HomeMy WebLinkAboutAGENDA REPORT 2022 1207 CCSA REG ITEM 10ECITY OF MOORPARK, CALIFORNIA
City Council Meeting
of December 7, 2022
ACTION APPROVED STAFF
RECOMMENDATION. (ROLL CALL VOTE:
4-0, COUNCILMEMBER GROFF
RECUSED)
BY A. Hurtado.
D. Consider a Professional Services Agreement with Jensen Design & Survey, Inc.
for Professional Engineering Design Services for the High Street Improvement
Project (CIP No. C0009). Staff Recommendation: 1) Consider and approve a
Professional Services Agreement for Professional Engineering Design Services
for the High Street Improvement Project (C0009) to Jensen Design & Surveying,
Inc. for an amount of $67,900.00, plus a 10-percent contingency in the amount of
$6,790.00, for a total not-to-exceed amount of $74,690.00; and 2) Authorize the
City Manager to execute the Agreement, subject to final language approval of the
City Manager. (Staff: Daniel Kim, City Engineer/Public Works Director)
Item: 10.E.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Daniel Kim, City Engineer/Public Works Director
DATE: 12/07/2022 Regular Meeting
SUBJECT: Consider a Professional Services Agreement with Jensen Design &
Survey, Inc. for Professional Engineering Design Services for the
High Street Improvement Project (CIP No. C0009)
BACKGROUND
On April 29, 2020, the City Council authorized staff to allocate remaining funds from Tax
Allocation Bonds issued in 2006 to undertake Capital Improvement Projects (CIP) that
benefit the former Redevelopment Agency (RDA) Project Area (Attachment 1). The
approved and appropriated allocation of funds are as follows:
Project Description Amount
Millard Drain – Capital Professional Services $250,000
High Street Streetscape – Infrastructure $1,420,000
High Street Streetscape – Capital Professional Services $80,000
Sidewalk Rehabilitation for RDA Project Area – Infrastructures $273,324
Total $2,023,324
Earlier this year, staff completed the Sidewalk Rehabilitation for the Redevelopment
Agency Project Area (CIP M0050). The adopted Operating and Capital Improvement
Projects Budget for Fiscal Year 2022/23 establishes CIP C0009, High Street
Improvement Project. The project proposes to design and construct streetscape and
frontage improvements along the south side of High Street, between Moorpark Avenue
and Magnolia Street.
DISCUSSION
On October 7, 2020, the City Council adopted Resolution No. 2020-3949, approving
Residential Planned Development Permit No. 2018-01 for a residential, mixed-use
Item: 10.E.
58
Honorable City Council
12/07/2022 Regular Meeting
Page 2
development located at 226 High Street, also known as the High Street Depot Project.
Along with the 79 residential units and 13,628 square feet of commercial space, the
proposed development’s landscaping and architecture will enhance and improve public
and private spaces along the south side of High Street, specifically between Moorpark
Avenue and Magnolia Street. The City’s High Street Improvement Project seeks to
extend the private development improvements of the High Street Depot Project onto the
streetscape and public right-of-way. The streetscape improvements will include
landscape enhancements, decorative flatwork, improved pedestrian facilities, street
furnishings, and signage that will be consistent with the approved design and
architecture of the High Street Depot Project.
As part of their design team, the developer for High Street Depot has retained Jensen
Design & Surveying, Inc. (Jensen) for civil engineering design and landscape
architecture services. To provide consistency in engineering design and streetscape
aesthetics, specifically the spaces that serves to benefit both public and private
facilities, staff is recommending that City Council consider retaining Jensen for the High
Street Improvement Project. Jensen’s proposed scope of work will include the
following:
• Topographic Survey and Base Mapping
• Construction Drawings
• Contract Specifications (project will be subject to a Public Works Contract)
• Geotechnical Engineering
• Landscape and Streetscape Architecture
• Dry Utilities Consultant
• Traffic Engineering (project will propose pedestrian enhancements)
• Electrical Engineering (street lighting and miscellaneous controllers)
Jensen’s fee proposal for the High Street Improvement Project is $67,900.00.
Attachment 2 contains a Professional Services Agreement for City Council’s
consideration and approval. Staff also recommends a 10-percent (10%) contingency to
the fee proposal amount, for a not-to-exceed total amount of $74,690.00.
ENVIRONMENTAL DETERMINATION
Not a project.
FISCAL IMPACT
There are no fiscal impacts. Budget for the professional services is included in this
year’s appropriations and will be funded by Account No. 3005-311-C0009-55300, High
Street Streetscape Capital Professional Services.
59
Honorable City Council
12/07/2022 Regular Meeting
Page 3
COUNCIL GOAL COMPLIANCE
This action is consistent with City Council Strategic Goal 3, Objective 3.15: “Complete
approved street improvements and streetscape enhancements along frontage of
proposed High Street Depot development project.”
STAFF RECOMMENDATION
1. Consider and approve a Professional Services Agreement for Professional
Engineering Design Services for the High Street Improvement Project (C0009) to
Jensen Design & Surveying, Inc. for an amount of $67,900.00, plus a 10-percent
contingency in the amount of $6,790.00, for a total not-to-exceed amount of
$74,690.00; and
2. Authorize the City Manager to execute the Agreement, subject to final language
approval of the City Manager.
Attachment 1: Redevelopment Agency Project Area
Attachment 2: Professional Services Agreement with Jensen Design & Survey, Inc.
60
Moorpark Redevelopment Project
Implementation Plan 2010-2014
6
Figure 1 – Project Area Map
,I
iii
5
ffi
i
j ,.
"' & MEADOW
I!'
~
1'i
"' i
I {f
DARLENE
ELWIN
t
J ~ =t_j--t
~ h 1.1eRn 1
·-• -t~"'.11J r
z
~
"
_i,____:__,,.
:ep_lN
gJ
E@ -z
~
""'F"
~ C, " z
~ s w ~
0 5 ~1 0:
~ ~
~ ~ z
"' 15
"' 0
::/
ii'
E\.\<RUN
8i
J " " 'Z ~ ii
~ ~
\\
.l:r1}}
gN\f1" ft\lt,I,
8'¼iF,:Nc12
~ y:
',,
~
I t
<,.. ~\
"'I!: ''"o,..,
sou<,"'&-"f-
~ BoNITA HE1GHTS
~ VISTA LEVANA
j
iii PEACH H ILL
:
!i ti,
j
;,
s~G€Co,4Cft
Boundaries shown are for general reference and illustrative purposes
only. Not intended to be a legal description of the metes and bounds.
LAURELHURST j ~
" t
~o
(::_j Mo or park City Limits ~ Freewa ys
A.?-Rail roa d s
KNOTTY PINI:
CLOVERDALE
AN NETT~
2,000
c:J Mo or park Re deve lopment Pro ject Are a
;
0
1,000
ee
'" 1,,\
2,000
-->
I z
"& "' "l?oue
\
\
"(Ive: i
rt ,gt
/ j
s MA.Roue:-,-,.e:
-Ye, \
E
9 't 'z;
1¼. <e_ REEDLE"'i J \ 5 \:. '
"%
CAMPlJSPARK If STANFORD
CJ it AJ-,HCRsr 'l' C, z z f; is ;:; z
!ti ., .... ~~~~-I!'
FAIRWEATHERl. - • -.. ---..
I
-;<,\(ll's~G<-
I
I
I
I
I
,,,,,-.--.---·--. .,, .
.,,.
\
.,, .
."
\
' ' .
\
Prepared By: Urban Futures, Inc .
Base Map Source : City of Moorpark
Date: 11/06/09
Rle: MP _PA_lmpPln .mxd
ATTACHMENT 1
61
PROFESSIONAL SERVICES AGREEMENT BETWEEN
THE CITY OF MOORPARK AND
JENSEN DESIGN & SURVEY, INC. FOR
PROFESSIONAL CIVIL ENGINEERING DESIGN SERVICES FOR
THE HIGH STREET IMPROVEMENT PROJECT (C0009)
THIS AGREEMENT, made and effective as of _____________________________________,
between the City of Moorpark, a municipal corporation (“City”) and Jensen Design &
Survey, Inc., a private corporation (“Consultant”). In consideration of the mutual
covenants and conditions set forth herein, the parties agree as follows:
WHEREAS, City has the need for professional civil engineering design services
for the High Street Improvement Project (C0009); and
WHEREAS, Consultant specializes in providing such services and has the proper
work experience, certifications, and background to carry out the duties involved; and
WHEREAS, Consultant is the Engineer of Record for the private development at
226 High Street, also known as High Street Depot, where the frontage of the streetscape
and infrastructure improvements are to be designed and constructed; and
WHEREAS, Consultant has submitted to City a Proposal dated November 3, 2022,
which is attached hereto as Exhibit D.
NOW, THEREFORE, in consideration of the mutual covenants, benefits, and
premises herein stated, the parties hereto agree as follows:
1. TERM
The term of this Agreement shall be from the date of execution to the completion
of the scope of work stated in Exhibit D, unless this Agreement is terminated or
suspended pursuant to this Agreement.
2. SCOPE OF SERVICES
City does hereby retain Consultant, as an independent contractor, in a contractual
capacity to provide professional engineering design services, as set forth in Exhibit D. In
the event there is a conflict between the provisions of Exhibit D and this Agreement, the
language contained in this Agreement shall take precedence.
Consultant shall perform the tasks described and set forth in Exhibit D. Consultant
shall complete the tasks according to the schedule of performance which is also set forth
in Exhibit D.
Compensation for the services to be performed by Consultant shall be in
accordance with Exhibit D. Compensation shall not exceed the rates or total contract
value of Sixty-Seven Thousand, Nine Hundred dollars ($67,900.00) as stated in Exhibit D;
plus a ten-percent contingency in the amount of Six Thousand, Seven Hundred Ninety
ATTACHMENT 2
62
Jensen Design & Survey, Inc. Page 2 of 19
dollars ($6,790.00); for a total not-to-exceed contract amount of Seventy-Four Thousand,
Six Hundred Ninety dollars ($74,690.00); without a written Amendment to the Agreement
executed by both parties. Payment by City to Consultant shall be in accordance with the
provisions of this Agreement.
3. PERFORMANCE
Consultant shall at all times faithfully, competently and to the best of their ability,
experience, standard of care, and talent, perform all tasks described herein. Consultant
shall employ, at a minimum, generally accepted standards and practices utilized by
persons engaged in providing similar services as are required of Consultant hereunder in
meeting its obligations under this Agreement.
4. MANAGEMENT
The individual directly responsible for Consultant’s overall performance of the
Agreement provisions herein above set forth and to serve as principal liaison between
City and Consultant shall be Donald M. Jensen, CEO, and no other individual may be
substituted without the prior written approval of the City Manager.
The City’s contact person in charge of administration of this Agreement, and to
serve as principal liaison between Consultant and City, shall be the City Manager or the
City Manager’s designee.
5. PAYMENT
Taxpayer ID or Social Security numbers must be provided by Consultant on an
IRS W-9 form before payments may be made by City to Consultant.
The City agrees to pay Consultant monthly, in accordance with the payment rates
and terms and the schedule of payment as set forth in Exhibit D; plus a ten-percent
contingency in the amount of Six Thousand, Seven Hundred Ninety dollars ($6,790.00);
based upon actual time spent on the above tasks. This amount shall not exceed Seventy-
Four Thousand, Six Hundred Ninety dollars ($74,690.00) for the total term of the
Agreement unless additional payment is approved as provided in this Agreement.
Consultant shall not be compensated for any services rendered in connection with
its performance of this Agreement, which are in addition to those set forth herein, unless
such additional services and compensation are authorized, in advance, in a written
amendment to this Agreement executed by both parties. The City Manager, if authorized
by City Council, may approve additional work not to exceed ten percent (10%) of the
amount of the Agreement.
Consultant shall submit invoices monthly for actual services performed. Invoices
shall be submitted on or about the first business day of each month, or as soon thereafter
as practical, for services provided in the previous month. Payment shall be made within
thirty (30) days of receipt of each invoice as to all non-disputed fees. Any expense or
reimbursable cost appearing on any invoice shall be accompanied by a receipt or other
63
Jensen Design & Survey, Inc. Page 3 of 19
documentation subject to approval of the City Manager or the City Manager’s designee.
If the City disputes any of Consultant’s fees or expenses, City shall give written notice to
Consultant within thirty (30) days of receipt of any disputed fees set forth on the invoice.
6. TERMINATION OR SUSPENSION WITHOUT CAUSE
The City may at any time, for any reason, with or without cause, suspend, or
terminate this Agreement, or any portion hereof, by serving upon the Consultant at least
ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall
immediately cease all work under this Agreement, unless the notice provides otherwise.
If the City suspends or terminates a portion of this Agreement, such suspension or
termination shall not make void or invalidate the remainder of this Agreement.
The Consultant may terminate this Agreement only by providing City with written
notice no less than thirty (30) days in advance of such termination.
In the event this Agreement is terminated or suspended pursuant to this Section,
the City shall pay to Consultant the actual value of the work performed up to the time of
termination or suspension, provided that the work performed is of value to the City. Upon
termination or suspension of the Agreement pursuant to this Section, the Consultant will
submit an invoice to the City pursuant to this Agreement.
7. DEFAULT OF CONSULTANT
The Consultant’s failure to comply with the provisions of this Agreement shall
constitute a default. In the event that Consultant is in default for cause under the terms of
this Agreement, City shall have no obligation or duty to continue compensating Consultant
for any work performed after the date of default and can terminate or suspend this
Agreement immediately by written notice to the Consultant. If such failure by the
Consultant to make progress in the performance of work hereunder arises out of causes
beyond the Consultant’s control, and without fault or negligence of the Consultant, it shall
not be considered a default.
If the City Manager or his/her designee determines that the Consultant is in default
in the performance of any of the terms or conditions of this Agreement, he/she shall cause
to be served upon the Consultant a written notice of the default. The Consultant shall
have thirty (30) days after service upon it of said notice in which to cure the default by
rendering a satisfactory performance. In the event that the Consultant fails to cure its
default within such period of time, the City shall have the right, notwithstanding any other
provision of this Agreement, to terminate this Agreement without further notice and
without prejudice to any other remedy to which it may be entitled at law, in equity or under
this Agreement.
8. LIQUIDATED DAMAGES
There are no liquidated damages under this Agreement.
64
Jensen Design & Survey, Inc. Page 4 of 19
9. OWNERSHIP OF DOCUMENTS
Consultant shall maintain complete and accurate records with respect to sales,
costs, expenses, receipts, and other such information required by City that relate to the
performance of services under this Agreement. Consultant shall maintain adequate
records of services provided in sufficient detail to permit an evaluation of services. All
such records shall be maintained in accordance with generally accepted accounting
principles and shall be clearly identified and readily accessible. Consultant shall provide
free access to the representatives of City or the City’s designees at reasonable times to
such books and records; shall give the City the right to examine and audit said books and
records; shall permit City to make transcripts therefrom as necessary; and shall allow
inspection of all work, data, documents, proceedings, and activities related to this
Agreement. Notification of audit shall be provided at least thirty (30) days before any such
audit is conducted. Such records, together with supporting documents, shall be
maintained for a period of three (3) years after receipt of final payment.
Upon completion of, or in the event of termination or suspension without cause of
this Agreement, all original documents, designs, drawings, maps, models, computer files,
surveys, notes, and other documents prepared in the course of providing the services to
be performed pursuant to this Agreement shall become the sole property of the City and
may be used, reused, or otherwise disposed of by the City without the permission of the
Consultant. With respect to computer files, Consultant shall make available to the City,
at the Consultant’s office and upon reasonable written request by the City, the necessary
computer software and hardware for purposes of accessing, compiling, transferring, and
printing computer files.
10. INDEMNIFICATION AND HOLD HARMLESS
Indemnity for professional liability: When the law establishes a professional
standard of care for Consultant’s Services, to the fullest extent permitted by law,
Consultant shall indemnify, protect, defend and hold harmless City and any and all of its
officials, employees, and agents (“Indemnified Parties”) from and against any and all
losses, liabilities, damages, costs and expenses, including legal counsels’ fees and costs
to the extent same are caused in whole or in part by any negligent or wrongful act, error
or omission of Consultant, its officers, agents, employees or subconsultants (or any
agency or individual that Consultant shall bear the legal liability thereof) in the
performance of professional services under this Agreement.
Indemnity for other than professional liability: Other than in the performance of
professional services and to the full extent permitted by law, Consultant shall indemnify,
protect, defend and hold harmless City, and any and all of its officials, employees, and
agents from and against any liability (including liability for claims, suits, actions, arbitration
proceedings, administrative proceedings, regulatory proceedings, losses, expenses or
costs of any kind, whether actual, alleged or threatened, including legal counsels’ fees
and costs, court costs, interest, defense costs, and expert witness fees), where the same
arise out of, are a consequence of, or are in any way attributable to, in whole or in part,
the performance of this Agreement by Consultant or by any individual or agency for which
65
Jensen Design & Survey, Inc. Page 5 of 19
Consultant is legally liable, including but not limited to officers, agents, employees or
subcontractors of Consultant.
Consultant agrees to obtain executed indemnity agreements with provisions
identical to those set forth here in this Section from each and every subcontractor, or any
other person or entity involved by, for, with, or on behalf of Consultant in the performance
of this Agreement. In the event Consultant fails to obtain such indemnity obligations from
others as required here, Consultant agrees to be fully responsible according to the terms
of this Section. Failure of City to monitor compliance with these requirements imposes no
additional obligations on City and will in no way act as a waiver of any rights hereunder.
This obligation to indemnify and defend City as set forth here is binding on the successors,
assigns, or heirs of Consultant and shall survive the termination of this Agreement or this
Section.
City does not and shall not waive any rights that it may have against Consultant by
reason of this Section, because of the acceptance by City, or the deposit with City, of any
insurance policy or certificate required pursuant to this Agreement. The hold harmless
and indemnification provisions shall apply regardless of whether or not said insurance
policies are determined to be applicable to any losses, liabilities, damages, costs, and
expenses described in this Section.
11. INSURANCE
Consultant shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit A attached hereto and incorporated
herein by this reference as though set forth in full.
12. INDEPENDENT CONSULTANT
Consultant is and shall at all times remain as to the City a wholly independent
Contractor. The personnel performing the services under this Agreement on behalf of
Consultant shall at all times be under Consultant’s exclusive direction and control. Neither
City nor any of its officers, employees, or agents shall have control over the conduct of
Consultant or any of Consultant’s officers, employees, or agents, except as set forth in
this Agreement. Consultant shall not at any time or in any manner represent that it or any
of its officers, employees, or agents are in any manner officers or employees, or agents
of the City except as set forth in this Agreement. Consultant shall not incur or have the
power to incur any debt, obligation, or liability against City, or bind City in any manner.
No employee benefits shall be available to Consultant in connection with the
performance of this Agreement. Except for the fees paid to Consultant as provided in the
Agreement, City shall not pay salaries, wages, or other compensation to Consultant for
performing services hereunder for City. City shall not be liable for compensation or
indemnification to Consultant for injury or sickness arising out of performing services
hereunder.
66
Jensen Design & Survey, Inc. Page 6 of 19
13. LEGAL RESPONSIBILITIES
The Consultant shall keep itself informed of local, state, and federal laws and
regulations which in any manner affect those employed by it or in any way affect the
performance of its service pursuant to this Agreement. The Consultant shall at all times
observe and comply with all such laws and regulations, including but not limited to the
Americans with Disabilities Act and Occupational Safety and Health Administration laws
and regulations. The Consultant shall comply with and sign Exhibit B, the Scope of Work
Requirement for Professional Services Agreements Compliance with California
Government Code Section 7550, when applicable. The City, and its officers and
employees, shall not be liable at law or in equity occasioned by failure of the Consultant
to comply with this Section.
Should the Scope of Services include work that is considered a public work to
which prevailing wages apply, the public work project is subject to compliance monitoring
and enforcement by the California Department of Industrial Relations (DIR). Consultant
agrees to comply with and be bound by all applicable terms, rules and regulations
described in (a) Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the
California Labor Code, including without limitation Labor Code Section 1771 and (b) the
rules and regulations established by the DIR implementing such statutes, as though set
forth in full herein, including any applicable amendments made thereto during the term of
this Agreement. For every subcontractor who will perform work on this project, Consultant
shall be responsible for subcontractor’s compliance with (a) and (b), and Consultant shall
take all necessary actions to ensure subcontractor’s compliance. Labor Code Section
1725.5 requires all contractors and subcontractors to annually register with the DIR before
bidding or performing on any public work contract.
14. ANTI DISCRIMINATION
Neither the Consultant, nor any subconsultant under the Consultant, shall
discriminate in employment of persons upon the work because of race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression, age,
sexual orientation, or military and veteran status; or any other basis protected by
applicable federal, state, or local law, except as provided in Section 12940 of the
Government Code. Consultant shall have responsibility for compliance with this Section.
15. UNDUE INFLUENCE
Consultant declares and warrants that no undue influence or pressure is used
against or in concert with any officer or employee of the City in connection with the award,
terms, or implementation of this Agreement, including any method of coercion,
confidential financial arrangement, or financial inducement. No officer or employee of the
City will receive compensation, directly or indirectly from Consultant, or any officer,
employee, or agent of Consultant, in connection with the award of this Agreement or any
work to be conducted as a result of this Agreement. Violation of this Section shall be a
67
Jensen Design & Survey, Inc. Page 7 of 19
material breach of this Agreement entitling the City to any and all remedies at law or in
equity.
16. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of the City, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the Services
during his/her tenure or for one year thereafter, shall have any interest, direct or indirect,
in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in
connection with the Services performed under this Agreement.
17. CONFLICT OF INTEREST
Consultant covenants that neither they nor any officer or principal of their firm have
any interests, nor shall they acquire any interest, directly or indirectly, which will conflict
in any manner or degree with the performance of their services hereunder. Consultant
further covenants that in the performance of this Agreement, they shall employ no person
having such interest as an officer, employee, agent, or subconsultant. Consultant further
covenants that Consultant has not contracted with nor is performing any services directly
or indirectly, with the developer(s) and/or property owner(s) and/or firm(s) and/or
partnership(s) and/or public agency(ies) owning property and/or processing an
entitlement application for property in the City or its Area of Interest, now or within the
past one (1) year, and further covenants and agrees that Consultant and/or its
subconsultants shall provide no service or enter into any contract with any developer(s)
and/or property owner(s) and/or firm(s) and/or partnership(s) and/or public agency(ies)
owning property and/or processing an entitlement application for property in the City or
its Area of Interest, while under contract with the City and for a one (1) year time period
following termination of this Agreement.
18. NOTICE
Any notice to be given pursuant to this Agreement shall be in writing, and all such
notices and any other document to be delivered shall be delivered by personal service or
by deposit in the United States mail, certified or registered, return receipt requested, with
postage prepaid, and addressed to the party for whom intended as follows:
To: City Manager
City of Moorpark
799 Moorpark Ave.
Moorpark, CA 93021
To: Donald M. Jensen, CEO
Jensen Design & Survey, Inc.
1672 Donlon Street
Ventura, CA 93003
Either party may, from time to time, by written notice to the other, designate a
different address or contact person, which shall be substituted for the one above
68
Jensen Design & Survey, Inc. Page 8 of 19
specified. Notices, payments and other documents shall be deemed delivered upon
receipt by personal service or as of the third (3rd) day after deposit in the United States
mail.
19. CHANGE IN NAME
Should a change be contemplated in the name or nature of the Consultant's legal
entity, the Consultant shall first notify the City in order that proper steps may be taken to
have the change reflected in the Agreement documents.
20. ASSIGNMENT
Consultant shall not assign this Agreement or any of the rights, duties, or
obligations hereunder. It is understood and acknowledged by the parties that Consultant
is uniquely qualified to perform the services provided for in this Agreement.
21. LICENSES
At all times during the term of this Agreement, Consultant shall have in full force
and effect, all licenses required of it by law for the performance of the services in this
Agreement.
22. VENUE AND GOVERNING LAW
This Agreement is made, entered into, and executed in Ventura County, California,
and any action filed in any court or for arbitration for the interpretation, enforcement or
other action of the terms, conditions, or covenants referred to herein shall be filed in the
applicable court in Ventura County, California. The City and Consultant understand and
agree that the laws of the state of California shall govern the rights, obligations, duties,
and liabilities of the parties to this Agreement and also govern the interpretation of this
Agreement.
23. COST RECOVERY
In the event any action, suit or proceeding is brought for the enforcement of, or the
declaration of any right or obligation pursuant to this Agreement or as a result of any
alleged breach of any provision of this Agreement, the prevailing party shall be entitled to
recover its costs and expenses, including attorneys’ fees, from the losing party, and any
judgment or decree rendered in such a proceeding shall include an award thereof.
24. ENTIRE AGREEMENT
This Agreement and the Exhibits attached hereto contain the entire understanding
between the parties relating to the obligations of the parties described in this Agreement.
All prior or contemporaneous agreements, understandings, representations, and
statements, oral or written, are merged into this Agreement and shall be of no further
force or effect. Each party is entering into this Agreement based solely upon the
69
Jensen Design & Survey, Inc. Page 9 of 19
representations set forth herein and upon each party’s own independent investigation of
any and all facts such party deems material.
25. CAPTIONS OR HEADINGS
The captions and headings of the various Articles, Paragraphs, and Exhibits of this
Agreement are for convenience and identification only and shall not be deemed to limit
or define the content of the respective Articles, Paragraphs, and Exhibits hereof.
26. AMENDMENTS
Any amendment, modification, or variation from the terms of this Agreement shall
be in writing and shall be effective only upon approval by both parties to this Agreement.
27. PRECEDENCE
In the event of conflict, the requirements of the City’s Request for Proposal, if any,
and this Agreement shall take precedence over those contained in the Consultant’s
Proposal.
28. INTERPRETATION OF AGREEMENT
Should interpretation of this Agreement, or any portion thereof, be necessary, it is
deemed that this Agreement was prepared by the parties jointly and equally, and shall
not be interpreted against either party on the ground that the party prepared the
Agreement or caused it to be prepared.
29. WAIVER
No waiver of any provision of this Agreement shall be deemed, or shall constitute,
a waiver of any other provision, whether or not similar, nor shall any such waiver constitute
a continuing or subsequent waiver of the same provision. No waiver shall be binding
unless executed in writing by the party making the waiver.
70
Jensen Design & Survey, Inc. Page 10 of 19
30. AUTHORITY TO EXECUTE
The person or persons executing this Agreement on behalf of the Consultant
warrants and represents that he/she has the authority to execute this Agreement on
behalf of the Consultant and has the authority to bind Consultant to the performance of
obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
CITY OF MOORPARK JENSEN DESIGN & SURVEY, INC.
__________________________________ __________________________________
Troy Brown, City Manager Donald M. Jensen, CEO
Attest:
__________________________________
Ky Spangler, City Clerk
71
Jensen Design & Survey, Inc. Page 11 of 19
Exhibit A
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of Work, Consultant will maintain
insurance in conformance with the requirements set forth below. Consultant will use
existing coverage to comply with these requirements. If that existing coverage does not
meet requirements set forth here, Consultant agrees to amend, supplement, or endorse
the existing coverage to do so. Consultant acknowledges that the insurance coverage
and policy limits set forth in this section constitute the minimum amount of coverage
required. Any insurance proceeds available to the City in excess of the limits and
coverage required in this Agreement and which is applicable to a given loss, will be
available to the City.
Consultant shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office (ISO)
“Commercial General Liability” policy form CG 00 01 or the exact equivalent. Defense
costs must be paid in addition to limits. There shall be no cross liability exclusion for claims
or suits by one insured against another. Limits are subject to review but in no event less
than $1,000,000 per occurrence for all covered losses and no less than $2,000,000
general aggregate.
Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including
symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event
to be less than $1,000,000 per accident. If Consultant owns no vehicles, this requirement
may be satisfied by a non-owned auto endorsement to the general liability policy
described above. If Consultant or Consultant’s employees will use personal autos in any
way on this project, Consultant shall provide evidence of personal auto liability for each
such person.
Workers’ Compensation on a state-approved policy form providing statutory benefits as
required by law with employer’s liability limits no less than $1,000,000 per accident or
disease.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written
on a policy form coverage specifically designed to protect against acts, errors or
omissions of the Consultant and “Covered Professional Services” as designated in the
policy must specifically include work performed under this Agreement. The policy limit
shall be no less than $1,000,000 per claim and in the aggregate. The policy must “pay on
behalf of” the insured and must include a provision establishing the insurer’s duty to
defend. The policy retroactive date shall be on or before the effective date of this
Agreement.
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements,
shall provide coverage at least as broad as specified for the underlying coverages.
Coverage shall be provided on a “pay on behalf” basis, with defense costs payable in
addition to policy limits. Policy shall contain a provision obligating insurer at the time
72
Jensen Design & Survey, Inc. Page 12 of 19
insured’s liability is determined, not requiring actual payment by the insured first. There
shall be no cross liability exclusion precluding coverage for claims or suits by one insured
against another. Coverage shall be applicable to the City for injury to employees of
Consultant, subconsultants, or others involved in the Work. The scope of coverage
provided is subject to approval by the City following receipt of proof of insurance as
required herein. Limits are subject to review but in no event less than $2,000,000
aggregate.
Insurance procured pursuant to these requirements shall be written by insurers that are
admitted carriers in the State of California and with an A.M. Bests rating of A- or better
and a minimum financial size of VII.
General conditions pertaining to provision of insurance coverage by Consultant.
Consultant and the City agree to the following with respect to insurance provided by
Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability
coverage required herein to include as additional insureds the City, its officials,
employees, and agents, using standard ISO endorsement CG 2010 and CG 2037
with edition acceptable to the City. Consultant also agrees to require all contractors
and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall
prohibit Consultant, or Consultant’s employees, or agents, from waiving the right
to subrogation prior to a loss. Consultant agrees to waive subrogation rights
against the City regardless of the applicability of any insurance proceeds, and to
require all contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or
applicable to this Agreement are intended to apply to the full extent of the policies.
Nothing contained in this Agreement or any other agreement relating to the City or
its operation limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include limiting endorsement of any kind that has not been
first submitted to the City and approved in writing.
5. No liability policy shall contain any provision or definition that would serve to
eliminate so-called “third party action over” claims, including any exclusion for
bodily injury to an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification, and
additional requirements by the City, as the need arises. Consultant shall not make
any reductions in scope of coverage (e.g. elimination of contractual liability or
reduction of discovery period) that may affect the City’s protection without the
City’s prior written consent.
73
Jensen Design & Survey, Inc. Page 13 of 19
7. Proof of compliance with these insurance requirements, consisting of certificates
of insurance evidencing all of the coverages required and an additional insured
endorsement to Consultant’s general liability policy, shall be delivered to city at or
prior to the execution of this Agreement. In the event such proof of any insurance
is not delivered as required, or in the event such insurance is canceled or reduced
at any time and no replacement coverage is provided, the City has the right, but
not the duty, to obtain any insurance it deems necessary to protect its interests
under this or any other Agreement and to pay the premium. Any premium so paid
by the City shall be charged to and promptly paid by Consultant or deducted from
sums due Consultant, at the City’s option.
8. Certificate(s) are to reflect that the insurer will provide thirty (30) days notice to the
City of any cancellation or reduction of coverage. Consultant agrees to require its
insurer to modify such certificates to delete any exculpatory wording stating that
failure of the insurer to mail written notice of cancellation or reduction of coverage
imposes no obligation, or that any party will “endeavor” (as opposed to being
required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this Agreement that all insurance coverage
required to be provided by Consultant or any subcontractor, is intended to apply
first and on a primary, non-contributing basis in relation to any other insurance or
self-insurance available to the City.
10. Consultant agrees to ensure that subcontractors, and any other party involved with
the Work who is brought onto or involved in the Work by Consultant, provide the
same minimum insurance required of Consultant. Consultant agrees to monitor
and review all such coverage and assumes all responsibility for ensuring that such
coverage is provided in conformity with the requirements of this section. Consultant
agrees that upon request, all agreements with subcontractors and others engaged
in the Work will be submitted to the City for review.
11. Consultant agrees not to self-insure or to use any self-insured retentions or
deductibles on any portion of the insurance required herein and further agrees that
it will not allow any contractor, subcontractor, Architect, Engineer, or other entity
or person in any way involved in the performance of Work contemplated by this
Agreement to self-insure its obligations to the City. If Consultant’s existing
coverage includes a deductible or self-insured retention, the deductible or self-
insured retention must be declared to the City. At that time, the City shall review
options with the Consultant, which may include reduction or elimination of the
deductible or self-insured retention, substitution of other coverage, or other
solutions.
12. The City reserves the right at any time during the term of the Agreement to change
the amounts and types of insurance required by giving the Consultant ninety (90)
days advance written notice of such change. If such change results in substantial
additional cost to the Consultant, the City will negotiate additional compensation
proportional to the increased benefit to the City.
74
Jensen Design & Survey, Inc. Page 14 of 19
13. For purposes of applying insurance coverage only, this Agreement will be deemed
to have been executed immediately upon any party hereto taking any steps that
can be deemed to be in furtherance of or towards performance of this Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on the part
of the City to inform Consultant of non-compliance with an insurance requirement
in no way imposes any additional obligations to the City nor does it waive any rights
hereunder in this or any other regard.
15. Consultant will renew the required coverage annually as long as the City, or its
employees or agents face an exposure from operations of any type pursuant to
this Agreement. This obligation applies whether or not the Agreement is canceled
or terminated for any reason. Termination of this obligation is not effective until the
City executes a written statement to that effect.
16. Consultant shall provide proof that policies of insurance required herein expiring
during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has been
ordered shall be submitted prior to expiration. A coverage binder or letter from
Consultant’s insurance agent to this effect is acceptable. A certificate of insurance
and/or additional insured endorsement as required in these specifications
applicable to the renewing or new coverage must be provided to the City within
five days of the expiration of coverage.
17. The provisions of any Workers’ Compensation or similar act will not limit the
obligations of Consultant under this Agreement. Consultant expressly agrees not
to use any statutory immunity defenses under such laws with respect to the City,
its employees, officials and agents.
18. Requirements of specific coverage features or limits contained in this section are
not intended as limitations on coverage, limits, or other requirements nor as a
waiver of any coverage normally provided by any given policy. Specific reference
to a given coverage feature is for purposes of clarification only as it pertains to a
given issue, and is not intended by any party or insured to be limiting or all-
inclusive.
19. These insurance requirements are intended to be separate and distinct from any
other provision in this Agreement and are intended by the parties here to be
interpreted as such.
20. The requirements in this section supersede all other sections and provisions of this
Agreement to the extent that any other section or provision conflicts or impairs the
provisions of this section.
21. Consultant agrees to be responsible for ensuring that no contract used by any
party involved in any way with the Work reserves the right to charge the City or
Consultant for the cost of additional insurance coverage required by this
Agreement. Any such provisions are to be deleted with reference to the City. It is
75
Jensen Design & Survey, Inc. Page 15 of 19
not the intent of the City to reimburse any third party for the cost of complying with
these requirements. There shall be no recourse against the City for payment of
premiums or other amounts with respect thereto.
22. Consultant agrees to provide immediate notice to City of any claim or loss against
Consultant arising out of the work performed under this Agreement. The City
assumes no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to involve the
City.
76
Jensen Design & Survey, Inc. Page 16 of 19
Exhibit B
CITY OF MOORPARK
Scope of Work Requirement for Professional Services Agreements
Compliance with California Government Code Section 7550
Consultant shall sign and include this page in any document or written reports prepared
by Consultant for the City of Moorpark (City) to which California Government Code
Section 7550 (Government Code § 7550) applies. Government Code §7550 reads:
“(a) Any document or written report prepared for or under the direction of a
state or local agency, that is prepared in whole or in part by nonemployees
of the agency, shall contain the numbers and dollar amounts of all contracts
and subcontracts relating to the preparation of the document or written
report; if the total cost for the work performed by nonemployees of the
agency exceeds five thousand dollars ($5,000). The contract and
subcontract numbers and dollar amounts shall be contained in a separate
section of the document or written report.
(b) When multiple documents or written reports are the subject or product
of the contract, the disclosure section may also contain a statement
indicating that the total contract amount represents compensation for
multiple documents or written reports.”
For all Professional Services Agreement with a total dollar value in excess of $5,000, a
signed and completed copy of this form must be attached to all documents or completed
reports submitted to the City pursuant to the Scope of Work.
Does the dollar value of this Professional Services Agreement exceed
$5,000? Yes No
If yes, then the following information must be provided in compliance with
Government Code § 7550:
1. Dollar amount of Agreement/Contract: $ ____________
2. Dollar amount of Subcontract: $ ____________
3. Does the total contract amount represent compensation for
multiple documents or written reports? Yes No
I have read the foregoing Code section and will comply with Government Code §7550.
__________________________________
______________________
Date
77
Jensen Design & Survey, Inc. Page 17 of 19
Exhibit C
PUBLIC CONTRACT CODE SECTION 9204
9204. (a) The Legislature finds and declares that it is in the best interests of the state
and its citizens to ensure that all construction business performed on a public works
project in the state that is complete and not in dispute is paid in full and in a timely
manner.
(b) Notwithstanding any other law, including, but not limited to, Article 7.1 (commencing
with Section 10240) of Chapter 1 of Part 2, Chapter 10 (commencing with Section
19100) of Part 2, and Article 1.5 (commencing with Section 20104) of Chapter 1 of Part
3, this section shall apply to any claim by a contractor in connection with a public works
project.
(c) For purposes of this section:
(1) “Claim” means a separate demand by a contractor sent by registered mail or
certified mail with return receipt requested, for one or more of the following:
(A) A time extension, including, without limitation, for relief from damages or penalties
for delay assessed by a public entity under a contract for a public works project.
(B) Payment by the public entity of money or damages arising from work done by, or on
behalf of, the contractor pursuant to the contract for a public works project and payment
for which is not otherwise expressly provided or to which the claimant is not otherwise
entitled.
(C) Payment of an amount that is disputed by the public entity.
(2) “Contractor” means any type of contractor within the meaning of Chapter 9
(commencing with Section 7000) of Division 3 of the Business and Professions Code
who has entered into a direct contract with a public entity for a public works project.
(3) (A) “Public entity” means, without limitation, except as provided in subparagraph (B),
a state agency, department, office, division, bureau, board, or commission, the
California State University, the University of California, a city, including a charter city,
county, including a charter county, city and county, including a charter city and county,
district, special district, public authority, political subdivision, public corporation, or
nonprofit transit corporation wholly owned by a public agency and formed to carry out
the purposes of the public agency.
(B) “Public entity” shall not include the following:
(i) The Department of Water Resources as to any project under the jurisdiction of that
department.
(ii) The Department of Transportation as to any project under the jurisdiction of that
department.
(iii) The Department of Parks and Recreation as to any project under the jurisdiction of
that department.
(iv) The Department of Corrections and Rehabilitation with respect to any project under
its jurisdiction pursuant to Chapter 11 (commencing with Section 7000) of Title 7 of Part
3 of the Penal Code.
(v) The Military Department as to any project under the jurisdiction of that department.
(vi) The Department of General Services as to all other projects.
(vii) The High-Speed Rail Authority.
78
Jensen Design & Survey, Inc. Page 18 of 19
(4) “Public works project” means the erection, construction, alteration, repair, or
improvement of any public structure, building, road, or other public improvement of any
kind.
(5) “Subcontractor” means any type of contractor within the meaning of Chapter 9
(commencing with Section 7000) of Division 3 of the Business and Professions Code
who either is in direct contract with a contractor or is a lower tier subcontractor.
(d) (1) (A) Upon receipt of a claim pursuant to this section, the public entity to which the
claim applies shall conduct a reasonable review of the claim and, within a period not to
exceed 45 days, shall provide the claimant a written statement identifying what portion
of the claim is disputed and what portion is undisputed. Upon receipt of a claim, a public
entity and a contractor may, by mutual agreement, extend the time period provided in
this subdivision.
(B) The claimant shall furnish reasonable documentation to support the claim.
(C) If the public entity needs approval from its governing body to provide the claimant a
written statement identifying the disputed portion and the undisputed portion of the
claim, and the governing body does not meet within the 45 days or within the mutually
agreed to extension of time following receipt of a claim sent by registered mail or
certified mail, return receipt requested, the public entity shall have up to three days
following the next duly publicly noticed meeting of the governing body after the 45-day
period, or extension, expires to provide the claimant a written statement identifying the
disputed portion and the undisputed portion.
(D) Any payment due on an undisputed portion of the claim shall be processed and
made within 60 days after the public entity issues its written statement. If the public
entity fails to issue a written statement, paragraph (3) shall apply.
(2) (A) If the claimant disputes the public entity’s written response, or if the public entity
fails to respond to a claim issued pursuant to this section within the time prescribed, the
claimant may demand in writing an informal conference to meet and confer for
settlement of the issues in dispute. Upon receipt of a demand in writing sent by
registered mail or certified mail, return receipt requested, the public entity shall schedule
a meet and confer conference within 30 days for settlement of the dispute.
(B) Within 10 business days following the conclusion of the meet and confer
conference, if the claim or any portion of the claim remains in dispute, the public entity
shall provide the claimant a written statement identifying the portion of the claim that
remains in dispute and the portion that is undisputed. Any payment due on an
undisputed portion of the claim shall be processed and made within 60 days after the
public entity issues its written statement. Any disputed portion of the claim, as identified
by the contractor in writing, shall be submitted to nonbinding mediation, with the public
entity and the claimant sharing the associated costs equally. The public entity and
claimant shall mutually agree to a mediator within 10 business days after the disputed
portion of the claim has been identified in writing. If the parties cannot agree upon a
mediator, each party shall select a mediator and those mediators shall select a qualified
neutral third party to mediate with regard to the disputed portion of the claim. Each party
shall bear the fees and costs charged by its respective mediator in connection with the
selection of the neutral mediator. If mediation is unsuccessful, the parts of the claim
remaining in dispute shall be subject to applicable procedures outside this section.
(C) For purposes of this section, mediation includes any nonbinding process, including,
but not limited to, neutral evaluation or a dispute review board, in which an independent
third party or board assists the parties in dispute resolution through negotiation or by
79
Jensen Design & Survey, Inc. Page 19 of 19
issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this
section.
(D) Unless otherwise agreed to by the public entity and the contractor in writing, the
mediation conducted pursuant to this section shall excuse any further obligation under
Section 20104.4 to mediate after litigation has been commenced.
(E) This section does not preclude a public entity from requiring arbitration of disputes
under private arbitration or the Public Works Contract Arbitration Program, if mediation
under this section does not resolve the parties’ dispute.
(3) Failure by the public entity to respond to a claim from a contractor within the time
periods described in this subdivision or to otherwise meet the time requirements of this
section shall result in the claim being deemed rejected in its entirety. A claim that is
denied by reason of the public entity’s failure to have responded to a claim, or its failure
to otherwise meet the time requirements of this section, shall not constitute an adverse
finding with regard to the merits of the claim or the responsibility or qualifications of the
claimant.
(4) Amounts not paid in a timely manner as required by this section shall bear interest at
7 percent per annum.
(5) If a subcontractor or a lower tier subcontractor lacks legal standing to assert a claim
against a public entity because privity of contract does not exist, the contractor may
present to the public entity a claim on behalf of a subcontractor or lower tier
subcontractor. A subcontractor may request in writing, either on their own behalf or on
behalf of a lower tier subcontractor, that the contractor present a claim for work which
was performed by the subcontractor or by a lower tier subcontractor on behalf of the
subcontractor. The subcontractor requesting that the claim be presented to the public
entity shall furnish reasonable documentation to support the claim. Within 45 days of
receipt of this written request, the contractor shall notify the subcontractor in writing as
to whether the contractor presented the claim to the public entity and, if the original
contractor did not present the claim, provide the subcontractor with a statement of the
reasons for not having done so.
(e) The text of this section or a summary of it shall be set forth in the plans or
specifications for any public works project that may give rise to a claim under this
section.
(f) A waiver of the rights granted by this section is void and contrary to public policy,
provided, however, that (1) upon receipt of a claim, the parties may mutually agree to
waive, in writing, mediation and proceed directly to the commencement of a civil action
or binding arbitration, as applicable; and (2) a public entity may prescribe reasonable
change order, claim, and dispute resolution procedures and requirements in addition to
the provisions of this section, so long as the contractual provisions do not conflict with or
otherwise impair the timeframes and procedures set forth in this section.
(g) This section applies to contracts entered into on or after January 1, 2017.
(h) Nothing in this section shall impose liability upon a public entity that makes loans or
grants available through a competitive application process, for the failure of an awardee
to meet its contractual obligations.
(i) This section shall remain in effect only until January 1, 2027, and as of that date is
repealed, unless a later enacted statute that is enacted before January 1, 2027, deletes
or extends that date.
(Amended by Stats. 2019, Ch. 489, Sec. 1. (AB 456) Effective January 1, 2020.
Repealed as of January 1, 2027, by its own provisions.)
80
1672 Donlon Street
Ventura, CA 93003
Local 805 654-6977
Fax 805 654-6979
Delivering excellence through experience www.jdscivil.com
ENGINEERS PLANNERS SURVEYORS CONSTRUCTION MANAGERS
1
November 3, 2022 Proposal No. 2021.033R
Daniel Kim, PE
City Engineer
City of Moorpark
799 Moorpark Ave
Moorpark, CA 93021
SUBJECT: Proposal for Civil Engineering Design Services
High Street Depot - Street Improvements, Moorpark
Dear Mr. Daniel Kim, PE:
Thank you for the opportunity to prepare this proposal for the proposed High Street Improvement
Project, located between Moorpark Avenue and Spring Road. The bulk of the improvements will
be to construct “bulb outs” at two intersections – Walnut Street and Bard St. Curb, gutter and
sidewalk replacement along the south side of High Street is also anticipated. This work will be
coordinated with the private redevelopment happening on the south side, as well. Please find
attached our Agreement between Client and Consultant, which outlines the scope of work to be
performed, our Fee Schedule and Billing Terms, and the Standard Provisions of Agreement
between Client and Consultant.
If you wish us to proceed, please sign the attached contract documents, provide initials where
indicated, and return one set to our office. Your written return of this proposal package to us will
constitute our written authorization to proceed.
Should you have any questions regarding this proposal, please feel free to contact our office at
(805) 654-6977.
Sincerely,
JENSEN DESIGN & SURVEY, INC.
James Kelly, P.E.
Civil Engineer II
Attachments: Agreement between Client and Consultant
Fee Schedule and Billing Terms
Standard Provisions of Agreement between Client and Consultant
EXHIBIT D
81
November 3, 2022
Consultant’s Initials Client’s Initials
2 Proposal No. 2021.033R
AGREEMENT BETWEEN CLIENT AND CONSULTANT
Agreement entered into at Ventura, California, made this 3rd day of November 2022, and
between:
CLIENT: CONSULTANT:
Name: City of Moorpark Name: Jensen Design & Survey, Inc.
Address: 799 Moorpark Ave
Public Works Department
Address: 1672 Donlon Street
Moorpark, CA 93021 Ventura, CA 93003
Phone: 805-517-6255 Phone: (805) 654-6977
Fax: 805-532-2205 Fax: (805) 654-6979
CLIENT proposes to:
Reconstruct hardscape improvements on High Street, including intersection widening,
curb, gutter and sidewalk replacement.
CONSULTANT agrees to perform the following scope of work:
Topographic Survey and Base Mapping
We will perform a field survey to collect horizontal and vertical information on existing
improvements within the work area. This includes existing hardscape elevations (curbs, back of
walk, finish floor elevations, etc.), dipping sewer and storm drain manholes, locating fire
hydrants, water valves, water services and meters, existing power poles, existing trees, and
other above ground features. We will notify utility owners of the proposed work, requesting as-
built records for all facilities located within the work area.
The information will be plotted on a base map, supplemented with existing survey monuments
found during the field work (no boundary survey is proposed, however). The information
provided by the utility owners will also be added. The resulting base map will be used as the
basis for the design of the proposed improvements.
Street Improvement Plans
We will prepare and process Street Improvement Plans at a scale of 1”=20’. Plan will include a
cover sheet, plan and profile of streets, utility relocations, construction notes, typical sections, and
construction details of non-standard designs.
Geotechnical consultant will provide a letter stating pavement thickness recommendations for
High Street and a report for field compaction testing.
Electrical consultant will provide design for street lights relocating within Right-of-way.
Dry Utility consultant will provide coordination with Edison and relocation of dry utility
infrastructure if necessary.
82
November 3, 2022
Consultant’s Initials Client’s Initials
3 Proposal No. 2021.033R
Traffic consultant will provide traffic guidance as necessary regarding bulb-out design, striping,
signage, and cross-walk best practices.
SWPCP
This site is less than one acre so a Notice of Intent (NOI) and Storm Water Pollution Prevention
Plan (SWPPP) should not be required. The project will require a “local” City of Moorpark Storm
Water Pollution Control Plan (SWPCP) form to be prepared. We will prepare and process the
SWPCP as part of the Improvement Plan submittal.
Contract Specifications
We will prepare Contract Specifications for use in bidding the project. These will be formatted per
the requirements of the City of Moorpark and will include Special Provisions for work not included
in the Standard Specifications for Public Works Construction. We will also prepare a bid form
including scope of work items, quantities, and units of measure for use during the bidding process.
We will also prepare an Engineer’s estimate for the work.
Project Management
We will attend meetings at the City of Moorpark (or, online) to support the final design engineering
effort including plan processing and administration of all aspects of Jensen Design & Survey,
Inc.’s work. In addition, work is to include attending up to 3 final design development meetings to
coordinate design with Owner and other Consultants as required. Included in this phase will be
the preparation of Plan Check packages, scheduling, and internal project control.
ASSUMPTIONS
This proposal is based on the following assumptions. If further investigation into the project
discloses conditions other than those assumed, an appropriate adjustment to the budget will be
prepared.
• Agency fees will be paid by others.
• Connection to existing VCWPD storm drain box via existing 18” lateral will not require a
separate Watershed Permit. If Watershed requires a permit for this connection,
coordination may require an extra to this contract.
• Underground utility connections are available at a location and depth sufficient to serve
the site.
• Services of a Landscape Architect will be provided under contract with JDS.
• Services of a Geotechnical Consultant will be provided under contract with JDS.
• Services of an Electrical Consultant will be provided under contract with JDS.
• Services of a Traffic Consultant will be provided under contract with JDS.
• Changes to the scope of work as defined herein and accepted by the Owner will require
negotiation of an extra to this contract.
• Construction administration services including: landscape construction services,
geotechnical compaction testing, record drawing preparation, rough grade certification
(including site visit) and engineering assistance, have not been included in the scope of
work.
• Changes to the street layout configuration approved through entitlements that cause
overall change to a consultant’s scope may be an extra to this contract.
83
November 3, 2022
Consultant’s Initials Client’s Initials
4 Proposal No. 2021.033R
DELIVERABLE PRODUCTS
• Topographic Survey and Base Map
• Street Improvement Plans
• SWPCP
• Contract Specifications
• Project Management
• Full Buildout Landscape Plans
• Value-Engineered options for Landscape Plans
• Street Light Relocation Plan
• Traffic Counts (if necessary)
• Dry Utility Plan (if necessary)
SCHEDULE
We can begin coordination immediately after receipt of your signed authorization.
84
November 3, 2022
Consultant’s Initials Client’s Initials
5 Proposal No. 2021.033R
FEE ESTIMATE
We propose to provide the services described on a Percent Complete. We have provided a fee
estimate for budgetary purposes in the amount of $67,900.00. (See table below). We anticipate
making 50%, 75% and 95% submittals to the City for review and comment.
Should any work be needed outside the scope and qualifications discussed above, written
authorization shall be requested and obtained prior to starting the work. Minor expense items,
such as outside printing, are included in this fee estimate and will be billed separately. Copies for
distribution to bidders will be provided by the City.
Task Description Amount
Topographic Survey and Base Map $5,500.00
Construction Drawings $13,000.00
Contract Specifications $3,500.00
Project Management $3,500.00
Geotech Consultant $2,000.00
Landscape Consultant $18,400.00
Dry Utility Consultant $7,500.00
Traffic Consultant $6,000.00
Traffic Count (Optional) $2,500.00
Electrical Consultant $6,000.00
TOTAL $67,900.00
If you wish us to proceed, please sign the acknowledgment line of this proposal and return the
following to my attention:
• One original-signed copy of the proposal,
• Initial all pages of the Fee Schedule and Billing Terms, and
• Initial all pages of the Standard Provisions of Agreement between Client and Consultant.
Your return of this proposal package to us will constitute our written authorization to proceed.
This proposal is valid if accepted within 30 days of the date submitted.
IN WITNESS WHEREOF, the parties hereby execute this agreement dated November 3, 2022,
upon the terms and conditions stated above.
Client: City of Moorpark Consultant: Jensen Design & Survey, Inc.
By:
_____________________
By:
James Kelly, PE
Name/Title:
_____________________
Name/Title:
____11/3/2022______________
Date Signed: Date Signed:
85
FEE SCHEDULE & BILLING TERMS
BILLING RATES EFFECTIVE MAY 1, 2022
Fee charges are based on the staff level involved at the following rates:
August 24, 2022
Consultant’s Initials Client’s Initials
6 Proposal No. 2021.033R
ENGINEERING:
PRINCIPAL ENGINEER,
CEO/PRESIDENT
$ 230 /hr.
SENIOR V.P. OF ENGINEERING $ 220 /hr.
V.P. OF ENGINEERING $ 205 /hr.
SENIOR CIVIL ENGINEER II $ 195 /hr.
SENIOR CIVIL ENGINEER I $ 180 /hr.
SENIOR PROJECT MANAGER $ 180 /hr.
CIVIL ENGINEER II $ 170 /hr.
CIVIL ENGINEER I $ 160 /hr.
STAFF ENGINEER $ 150 /hr.
ENGINEERING TECHNICIAN III $ 140 /hr.
ENGINEERING TECHNICIAN II $ 125 /hr.
ENGINEERING TECHNICIAN I $ 115 /hr.
FLOODPLAIN MANAGEMENT
ENGINEER
$ 165 /hr.
PLANNING:
V.P. OF PLANNING $ 200 /hr.
SENIOR PLANNER II $ 175 /hr.
SENIOR PLANNER I $ 165 /hr.
PLANNER III $ 160 /hr.
PLANNER II $ 150 /hr.
PLANNER I $ 140 /hr.
EXPERT WITNESS /
DEPOSITION RATES:
Hourly rate for work involving actual expenses
in court (4-hour minimum), giving depositions
or similar expert testimony, will be billed $500
per hour regardless of job classification
SURVEY:
SENIOR LICENSED LAND SURVEYOR $ 195 /hr.
LICENSED LAND SURVEYOR II $ 185 /hr.
LICENSED LAND SURVEYOR I $ 175 /hr.
SENIOR PROJECT SURVEYOR $ 165 /hr.
PROJECT SURVEYOR $ 155 /hr.
SURVEY TECHNICIAN III $ 145 /hr.
SURVEY TECHNICIAN II $ 135 /hr.
SURVEY TECHNICIAN I $ 125 /hr.
1-MAN SURVEY CREW $ 185 /hr.
2-MAN SURVEY CREW $ 270 /hr.
3-MAN SURVEY CREW $ 345 /hr.
DRONE SERVICES:
DRONE FLIGHT CHARGES $ 50 /acre
(50 acre min)
GENERAL:
ASSISTANT PROJECT MANAGER $ 105 /hr.
RESEARCH/OFFICE ASSISTANT $ 100 /hr.
86
FEE SCHEDULE & BILLING TERMS
August 24, 2022
Consultant’s Initials Client’s Initials
7 Proposal No. 2021.033R
NOTICE OF LICENSURE:
AS REQUIRED UNDER CCR TITLE 16, CHAPTER 5, SECTION 463.5, NOTICE OF
LICENSURE, CLIENT IS HEREBY ADVISED THAT JENSEN DESIGN & SURVEY, INC.
IS LICENSED BY THE STATE OF CALIFORNIA TO PROVIDE CIVIL ENGINEERING
AND LAND SURVEYING SERVICES. SPECIFIC PROJECT SERVICES WILL BE
PROVIDED UNDER THE DIRECTION OF EITHER A LICENSED CIVIL ENGINEER OR
LICENSED LAND SURVEYOR, AS APPROPRIATE TO THE SCOPE OF SERVICES
ENVISIONED.
EXPENSES
Out of pocket expenses (outside printing, bonds, permits, and plan check fees) paid by
us are charged at cost plus 15%. Per Diem subsistence not to exceed $75.00, plus 15%
will be charged for individuals on out-of-area projects requiring more than one day.
Mileage costs may be charged for travel to and from projects outside a twenty-mile radius
from the office per the current allowable IRS mileage allowance times 1.5. In-house
plotting/copying is charged at $0.75 per s.f. on Bond paper. For mylar, the charge for
printing shall be $12.00 per full size sheet (24 in x 36 in). In-house photocopying may be
charged at $0.25 per sheet.
BILLING TERMS AND CONDITIONS
1. All fees and other charges will be billed monthly and shall be due at the time of
billing unless otherwise specified in this agreement.
2. Client agrees that all invoices from Jensen Design & Survey, Inc. are correct,
conclusive, and binding on Client unless Client, within ten (10) days from the date
of receipt of such billing, notifies Jensen Design & Survey, Inc. in writing of alleged
inaccuracies, discrepancies, or errors in the billing.
3. If Client fails to pay Jensen Design & Survey, Inc. within thirty (30) days after
invoices are submitted, Client agrees that Jensen Design & Survey, Inc. shall have
the right to consider such default in payment a material breach of this entire
agreement, and, upon written notice, the duties, obligations, and responsibilities of
Jensen Design & Survey, Inc. are suspended or terminated. In such event, Client
shall promptly pay Jensen Design & Survey, Inc. for all fees, charges, and services
provided by Jensen Design & Survey, Inc.
4. Client agrees to pay a monthly late payment charge, which will be the lesser of,
one and one-half percent (1-½%) per month or a monthly charge not to exceed the
87
FEE SCHEDULE & BILLING TERMS
August 24, 2022
Consultant’s Initials Client’s Initials
8 Proposal No. 2021.033R
maximum legal rate, which will be applied to any unpaid balance commencing
thirty (30) days after the date of the original billing.
5. It is Jensen Design & Survey, Inc.’s policy to require that all outstanding receivable
balances are current prior to submittal of any documents to regulatory agencies,
submittal of improvement plans or revisions to City or County agencies for plan
check, or release of any final plans or documents to client. Outstanding receivables
balances are defined as all invoices submitted 30 days or more prior to the
scheduled submittal date. Client is advised to coordinate their payment schedule
to ensure all such invoices are paid. Jensen Design & Survey, Inc. reserves the
right to require, upon prior written notice to Client, that additional progress
payments or final payment be made for all fees, charges, and services prior to any
submittals or release of any documents.
6. Jensen Design & Survey, Inc. will not be held responsible or liable in any way for
any project delays or damages resulting from non-submittal of improvement plans
or other deliverables due to Client’s non-payment of account, as defined in (5)
above.
7. It is the Client’s responsibility to advise Jensen Design & Survey, Inc. concurrent
with notice to proceed, of any special billing formats required by Client’s accounting
department. If timely notification of special accounting handling or special
documentation requirements is not made, any delays in payment to Jensen Design
& Survey, Inc. shall be subject to the conditions in paragraph (5) above.
8. It is the Client’s responsibility to clearly identify to Jensen Design & Survey, Inc.
the names of Client’s representative’s authorized to approve any change orders to
the contract scope of work. Change orders to the original scope of work submitted
by Jensen Design & Survey, Inc. must be immediately authorized in writing by the
Client and returned to us. Failure by Client to provide timely, written authorization
of change orders shall result in immediate suspension of work on that change
order, without written notification to Client.
9. Clients may request, in order to expedite project schedules, that Jensen Design &
Survey, Inc. work overtime. Advance written acceptance of the Jensen Design &
Survey, Inc. overtime authorization addendum to contract is required prior to any
work being performed. All overtime work will be billed at one and one half (1-½)
times our regular fee schedule rates for all categories of personnel (professional
and hourly). It is understood by Client that such overtime may substantially
increase Client’s total cost for project.
88
FEE SCHEDULE & BILLING TERMS
August 24, 2022
Consultant’s Initials Client’s Initials
9 Proposal No. 2021.033R
10. In the event that Jensen Design & Survey, Inc.’s fee schedule changes due to any
increase of costs such as the granting of wage increases and/or other employee
benefits to field or office employee due to the terms of any labor agreement, or rise
in the cost of living, during the lifetime of this agreement, a percentage increase
shall be applied to all remaining compensation
11. Neither party to this Agreement shall transfer, sublet or assign any rights under or
interest in this agreement (including but not limited to monies that are due or
monies that may be due) without the prior written consent of the other party.
Subcontracting to sub-consultants normally contemplated by Jensen Design &
Survey, Inc. shall not be considered an assignment for purposes of this
Agreement.
12. Client shall pay the costs of all checking and inspection fees, zoning and
annexation application fees, assessment fees, soils or geotechnical engineering
fees, soils or geotechnical testing fees, aerial topography fees, and all other fees,
permits, bond premiums, applicable taxes on professional services, title company
charges, blueprints and reproductions, and all other similar charges not specifically
covered by the terms of this agreement.
89
Standard Provisions of Agreement
between Client and Consultant
August 24, 2022
Consultant’s Initials Client’s Initials
10 Proposal No. 2021.033R
Client and Consultant agree that the following provisions shall be part of this agreement:
1. Client and Consultant agree to cooperate with each other in order to fulfill their responsibilities and
obligations under this agreement. Both Client and Consultant shall endeavor to maintain good working
relationships among members of the project team.
2. This agreement shall be binding upon the heirs, executors, administrators, successors and assigns of
Client and Consultant.
3. This agreement contains the entire agreement between Client and Consultant relating to the project and
the provision of services for the project. Any prior agreements, promises, negotiations or representations
not expressly set forth in this agreement are of no force or effect. Subsequent modifications to this
agreement shall be in writing and signed by both Client and Consultant.
4. Consultant's or Client's waiver of any term, condition or covenant shall not constitute the waiver of any
other term, condition or covenant. Consultant's or Client's waiver of any breach of this agreement shall
not constitute the waiver of any other breach of the agreement.
5. If any term, condition or covenant of this agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions of this agreement shall be valid and binding on
Client and Consultant.
6. This agreement shall be governed by and construed in accordance with the laws of the State of
California.
7. If the scope of services includes Consultant's assistance in applying for governmental permits or
approvals, Consultant's assistance shall not constitute a representation, warranty or guarantee that such
permits or approvals will be acted upon favorably by any governmental agency.
8. Upon Consultant's request, Client shall execute and deliver, or cause to be executed and delivered, such
additional information, documents or money to pay governmental fees and charges which are necessary
for Consultant to perform services pursuant to the terms of this agreement.
9. Client acknowledges all reports, plans, specifications, field data and notes and other documents,
including all documents on electronic media, prepared by Consultant are instruments of service, and
shall remain the property of Consultant and may be used by Consultant without the consent of Client.
Upon request and payment of all costs involved, Client is entitled to a copy of all final plans and
specifications for use in connection with the project for which the plans and specifications have been
prepared. Client acknowledges that its right to utilize final plans and specifications and the services of
Consultant provided pursuant to this agreement will continue only so long as Client is not in default,
pursuant to the terms and conditions of this agreement, and Client has performed all its obligations under
this agreement.
10. Client agrees not to use or permit any other person to use plans, specifications, drawings, cost estimates,
reports or other documents prepared by Consultant which plans, specifications, drawings, cost
estimates, reports or other documents are not final and which are not signed and stamped or sealed by
Consultant. Client shall be responsible for any such use of non-final plans, specifications, drawings, cost
estimates, reports or other documents not signed and stamped or sealed by Consultant. Client hereby
waives any claim for liability against Consultant for such use. Client further agrees that final plans,
specifications, drawings, cost estimates, reports or other documents are for the exclusive use of Client
and may be used by Client only for the project described as part of this agreement. Such final plans,
specifications, drawings, cost estimates, reports or other documents may not be changed or used on a
different project without written authorization or approval by Consultant. If signed check prints are
required to be submitted with a stamp or seal, they shall not be considered final for purposes of this
paragraph.
11. In accepting and utilizing any drawings, reports and data on any form of electronic media generated
and furnished by Consultant, Client covenants and agrees not to reuse these electronic files, in whole
or in part, for any purpose or project other than the project that is subject of this agreement. Client
agrees not to transfer these electronic files to others without the prior written consent of Consultant.
Client further agrees to waive all claims against Consultant resulting in any way from any unauthorized
changes or reuse of the electronic files for any other project by anyone other than Consultant. In the
event of a conflict between the signed construction documents prepared by Consultant and electronic
files, the signed and stamped or sealed hard copy construction documents shall govern. In addition,
Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless Consultant, its
officers, directors, employees, agents and sub-consultants against all damages, liabilities or costs,
including reasonable attorneys’ fees and defense costs, arising from any changes made by anyone
90
Standard Provisions of Agreement
between Client and Consultant
August 24, 2022
Consultant’s Initials Client’s Initials
11 Proposal No. 2021.033R
other than Consultant or from any reuse of the electronic files without the prior written consent of
Consultant. Under no circumstances shall delivery of electronic files for use by Client be deemed a
sale by Consultant, and Consultant makes no warranties, either express or implied, of merchantability
and fitness for any particular purpose. In no event shall Consultant be liable for indirect or
Consequential damages as a result of Client’s use or reuse of the electronic files.
12. Consultant makes no representations concerning soils or geological conditions unless specifically
included in writing in this agreement, or by amendments to this agreement, and shall not be responsible
for any liability that may arise out of the making of or failure to make soils or geological surveys,
subsurface soils or geological tests, or general soils or geological testing.
13. Client acknowledges Consultant has the right to complete all services agreed to be rendered pursuant
to this agreement. In the event this agreement is terminated before the completion of all services, unless
Consultant is responsible for such early termination, Client agrees to release Consultant from all liability
for services performed. In the event all or any portion of the services by Consultant are suspended,
abandoned, or otherwise terminated, Client shall pay Consultant all fees and charges for services
provided prior to termination, not to exceed the contract limits specified herein, if any. Client acknowl-
edges if the project services are suspended and restarted, there will be additional charges due to
suspension of the services which shall be paid for by Client as extra services. Client acknowledges if
project services are terminated for the convenience of Client, Consultant is entitled to reasonable
termination costs and expenses.
14. If the scope of services to be provided by Consultant pursuant to the terms of this agreement includes
an ALTA Survey, Client agrees that Consultant may sign one of the ALTA survey statements attached
to this agreement and incorporated herein by reference. In the event Consultant is required to sign a
statement or certificate which differs from the ALTA survey statements contained in the attachment to
this agreement, Client hereby agrees to indemnify and hold Consultant harmless from any and all liability
arising from or resulting from the signing of any statement which differs from those statements contained
in the attachment to this agreement.
15. If the scope of services to be provided by Consultant pursuant to the terms of this agreement includes
the preparation of grading plans but excludes construction staking services, Client acknowledges that
such staking services normally include coordinating civil engineering services and the preparation of
record drawings based upon information provided by others, and Client will be required to retain such
services from another consultant or pay Consultant pursuant to this agreement for such services as extra
services.
16. If the scope of services contained in this agreement does not include construction-phase services for
this project, Client acknowledges such construction-phase services will be provided by Client or by others
and Client assumes all responsibility for interpretation of the contract documents and for construction
observation and supervision and waives any claim against Consultant that may in any way be connected
thereto. In addition, Client agrees to indemnify and hold Consultant harmless from any loss, claim, or
cost, including reasonable attorneys' fees and costs of defense, arising or resulting from the performance
of such services by other persons or entities and from any and all claims arising from the modification,
clarification, interpretation, adjustments or changes made to the contract documents to reflect changed
field or other conditions, except for claims arising from the sole negligence or willful misconduct of
Consultant.
17. Consultant shall be entitled to immediately, and without notice, suspend the performance of any and all
of its obligations pursuant to this agreement if Client files a voluntary petition seeking relief under the
United States Bankruptcy Code or if there is an involuntary bankruptcy petition filed against Client in the
United States Bankruptcy Court, and that petition is not dismissed within fifteen (15) days of its filing.
Any suspension of services made pursuant to the provisions of this paragraph shall continue until such
time as this agreement has been fully and properly assumed in accordance with the applicable provisions
of the United States Bankruptcy Code and in compliance with the final order or judgment issued by the
Bankruptcy Court. If the suspension of performance of Consultant's obligation pursuant to this agreement
continues for a period in excess of ninety (90) days, Consultant shall have the right to terminate all
services pursuant to this agreement.
18. This agreement shall not be construed to alter, affect or waive any design professional's lien, mechanic's
lien or stop notice right which Consultant may have for the performance of services pursuant to this
agreement. Client agrees to provide to Consultant the present name and address of the record owner of
the property upon which the project is to be located. Client also agrees to provide Consultant with the
91
Standard Provisions of Agreement
between Client and Consultant
August 24, 2022
Consultant’s Initials Client’s Initials
12 Proposal No. 2021.033R
name and address of any and all lenders who may loan money on the project and who are entitled to
receive a preliminary notice.
19. If payment for Consultant's services is to be made on behalf of Client by a third-party lender, Client
agrees that Consultant shall not be required to indemnify the third-party lender, in the form of an
endorsement or otherwise, as a condition to receiving payment for services.
20. Consultant shall not be required to execute any documents subsequent to the signing of this agreement
that in any way might, in the judgment of Consultant, increase Consultant's contractual or legal
obligations or risks, or the availability or costs of his or her professional or general liability insurance.
21. If Consultant, pursuant to this agreement, produces plans, specifications, or other documents and/or
performs field services, and such plans, specifications, or other documents and/or field services are
required by any governmental agency, and such governmental agency changes its ordinances, codes,
policies, procedures or requirements after the date of this agreement, any additional office or field
services thereby required shall be paid for by Client as extra services.
22. Client agrees that if Client requests services not specified in the scope of services described in this
agreement, Client will pay for all such additional services as extra services, in accordance with
Consultant's billing rates utilized for this agreement.
23. In the event that any staking or record monuments are destroyed, damaged or disturbed by an act of
God or parties other than Consultant, the cost of re-staking shall be paid for by Client as extra services.
24. Client acknowledges that the design services performed pursuant to this agreement are based upon field
and other conditions existing at the time these services were performed. Client further acknowledges
that field and other conditions may change by the time project construction occurs and clarification,
adjustments, modifications and other changes may be necessary to reflect changed field or other
conditions. Such clarifications, adjustments, modifications and other changes shall be paid for by Client
as extra services.
25. Client acknowledges and agrees that if Consultant provides surveying services, which services require
the filing of a Record of Survey in accordance with Business and Professions Code section 8762, or a
Corner Record pursuant to Business and Professions Code section 8773, all of the costs of preparation,
examination and filing for the Record of Survey or Corner Record will be paid by Client as extra services.
26. Consultant is not responsible for delay caused by activities or factors beyond Consultant's reasonable
control, including but not limited to, delays by reason of strikes, lockouts, work slowdowns or stoppages,
accidents, acts of God, failure of Client to furnish timely information or approve or disapprove of
Consultant's services or instruments of service promptly, faulty performance by Client or other
contractors or governmental agencies. When such delays beyond Consultant's reasonable control occur,
Client agrees Consultant shall not be responsible for damages nor shall Consultant be deemed to be in
default of this agreement.
27. Consultant shall not be liable for damages resulting from the actions or inactions of governmental
agencies including, but not limited to, permit processing, environmental impact reports, dedications,
general plans and amendments thereto, zoning matters, annexations or consolidations, use or
conditional use permits, project or plan approvals, and building permits. Client agrees that it is the
responsibility of Client to maintain in good standing all governmental approvals or permits and to timely
apply for any necessary extensions thereof.
28. If the scope of services requires Consultant to estimate quantities, such estimates are made on the basis
of Consultant's experience and qualifications and represent Consultant's best judgment as a professional
generally familiar with the industry. However, such estimates are only estimates and shall not constitute
representations, warranties or guarantees of the quantities of the subject of the estimate. If the scope of
services requires Consultant to provide its opinion of probable construction costs, such opinion is to be
made on the basis of Consultant's experience and qualifications and represents Consultant's best
judgment as to the probable construction costs. However, since Consultant has no control over costs or
the price of labor, equipment or materials, or over the contractor's method of pricing, such opinions of
probable construction costs do not constitute representations, warranties or guarantees of the accuracy
of such opinions, as compared to bid or actual costs.
29. Estimates of land areas provided under this agreement are not intended to be, nor should they be
considered to be, precise. The estimate will be performed pursuant to generally accepted standards of
professional practice in effect at the time of performance.
30. In the event (1) Client agrees to, authorizes, or permits changes in the plans, specifications or documents
prepared by Consultant, which changes are not consented to in writing by Consultant, or (2) Client agrees
to, authorizes or permits construction of unauthorized changes in the plans, specifications or documents
92
Standard Provisions of Agreement
between Client and Consultant
August 24, 2022
Consultant’s Initials Client’s Initials
13 Proposal No. 2021.033R
prepared by Consultant, which changes are not consented to in writing by Consultant, or (3) Client does
not follow recommendations prepared by Consultant pursuant to this agreement, which changed
recommendations are not consented to in writing by Consultant: Client acknowledges that the
unauthorized changes and their effects are not the responsibility of Consultant and Client agrees to
release Consultant from all liability arising from the use of such changes, and further agrees to defend,
indemnify and hold harmless Consultant, its officers, directors, agents, employees and sub-consultants
from and against all claims, demands, damages or costs, including attorneys' fees, arising from the
unauthorized changes.
31. Client agrees that in accordance with generally accepted construction practices, the construction
contractor and construction subcontractors will be required to assume sole and complete responsibility
for job site conditions during the course of construction of the project, including safety of all persons and
property, and that this requirement shall apply continuously and not be limited to normal working hours.
Neither the professional activities of Consultant nor the presence of Consultant or his or her employees
or sub-consultants at a construction site shall relieve the contractor and its subcontractors of their
obligations, duties and responsibilities including, but not limited to, construction means, methods,
sequence, techniques or procedures necessary for performing, superintending or coordinating all
portions of the work of construction in accordance with the contract documents and applicable health or
safety requirements of any regulatory agency or of state law.
32. Client agrees to require its contractor and subcontractors to review the plans, specifications and
documents prepared by Consultant prior to the commencement of construction-phase work. If the
contractor and/or subcontractors determine there are deficiencies, conflicts, errors, omissions, code
violations, improper uses of materials, or other deficiencies in the plans, specifications and documents
prepared by Consultant, contractors and subcontractors shall notify Client so those deficiencies may be
corrected by Consultant prior to the commencement of construction-phase work.
33. If during the construction phase of the project Client discovers or becomes aware of changed field or
other conditions which necessitate clarifications, modifications or other changes to the plans,
specifications, estimates or other documents prepared by Consultant, Client agrees to notify Consultant
and retain Consultant to prepare the necessary changes or modifications before construction activities
proceed. Further, Client agrees to require a provision in its construction contracts for the project which
requires the contractor to promptly notify Client of any changed field or other conditions so that Client
may in turn notify Consultant pursuant to the provisions of this paragraph. Any extra work performed by
Consultant pursuant to this paragraph shall be paid for as extra services.
34. Client agrees to purchase and maintain, or cause Contractor to purchase and maintain, during the course
of construction, builder's risk "all risk" insurance which will name Consultant as an additional named
insured as its interest may appear.
35. Client acknowledges that Consultant's scope of services for this project does not include any services
related in any way to asbestos and/or hazardous or toxic materials and warrants that the job site is free
from any hazard which may result from the existence of such materials.
36. Client hereby agrees to bring no cause of action on any basis whatsoever against Consultant, if such
claim or cause of action in any way would involve Consultant's services for the investigation, detection,
abatement, replacement, use or specification, or removal of products, materials or processes containing
asbestos, asbestos cement pipe, and/or any hazardous or toxic materials
37. Client agrees that in the event Consultant institutes litigation to enforce or interpret the provisions of this
agreement, such litigation is to be brought and adjudicated in the appropriate court in the county in which
Consultant's place of business is located, and Client waives the right to bring, try or remove such litigation
to any other county or judicial district.
38. Client and Consultant agree that all disputes between them arising out of or relating to this agreement
shall be submitted to nonbinding mediation, unless the parties mutually agree otherwise.
39. In the event the parties to this Agreement are unable to reach a settlement of any dispute arising out of
this Agreement or related to the services under this Agreement, then such disputes may, with the consent
of both parties, be settled by binding arbitration in accordance with the Construction Industry Arbitration
Rules of the American Arbitration Association or such other arbitration rules as the parties may choose.
In any such arbitration, the laws of the State of California shall apply.
40. In recognition of the relative risks and benefits of the Project to both the Client and the Consultant, the
risks have been allocated such that the Client agrees, to the fullest extent permitted by law, to limit the
liability of the Consultant and Consultants officers, directors, partners, employees, shareholders,
owners and subconsultants for any and all claims, losses, costs, damages of any nature whatsoever or
93
Standard Provisions of Agreement
between Client and Consultant
August 24, 2022
Consultant’s Initials Client’s Initials
14 Proposal No. 2021.033R
claims expenses from any cause or causes, including attorneys' fees and costs and expert-witness
fees and costs, so that the total aggregate liability of the Consultant and Consultants officers, directors,
partners, employees, shareholders, owners and subconsultants shall not exceed $50,000, or the
Consultant's total fee for services rendered on this Project, whichever is greater. It is intended that this
limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise
prohibited by law.
41. In the event of termination of this Agreement by either party, the Client shall within fifteen (15) calendar
days of termination pay the Consultant for all services rendered and all reimbursable costs incurred by
the Consultant up to the date of termination, in accordance with the payment provisions of this
Agreement.
Either party may terminate this Agreement for cause upon giving the other party not less than seven
(7) calendar days written notice for any of the following reasons:
• Substantial failure by the other party to perform in accordance with the terms of this
Agreement and through no fault of the terminating party;
• Assignment of this Agreement or transfer of the Project by either party to any other entity
without the prior written consent of the other party;
• Suspension of the Project or the Consultant's services by the Client for more than ninety (90)
calendar days, consecutive or in the aggregate;
• Material changes in the conditions under which this Agreement was entered into, the Scope of
Services or the nature of the Project, and the failure of the parties to reach agreement on the
compensation and schedule adjustments necessitated by such changes.
In the event of any termination that is not the fault of the Consultant, the Client shall pay the
Consultant, in addition to payment for services rendered and reimbursable costs incurred, for all
expenses reasonably incurred by the Consultant in connection with the orderly termination of this
Agreement, including but not limited to demobilization, reassignment of personnel, associated
overhead costs and all other expenses directly resulting from the termination.
42. In providing services under this Agreement, the Consultant shall perform in a manner consistent with
that degree of care and skill ordinarily exercised by members of the same profession currently
practicing under similar circumstances at the same time and in the same or similar locality.
43. Limitations on liability, waivers and indemnities in this Agreement are arms-length business
understandings between the parties and shall apply to all legal theories of recovery, including breach of
contract or warranty, breach of fiduciary duty, tort (including negligence), strict or statutory liability, or
any other cause of action, provided that these limitations on liability, waivers and indemnities will not
apply to any losses or damages that may be found by a trier of fact to have been caused by the
Consultant's gross negligence or the Consultant's willful misconduct. The parties also agree that the
Client will not seek damages in excess of the contractually agreed-upon limitations directly or indirectly
through suits against other parties who may join the Consultant as a third-party defendant. Parties
means the Client and the Consultant, and their officers, directors, partners, employees, subcontractors
and subconsultants.
44. It is intended by the parties to this Agreement that the Consultant's services in connection with the
Project shall not subject the Consultant's individual employees, officers or directors to any personal
legal exposure for the risks associated with this Project. Therefore, and notwithstanding anything to the
contrary contained herein, the Client agrees that as the Client's sole and exclusive remedy, any claim,
demand or suit shall be directed and/or asserted only against the Consultant, a California corporation,
and not against any of the Consultant's individual employees, officers or directors.
45. The Consultant shall put forth reasonable professional efforts to comply with applicable laws, codes
and regulations in effect as of the date of submission to building authorities. Design changes made
necessary by newly enacted laws, codes and regulations after this date shall entitle the Consultant to a
94
Standard Provisions of Agreement
between Client and Consultant
August 24, 2022
Consultant’s Initials Client’s Initials
15 Proposal No. 2021.033R
reasonable adjustment in the schedule and additional compensation in accordance with the Additional
Services provisions of this Agreement.
46. The Client shall make no claim for professional negligence, either directly or by way of a cross
complaint against the Consultant unless the Client has first provided the Consultant with a written
certification executed by an independent consultant currently practicing in the same discipline as the
Consultant and licensed in the State of California. This certification shall: a) contain the name and
license number of the certifier; b) specify the acts or omissions that the certifier contends are not in
conformance with the standard of care for a consultant performing professional services under similar
circumstances; and c) state in detail the basis for the certifiers opinion that such acts or omissions do
not conform to the standard of care. This certificate shall be provided to the Consultant not less than
thirty (30) calendar days prior to the presentation of any claim or the institution of any arbitration or
judicial proceeding. This Certificate of Merit clause will take precedence over any existing state law in
force at the time of the claim or demand for arbitration.
47. Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law,
neither the Client nor the Consultant, their respective officers, directors, partners, employees,
contractors or subconsultants shall be liable to the other or shall make any claim for any incidental,
indirect or consequential damages arising out of or connected in any way to the Project or to this
Agreement. This mutual waiver of consequential damages shall include, but is not limited to, loss of
use, loss of profit, loss of business, loss of income, loss of reputation and any other consequential
damages that either party may have incurred from any cause of action including negligence, strict
liability, breach of contract and breach of strict or implied warranty. Both the Client and the Consultant
shall require similar waivers of consequential damages protecting all the entities or persons named
herein in all contracts and subcontracts with others involved in this project.
95