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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 Architerra Design Group, Inc. Landscape Architect Agreement August 19,2008, Page 2 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. Architerra Design Group, Inc. Landscape Architect Agreement August 19, 2008, Page 3 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. Architerra Design Group, Ine. Landscape Architect Agreement August 19,2008, Page 4 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. Architerra Design Group, Ine. Landscape Architect Agreement August 19, 2008, Page 5 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 Architerra Design Group, Ine. Landscape Architect Agreement Augusl19, 2008, Page 6 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 Architerra Design Group, Ine. Landscape Architect Agreement August 19, 2008, Page 7 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 Architerra Design Group, Inc. Landscape Architect Agreement August 19, 2008, Page 8 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 Architerra Design Group, Inc. Landscape Architect Agreement 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 Architerra Design Group, Inc. Landscape Architect Agreement August 19, 2008, Page 10 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) Architerra Design Group, Ine. Landscape Architect Agreement August 19, 2008, Page 11 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 Architerra Design Group, Ine. Landscape Architect Agreement August 19, 2008, Page 12 Attachment "A" STATEMENT OF QUALIFICATIONS (ON FILE IN PARKS AND RECREATION DEPARTMENT) Architerra Design Group, Ine. Landscape Architect Agreement August 19, 2008, Page 13 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