12-1022_GLENN LUKOS & ASSOCIATES_Personal Services AgreementPERSONAL SERVICES AGREEMENT
THIS AGREEMENT is made, entered into, and shall become effective this aX4ay
of October, 2012, by and between the City of San Juan Capistrano (hereinafter referred
to as the "City") and Glenn Lukos Associates, (hereinafter referred to as the "Consultant').
RECITALS:
WHEREAS, City desires to retain the services of Consultant regarding the City's
proposal to conduct biological monitoring for the repair/reconstruction of an Arizona
crossing of San Juan Creek (downstream of the Ortega Highway Bridge); 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
set forth in Exhibit "A" attached and incorporated herein by reference.
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 90 calendar days.
Section 3. Compensation.
3.1 Amount.
Total compensation for the services hereunder shall not exceed $13,870, 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 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. Changes to Scope of Work.
For extra work not part of this Agreement, a written authorization from City is
required prior to Consultant undertaking any extra work. In the event of a change in the
Scope of Work provided for in the contract documents as requested by the City, the Parties
hereto shall execute an addendum to this Agreement setting forth with particularity all
terms of the new agreement, including but not limited to any additional Consultant's fees.
Section 7. Familiarity with Work and/or Construction Site.
By executing this Agreement, Consultant warrants that: (1) it has investigated the
work to be performed; (2) if applicable, it has investigated the work site($), 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.
Section 8. Time of Essence.
Time is of the essence in the performance of this Agreement.
Section 9. Compliance with Law.
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Consultant shall comply with all applicable laws, ordinances, codes and regulations
of federal, state and local government.
Section 10. Conflicts of Interest.
Consultant covenants that it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the
performance of the services contemplated by this Agreement. No person having such
interest shall be employed by or associated with Consultant.
Section 11. Conies 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.
Section 12. Ownership of Documents.
All reports, information, data and exhibits prepared or assembled by Consultant in
connection with the performance of its services pursuant to this Agreement are confidential
to the extent permitted by law, and Consultant agrees that they shall not be made available
to any individual or organization without prior written consent of the City. All such reports,
information, data, and exhibits shall be the property of the City and shall be delivered to the
City upon demand without additional costs or expense to the City. The City acknowledges
such documents are instruments of Consultant's professional services.
Section 13. Indemnity.
To the fullest extent permitted by law, Consultant agrees to protect, defend, and
hold harmless the City and its elective and appointive boards, officers, agents, and
employees from any and all claims, liabilities, expenses, or damages of any nature,
including attorneys' fees, for injury or death of any person, or damages of any nature,
including interference with use of property, arising out of, or in any way connected with the
negligence, recklessness and/or intentional wrongful conduct of Consultant, Consultant's
agents, officers, employees, subcontractors, or independent contractors hired by
Consultant in the performance of the Agreement. The only exception to Consultant's
responsibility to protect, defend, and hold harmless the City, is due to the negligence,
recklessness and/or wrongful conduct of the City, or any of its elective or appointive
boards, officers, agents, or employees.
This hold harmless agreement shall apply to all liability regardless of whether any
insurance policies are applicable. The policy limits do not act as a limitation upon the
amount of indemnification to be provided by Consultant.
Section 14. Insurance.
On or before beginning any of the services or work called for by any term of this
Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration
of the agreement, and provide proof thereof that is acceptable to the City, the insurance
specified below with insurers and under forms of insurance satisfactory in all respects to
the City. Consultant shall not allow any subcontractor to commence work on any
subcontract until all insurance required of the Consultant has also been obtained for the
subcontractor. Insurance required herein shall be provided by Insurers in good standing
with the State of California and having a minimum Best's Guide Rating of A- Class VII or
better.
14.1 Comprehensive General Liability.
Throughout the term of this Agreement, Consultant shall maintain in full force
and effect Comprehensive General Liability coverage in an amount not less than one
million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks
associated with the work contemplated by this agreement. If a Commercial General
Liability Insurance form or other form with a general aggregate limit is used, either the
general aggregate limit shall apply separately to the work to be performed under this
agreement or the general aggregate limit shall be at least twice the required occurrence
limit.
14.2 Comprehensive Automobile Liability.
Throughout the term of this Agreement, Consultant shall maintain in full force
and effect Comprehensive Automobile Liability coverage, including owned, hired and non -
owned vehicles in an amount not less than one million dollars per occurrence
($1,000,000.00).
14.3 Workers' Compensation.
If Consultant intends to employ employees to perform services under this
Agreement, Consultant shall obtain and maintain, during the term of this Agreement,
Workers' 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 insured 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
CI
by Consultant. The coverage shall contain no special limitations on the scope of protection
afforded City, its officers, employees, agents, or volunteers.
14.5 Omitted.
14.6 Notice of Cancellation/TermMation 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.
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 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: Keith Van Der Maaten
To Consultant: Glenn Lukos and Associates
29 Orchard
Lake Forest, Ca. 92630-9300
Attn: Glenn Lukos
Section 17. Attorneys' Fees.
If any action at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which he may be entitled.
Section 18. Dispute Resolution.
In the event of a dispute arising between the parties regarding performance or
interpretation of this Agreement, the dispute shall be resolved by binding arbitration under
the auspices of the Judicial Arbitration and Mediation Service ("JAMS").
Section 19. Entire 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.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
Cl Y O SAN J N CAP TRANO
r
ren P. Brust, Cl y Manager
CONSULTANT
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CITY OF SAN JUAN CAPISTRANO
By:
Karen P. Brust, City Manager
CONSULTANT
By:
GdehM
ATTEST:
APPROVED AS TO FORM:
Hans Van Ligten, City Attorney
SCOPE OF WORK
BIOLOGICAL SERVICES
AT ARIZONA CROSSING DOWNSTREAM OF ORTEGA HIGHWAY BRIDGE
SAN JUAN CAPISTRANO, ORANGE COUNTY, CALIFORNIA
TASK I. REVIEW EXISTING INFORMATION/COORDINATION
GLA will review all existing information including the CDFG Streambed Alteration Agreement
provided by the Client (Mr. West Curry of the City of San Juan Capistrano). GLA will coordinate
with the Client regarding and CDFG personnel including the Fisheries Regional Fisheries
Coordinator to coordinate regarding the arroyo chub mitigation plan and proposed project
implementation. GLA will review methodologies and equipment to best exclude and protect arroyo
chub during proposed construction activities. GLA will participate in one conference call with the
City of San Juan Capistrano and CDFG to discuss the proposed project and arroyo chub avoidance
plan.
TASK II. CONDUCT BIOLOGICAL MONITORING
A GLA biologist will conduct biological monitoring during the Arizona crossing repair work.
Specifically, a qualified GLA biologist will be on site during all phases of construction that could
impact biological resources including the arroyo chub.
GLA will install and utilize a combination of fish screens and associated material, seine and dip
nets as outlined in the arroyo chub avoidance plan and/or agreed to by CDFG personnel to insure
arroyo chub are not harmed during construction activities.' Biological monitoring is proposed for
three days only. The biologist will have to install and remove fish exclusion barriers prior to and
after each work day.
OPTIONAL TASKS
TASK III. PREPARE ARROYO CHUB AVOIDANCE PLAN
Per Condition 2.6 of the Streambed Alteration Agreement No. 1600-2012-0116-R5, "the permittee
shall submit an Arroyo Chub Avoidance Plan to avoid negatively influencing arroyo chub. The plan
shall include pre -construction and ongoing construction techniques that will be initiated for the
protection of the species. The plan shall also describe how this project will not be a long-term
impediment to the migration and survival of the species".
' If CDFG requires nets with specifications that would exclude GLA's existing nets (e.g., a different mesh size), then
GLA may have to request a change order to fulfill these requirements.
EXHIBIT A
TASK IV HABITAT MITIGATION AND MONITORING PLAN ASSISTANCE
GLA understands that the City of San Juan Capistrano is preparing per Condition 4.5 of the
Streambed Alteration Agreement, the Habitat Mitigation and Monitoring Plan (HMMP). In order to
assist in the preparation of the HMMP, GLA habitat restoration specialist will coordinate with the
City of San Juan Capistrano (City) about strategies to incorporate into the HMMP (including
amando removal, mitigation planting, success criteria and reporting requirements) and will meet
one time with a representative of the City at the proposed mitigation site. GLA will also prepare
recommendations for the City to incorporate in the HMMP.
TASK V PRE -PROJECT SITE MEETING WITH CDFG (IF REQUESTED)
If requested by CDFG, GLA will meet with a CDFG representative to conduct a pre -project site
meeting to discuss the proposed project and proposed arroyo chub avoidance measures.
GLA's direct expenses shall be those costs incurred directly for the CLIENT's project, including,
but not limited to, necessary transportation costs including mileage by automobile at the current rate
allowed by IRS, meals and lodging, laboratory tests and analyses, retention and management of
technical consultants, printing, and binding charges. Reimbursement for these expenses shall be on
the basis of actual charges when furnished by GLA. An administrative charge of 15% shall be
applied to all direct expense charges.
TASK
TOTAL COSTS
I. Review Existing Infonnation/Coorda=ion
$2,270
II. Conduct Biological Moritoring
$6,560
TOTAL
$510
OMONAL TASK
TOTAL COSTS
III. Prepare Arroyo Chub Avoidance Plan
$2,770
IV. Provide Technical Avsstancewit HNINT
$1,760
v. Site Meeting with CDFG
$510
TOTAL
S,1k10
EXHIBIT B
Today's Date:
CONTRACT TRANSMITTAL
Transmittal Routing
(Check All That Apply)
City Attorney
❑ City Manager
❑ City Clerk
COUNCIL MEETING DATE (if applicable):
Project Manager's Last Name: Phone Extension:
�b
CIP No. (if any): N
APPROVING AUTHORITY: (Check One)
❑ Mayor
❑ CRA Chair
City Manager
Provide (1) executed original contract for each signing party, including the City. If the agreement is to be
recorded — only (1) original will be recorded with certified copies going to other parties.
Please provide the mailing address of any party to receive an agreement — unless the mailing address is
included within the body of the agreement:
Names Street City St I Zi
OTHER INSTRUCTIONS:
Form Date: 01-2004 D-7
Christy Jakl
From:
Christy Jakl
Sent:
Monday, October 22, 2012 10:26 AM
To:
West Curry
Cc:
Justin Kirk
Subject:
Glenn Lukos PSA
Attachments:
Glenn Lukos and Associates.pdf
Good Morning,
Attached is the PSA with Glenn Lukos for the Arizona Crossing.
Thanks!
Cht-ist-� Jakl
Deputy City Clerk
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
(949) 443-6310 1 (949) 493-1053 fax
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