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22-0926_HUNSAKER & ASSOCIATES_Letter Agreement1 September 26, 2022 Douglas L. Staley, President Hunsaker & Associates Irvine Inc. 3 Hughes Irvine, CA 92618 Dear Mr. Staley: Letter Agreement for ALTA/NSPS Land Title Survey of City of San Juan Capistrano Property – Assessor’s Parcel 664-971-01, Being Lot A of Tract No. 8485 This letter shall be our Agreement (“Letter Agreement”) regarding the land survey services described below (“Services”) to be provided by Hunsaker & Associates Irvine Inc. (“Consultant”) as an independent contractor to the City of San Juan Capistrano (the “City”). Consultant is expressly retained and at all times shall remain as to City as a wholly independent contractor and not an employee of the City, and neither City nor any of its agents shall have any control over the conduct of Consultant or Consultant’s employees or agents except as provided for in this Letter Agreement. City and Consultant are sometimes referred to herein as “Party” or “Parties.” The Services to be provided are more particularly described in the Consultant’s Proposal and Scope of Services attached hereto as Exhibit “A” and are incorporated herein by reference. The term of this Letter Agreement shall be the one-year term from September 26, 2022] to September 25, 2023. Consultant’s services shall begin immediately and shall be completed within the term of this Letter Agreement unless extended by the City in writing. Consultant shall perform all Services under this Letter Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California, and consistent with all applicable laws. Consultant represents that it, its employees, and its subcontractors have all licenses, permits, qualifications, and approvals of whatever nature that are legally required to perform the Services, including any required business license, and that such licenses and approvals shall be maintained throughout the term of this Letter Agreement. Consultant has represented to the City that certain key personnel will perform and coordinate the Services under this Letter Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of equal competence upon written approval of the City. In the event that the City and Consultant cannot agree as to the substitution of key personnel, then the City shall be entitled to terminate this Letter Agreement for cause. The key personnel for performance of this Letter Agreement are as follows: Robert Wheeler and Jason Kinnie. Compensation shall be based on the actual amount of time spent in adequately performing the Services and shall be billed at the hourly rate(s) described in the Consultant’s rate sheet attached hereto as Exhibit “B” and incorporated herein by reference. The total compensation shall not exceed $44,500 without written approval of the City Manager or Assistant City Manager. Consultant’s invoices shall include a detailed description of the Services performed. Invoices shall be submitted to the City on a monthly basis as performance of the Services progresses. The City Hunsaker & Associates Irvine Inc. September 26, 2022 Page 2 of 6 2 shall review and pay the approved charges on such invoices in a timely manner. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. If the Services are being performed aspartofanapplicable“publicworks”or“maintenance”project asdefinedbythePrevailingWage Laws, and since the total compensation is $1,000 or more, then Consultant agrees to fully comply with such Prevailing Wage Laws, if applicable. Consultant shall defend, indemnify, and hold the City, its officials, officers, employees, and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Consultant shall provide proof of the following insurance: A.Commercial General Liability Insurance, of at least $2,000,000 per occurrence/$3,000,000 aggregate for bodily injury, personal injury, and property damage, at least as broad as Insurance Services Office Commercial General Liability most recent Occurrence Form CG 00 01; B. Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, of at least $1,000,000 per occurrence for bodily injury and property damage, at least as broad as most recent Insurance Services Office Form Number CA 00 01 covering automobile liability, Code 1 (any auto); C.Workers’ Compensation in compliance with applicable statutory requirements and Employer's Liability Coverage of at least $1,000,000 per occurrence, with waiver of subrogation; and D. Consultants providing professional services shall provide Professional Liability (Errors and Omissions) Insurance of at least $1,000,000. Insurance carriers shall be licensed to do business in California and maintain an agent for process within the state. Such insurance carrier shall have not less than an "A-:VII" rating according to the latest Best Key Rating unless otherwise approved by the City. The City, its officials, officers, employees, agents and authorized volunteers shall be named as Additional Insureds on Consultant’s policies of Commercial General Liability and Automobile Liability insurance and such coverage provided to the City as an Additional Insured shall apply on a primary and non-contributory basis. Waiver of subrogation endorsements in favor of the City shall be provided on Consultant’s policies of Commercial General Liability, Automobile Liability andWorkers’ Compensation/Employer’s Liability insurance. The City may terminate this Letter Agreement at any time with or without cause. If the City finds it necessary to terminate this Letter Agreement without cause before completion of Consultant’s services, then Consultant shall be entitled to be paid in full for those Services adequately completed prior to the notification of termination. Consultant may terminate this Letter Agreement only upon 30 calendar days’ written notice to the City only in the event of City’s failure to perform in accordance with the terms of this Letter Agreement through no fault of Consultant. To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and Hunsaker & Associates Irvine Inc. September 26, 2022 Page 3 of 6 3 harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services or this Letter Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance of “design professional”services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liabilityfor suchclaim, includingthe cost to defend, shall not exceedtheConsultant’s proportionate percentage of fault. This Paragraph shall survive termination of this Letter Agreement. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of Consultant’s services, including all Cal/OSHA requirements; all emissions limits and permitting requirements imposed by the California Air Resources Board (CARB) or other governmental agencies; and all water quality laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the City. By executing this Letter Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Consultant shall maintain records of its compliance, including its verification of each employee, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Consultant’s compliance with the requirements. To the same extent and under the same conditions as Consultant, Consultant shall require all of its subcontractors, sub- subcontractors and consultants performing any work relating to Consultant’s services or this Letter Agreement to make the same verifications and comply with all requirements and restrictions provided herein. Consultant's failure to comply or any material misrepresentations or omissions relating thereto shall be grounds for terminating this Letter Agreement for cause. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code and agrees to comply with such provisions before commencing the performance of the Services. Finally, Consultant represents that it is an equal opportunity employer, and it shall not Hunsaker & Associates Irvine Inc. September 26, 2022 Page 4 of 6 4 discriminate against any subcontractor, employee, or applicant for employment in violation of state or federal law. As provided for in the indemnity obligations of this Letter Agreement, Consultant shall indemnify City against any alleged violations of this paragraph, including, but not limited to, any fines or penalties imposed by any governmental agency. This Letter Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Letter Agreement, then the action shall be brought in a state or federal court situated in Orange County, State of California. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims, and any subsequent lawsuit based upon the Government Code claims, shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, then Consultant shall be barred from bringing and maintaining a valid lawsuit against the City. Consultant shall not assign, sublet, or transfer this Letter Agreement or any rights under or interest in this Letter Agreement without the written consent of the City, which may be withheld for any reason. This Letter Agreement may not be modified or altered except in writing signed by both parties. Except to the extent expressly provided for in the termination paragraph, there are no intended third-party beneficiaries of any right or obligation of the Parties. By its signature, Consultant confirms that it has no financial, contractual or other interest or obligation that conflicts with or is harmful to performance of its obligation under this Letter Agreement. Consultant shall further not knowingly obtain, during the term of this Letter Agreement, such an interest or incur such an obligation, nor shall it employ or subcontract with any person for performance of this Letter Agreement who has such incompatible interest or obligation. Waiver of a breach or default under this Letter Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this agreement. Payment of any invoice by the City shall not constitute a waiver of the City’s right to obtain correction or replacement of any defective or noncompliant work product. Consultant shall maintain accounts and records, including personnel, property, and financial records, adequate to identify and account for all costs pertaining to this Agreement and such other records as may be deemed necessary by the City or any authorized representative. All records shall be made available at the request of the City, with reasonable notice, during regular business hours, and shall be retained by Consultant for a period of three (3) years after the expiration of this Agreement. Hunsaker & Associates Irvine Inc. September 26, 2022 Page 5 of 6 5 It is understood and agreed that the City shall own all documents and other work product that the Consultant developed for the Services in Exhibit A, except the Consultant’s notes, which pertain to the work performed under this Agreement. The City shall have the sole right to use such materials in its discretion and without further compensation to the Consultant, but any re-use of such documents by the City on any other project without prior written consent of the Consultant shall be at the sole risk of the City. Consultant shall at its sole expense provide all such documents to the City upon request. This is an integrated Letter Agreement representing the entire understanding of the parties as to those matters contained herein and supersedes and cancels any prior oral or written understanding or representations with respect to matters covered hereunder. Since the Parties or their agents have participated fully in the preparation of this Letter Agreement, the language of this Letter Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. The captions of the various paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Letter Agreement. Consultant warrants that the individual who has signed this Letter Agreement has the legal power, right and authority to make this Letter Agreement and bind the Consultant hereto. If you agree with the terms of this Letter Agreement, then please indicate by signing and dating where indicated below. Hunsaker & Associates Irvine Inc. SeptemberSeptember 2626, 20222022 Page 6 of 6 6 CITY OF SAN JUAN CAPISTRANO By: Benjamin Siegel, City Manager Date Attested: Maria Morris, City Clerk APPROVED AS TO FORM: Jeffrey S. Ballinger City Attorney HUNSAKER & ASSOCIATES IRVINE INC. By: Douglas L. Staley, President October 3, 2022 Date October 10, 2022