HomeMy Public PortalAbout2008-08-19 Landscape Architecture Services Agreement - Architerra Design Group
AGREEMENT FOR
AS-NEEDED LANDSCAPE ARCHITECTURE SERVICES
This agreement, made and entered into this 19th day of August, 2008, by and between
the CITY OF FULLERTON, 303 West Commonwealth Ave., Fullerton, CA, 92832, a
municipal corporation, (hereinafter referred to as CITY), and Architerra Design Group,
Inc. , hereinafter referred to as CONSULTANT.
Recitals
A. CITY is in need of professional landscape architecture services on an as-needed
'basis for years 2008-2009. These services include scoping work for capital
improvements, resolving complaints in parks, design on parks projects or plan check
services (if needed by the Planning and Engineering Departments), quantity
calculation, cost estimating, drafting and other related services (hereinafter referred
to as "Project"). All services to be provided by CONSULTANT shall be subject to
approval by the CITY.
B. CONSULTANT has submitted a Statement of Qualifications to provide landscape
architectural services (hereinafter "Statement"), which is attached hereto as
Attachment "A" and incorporated herein by this reference.
C. CITY has reviewed the Statement and finds that it will be compatible with CITY'S
needs for services.
D. City Council authorized entering into this agreement based on the Statement.
For, and in consideration of the mutual promises, covenants, and conditions herein
contained, the parties hereby agree as follows:
I. SERVICES TO BE FURNISHED BY CONSULTANT
A. Design
CONSULTANT shall perform professional landscape architecture services and
related services for CITY consisting of the preparation of preliminary and final
design reports, establishing design criteria, preliminary and final landscape and
park plans, specifications, and cost estimates. CONSULTANT shall submit plans
and documents in both paper and digital format on CD ROM (disk). Plans shall
be submitted in both DWG and PDF format.
B. Endorsements
CONSULTANT shall sign and seal all final plans and specifications furnished by
CONSULTANT under this Agreement.
C. Excluded Services
CONSULTANT and/or CONSULTANT'S sub of CONSULTANT shall have no
responsibility for the discovery, presence, handling, removal or disposal of, or
exposure of persons to, hazardous materials in any form at the Project site
including, but not limited to, asbestos, asbestos products, polychlorinated
biphenyl (PCB) or other toxic substances. This provision shall not relieve
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CONSULTANT and/or CONSULTANT'S sub of CONSULTANT'S responsibility
for reporting to CITY the existence of any hazardous materials in the event any
are discovered by CONSULTANT and/or CONSULTANT'S sub of
CONSULTANT during the performance of this Agreement.
D. Professional Practices
All professional services to be provided by CONSULTANT pursuant to this
Agreement shall be provided by personnel experienced in their respective fields
and in a manner consistent with the standards of care, diligence and skill
ordinarily exercised by professional consultants in similar circumstances in
accordance with sound professional practices. CONSULTANT'S services will be
provided in accordance with generally accepted landscape architectural practices
and principles and under the supervision of a licensed architect or civil engineer.
E. Warranty
CONSULTANT warrants that it shall perform the professional services required
by this Agreement in compliance with the Federal and California laws related to
minimum hours and wages, including but not limited to, 40 U.S.C. 276A, et seq.,
California Labor Code, SS1171, et seq. and California Labor Code, SS 6300, et
seq.; fair employment practices, including but not limited to, 29 U.S.C. 651, et
seq. and California SS 6300, et seq.; and fair employment, including but not
limited to, 29 U.S.C. 201, et seq., California Labor Code, SS 1410, et seq., Title
VI of the Civil Rights Act of 1964, as amended, 49 CFR 21 through Appendix H
and 23 CFR 710A05(b); and all other Federal, State and Local laws and
ordinances applicable to the work required under this Agreement.
F. Non-exclusive Agreement
CONSULTANT acknowledges that CITY may enter into agreements similar to
this Agreement with other consultants.
II. SERVICES TO BE FURNISHED BY CITY
CITY shall:
A. Provide access to all CITY park improvement plans and records.
CONSULTANT is entitled to rely on the accuracy of such plans and records
without independent review. Copies will be provided of all Project-related
documents requested by CONSULTANT.
B. Provide all CITY standard contract documents related to the Project.
C. Arrange for legal advertising and bid opening, and administer the contract and
contract payments.
D. Prepare and obtain approval of any environmental documents required by law.
E. Perform all construction, inspection and testing.
F. Provide all construction surveying, including pothole information, at existing
facilities at locations approved by CITY.
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G. Provide all duplication of plans and specifications, after approval, for the purpose
of bidding and construction.
III. TIME OF PERFORMANCE
A. CONSULTANT shall diligently perform the services required under this
Agreement. CONSULTANT and CITY shall meet and agree to a schedule for
each Project assignment. Upon agreement, CITY shall provide CONSULTANT
with a project schedule, including appropriate milestone dates to which
CONSULTANT shall abide. CONSULTANT shall monitor its own performance
and time schedule for each project. If CONSULTANT falls behind schedule,
they should notify CITY at least fourteen (14) days before the arrival of the
originally scheduled date for the task. CONSULTANT shall provide a written
explanation of the delay, if requested by CITY.
B. CONSULTANT shall not be responsible for damages or be in default by reason
of delays in performance due to strikes, lockouts, accidents, acts of God, delays
caused by the failure of CITY to furnish information or approve or disapprove
CONSULTANT'S work promptly, or any other conditions beyond the reasonable
control of CONSULTANT.
IV. COMPENSATION AND BILLING
A. The hourly rates and direct costs shall be included in an itemized invoice and
shall be based on the Hourly Rate Schedule, attached hereto as Attachment "B"
and incorporated by this reference. At the time of each Project assignment, as
specified in Section (III)(A) of this Agreement, CONSULTANT shall agree to a
not-to-exceed price for each Project assignment before commencing work. The
not-to-exceed price shall include all direct costs. Services not related to a
Project assignment shall be at the hourly rate, and any direct costs shall be
itemized on an invoice. It is agreed by both parties to this Agreement that the
Hourly Rate Schedule may be adjusted on September 1st of each renewal
period as set forth in Section VII herein. The amount of the increase shall
reflect the change in the Consumer Price Index (CPI), all items, for all urban
consumers in the Los Angeles-Anaheim-Riverside area between the month of
this Agreement's effective date and June of each renewal period.
B. Change Orders
CITY shall have the right to order changes in working drawings, specifications
or engineering prior to, during or after the completion of CONSULTANT'S plans
and specifications. If said changes are of a minor nature and a reasonable
development of the drawings and specifications, or if said changes are due to
mistakes or negligence on the part of CONSULTANT, such changes in the
drawings, or specifications shall be made at no cost to CITY. All other changes
shall be considered as additional services.
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C. Additional Services
CONSULTANT shall not receive compensation for any services provided
outside the scope of work specified in Section (I)(A) of this Agreement unless
such additional services, including change orders, are approved in writing by
CITY, or its appointed representative, prior to CONSULTANT performing the
additional services. It is specifically understood that oral requests and/or
approvals of such additional services, change orders or additional
compensation shall be barred and are unenforceable.
D. Method of Billing
Billings may be made on a progress basis, but no more often than monthly, and
shall be paid within thirty (30) calendar days from the date CITY receives
CONSULTANT'S invoice. Said billings shall be based upon the total of all
services, which have been completed to the sole satisfaction of CITY.
E. Records and Audits
Records of CONSULTANT'S personnel and expenses relating to the Project
shall be kept on a generally recognized accounting basis and shall be made
available to CITY or its authorized representatives for inspection and/or audit at
mutually convenient times for a period of three (3) years, from the termination of
this Agreement.
V. INSURANCE
CONSULTANT shall procure and maintain throughout the duration of this Agreement,
insurance against claims for injuries to persons or damages to property which may arise
from or in connection with the performance of the work hereunder by the
CONSULTANT, his agents, representatives, employees or subconsultants.
CONSULTANT shall provide current evidence of the required insurance in a form
acceptable to the CITY and shall provide replacement evidence for any required
insurance which expires prior to the completion, expiration or termination of this
Agreement.
Nothing in this section shall be construed as limiting in any way, the Indemnification and
Hold Harmless clause contained herein in Section VII.D or the extent to which
CONSULTANT may be held responsible for payments of damages to persons or
property.
A. Minimum Scope and Limits of Insurance
1. Commercial General Liability Insurance. CONSULTANT shall maintain
commercial general liability insurance coverage in a form at least as broad as
ISO Form #CG 001 ED. 11/88, with a limit of not less than $1,000,000 each
occurrence. If such insurance contains a general aggregate limit, it shall
apply separately to the Agreement or shall be twice the required occurrence
limit.
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2. Business Automobile Liability Insurance. CONSULTANT shall maintain
business automobile liability insurance coverage in a form at least as broad
as ISO Form # CA 000 TED. 6/92, with a limit of not less than $1,000,000
each accident. Such insurance shall include coverage for owned, hired and
non-owned automobiles.
3. Workers' Compensation and Employers' Liability Insurance. CONSULTANT
shall maintain workers' compensation insurance as required by the State of
California and employers' liability insurance with limits of not less than
$1,000,000 each accident.
4. Professional Liability Insurance. CONSULTANT shall maintain professional
liability insurance appropriate to CONSULTANT's profession with a limit of not
less than $1,000,000. Architects' and engineers' coverage shall be endorsed
to include contractual liability. If policy is written as a "claims made" policy,
the retro date of the policy shall be prior to the start of the contract work.
B. Deductibles and Self-Insured Retentions
Any deductible or self-insured retention must be declared to the CITY. Any
deductible or self-insured retention exceeding $5000 or 5% of the contract value
(whichever is greater) must be approved by the CITY.
C. Other Insurance Provisions
The required insurance policies shall contain or be endorsed to contain the following
provisions:
1. Commercial General Liability and Business Automobile Liability
The CITY, its elected and appointed officials, officers, employees and volunteers
are to be covered as additional insureds with respect to liability arising out of
work or operations performed by or on behalf of CONSULTANT, including
materials, parts or equipment furnished in connection with such work or
operations or with respect to liability arising out of automobiles owned, leased,
hired or borrowed by or on behalf of the CONSULTANT. Such coverage as an
additional insured shall not be limited to the period of time during which the
CONSULTANT is conducting ongoing operations for the CITY but rather, shall
continue after the completion of such operations. Coverage shall not extend to
any indemnity coverage for the active negligence of the additional insured in any
case where an agreement to indemnify the additional insured would be invalid
under Civil Code S2782(b). The coverage shall contain no special limitations on
the scope of its protection afforded to the CITY, its officers, employees and
volunteers. (NOTE: In lieu of a Commercial General Liability policy with this
endorsement, CONSULTANT may supply a separate owner's policy.)
2. Commercial General Liability and Business Automobile Liability
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This insurance shall be primary insurance as respects the CITY, its officers,
employees and volunteers and shall apply separately to each insured against
whom a suit is brought or a claim is made. Any insurance or self-insurance
maintained by the CITY, its officers, employees and volunteers shall be excess of
this insurance and shall not contribute with it.
3. Business Automobile Liability.
Policy shall be endorsed to delete the Pollution and the Asbestos exclusion
and add the Motor Carrier Act endorsement (MCS-90), TL 1005, TL 1007 and
other endorsements required by federal or state authorities.
4. Workers' Compensation/Employers' Liability.
Insurer shall waive their right of subrogation against CITY, its officers,
employees and volunteers for work done on behalf of the CITY.
5. Professional Liability
If Professional Liability is written on a "claims made" form, CONSULTANT
shall maintain similar coverage for three consecutive years following
completion of the project and must thereafter, submit annual evidence of
coverage. Additionally, CONSULTANT shall provide certified copies of the
claims reporting requirements contained within the policies.
6. All Coverages.
Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be canceled, except after thirty (30) days' prior written
notice by certified mail, return receipt requested, has been given to the CITY.
D. Acceptability of Insurers
All required insurance shall be placed with insurers acceptable to the CITY with
current BEST'S ratings of no less than B+, Class X. Workers' compensation
insurance may be placed with the California State Compensation Insurance
Fund. All insurers shall be licensed by or hold admitted status in the State of
California. At the sole discretion of the CITY, insurance provided by non-
admitted or surplus carriers with a minimum BEST'S rating of no less than A-
Class X may be accepted if CONSULTANT evidences the requisite need to the
sole satisfaction of the CITY.
E. Verification of Coveraqe
CONSULTANT shall furnish the CITY with certificates of insurance which bear
original signatures of authorized agents and which reflect insurers names and
addresses, policy numbers, coverage, limits, deductibles and self-insured
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retentions. Additionally, CONSULTANT shall furnish certified copies of all policy
endorsements required herein. All certificates and endorsements must be
received and approved by CITY before work commences. The CITY reserves
the right to require at any time complete, certified copies of any or all required
insurance policies and endorsements.
VI. TERMINATION OF AGREEMENT
A. Notice
CITY reserves and has the right and privilege of canceling, suspending or
abandoning the execution of all or any part of the work in connection with this
Agreement at any time by providing one (1) day written notice to CONSULTANT.
Termination is effective upon CONSULTANT'S receipt of written notice of such
termination from CITY.
B. Documents
In the event of termination of this Agreement, all finished or unfinished design,
development and construction documents, data studies, drawings, maps and
reports prepared by CONSULTANT shall be delivered to the CITY within five (5)
days of CONSULTANT'S receipt of termination notice, and at no additional cost
to CITY. Any use of uncompleted documents without specific written
authorization from CONSULTANT shall be at CITY'S sole risk and without liability
or legal expense to CONSULTANT.
C. Compensation
In the event of termination, CITY shall pay CONSULTANT for reasonable costs
incurred and professional services satisfactorily performed up to and including
the date of CITY'S written notice of termination. Payments for professional
services shall be made in accordance with the Hourly Rates listed in Section
(IV)(A) of this Agreement. In ascertaining the professional services actually
rendered hereunder up to the date of termination of this Agreement,
consideration shall be given to both completed work and work in progress, to
complete and incomplete drawings, and to other documents whether delivered to
CITY or in the possession of CONSULTANT, and to authorized reimbursable
expenses.
VII. GENERAL PROVISIONS
A. Ownership of Documents
Upon payment for services provided, all documents prepared by CONSULTANT
in the performance of this Agreement, shall be and remains the sole property of
CITY. Any use of such documents for other projects, and any use of incomplete
documents, shall be at the sole risk of CITY and without liability or legal exposure
to CONSULTANT. CITY shall indemnify and hold harmless CONSULTANT from
all claims, damages, losses, and expenses, including attorneys' fees, arising out
of or resulting from CITY'S use of such documents for other projects or use of
incomplete documents furnished by CONSULTANT. CONSULTANT shall deliver
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to CITY any plans, specifications, studies, reports, drawings, or any other
Project-related items as requested by CITY or its authorized representative, with
no additional cost to CITY.
B. Patent Rights
CONSULTANT shall abide by all patent rights provisions as described in 41 CFR
1-9.1.
C. Confidentiality
All findings, reports, information and exhibits prepared or assembled by
CONSULTANT in connection with the performance of its professional services
pursuant to this Agreement are confidential, and CONSULTANT agrees that they
shall not be made available to any individual or organization without the prior
consent of CITY. All findings, reports, information and exhibits shall become the
property of CITY. ~
D. Indemnification and Hold Harmless
CONSULTANT shall defend, indemnify, hold free and harmless CITY, its elected
officials, officers designated agents, employees, and volunteers from and against
any and all damages to property or injuries to or death of any person or persons,
including attorneys' fees; and shall defend, indemnify, save and hold harmless
CITY, its elected officials, officers, designated agents, employees, and volunteers
from any and all claims, demands,. suits, actions or proceedings of any kind or
nature, including, but not by way of limitation, all civil claims, workers'
compensation claims, and all other claims resulting from or arising out of the
intentional or negligent acts, errors or omissions of CONSULTANT, its
employees and/or authorized sub of CONSULTANT, in the performance of this
Agreement.
E. Responsibility for Errors
CONSULTANT shall be responsible for its own work and results under this
Agreement, and shall not be responsible for any work by CITY performed prior to
the date of this Agreement or for any other acts or omissions directly attributable
to CITY. CONSULTANT, when requested, shall furnish clarification and/or
explanation as may be required by the CITY regarding any services rendered
under this Agreement at no additional cost to CITY. In the event that an error or
omission attributable to CONSULTANT occurs, then CONSULTANT shall, at no
cost to CITY, provide all necessary design drawings, estimates and other
CONSULTANT professional services, as authorized by this Agreement
necessary to rectify and correct the matter to the sole satisfaction of CITY and to
participate in any meeting required with regard to the correction.
F. Assignability
This Agreement may not be sold, transferred or assigned by either party, or by
operation of law, to any other person or persons or business entity, without the
other party's express written consent. Any such sale, transfer or assignment, or
attempted sale, transfer or assignment without express written consent, may be
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Augusl19, 2008, Page 9
deemed by the other party to constitute a voluntary termination of this
Agreement, and this Agreement shall thereafter be deemed terminated and void.
G. Subs of CONSULTANT
CONSULTANT may employ subs and special firms in the performance of this
Agreement only upon prior written approval by CITY. In the event Consultant
employs a sub, CONSULTANT shall not be relieved from its responsibility
regarding the adequacy, accuracy and/or quality of the designs or other work
required by this Agreement.
H. Independent CONSULTANT
The Parties hereto acknowledge and agree that the relationship between CITY
and CONSULTANT is one of principal and independent CONSULTANT and no
other. Nothing contained in this Agreement shall create or be construed as
creating a partnership, a joint venture, employment relations, or any other
relationship except as set forth between the parties. The parties specifically
acknowledge and agree that Consultant is not a partner with CITY, whether
general or limited, and no activities of CITY or CONSULTANT or statements
made by CITY or CONSULTANT shall be interpreted by any of the parties hereto
as establishing any type of business relationship other than an independent
CONSULTANT relationship.
I. Representatives
The DIRECTOR OF PARKS AND RECREATION, or his/her designee, shall be
the representative of CITY for purposes of this Agreement and may issue all
consents, approvals, directives and agreements on behalf of CITY, called for by
this Agreement, except as otherwise expressly provided in this Agreement..
Richard Krumwiede shall be the representative of CONSULTANT for purposes of
this Agreement and may issue all consents, approvals, directives and
agreements on behalf of CONSULTANT, called for by this Agreement, except as
otherwise expressly provided in this Agreement.
J. Notices
All notices and written communications sent by one party to the other shall be
personally delivered or sent by registered or certified U.S. mail, postage prepaid,
return receipt requested, to the following addresses indicated below:
K. CITY
City of Fullerton
303 W. Commonwealth Ave.
Fullerton, CA 92832
Attn: Director of Parks and Recreation
CONSULTANT
Architerra Design Group, Inc.
10221-A Trademark Street
Rancho Cucamonga, CA 91730
Attn: Richard Krumwiede
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L. Validity
The invalidity, in whole or in part of any provision of this Agreement, shall not
void or affect the validity of any of the other provisions of this Agreement.
M. Waiver
No waiver or any provision of this Agreement shall be effective unless in writing
and signed by a duly authorized representative of the party against whom
enforcement of a waiver is sought referring expressly to this paragraph. The
waiver of any right or remedy with respect to any occurrence or event shall not
be deemed a waiver of any right or remedy with respect to any other occurrence
or event, nor shall any waiver constitute a continuing waiver.
N. Entire Agreement
This Agreement, supersedes any and all other agreements whether oral or
written, between the Parties hereto with respect to the subject matter hereof and
contains all of the covenants and agreements between the parties with respect to
said matter, and each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
embodied herein, and that any other agreement or modification of this
Agreement shall be effective only if executed in writing and signed by both CITY
and CONSULTANT.
O. Headings
Section and subsection headings are not to be considered part of this
Agreement, are included solely for convenience, and are not intended to modify
or explain or to be a full or accurate description of the content thereof.
P. Counterparts
This Agreement may be executed in one or more counterparts by the parties
hereto. All counterparts shall be construed together and shall constitute one
agreement.
Q. Corporate Authority
The persons executing this Agreement on behalf of the Parties hereto warrant
that they are duly authorized to execute this Agreement on behalf of said parties
and that by doing so, the Parties hereto are formally bound to the provisions of
this Agreement.
R. Term
This contract shall commence on August 5, 2008 and remain in effect, until
August 31, 2009, unless terminated sooner pursuant to Section VI of this
Agreement. The term of this Agreement may, upon agreement by both parties,
be extended for two (2) consecutive one-year periods. Each one-year renewal
period shall commence on September 1, 2009 and September 1, 2010,
respectively. CITY'S DIRECTOR OF PARKS AND RECREATION and
CONSULTANT shall approve each renewal period in writing at least thirty (30)
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calendar days prior to September 1st of each year. At the time of renewal, the
terms and conditions of this Agreement shall remain unchanged, except that
compensation shall be subject to increases with each renewal as set forth in
Section (IV)(A) herein.
S. Attorneys' Fees
In the event any legal proceeding is instituted to enforce any term or provision of
this Agreement, the prevailing party in said legal proceeding shall be entitled to
recover attorneys' fees and costs from the opposing party in an amount
determined by the Court to be reasonable.
T. Governing Law
This Agreement shall be governed by and construed in accordance with the laws
of the State of California. Any legal action relating to or arising out of this
Agreement shall be subjected to the jurisdiction of the County of Orange,
California.
U. City Council Approval
The City Council must approve of any project that exceeds a price of $100,000.
The price shall include all direct and indirect costs.
CITY OF FULLERTON
Architerra Design Group, Inc.
ATTEST:
APPROVED AS TO FORM:
Po-lQ~
Beverley White
City Clerk
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Attachment "A"
STATEMENT OF QUALIFICATIONS
(ON FILE IN PARKS AND RECREATION DEPARTMENT)
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Attachment "8'!
Hourly Charge Rate
For
Architerra Design Group Hourly Rates:
Principal
Project Manager
Manager
CAD Operator
Clerical
$150.00jHour
$125.00jHour
$95.00jHour
$70.00jHour
$45.00jHour