -Structural Items in the form of Materials Submittal and Shop Drawing Review, and Request for Information and Request for Clarification Support for the Del Obispo Street Widening from Alipaz Street to Paseo Adelanto Project STPL 5372 (011) (CIP 07107); and WHEREAS, Consultant is qualified by virtue of experience, training, education, and expertise to accomplish such services. NOW, THEREFORE, City and Consultant mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by the Consultant shall consist of those tasks as set forth in Exhibit "k.' 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 and shall terminate, and all services required hereunder shall be completed, no later than May 1, 2012. Section 3, Compensation. 3.1 Amount. Total compensation for the services hereunder shall not exceed Ten Thousand Two Hundred Dollars ($10,200.00) as set forth in Exhibit "B," attached and incorporated herein by reference. 3. 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 ATTACHMENT 3 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 the City. Invoices shall be addressed as provided for in Section 16 below. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor and not an agent or employee of the City, and shall obtain no rights to any benefits which accrue to Agency's employees. Section 5. Limitations Upon Su bcontracting and Assi nment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the 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 pari of this Agreement by City, Consultant shall be responsible to the 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. Familiart 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 FA under this Agreement until written instructions are received from the City. Section S. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law; E -Veru. 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:/1vrww.uscis._gov, or access the registration page at lutes.//e-verify,uscis.gov/enroll/. 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 'I I. 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 nates 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. 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. lndem i . 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 anyway 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 asa limitation upon the amount of indemnification to be provided by Consultant. Section 14. Insurance. Can 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 goad 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 0 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 rriillion 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 1~ iequirementsiEndorsement. 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 awned, 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 Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium, on 14..7 Teras of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.8 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 15. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (30) days` advance written notice of termination to Consultant. In addition, this Agreement may be terminated by any party for cause by providing ten (10) Mays' notice to the ether 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 15. Notice. All notices shall be personally delivered or mailed to the below listed addresses, or to such ether 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 .Duan Capistrano, CA 02675 Attn: Nisha Patel, P.E. To Consultant: Willdan Engineering 2401 East Katella Avenue Suite 450 Anaheim, CA 92806 Attw Ken Taylor, P.E. Section 17. Attorneys" Pees. 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. A 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: Maria Morris, City Clerk APPROVED AS TO FORM: Omar Sand6val, City Aiio-rney I CITY OF SAN JUAN CAPISTRANO M - Dave Adams, Interim City Manager R012IN01-1111F.Alm 7 #ue to the large size, the exhibits to the agreement are available for revi ew in the City Clerk's office. PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this day of , 2011, by and between the San Juan Capistrano (hereinafter referred to as the „City") and RBE Consulting (hereinafter referred to as the "Consultant"). RECITALS: WHEREAS, City desires to retain the services of Consultant regarding the City's proposal to provide SWPPP Development and Construction General Permit Compliance for the Del Obispo Street Widening from Alipaz Street to Paseo Adelanto Project STPL 5372 (011) (ClP 07107); 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. Scopeork. 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 previsions described in Exhibit "A" and those previsions contained within this Agreement, the provisions in this Agreement shall control. Section 2. Term. This Agreement shall commence on the effective date and shall terminate, and all services required hereunder shall be completed, no later than May 1, 2012. Section 3. Compensation. 3.1 Amount Total compensation for the services hereunder shall not exceed Thirty Five Thousand One Hundred and Twenty {$34,020.00} as set forth in Exhibit "B, attached and incorporated herein by reference. ATTACHMENT 4 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. 3.3 . records of Expenses. Consultant shall keep complete and accurate records of all casts and expenses incidental to services covered by this Agreement. These records will be made available at reasonable times to the City. Invoices shall be addressed as provided for in Section 16 below. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor and not an agent or employee of the City, and shall obtain no rights to any benefits which accrue to Agency's employees. Section 6. Limitations Upon Subcontracting and Assi nment. The experience, Knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to eater 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 the 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 wilt 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 1. familiarity with dark 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 y 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. Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law;E-Verif . 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,usci's.gov, or access the registration page at https:lie-verify.uscis-gov/enroll/. 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 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. Sectiia_n_ _3. lndernni . 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 Vll or better. 14.'1 Comprehensive General Liability. Throughout the terra 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 Cl 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 farce and effect Comprehensive Automobile Liability coverage, including owned, Fired 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 Req irementsiEndorsement. 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 ($1,0.00,000). 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 lationiTermination 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 14.7 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14,8 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 15. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Consultant. 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, thea the agreement may be terminated subsequent to the ten (10) day cure period. Section 16. Notice. All notices shalt 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 Sari Juan Capistrano, CA 92675 Attn: Nisha Patel, P.E. To Consultant: RBF Consulting 1.4725 Alton Parkway Irvine, CA 92618 Attn: Tonya Bilezikjian, P.E., CPESC, CPSWQ, QSD 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 aftornes' fees, costs and necessary disbursements in addition to any ether relief to which he may be entitled. 6 Section 18. Wspute 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: Maria Morris, City Cleric APPROVED AS TO FORD: Omar Sandd,vz 1, City Attorney r CITY OF SAKI JUAN CAPISTRANO Dave Adams, Interim City Manager CONSULTANT M 7 Due to the large size, the exhibits to the a g reement are available for reviewin the City Clerk's office. PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this ____ day of _ _ , 2011, by and between the San .duan Capistrano (hereinafter referred to as the "City") and Smith -Emery Laboratories (hereinafter referred to as the "Consultant"). RECITALS: RECITALS: WHEREAS, City desires to retain the services of Consultant regarding the City's proposal to provide Geotechnical Testing'and inspection Services for the Del Obispo Street Widening from Alipaz Street to Paseo Adelanto Project STPD. 5372 (011) (CIP 07147); 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 9. 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 previsions in this Agreement shall control. Section 2. Teruo. This Agreement shall commence on the effective date and shall terminate, and all services required hereunder shall be completed, no later than May 1, 2012, Section 3. Compensation. 3.1 Amount. Total compensation for the services hereunder shall not exceed Seventy One Thousand Nine Hundred and Fourteen Dollars ($71,914.00) as set forth in Exhibit "B" attached and incorporated herein by reference. 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. ATTACHMENT 5 3.3 records of Expenses. Consultant shall beep 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 the City. Invoices shall be addressed as provided for in Section 16 below. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor and not an agent or employee of the City, and shall obtain no rights to any benefits which accrue to Agency's employees. Section 5. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement. for the 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 the 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. Chances 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 beperformed 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 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 htt�//www.uscis.gov, or access the registration page athftps-,//p-verify.uscis.gov/enroll/. 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. Godes 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. 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 lava, 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 anyway 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 held 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 ofindemnification to be provided by Consultant. Section 14. insurance. 4n or before beginning any of the services or work called for by any tern- 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 1111 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 Is 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 ($1,000,030.00). 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.Consuitant; 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 terra of this Agreement, Consultant shall maintain Errors and Omissions Coverage (professional liability coverage) in an amount of not less than One Million Dollars ($1,O00,000). 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 Cancellation/Termiination 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 14.7 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.6 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 15. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (00) 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 maybe 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: Nisha Patel, P.E. To Consultant: Smith -Emery Laboratories 1195 N. Tustin Avenue Anaheim, CA 92807 Attn; Robert Greeley 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. 0 Section 18. F isl?ute 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 1.9. Entire Apreement. 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: Maria Morris, City Clerk APPROVED AS TO FORM: J 6 Omar Sandov "I, City Attorney CITY OF SAN JUAN CAPISTRANO Dave Adams, Interim City Manager CONSULTANT 7 large size, the exhibits to the agreement are available for review in the City Clerk's office.