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23-0801_ENVIRONMENTAL COMPLIANCE INSPECTION SERVICES_E16_Agenda ReportCity of San Juan Capistrano Agenda Report TO: Honorable Mayor and Members of the City Council FROM: Benjamin Siegel, City Manager SUBMITTED BY: Thomas Toman, Public Works Director PREPARED BY: Joe Parco, City Engineer Noreen Swiontek, Environmental Programs Analyst DATE: August 1, 2023 SUBJECT: Professional Services Agreements for NPDES Consulting Services (Environmental Compliance Inspection Services, and WSP USA); and, Finding Said Actions Categorically Exempt from the California Environmental Quality Act (CEQA) Section 15061(b)(3). RECOMMENDATION: 1. Approve and authorize the City Manager to execute Professional Services Agreements with Environmental Compliance Inspection Services (ECIS) and WSP USA Environment Infrastructure, Inc. (WSP USA) to provide NPDES Program Compliance Services for a three-year term for a total annual combined program amount not to exceed $104,000; 2.Authorize the City Manager to approve two additional one-year agreement extensions based upon consultant performance and by mutual agreement at rate increases not to exceed 5% per year; and, 3.Find that the proposed action is exempt from the California Environmental Quality Act (CEQA) pursuant to the commonsense exemption under State CEQA Guidelines, section 15061(b)(3). EXECUTIVE SUMMARY: On May 2, 2023, the Public Works Department solicited a request for proposals (RFP) for support services required to comply with the City’s National Pollutant Discharge Elimination System (NPDES) Permit. The proposal was divided into eight primary service tasks and two optional service tasks. Due to the diversity of tasks associated with the 8/1/2023 E16 City Council Agenda Report August 1, 2023 Page 2 of 5 proposal, consultants were allowed the opportunity to submit a proposal for all tasks, or only tasks the firm specialized in. Based on staff review of the four proposals received, staff is recommending that the City Council award the professional services agreements (PSA) to two separate consultants: for construction, commercial and industrial inspections to ECIS (tasks iv & v); and, the remaining tasks to WSP USA. ECIS and WSP USA proposals were ranked highest overall (for their respective tasks) as the proposals met all requirements and objectives specified in the RFP. The proposed Professional Services Agreements are included as Attachments 1 and 2. DISCUSSION/ANALYSIS: As authorized by the Clean Water Act of 1972, the National Pollutant Discharge Elimination System (NPDES) permit program controls water pollution by monitoring, permitting and reporting discharge pollutants that may impact our oceans, rivers, streams, and municipal drainage systems. Locally, the City of San Juan Capistrano manages a regulatory compliance program in response to the NPDES permit requirements issued by the San Diego Regional Water Quality Control Board (Regional Board). As required by the City’s NPDES permit, the City must report annually to the Regional Board on all activities related to NPDES construction, commercial and industrial inspections, new development and significant redevelopments to ensure storm water quality compliance. Illegal discharges, illicit connections, and fertilizer/pesticide usage must also be reported. The City’s Local Implementation Plan, also known as the Jurisdictional Runoff Management Plan (JRMP), includes programs conducted by the City to address stormwater quality water issues. The activities required by the JRMP must be reported to the Board annually. The JRMP contains required activities related to municipal fixed facilities, field programs and drainage facilities which includes: educational programs conducted by the City in order to educate various public and business audiences; best management practices for construction and development projects including Water Quality Management Plans and Storm Water Pollution Prevention Plans; elements for controlling storm water pollution from residents and businesses; and, implementing the water quality monitoring programs. The program implementation and diverse technical requirements of the NPDES regulations has created a need for qualified outside contracted services to assist City staff to ensure the fulfillment of its permit obligations as outlined by the Clean Water Act and the Regional Board. The Public Works Department currently does not have the existing staffing resources available to fulfill the technical requirements of the NPDES regulations. Contracted specialty services will help to ensure that the City continues to comply with the requirements of the NPDES regulations adopted by the Regional Board. An RFP for NPDES program compliance services was issued on May 2, 2023. On May 23, 2023, the City received four proposals from engineering and environmental firms with separate, sealed fee proposal envelopes. Public Works Department staff has evaluated all the proposals and ranked each proposal based on the following criteria: firm qualifications, experience, understanding of the project, project approach, proposed staff City Council Agenda Report August 1, 2023 Page 3 of 5 qualifications, and references. The RFP allowed consultants, based on their specialized expertise, to provide all, any, or a combination of the following as-needed services: I. Program Management II. WQMP Plan Check Support and Technical Guidance III. WQMP Existing Properties Self-Verification Assistance IV. Commercial and Industrial Inspections and Database Support V. Construction Inspections and Management VI. Annual Report Preparation and Program Effectiveness Assessment VII. Orange County Stormwater Tools and Program Plan/Manual Updates VIII. Public Education and Outreach IX. Illegal Discharge and Illicit Connection Prevention X. Miscellaneous Support Services Upon review of the proposals, all were found to be qualified and responsive to the RFP. However, the review committee reached consensus regarding the top ranked firms based on the previously mentioned criteria and their ability to identify key issues and challenges, while outlining possible solutions in the proposal. The last RFP for NPDES program compliance services was conducted in December 2015. Amec Foster Wheeler Environment and Infrastructure, Inc., now WSP USA Environment & Infrastructure Inc., was awarded the 2015 contract and has been providing the City with water quality and NPDES services since that time. WSP USA has assisted the City to remain in conformance with the permit criteria and has worked successfully with staff to implement the Local Implementation Plan. Their past participation and extensive knowledge of the City’s program would be a critical resource to further assist the City in performing engineering and environmental services, coordinating the NPDES program with the other City departments involved, as well as directly assisting with completing several of the City’s regulatory requirements. Additionally, ECIS has previous experience (12 years) with the City in terms of water quality and Fats, Oils and Grease (FOG) program inspections, prior to the City’s water and sanitary sewer annexation with the Santa Margarita Water District. ECIS has a track record of high-quality performance in the city, has expertise with respect to City standards and requirements, and has a familiarity with business establishments and the unique features of service areas within the city. Both WSP USA and ECIS ware ranked highest (for the respective tasks) based on their qualifications and extensive experience with storm water quality compliance programs. In addition to ranking highest with respect to their RFP submittal, WSP has offered a reduction in their original fee of $20,986. As a result of the negotiated amount their revised annual total contract amounts to $83,980. City Council Agenda Report August 1, 2023 Page 4 of 5 The four RFP consultant proposals and their corresponding task-item fees are shown below: Consultant Name Annual Fee ** WSP USA $104,966* ** Michael Baker International $55,026 ** Charles Abbott, Inc. $84,235 ***ECIS $20,000 * (WSP USA revised fee to $83,980) ** (RFP Task Items i, ii, iii, vi, vii, viii, ix, x only) *** (RFP Inspections Task Items iv, v, x only) FISCAL IMPACT: There are sufficient funds in the Fiscal Year 2023-2024 Public Works Operating Budget to cover the costs of the proposed services. ENVIRONMENTAL IMPACT: In accordance with the California Environmental Quality Act (CEQA), the recommended actions are exempt from CEQA per Section 15061(b)(3), which is the commonsense exemption that the CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. PRIOR CITY COUNCIL REVIEW: On December 1, 2015, the City Council approved a Professional Services Agreement to perform as-needed professional services for environmental and storm water quality Compliance program to Amec Foster Wheeler Environment and Infrastructure, Inc. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: This item does not require commission, committee, or board review. NOTIFICATIONS: WSP USA Environment & Infrastructure Inc. Environmental Compliance Inspection Services (ECIS) Charles Abbott Associates, Inc. Michael Baker International City Council Agenda Report August 1, 2023 Page 5 of 5 ATTACHMENTS: Attachment 1: Proposed Professional Services Agreement ECIS Attachment 2: Proposed Professional Services Agreement WSP USA CITY OF SAN JUAN CAPISTRANO PROFESSIONAL SERVICES AGREEMENT This Agreement is made and entered into as of August 2, 2023, by and between the City of San Juan Capistrano, a public agency organized and operating under the laws of the State of California with its principal place of business at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675 (“City”), and Environmental Compliance Inspection Services, a Sole Proprietorship, (“Consultant”) with its principal place of business at 33322 Marina Vista Drive, Dana Point, CA 92629 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement. RECITALS A.City is a public agency of the State of California and is in need of professional services for the following project: “NPDES PROGRAM COMPLIANCE INSPECTION SERVICES” (hereinafter referred to as “the Project”). B.Consultant is duly licensed and has the necessary qualifications to provide such services. C.The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein. AGREEMENT NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. Services. Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.” 2. Compensation. a.Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “B b.In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of $60,000.00. The total annual fee shall remain fixed and unchanged for the first three years of the term of the Agreement as set forth in Exhibit B. Thereafter, Consultant may submit a request to adjust its fees, rates, and/or unit prices once per year for term extensions of the agreement. However, approval of any request to adjust Consultant's fees, rates, and/or unit prices shall be made at the sole discretion of the City Manager, in writing, and is subject to the City’s approved budget. In no event shall any adjustment of any fee, rate, and/or unit pricing as authorized by this section exceed five percent (5%) per year regardless of CPI or any other cost factors. This amount is to cover all printing and related costs, and the City will not pay any additional fees for printing expenses. Periodic payments shall be made within 30 days of receipt of an invoice which includes a detailed description of the work performed. Payments to Consultant for work performed will be made on a monthly billing basis. Attachment 1 Page 1 of 14 3.Additional Work. If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement. 4. Maintenance of Records. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City. 5. Term The term of this Agreement shall be from August 2, 2023, to June 30, 2026, unless earlier terminated as provided herein. Consultant shall perform its services in a prompt and timely manner within the term of this Agreement and shall commence performance upon receipt of written notice from the City to proceed (“Notice to Proceed”). The Notice to Proceed shall set forth the date of commencement of work. The Parties may, by mutual, written consent, and based upon Consultant performance, further extend the term of this Agreement for two (2) additional one-year periods. 6.Delays in Performance. a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint. b.Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. 7.Compliance with Law. a.Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. b.If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. Attachment 1 Page 2 of 14 c.If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement. 8.Standard of Care Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. 9.Assignment and Subconsultant Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder. 10. Independent Contractor Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. 11. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a.Commercial General Liability (i)The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (ii)Coverage for Commercial General Liability insurance shall be at least as broad as the following: (1)Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (iii)Commercial General Liability Insurance must include coverage for the following: (1)Bodily Injury and Property Damage (2)Personal Injury/Advertising Injury (3)Premises/Operations Liability Attachment 1 Page 3 of 14 (4)Products/Completed Operations Liability (5)Aggregate Limits that Apply per Project (6)Explosion, Collapse and Underground (UCX) exclusion deleted (7)Contractual Liability with respect to this Agreement (8)Property Damage (9)Independent Consultants Coverage (iv)The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement. (v)The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (vi)The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b.Automobile Liability (i)At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. (ii)Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto). (iii)The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status. (iv)Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. c.Workers’ Compensation/Employer’s Liability (i)Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii)To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the Attachment 1 Page 4 of 14 “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section. d.Professional Liability (Errors and Omissions) At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. e.Minimum Policy Limits Required (i)The following insurance limits are required for the Agreement: Combined Single Limit Commercial General Liability $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury, and property damage Automobile Liability $1,000,000 combined single limit Employer’s Liability $1,000,000 per accident or disease Professional Liability $1,000,000 per claim and aggregate (errors and omissions) (ii)Defense costs shall be payable in addition to the limits. (iii)Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. f.Evidence Required Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the Attachment 1 Page 5 of 14 insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. g.Policy Provisions Required (i)Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ii)The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii)The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (iv)All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to provide a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. (v)The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. h.Qualifying Insurers (i)All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: (1)Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. Attachment 1 Page 6 of 14 i.Additional Insurance Provisions (i)The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (ii)If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (iii)The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv)Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. j.Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 12. Indemnification. a.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 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, the Project or this 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. b.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 Attachment 1 Page 7 of 14 jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault. 13.California Labor Code Requirements. a.Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. b.If the services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. c.This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. 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 stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor. 14.Verification of Employment Eligibility. By executing this 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, and shall require all subconsultants and sub-subconsultants to comply with the same. Attachment 1 Page 8 of 14 15. Reserved. 16. Laws and Venue. This 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 Agreement, the action shall be brought in a state or federal court situated in the County of Orange, State of California. 17 Termination or Abandonment a.City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work. b.Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant. 18 Documents. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City. 19. Organization Consultant shall assign Jon Kinley as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City. 20.Limitation of Agreement. This Agreement is limited to and includes only the work included in the Project described above. 21.Notice Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to: Attachment 1 Page 9 of 14 CITY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Joe Parco, City Engineer CONSULTANT: Jon Kinley, President Environmental Compliance Inspection Services 33322 Marina Vista Drive Dana Point, CA 92629 and shall be effective upon receipt thereof. 22.Third Party Rights Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant. 23.Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 24.Entire Agreement This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each Party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement. 25. Severability The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the remaining provisions unenforceable, invalid or illegal. 26.Successors and Assigns This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void. 27.Non-Waiver Attachment 1 Page 10 of 14 None of the provisions of this Agreement shall be considered waived by either Party, unless such waiver is specifically specified in writing. 28.Time of Essence Time is of the essence for each and every provision of this Agreement. 29.City’s Right to Employ Other Consultants City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects. 30.Prohibited Interests Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. [SIGNATURES ON FOLLOWING PAGE] Attachment 1 Page 11 of 14 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT BETWEEN CITY OF SAN JUAN CAPISTRANO AND ENVIRONMENTAL COMPLIANCE INSPECTION SERVICES IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CITY OF SAN JUAN CAPISTRANO ENVIRONMENTAL COMPLIANCE INSPECTION SERVICES By: By: Benjamin Siegel City Manager Its: President Printed Name: Jon Kinley ATTEST: By: City Clerk APPROVED AS TO FORM: By: City Attorney Attachment 1 Page 12 of 14 EXHIBIT A Scope of Services Consultant shall assist the City with providing as-needed National Pollutant Discharge Elimination System (NPDES) Program Compliance Inspection Services. In addition, optional Miscellaneous Support Services are included for unforeseen work not covered under the tasks described below. The following describes a combination of tasks to be implemented, on an as-needed basis. The scope of work may be modified and refined during the contract period. i.Commercial & Industrial Inspections and Database Support The Consultant will complete the commercial and industrial business inspections as required by NPDES Order R9-2013-001, as amended by R9-2015-001 and R9- 2015-0100 (Fifth Term Permit) and all subsequent amendments. Annual commercial inspection requires 20% of the City’s current inventory of approximately 175-180 businesses and annual industrial inspection is approximately 2 businesses. Services provided to the City may include performing a portion of the inspections or completing the entirety of the annual facility inspection requirements. This also requires review and update of the commercial and industrial facility inventory and coordination with the business license division to evaluate changes to the storm water program facility inventory. Informational notices/letters may be required for a small number of properties. ii.Construction Inspections All construction projects are required to implement BMP’s. Minimum MS4 permit inspection frequencies need to be performed at all active construction sites for private properties and Qualified Stormwater Practitioner inspection for public sites. This involves performing water quality and BMP compliance inspections, maintaining an updated account of inspection records and entering into the database. A monthly updated inspection inventory for low priority sites and a quarterly updated inventory of the medium and high priority site is also required. Attachment 1 Page 13 of 14 EXHIBIT B Schedule of Charges/Payments Consultant will invoice City on a monthly cycle. Consultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each task. Consultant will inform City regarding any out-of-scope work being performed by Consultant. This is a time-and-materials contract. Services include an optional Miscellaneous Support Services in the amount of $10,000 for unforeseen work not covered under the tasks described below. Attachment 1 Page 14 of 14 CITY OF SAN JUAN CAPISTRANO PROFESSIONAL SERVICES AGREEMENT This Agreement is made and entered into as of August 2, 2023, by and between the City of San Juan Capistrano, a public agency organized and operating under the laws of the State of California with its principal place of business at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675 (“City”), and WSP USA Environment & Infrastructure, Inc., a Nevada Corporation with its principal place of business at 1075 Big Shanty Rd, Suite 100, Kennesaw, Georgia 30144 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement. RECITALS A.City is a public agency of the State of California and is in need of professional services for the following project: “NPDES PROGRAM COMPLIANCE SERVICES” (hereinafter referred to as “the Project”). B.Consultant is duly licensed and has the necessary qualifications to provide such services. C.The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein. AGREEMENT NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. Services. Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.” 2. Compensation. a.Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “B b.In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of $251,940.00 for the three-year period. The total annual fee shall remain fixed and unchanged for the first three years of the term of the Agreement as set forth in Exhibit B. Thereafter, Consultant may submit a request to adjust its fees, rates, and/or unit prices once per year for term extensions of the agreement. However, approval of any request to adjust Consultant's fees, rates, and/or unit prices shall be made at the sole discretion of the City Manager, in writing, and is subject to the City’s approved budget. In no event shall any adjustment of any fee, rate, and/or unit pricing as authorized by this section exceed five percent (5%) per year regardless of CPI or any other cost factors. This amount is to cover all printing and related costs, and the City will not pay any additional fees for printing expenses. Periodic payments shall be made within 30 days of receipt of an invoice which includes a detailed description of the work performed. Payments to Consultant for work performed will be made on a monthly billing basis. Attachment 2 Page 1 of 17 3.Additional Work. If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement. 4.Maintenance of Records. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City. 5. Term The term of this Agreement shall be from August 2, 2023, to June 30, 2026, unless earlier terminated as provided herein. Consultant shall perform its services in a prompt and timely manner within the term of this Agreement and shall commence performance upon receipt of written notice from the City to proceed (“Notice to Proceed”). The Notice to Proceed shall set forth the date of commencement of work. The Parties may, by mutual, written consent, and based upon Consultant performance, further extend the term of this Agreement for two (2) additional one-year periods. 6.Delays in Performance. a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint. b.Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. 7.Compliance with Law. a.Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. b.If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. Attachment 2 Page 2 of 17 c.If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement. 8.Standard of Care Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. 9.Assignment and Subconsultant Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder. 10. Independent Contractor Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. 11. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a.Commercial General Liability (i)The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (ii)Coverage for Commercial General Liability insurance shall be at least as broad as the following: (1)Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (iii)Commercial General Liability Insurance must include coverage for the following: (1)Bodily Injury and Property Damage (2)Personal Injury/Advertising Injury (3)Premises/Operations Liability Attachment 2 Page 3 of 17 (4)Products/Completed Operations Liability (5)Aggregate Limits that Apply per Project (6)Explosion, Collapse and Underground (UCX) exclusion deleted (7)Contractual Liability with respect to this Agreement (8)Property Damage (9)Independent Consultants Coverage (iv)The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement. (v)The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (vi)The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. Automobile Liability (i)At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. (ii)Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto). (iii)The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status. (iv)Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. c.Workers’ Compensation/Employer’s Liability (i)Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii)To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the Attachment 2 Page 4 of 17 “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section. d.Professional Liability (Errors and Omissions) At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. e.Minimum Policy Limits Required (i)The following insurance limits are required for the Agreement: Combined Single Limit Commercial General Liability $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury, and property damage Automobile Liability $1,000,000 combined single limit Employer’s Liability $1,000,000 per accident or disease Professional Liability $1,000,000 per claim and aggregate (errors and omissions) (ii)Defense costs shall be payable in addition to the limits. (iii)Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. f.Evidence Required Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the Attachment 2 Page 5 of 17 insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. g.Policy Provisions Required (i)Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ii)The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii)The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (iv)All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to provide a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. (v)The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. h.Qualifying Insurers (i)All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: (1)Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. Attachment 2 Page 6 of 17 i.Additional Insurance Provisions (i)The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (ii)If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (iii)The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv)Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. j.Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 12. Indemnification. a.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 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, the Project or this 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. b.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 Attachment 2 Page 7 of 17 jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault. 13.California Labor Code Requirements. a.Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. b.If the services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. c.This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. 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 stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor. 14.Verification of Employment Eligibility. By executing this 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, and shall require all subconsultants and sub-subconsultants to comply with the same. Attachment 2 Page 8 of 17 15. Reserved. 16. Laws and Venue. This 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 Agreement, the action shall be brought in a state or federal court situated in the County of Orange, State of California. 17 Termination or Abandonment a.City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work. b.Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant. 18 Documents. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City. 19. Organization Consultant shall assign Ted Von Bitner as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City. 20.Limitation of Agreement. This Agreement is limited to and includes only the work included in the Project described above. 21.Notice Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to: Attachment 2 Page 9 of 17 CITY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Joe Parco, City Engineer CONSULTANT: WSP USA Environment & Infrastructure Inc. 9177 Sky Park Court San Diego, CA 92123 Attn: Theodore W. Von Bitner, Assistant Vice President and shall be effective upon receipt thereof. 22.Third Party Rights Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant. 23.Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 24.Entire Agreement This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each Party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement. 25. Severability The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the remaining provisions unenforceable, invalid or illegal. 26.Successors and Assigns This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void. 27.Non-Waiver Attachment 2 Page 10 of 17 None of the provisions of this Agreement shall be considered waived by either Party, unless such waiver is specifically specified in writing. 28.Time of Essence Time is of the essence for each and every provision of this Agreement. 29.City’s Right to Employ Other Consultants City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects. 30.Prohibited Interests Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. [SIGNATURES ON FOLLOWING PAGE] Attachment 2 Page 11 of 17 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT BETWEEN CITY OF SAN JUAN CAPISTRANO AND WSP USA ENVIRONMENT & INFRASTRUCTURE INC. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CITY OF SAN JUAN CAPISTRANO WSP USA ENVIRONMENT & INFRASTRUCTURE INC. By: By: Benjamin Siegel City Manager Its: Assistant Vice President Printed Name: Theodore Von Bitner ATTEST: By: City Clerk APPROVED AS TO FORM: By: City Attorney Attachment 2 Page 12 of 17 EXHIBIT A Scope of Services Consultant shall assist the City with providing as-needed National Pollutant Discharge Elimination System (NPDES) Program Compliance Services as outlined in the May 2, 2023, distributed Request for Proposals (RFP) items: I.Program Management II.WQMP Plan Verifications & Technical Guidance (Excluding Plan Check) III.WQMP Existing Properties Self-Verification Assistance VI.Annual Report Preparation & Program Effectiveness Assessment VII.Orange County Stormwater Tools & Program Plan/Manual Updates VIII.Public Education and Outreach X.Miscellaneous Support These tasks exclude the RFP items #4 (Commercial & Industrial Inspections), #5 (Construction Inspections & Management, and #9 (illegal Discharge and Illicit Connection Prevention). The following describes a combination of minimum tasks to be implemented, on an as-needed basis. The scope of work may be modified and refined during the contract period. Services will ensure the City’s NPDES Municipal Separate Storm Water System (MS4) permit requirements are complied with, including total maximum daily load (TMDL) implementation, water pollution prevention programs, and the City’s stormwater pollution prevention ordinance. Responsibilities include coordinating the City’s NPDES MS4 program, serving as a liaison with the Regional Board and the County of Orange, overseeing the City’s NPDES MS4 program and attending various countywide meetings. i.Program Management As directed, the Consultant will assist the City with implementation of the NPDES and TMDL compliance programs and reporting. The Consultant will also assist the City with the technical evaluation of Watershed Plans and identification of TMDL compliance strategies. This task will include reviewing materials prepared by other stakeholders and their consultants and providing a briefing on the materials to the City Engineer for consideration as part of the City’s program. Additional support on this may include attendance at stakeholder and regional workgroup meetings when requested by the City. Consultant will be expected to provide program status updates and hold update meetings routinely. Consultant will provide technical assistance, training, and update City staff regarding new technologies, changing mandates, regulations, and NPDES legislation items as well as recommendations for implementation of program elements as necessary to comply with NPDES regulations. This also includes supplemental staff training and assisting the City with review of current practices and procedures, and recommending updates to reflect the latest MS4 Permit requirements. ii.WQMP Plan Check Support Attachment 2 Page 13 of 17 If requested, the Consultant will provide Water Quality Management Plan (WQMP) document reviews to verify water quality compliance requirements on New Development and Significant Re-Development projects. This includes both private and public agency project WQMPs. Final approval of all WQMPs will be performed by City Staff. This task may include plan checking and approval of water quality calculations, BMP selection, BMP sizing and appropriate water quality documentation including conformance with WQMP Checklist and consistency with the precise grading plans. It is estimated there may be up to three reviews for each plan check project and a total of fifteen WQMP’s per year. These may be a combination of preliminary small projects, preliminary large projects, final WQMP small projects, and final WQMP for large projects. As specified by the MS4 permit, the structural BMP inventory database will be updated annually for private and public sites that maintain treatment control devices as part of their approved WQMP. Field WQMP site inspections may be required to identify corrective actions to be addressed by City inspectors or Code Enforcement Officers. Outreach, education, and post inspections may be required for verification of corrective actions. iii.Self-Verification Documents (SVD) Existing WQMP Properties Per the MS4 permit and the JRMP, annually, Self-Verification Document forms are distributed for the structural treatment control device operation and maintenance self- certification program. Consultant will assist the City in assuring that structural treatment control BMP’s associated with land development sites holding an approved WQMP, have been inspected, and if needed, receive the appropriate type of cleaning and maintenance. This task is managed through SVD form mailings to individual property owners, tracking responses, along with documentation and updates for current and new WQMP sites. Follow up correspondence or contacts may be required. There are approximately 40 sites for this task. vi.Annual Report Preparation and Program Effectiveness Assessment The MS4 permit requires submittal of an annual report to the Regional Water Quality Control Board summarizing the City’s stormwater program implementation efforts and compliance information collected during the reporting year. The City implements the requirements of the NPDES Fifth Term Permit through a locally specific runoff management plan previously referred to as the Local Implementation Plan, and currently referred to as the JRMP. The JRMP serves as the implementation document to define specific programs and activities that the City conducts to comply with Fifth Term Permit requirements. Elements of the JRMP include, but are not limited to facility inspection results, outreach and public education, illicit connection/illegal discharge enforcement, and drainage facility maintenance. The Consultant will prepare the required Annual Reports for submittal to the Regional Board and the County of Orange as directed by the City. vii.Orange County Stormwater Tools and Program Plan/Manual Updates Attachment 2 Page 14 of 17 Use and populate the Orange County Stormwater Tools (“OC Stormwater Tools”) compliance reporting program designed by Orange County Public Works. All data should be brought up to current date. Consultant will assist the City with updates to the Water Quality Improvement Plan, the Local Implementation Plan, Comprehensive Human Waste Source Reduction Strategy Work Plan, and/or assist the City through coordination with the County of Orange to review the BMP Design Manual for local implementation as necessary. viii.Public Education and Outreach Consultant will assist with the implementation of the Public Education program. Services may include participation at annual events including but not limited to e-waste recycling, annual creek clean up, or other public education events on behalf of the City. Consultant will assist the City in preparing, coordinating with stakeholders, and participating in the events. Estimate 3 to 4 events annually. Public education and outreach includes working with staff on updating and providing educational materials for distribution and internet-based platforms. x.Miscellaneous Support (Optional) This task will include unforeseen work not covered under the tasks described above. The hourly rates submitted in Exhibit A will be used for this task, that shall not exceed $10,000. Please add this amount to the total tasks (i-x) for the total not to exceed amount. Miscellaneous Support may involve research and staff assistance with applying for applicable grant funding opportunities. Assist in developing and administering program fees, budgets, and cost share agreements, etc. Additional tasks may relate to assistance with Onsite Wastewater Treatment Systems (OWTS) policy implementation, review, inspection, documentation, etc. The selected consultant shall be responsible for the Scope of Services listed above and the following: •Ensure an efficient and coordinated project development process, the delivery of a high-quality product, and development of the project components within budget and on schedule. •Available to be called to the city offices in response to questions arising from the progress of the work. Be available to meet with City staff or to participate in conference calls with a minimum of 3 hours advanced notice. •Be available on evenings to attend City Council and Committee meetings on behalf of the City Engineer. •Have adequate staffing available who may be requested to attend in meetings, participate in regional workgroups, or assist with the completion of project components. Attachment 2 Page 15 of 17 •Coordinate with the City’s Public Works and Community Development Department for any future planned work within the project area. •Research and coordinate with other agencies and utility companies as necessary to obtain necessary documents, drawings, or as-built plans. •Assisting the City in preparation of contract change orders, if needed. •Provide the City with progress reports on the status of work and provide schedules in advance of the commencement of actual work. •Timely submittal of invoices by the 10th of the following month for services provided. Attachment 2 Page 16 of 17 EXHIBIT B Schedule of Charges/Payments Consultant will invoice City on a monthly cycle by the 10th of the following month for services provided. Consultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each task. Consultant will inform City regarding any out-of-scope work being performed by Consultant. This is a time-and-materials contract with a maximum not-to-exceed amount per project task item. Hourly rates and other fees shall include direct costs and overhead such as, but not limited to, accounting fees, office supplies, transportation, communications, subsistence and materials, and any subcontracted items of work. Progress payments will be based on actual hours, hourly costs and support service costs charged to the project on a monthly basis. The City will not pay additional fees for printing expenses and related costs. Written consent from the City is required before considering any subconsultant work and Consultant must provide evidence satisfactory to the City that the subconsultants have secured all insurance required. SERVICES BY TASK ANNUAL COST i Program Management $ 22,960.00 ii WQMP Plan Check Support $ 700.00 iii Self-Verification Documents (SVD) Existing WQMP Properties $ 17,920.00 vi Annual Report Prep & Program Effectiveness Assessment $ 12,740.00 vii OC Stormwater Tools & Program Plan/Updates $ 7,900.00 viii Public Education & Outreach $ 11,760.00 x Miscellaneous Support $ 10,000.00 ANNUAL TOTAL $ 83,980.00 Attachment 2 Page 17 of 17