HomeMy WebLinkAboutAGENDA REPORT 2006 0215 CC REG ITEM 09CTO:
FROM:
DATE:
MOORPARK CITY COUNCIL
AGENDA REPORT
The Honorable City Council
CITY OF MOORPARK, CALIFORNIA
City Council Meeting
of o2 -/5 'd00ro
ACTION:. —
Hugh R. Riley, Assistant City Mana
February 6, 2006 (CC Meeting of February 15, 2006)
SUBJECT: Consider Award Contract for Design of the Human Services Center
to HMC Architects, Inc.
DISCUSSION
One of the City Council's top ten priority projects is the development of a Human
Services Center including facilities to provide medical, dental and mental health
services and other social services to the City's low and moderate income families. In
April 2001, the City of Moorpark Redevelopment Agency acquired a 7.58 acre site on
Spring Road for the Police Services Center. Approximately two acres of that site have
been designated as the site for the new Human Services Center and this parcel has
been acquired by the City with Community Development Block Grant Funds for that
purpose. The proposed facility would include a 10,000 square foot medical clinic, a
15,000 square foot "Under- one -Roof' Building and an area for day laborers to assemble
to await opportunities for work.
In May 2004, Staff invited more than 70 Architectural firms to submit proposals for the
design and development of site improvements and the conceptual design of the
buildings for the Human Services Center. The City received proposals from ten
architectural firms. HMC was selected as the top candidate firm.
HMC has completed the design and development of the site improvements and
conceptual drawings of the Human Service Center. HMC performed satisfactory and
was invited to submit a proposal for full design and construction drawings for both the
medical clinic and under one roof building.
HMC's submitted a proposal to provide architectural and engineering services. Staff
has prepared a professional services agreement between HMC and the city (Attachment
1). The fee for their service is computed at a flat 9.5% of the estimated construction
cost. The Architect has estimated the construction cost for the Human Services Center
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to be $7,942,831. Staff will have an independent consulting firm also provide an
estimate of the construction cost to compare against the Architect's estimate.
STAFF RECOMMENDATION
Approve professional services agreement with HMC Architects in the amount of
$754,569; authorize the City Manager to execute said contract, subject to final language
approval by the City Manager and City Attorney.
Attachment I Professional Services Agreement with HMC Architects
00000'7
ATTACHMENT i
AGREEMENT BETWEEN THE CITY OF MOORPARK AND
HMC FOR ARCHITECTURAL DESIGN AND CONSULTING SERVICES
THIS AGREEMENT is made and entered into on this day of February,
2006, in the County of Ventura, State of California, by and between the City of
Moorpark, a municipal corporation, hereinafter referred to as "City ", and HMC Architects
hereinafter referred to as "Architect ".
WITNESSETH
WHEREAS, the Architect has completed the design and development of site
improvements and conceptual design of the medical clinic and under one roof building;
and
WHEREAS, the City requested a proposal from the Architect for full architectural
design and construction drawings for the Human Services Center; and
WHEREAS, pursuant to said request, Architect submitted a proposal, which was
accepted by City for services.
NOW THEREFORE, in consideration of their mutual promises, obligations and
covenants hereinafter contained, the parties hereto agree as follows:
1. TERM - The term of this Agreement shall be from the date this Agreement is
made and entered, as first written above, until the completion of services and
acceptance by the City of the deliverable products and services as specified in
the Final Scope of Work included as attached Exhibit A.
2. INCORPORATION BY REFERENCE - All exhibits thereof are hereby
incorporated in and made part of this Agreement.
3. CITY OBLIGATIONS - For furnishing services as specified in this Agreement,
City will pay and Architect shall receive as full compensation therefore, a total
sum based on the compensation schedule shown in Exhibit "A ", attached hereto
and made part of this Agreement. Payments to the Architect shall be made
within thirty -five (35) days after receipt of an original invoice and back up
materials from the Architect and acceptance of the invoice and back up by the
City. Invoices will be considered accepted, if not rejected within 15 days of
receipt by the City. The total compensation the Architect shall receive for
specified in this Agreement shall not exceed $754,569.
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4. ARCHITECT'S OBLIGATIONS - For and in consideration of the payments and
agreements herein before mentioned to be made and performed by City,
Architect agrees with City to provide services as specified and to do everything
required by this Agreement and Exhibit attached hereto. Architect shall review,
coordinate and approve the work of all consultants retained by Architect.
Architect shall be responsible for all work performed by said consultants (a) as
being complete, (b) as meeting City's and Architect's requirements, and (c) as if it
had been performed by Architect. Without limiting the generality of the foregoing,
Architect warrants on behalf of itself and all subcontractors engaged for the
performance of this Agreement, that only persons authorized to work in the
United States, pursuant to the Immigration Reform and Control Act of 1986 and
other applicable laws, shall be employed in the performance of the work
hereunder.
5. INDEMNIFICATION FOR PROFESSIONAL LIABILITY- When the law
establishes a professional standard of care for Consultant's Services, 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
( "Indemnified Parties ") from and against any and all losses, liabilities, damages,
costs and expenses, including attorney's fees and costs to the extent same as
caused in whole or in part by any negligent or wrongful act, error or omission of
CONSULTANT, its officers, agents, employees, subconsultants, contractors and
subcontractors (or any entity or individual that CONSULTANT shall bear the legal
liability thereof) in the performance of professional services under this
Agreement.
6. INDEMNIFICATION FOR OTHER THAN PROFESSIONAL LIABILITY- Other
than in the performance of professional services and to the full extent permitted
by law, CONSULTANT shall indemnify, 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 attorneys 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
entity for which CONSULTANT is legally liable, including but not limited to
officers, agents, employees, subconsultants, or contractors and subcontractors of
CONSULTANT.
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7. GENERAL INDEMNIFICATION PROVISIONS- CONSULTANT agrees to obtain
executed indemnity agreements with provisions identical to those set forth here
in this section from each and every subconsultant, contractor and 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 indemnity 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
Paragraphs 5 and 6 of this Agreement.
8. INSURANCE - CONSULTANT shall maintain prior to the beginning of and for the
duration of this Agreement insurance coverage as specified in Exhibit B attached
to and part of this agreement.
9. INDEPENDENT CONTRACTOR —Architect is and at all times shall remain, as to
the City, a wholly independent contractor. Architect shall not, at any time or in
any manner, represent that he is an officer, employee or agent of the City.
Architect shall comply with all applicable provisions of the Worker's
Compensation Insurance and Safety Acts and Labor Code of the State of
California.
10. AMENDMENTS - Any amendment, modification, or variation from the terms of
this Agreement shall be in writing and shall be effective only upon approval by
the City Manager.
11. TERMINATION - Architect may terminate this Agreement only for breach of
contract by City and upon thirty (30) days written notice. City may terminate this
Agreement without cause, and upon thirty (30) days written notice to Architect, in
which case Architect shall be entitled to receive compensation for the reasonable
value of the Architect's services performed through the termination date.
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Furthermore, if, during the term of this Agreement, City determines that Architect
is not faithfully abiding by any term or condition contained herein, City shall
provide Architect with written notice and said notice must give Architect a 48 -hour
notice of time thereafter in which to perform said work or cure the deficiency. If
Architect has not performed the work or cured the deficiency within the time
specified in the notice, or if a similar failure to perform or deficiency is repeated,
such shall constitute a breach of this Agreement and City may terminate this
Agreement, immediately by written notice to Architect to said effect. In said
event, Architect shall be entitled to the reasonable value of its services performed
up to the day it received City Notice of Termination, minus any offset from such
payment representing the City's damages from such breach. Failure of the
Architect to provide the City reports, exhibits, drawings, documents, charts,
graphs and other material which meets or exceeds reasonable professional
standards, or in a timely manner, shall entitle City to offset against any amounts
owed costs incurred by City to replace or obtain such materials or services which
meet or exceed reasonable professional standards in a timely manner from other
sources.
City reserves the right to delay any post- termination payment until completion or
confirmed abandonment of the project, as may be determined in the City's sole
discretion, so as to permit a full and complete accounting of costs. In no event
shall Architect be entitled to receive remuneration in excess of the compensation
quote in its proposal /bid.
12. OWNERSHIP OF DOCUMENTS - Upon completion of any report, study or
drawings to be provided by Architect or its consultant(s) in the course of
performing the services required in the Request for Proposal, or upon sooner
termination of the Agreement, all original material prepared by Architect shall
become the sole property of the City and may be used, reused or otherwise
disposed of by the City without permission of Architect for work relating to this
site only and subject to the restrictions provided in the Business and Professions
Code, Section 5536.25. "If the City uses any plans, drawings, or other
instruments prepared by architects in performance of this Agreement for any
project other than the Human Services Center — City of Moorpark, the City of
Moorpark will agree to defend, indemnify and hold harmless HMC Architects, and
any of its officers, agents, employees, assigns, and successors in interest from
and against any and all suits and causes of action, claims, losses, demands,
expenses, including, but not limited to, attorney's fees, and costs of litigation
and /or arbitration, damage or liability of any nature whatsoever, for death or
injury to any person, including the contractor's employees and agents, or
damage to or destruction of any property of either party hereto or of third parties,
arising in any manner by reason of the reuse of the architect's plans, drawings,
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writings, or other instruments as prepared by the architect, should the same be
used for any project other than the Human Services Center — City of Moorpark.
13. ASSIGNMENT /SUCCESSORS - Architect shall not assign this Agreement, or
any of the rights, duties or obligations hereunder. It is understood and
acknowledged by the parities that the Architect is uniquely qualified to perform
the services provided for in this Agreement.
14. ATTORNEY'S FEES — if any action at law or suit in equity, including an action for
declaratory relief, is brought to enforce or interpret any provision of this
Agreement, the prevailing party shall be entitled to reasonable attorney's fees,
court costs, and necessary disbursements, in addition to any other relief to which
it may be entitled.
15. COMPLETE AGREEMENT - This written Agreement, including all writings
specifically incorporated herein by reference, shall constitute the complete
agreement between the parties hereto. No oral agreement, understanding, or
representation not reduced to writing and specifically incorporated herein shall be
of any force or effect, nor shall any such oral agreement, understanding, or
representation be binding on the parties hereto.
In the event of conflict between the terms, conditions, or provisions of this
Agreement and any such document or instrument, the City shall be the sole
person to decide which document or provision shall govern.
16. TIME OF PERFORMANCE - Time is of the essence in this Agreement.
17. CAPTIONS - The captions of the various sections of this Agreement are for
convenience and identification only and shall not be deemed to limit or define the
content of the respective sections hereof.
18. ANTI - DISCRIMINATION - In the performance of the terms of this Agreement,
Architect agrees that it will not engage in, nor permit such subcontractors as it
may employ to engage in, discrimination in employment of persons because of
the age, race, color, creed, sex, sexual orientation, national origin, ancestry,
religion, physical disability, medical disability, medical condition, or marital status
of such persons. Violation of this provision may result in the imposition of
penalties referred in Labor Code Section 1735.
19. VENUE - This Agreement is made, entered into, and executed in Moorpark,
Ventura County, California, and any action filed in any court of law for arbitration
of the interpretation, enforcement and /or otherwise of the terms, covenants and
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conditions referred to herein shall be filed in the applicable court in Ventura
County, California.
20. AUDIT - City shall have the option of inspecting and /or auditing all records and
other written materials used by Architect in preparing its statements to City as a
condition precedent to any payment to Architect.
21. 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 grounds that the party prepared the Agreement or caused it to
be prepared.
22. 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.
23. CAPTIONS AND HEADINGS — The captions and headings of the various Articles
and Paragraphs of this Agreement are for the convenience and identification only
and shall not be deemed to limit or define the content of the respective Articles
and Paragraphs hereof.
24. NOTICE - All written notices to the parties hereto shall be sent by United States
mail, postage prepaid by registered or certified mail and addressed as follows:
Architect: Joe A. Kragelund City of Moorpark
Address: 766 E. Colorado Blvd., Ste. 200 City Manager
Pasadena, California 91101 799 Moorpark Avenue
24 -hour contact number: 626/535 -0500 Moorpark, CA 93021
(805) 517 -6215
25. AUTHORITY TO EXECUTE AGREEMENT - Both City and Architect do
covenant that each individual executing this Agreement on behalf of each party is
a person duly authorized and empowered to execute agreements for such party.
26. CONFLICT OF INTEREST - Neither Architect nor any employees, agents or
subcontractors of Architect who will be assigned to this project, to the best of
Architect's knowledge, own any property or interest in properties, business
relationships or sources of income which may be affected by the performance of
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this Agreement. Should either party hereto learn of any such interest, income
source or business relationship, such fact shall immediately be brought to the
attention of the other party hereto. If the parties thereupon cannot mutually agree
upon a means to eliminate the conflict, City may terminate the Agreement
immediately on the same conditions applicable per Section 8 hereof.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed the day and year first above written.
CITY OF MOORPARK
Steven Kueny, City Manager
ATTEST:
Deborah S. Traffenstedt, City Clerk
Title:
FI
ARCHITECT
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EXHIBIT A
HMC
ARCHITECTS
February 6, 2006
Mr. Hugh Riley
Assistant City Manager
City of Moorpark
799 Moorpark Ave.
Moorpark, CA 93021
Regarding: City of Moorpark
Human Services Center
HMC # 2307002 -000
Subject: Agreement for Architectural /Engineering Services
Dear Mr. Riley:
HMC ARCHITECTS is pleased to submit the following Agreement to provide
Architectural /Engineering Services for the above - mentioned project.
A. Scope of Work:
Human Services Center (HSC) 15,000 SF
Provide full Architectural and Engineering Services for the 15,000 SF
one -story Human Services Center. These services will include the full
design of the building that will be used for a variety of social facilities for
the citizens of Moorpark. Included will be Catholic Charities and First 5
along with other facilities to be determined by the City. The Architect's
services will include the building enclosure, demising walls between the
various facilities, mechanical, electrical, and plumbing stub outs for
each facility. Also included will be the full architectural and interior
design of the entire 15,000 sf including built in furniture and finishes.
Interior design including colors, materials for the facility will be included.
No movable furniture or equipment is to be included. Space in the HSC
that is allocated to a specific use will be built out to allow for flexible use
of that remaining space.
Clinicas 10,000 SF
Provide full Architectural and Engineering Services for the 10,000 SF
one -story Clinicas Building. These will include the full design of the
building for this one particular user. Based on programs for three other
Clinicas Facilities of different sizes HMC will extrapolate a program that 000015
LHRdey060206 LAE
I /WP V23011002
Hugh Riley
Assistant City Manager
February 6, 2006
Page 2
will fit the 10,000 SF building size. HMC will review the program with
Clinicas and get an approval before proceeding to design the facility.
HMC will also program each space in the Clinicas facility to determine
all MEP requirements and all built -in furnishings. These requirements
and furnishings will be included in the Construction Documents.
Movable furniture fixtures and equipment will not be included in the
Construction Documents Interior design including colors, materials for
the facility will be included. HMC will meet with Clinicas to review the
progress of the design and to obtain approval of the building layout
before proceeding with Construction Documents for the facility.
Site:
The site will be developed with the code - required parking spaces,
landscape design, and hardscape design. These items will be included
in the construction documents but will be described in a separate
document.
Special Considerations:
The project will include working with Southern California Edison's
"Savings by Design" program utilizing the "System Approach" to get
monetary incentives for providing equipment and systems that conserve
energy.
The project will be constructed to allow Catholic Charities, which is
currently located on the northeast corner of the site, to continue
operations until their new space is available. Afterwards the old facility
will be removed and that portion of the site will be constructed to
complete the entire project.
B. Compensation:
Fee will be computed at a flat 9.5% of the Computed Construction Cost.
The Computed Construction Cost preliminarily estimated to be Seven
Million Nine Hundred Forty -Two Thousand, Eight Hundred Thirty -One
Dollars ($7,942,831). Fee preliminarily estimated to be Seven Hundred
Fifty Four Thousand, Five Hundred Sixty -Nine Dollars ($754,569).
000016
Hugh Riley
Assistant City Manager
February 6, 2006
Page 3
Progress payments for Basic Services in each phase shall total the
following percentages of the total Basic Compensation payable:
Schematic Design
ten percent (10 %)
$75,457
Design Development
fifteen percent (15 %)
$113,185
Construction Documents
forty percent (40 %)
$301,828
Quality Assurance
five percent (5 %)
$37,728
Agency Compliance
five percent (5 %)
$37,728
Bidding & Negotiation
five percent (5 %)
$37,728
Construction Administration
twenty percent (20 %)
$150,914
Total Basic Compensation
one - hundred percent (100
%)
C. Additional Services:
If Additional Services, such as scope changes, etc. are required beyond
the original scope of work, HMC will bill on an hourly basis per Exhibit
"A ", HMC Rate Schedule attached in the Agreement.
D. Reimbursable Expenses:
Reimbursable expenses including printing, plotting, delivery and other
expenses related to Bidding, Agency Review, Construction, or by
Owner request are in addition to compensation for Basic and Additional
Services. These expenses shall be billed by the Architect to the Owner
at 1.10 times the expense incurred by the Architect and /or Architect's
Consultants.
E. Other Terms and Conditions of This Agreement:
Reference Attachment " B" of this Agreement.
000417
Hugh Riley
Assistant City Manager
February 6, 2006
Page 4
E. Authorization /Agreement to Proceed:
HMC ARCHITECTS is hereby requested and authorized by Banning
Unified School District to provide Architectural /Engineering Services as
described above. All the foregoing is agreed to and authorized by:
James L. Gilliam, AIA Date Date
Principal
License #C8630
Please review the Agreement and if it meets with your approval, please sign
and return one original to my attention.
Sincerely,
HMC ARCHITECTS
Dennis C. Kailey, AIA
Project Manager
Attachments:
Attachment A (Rate Schedule),
Attachment B (Other Terms and Conditions
cc: L. Eloff, File -CNP
000018
ATTACHMENT "A"
HMC RATE SCHEDULE
Standard Hourly Rate Schedule by Professional Category
(Not all categories need apply to this contract)
These are the current hourly rates effective July 1, 2005 through June 30, 2006
and are subject to change one time annually effective July 1 st.
Attachment A 000019
City of Moorpark
Hourly
Rates
Principal
$
235.00
Regional Vice President
$
215.00
Educational Services
$
195.00
Senior Project Manager
$
185.00
Senior Healthcare Planner
$
185.00
Director of Design
$
185.00
Cost Estimator
$
165.00
Project Manager
$
165.00
Senior Construction Administrator
$
165.00
Senior Designer
$
155.00
Interior Design Director
$
150.00
Designer
$
145.00
Graphics
$
135.00
Project Leader
$
135.00
Technical Services /QA Plan Reviewer/Spec Writer
$
135.00
Labor Compliance
$
135.00
Interior Senior Designer
$
125.00
Construction Administrator
$
125.00
Job Captain
$
120.00
Senior Drafter
$
115.00
Intermediate Drafter
$
110.00
Junior Designer
$
110.00
Computer Services
$
100.00
Interior Design /Project Coordinator
$
95.00
Drafter
$
95.00
Intern Architect
$
85.00
Jr. Interior Desi ner
$
75.00
Construction Administration Support
$
75.00
DSA Coordinator
$
75.00
Contract Administrator
$
75.00
Admin Support
$
70.00
These are the current hourly rates effective July 1, 2005 through June 30, 2006
and are subject to change one time annually effective July 1 st.
Attachment A 000019
City of Moorpark
ATTACHMENT "B"
OTHER TERMS AND CONDITIONS
Retainer
An initial payment of zero ( -0 -) shall be made upon execution of this Agreement and credited to the fee
earned at final payment.
Invoicing
The Architect shall invoice its time and reimbursable expenses monthly, and invoices are due and payable
upon receipt. Amounts unpaid thirty (30) days after the receipt of the invoice will be subject to a service
charge of eighteen percent (18 %) per annum. Should the Owner fail to pay current invoices for more than
sixty (60) days, the Architect may stop work on the Project until payment is received or terminate this
Agreement with the Owner. The Architect shall not be held liable for any damages or losses that may
result from such suspension or termination of services according to the provisions set forth in this
proposal.
The Owner agrees to return disputed invoices within fifteen (15) days of that invoice with a clear
description of the nature of the dispute.
Legal Costs
In the event that legal proceedings between the parties are necessary to enforce the terms of this
Agreement, the prevailing party shall be entitled to an award of its litigation costs and expenses, including
reasonable attorney's fees.
Project Suspension /Resumption
If the Project is suspended by the Owner for more than thirty (30) consecutive days, the Architect shall be
compensated for services performed prior to notice of such suspension. When the Project is resumed,
the Architect's compensation shall be equitably adjusted to provide for expenses incurred in the
interruption and resumption of the Architect's services. If the project is suspended by the Owner for more
than ninety (90) consecutive days, the Architect may terminate the Agreement, by giving not less than
seven (7) days written notice.
Termination
Either the Owner or Architect may, for any reason, terminate this Agreement upon not less than seven (7)
days written notice to the other party. In the event of termination, the Architect shall be compensated for
services performed prior to termination, together with Reimbursable Expenses then due. Termination
Expenses are in addition to compensation for Basic and Additional Services and shall be computed as five
percent (5 %) of the Basic Services and Additional Service Fees.
Owner's Responsibility
The Owner shall provide full information, including a program which sets forth the Owner's objectives,
schedule, constraints, and budget, with reasonable contingencies and criteria. The Owner shall also
furnish any reports, tests, surveys, inspection or other documentation of information or consultants
reasonably requested by the Architect. All of foregoing shall be furnished at the Owner's expense, and the
Architect shall be entitled to rely upon the accuracy and completeness thereof.
Architect of Record
Should the Project proceed beyond the phases of services in this Agreement, the Owner shall designate
HMC as the Architect of Record for the Project and will enter into a mutually agreeable Owner /Architect
Contract for the remaining phases of services to complete the Project.
Attachment B (3)
WCONTRACTS
(Architectural) 000020
Ownership of Documents
The Owner acknowledges that the Architect's Drawings, Specifications, and other documents are
instruments of professional services. Nevertheless, the Drawings, Specifications, and other documents
prepared under this Agreement shall become the property of the Owner upon completion of this Project
and upon payment of all amounts due the Architect. The Architect, however, shall be deemed the author
of these documents and shall retain all common law, statutory, and other reserved rights, including the
copyright. Should the Owner or any other person, firm or legal entity use, reuse or modify the Architects'
Drawings, Specifications or other documents prepared under this Agreement, for other than the Owner's
use and occupancy of the completed Project, the Owner agrees to indemnify, defend, and hold the
Architect harmless from and against any and all claims, liabilities, suits, demands, losses, costs, and
expenses, including reasonable attorneys' fees and all legal expenses and fees incurred on appeal, and
all interest thereon, accruing or resulting to any and all persons, firms or any other legal entity, on account
of firms, or any other legal entity, on account of any damage or loss to property or person, including death
arising out of such use, reuse or modification of the Architect's Drawings, Specifications, and other
documents, except where the Architect is found to be solely liable for such damages or losses by a court
or forum of competent jurisdiction.
Indemnification
The Architect agrees, to the fullest extent permitted by law, to indemnify and hold the Owner harmless
from any damage, liability or cost (including reasonable attorneys' fees and costs of defense) to the extent
caused by the Architect's negligent acts, errors or omissions in the performance of professional services
under this Agreement and the Architect's Consultants or anyone for whom the Architect is legally liable.
The Owner agrees, to the fullest extent permitted by law, to indemnify and hold the Architect harmless
from any damage, liability or cost (including reasonable attorneys' fees and costs of defense) to the extent
caused by the Owner's negligent acts, errors or omissions and those of the Owner's contractors,
subcontractors, agents, or consultants for anyone for whom the Owner is legally liable, and arising from
the Project that is the subject of this Proposal.
The Architect is not obligated to indemnify the Owner in any manner whatsoever for the Owner's own
negligence.
Limitation of Liability
In recognition of the relative risks and benefits of the project to both the Owner and the Architect, the risks
have been allocated such that the Owner agrees, to the fullest extent permitted by law, to limit the liability of
the Architect and his or her subconsultants to the Owner and to all construction contractors and
subcontractors on the project for any and all claims, losses, costs, damages of any nature whatsoever or
claims expenses from any cause or causes, so that the total aggregate liability of the Architect and his or her
subconsultants to all those named shall not exceed $50,000 or the Architect's total fee for services rendered
on this project, whichever is greater. Such claims and causes include, but are not limited to negligence,
professional errors or omissions, strict liability, breach of contract or warranty.
Insurance
During the term of this Agreement, the Architect agrees to provide evidence of insurance coverage of four
million dollars ($4M). In addition, the Architect agrees to attempt to maintain continuous professional
liability coverage for the period of design and construction of this project if such coverage is reasonably
available at commercially affordable premiums. The Architect further agrees that the applicable
subconsultants will be required to maintain a minimum of one million dollars ($1,000,000) Errors and
Omissions coverage. For the purposes of this Agreement "reasonably available" and commercially
affordable" shall mean that more than half the Architect's practicing in this state in this discipline are able
to obtain such coverage.
Attachment B
N O U lF n 02 -L
: /CONTRACTS S
(Architectural)
Page 2
Nothing contained in the Agreement or otherwise is intended to create a fiduciary relationship between the
parties.
Mediation
In an effort to resolve any conflicts that arise during the design or construction of the Project or following
the completion of the Project, the Owner and the Architect 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.
The Owner and the Architect further agree to include a similar mediation provision in all agreements with
independent contractors and consultant retained for the Project and require all independent contractors
and consultants also to include a similar mediation provision in all agreements with subcontractors,
subconsultants, suppliers or fabricators so retained, thereby providing for mediation as the primary
method for dispute resolution between the parties to those agreements.
Assignment
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 parry.
Hazardous Materials
It is acknowledged by both parties that the Architect's scope of services does not include any services
related to asbestos or hazardous or toxic materials. In the event the Architect or any other party
encounters asbestos or hazardous or toxic materials or toxic mold at the jobsite, or should it become
known in any way that such materials at the jobsite, or any adjacent areas that may affect the
performance of the Architect's services, the Architect may, at the Architect's option and without liability for
consequential or any other damages, suspend performance of services on the project until the Owner
retains appropriate specialist consultant(s) or contractor(s) to identify, abate, and /or remove the asbestos
or hazardous or toxic materials, and warrant the jobsite is in full compliance with the applicable laws and
regulations.
Third Party Contracts
The Owner shall, upon request
Owner's Construction Manager
Agreement.
Attachment B (3)
NICONTRACTS
(Architectural)
Page 3
of the Architect, supply a copy of the executed Agreement with the
or Project Management Firm, relating to services provided under this
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EXHIBIT B
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the 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 the 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 City in excess of the limits and coverage required in this
agreement and which is applicable to a given loss, will be available to City.
CONSULTANT shall provide the following types and amounts of insurance.
Commercial General Liability Insurance using Insurance Services Office "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
$2,000,000 per occurrence.
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 that $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 coverage 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.
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. Any such coverage provided under an umbrella liability policy shall include a
drop down provision providing primary coverage above a maximum $25,000 self -
insured retention for liability not covered by primary but covered by the umbrella.
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
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 City for injury to employees of
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CONSULTANT, contractors and subcontractors or others involved in the Work. The
scope of coverage provided is subject to approval of City following receipt of proof of
insurance as required herein. Limits are subject to review but in no event less than
$2,500,000 per occurrence for commercial general liability insurance.
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.
Insurance procured pursuant to these requirements shall be written by insurers that are
admitted carriers in the staff of California and with an A.M. Bests rating of A- or better
and a minimum financial size VII.
General conditions pertaining to provision of insurance coverage by CONSULTANT- -
CONSULTANT and 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 City, its
officials, employees, servants, agents, and independent consultants ( "City
indemnities "), using standard ISO endorsement No. CG 2010 with an
edition prior to 1992. 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 of subrogation prior to a loss. CONSULTANT
agrees to waive subrogation rights against 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 CONSULTANT 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 operations limits the application of
such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has
not been first submitted to City' and approved of in writing.
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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 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 City's protection without City's prior written consent.
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 at any time and no replacement
coverage is provided, 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 City
shall be charged to and promptly paid by CONSULTANT or deducted from
sums due CONSULTANT, at City option.
8. Certificate(s) are to reflect that the insurer will provide 30 days notice to
City of any cancellation 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
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 subconsultant,
is intended to apply first and on a primary, non - contributing basis in
relation to any other insurance or self insurance available to City.
10. CONSULTANT agrees to ensure that subcontractors, and any other party
involved with the project, who is brought onto or involved in the project by
CONSULTANT, provide the same minimum insurance coverage 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 project will be submitted to City
for review.
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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, or
other entity or person in any way involved in the performance of work on
the project contemplated by this agreement to self- insure its obligations to
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 contract 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 City.
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 City to inform CONSULTANT of non - compliance with
any insurance requirement in no way imposes any additional obligations
on 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 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 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 City
within five days of the expiration of the coverages.
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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 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 with 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 project reserves the right to
charge City or CONSULTANT for the cost of additional insurance
coverage required by this agreement. Any such provisions are to be
deleted with reference to City. It is not the intent of City to reimburse any
third party for the cost of complying with these requirements. There shall
be no recourse against 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. 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 City.
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