Loading...
13-0523_MIG-HOGLE-IRELAND_Agenda Report_D166/18/2013 016 TO: FROM: DATE: June 18, 2013 SUBJECT: Consideration of Approving the First Amendment to the Personal Services Agreement with MIG-Hogle-lreland to Provide Interim Development Services Director Services (MIG-Hogle-lreland) RECOMMENDATION: By motion, approve the First Amendment to the Personal Services Agreement with MIG-Hogle-lreland to provide interim Development Services Director services. EXECUTIVE SUMMARY: The City contracts with MIG-Hogle-lreland for an interim Development Services Director. Staff recommends that the City Council approve an amendment to the Personal Services Agreement by increasing the contract amount by $86,816, for a total cost not toe xceed $131,816. This will allow the City to continue to procure professional consulting services to continue to work on Development Services projects and advise the City on development and planning activities. DISCUSSION/ANALYSIS: The Development Services Director position is vacant; therefore, the City is contracting with MIG-Hogle-lreland to provide the City with an interim Development Services Director. Nelson Miller, who has extensive experience in planning, building, historic preservation, housing and engineering functions has been providing this service since May 23, 2013. Mr. Miller is representing the City on development services matters and advising the City regarding the operations of the Development Services Department. The City will require the services of an interim Development . Ser-Vices Director while it actively recruits to fill the vacant Development Services Director position. Mr. Miller is working full-time, on site Monday through Friday to provide the interim Development Services Director services and attends all City Council, Commission and committee meetings. Staff recommends a First Amendment to the Agreement to City Council Agenda Report June 18, 2013 Page 2 of 2 increase the amount by $86,816, for a total amount not to exceed $131,816. This amount would provide the City interim Development Services Director services through December 31, 2013, if needed. FISCAL IMPACT: Through June 30, 2013, the City will incur $23,816 in costs, towards the current contracted amount of $45,000, for interim Development Services Director services. The recommended First Amendment will increase the Personal Services Agreement amount by $86,816, for a total cost not to exceed $131,816, incurred at a flat rate of $18,000 per full month. The cost to be incurred from July 1, 2013, through December 31, 2013, is $108,000, while the City actively recruits for a Development Services Director. The cost is offset by $119,143 in salary and benefit savings, which is included in the Development Services Department's Fiscal Year 2013/2014 Adopted Budget. ENVIRONMENTAL IMPACT: Not applicable. PRIOR CITY COUNCIL REVIEW: Not applicable. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: Not applicable. NOTIFICATION: M I G-Hogle-1 reland ATTACHMENTS: Attachment 1 -Personal Services Agreement Attachment 2 -First Amendment PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this 23rd day of May 2013, by and between the San Juan Capistrano (hereinafter referred to as the "City") and MIG -Hogle -Ireland (hereinafter referred to as the "Consultant"). RECITALS: WHEREAS, City desires to retain the services of Consultant to perform professional building, planning and development consulting services; 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," attach'ed 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 June 30, 2014. Section 3. Compensation. 3.1 Amount. The City shall compensate Consultant for services provided at a rate equal to $18,000.00 per full month of services provided. Services provided for partial periods will be billed at $4,154.00 per week and $831.00 per day. The rate is for all services provided and shall apply regardless of the number of hours of services actually provided. Total compensation for the services hereunder shall not exceed $45,000.00. 3.2 Method of Payment. Subject to Section 3.1, Consultant shall submit bi-monthly invoices based on total services which have been satisfactorily completed for such period. The City will pay bi-monthly payments based on approved invoices in accordance with this Section. ATIACHMENT1 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 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(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. Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. . Section 1 0. 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. 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 3 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 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. 4 14.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Consultant shall submit the insurance certificates, including the deductible or self-retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insureds as respects each of the following: Liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. 14.5 Errors and Omissions Coverage Throughout the term of this Agreement, Consultant shall maintain Errors and Omissions Coverage (professional liability coverage) in an amount of not less than One J¥1illion 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. 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 5 does not cure the breach of contract, then the agreement may be terminated subsequent to the ten (1 0) 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: To Consultant: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn.: Tom Bokosky Daniel lacofano President MIG-Hogle -Ireland 800 Hearst Avenue Berkeley, CA 94710 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. 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement CITY OF SAN JUAN CAPISTRANO By CJ(YQ11 .,t;_ Karen P. Brust, City Manager CONSULTANT ~!f;,.,.~=n-d-=-~+-~-..::.......!li;\)~QNPA-C..> 7 Exhibit A Scope of Work Consultant shall provide interim Development Services Director assistance during the vacancy of the City's Development Services Director position. There are a number of important Development Services matters the City needs to oversee and the Consultant shall provide leadership and direction as these areas are identified and prioritized. For example, ensuring Development Services projects remain on track to be delivered on time and within budget. · · The Consultant will provide Development Services expertise on key strategic organizational priorities; conduct an organizational assessment to ensure the City is optimizing existing resources to meet current demand. Additionally, he will make recommendations to implement the City Council's urgent strategic priorities related to economic development and a business friendly environment, organization optimization, open space, building a strong financial foundation for the City, implementing the Historic Town Center Master Plan and creating a plan to implement infrastructure improvements 1 that benefit the residents. The Consultant will work under the direction of the City Manager and be available full - time, Monday through Friday and on site to provide interim Development Director services and to attend City Council, Commission and Committee meetings. The Consultant may be off-site three (3) days a month to perform work for other clients or projects. Days not used in one month may be accumulated and used in a subsequent month but this creates no obligation for reimbursement by the City for any unused days. Consultant has agreed to assign Nelson Miller, Principal, for the interim Development Services Director and consulting roles. 8 First Amendment to Personal Services Agreement THIS AMENDMENT to the Personal Services Agreement between the City of San Juan Capistrano ("City") and MIG-Hogle-lreland ("Consultant") is made and entered into, to be effective the 18th day of June, 2013, as follows: RECITALS WHEREAS, City has retained the services of Consultant to provide professional Development Services consulting services pursuant to that Agreement dated as of May 23,2013;and WHEREAS, the City and Consultant desire to amend the terms of the Agreement as provided hereunder. AMENDMENT NOW THEREFORE, in consideration of the promises of mutual covenants contained therein, City and Consultant agree to amend the Agreement between City and Consultant as follows: Section 3. Compensation. Total compensation for the services provided during the term shall not exceed $131,816, payable as set forth in Exhibit "A." All other provisions of the Agreement not amended hereunder shall remain in full force and effect. (SIGNATURE PAGE FOLLOWS) 1 ATTACHMENT 2 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. ATTEST: Maria Morris, City Clerk APPROVED AS TO FORM: Hans Van Ligten, City Attorney 2 CITY OF SAN JUAN CAPISTRANO By: __________________ _ John Taylor, Mayor CONSULTANT By: __________________ _ MIG-Hogle-lreland Exhibit A Budget Consultant will provide interim management services at a flat rate of $18,000 per full month, not to exceed $131,816. 3