HomeMy WebLinkAboutTen Over On-Call Architecture Services AgreementAGREEMENT
THIS AGREEMENT is made and entered into in the City of San Luis Obispo on / Z /9 fl{, by
and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as City,
and TEN OVER STUDIO, hereinafter referred to as Consultant.
WITNESS ETH
WHEREAS, on July 20, 2016, requested proposals for Architectural Design Services per
Specification No. 50410.2016.AD.
WHEREAS, pursuant to said request, Consultant submitted a proposal that was accepted by City
for said 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 acceptance or completion of said services.
2. Contract Term for On-Call Service Contracts. The services identified in this specification will be
used by the City between October 2016 and December 2018.
3. Contract Extension and Cost Increases for On-call Service Contracts. The term of the contract
may be extended by mutual consent for an additional year. During this extended period, labor rates
may be increased to reflect increased labor costs and overhead at each 1 year contract anniversary,
provided the City is notified of the increases in advance. Rates may be increased to reflect actual
cost increases up to a percentage equal to the percentage increase in the U.S. Consumer Price
Index/All Urban Consumers (CPl-U) from March in the previous year to March in the year of
adjustment upon request of Contractor.
4. Work Delays. Should the Consultant be obstructed or delayed in the work required to be done
hereunder by changes in the work or by any default, act, or omission of the City, or by strikes, fire,
earthquake, or any other Act of God, or by the inability to obtain materials, equipment, or labor due to
federal government restrictions arising out of defense or war programs, then the time of completion
may, at the City's sole option, be extended for such periods as may be agreed upon by the City and
the Consultant. In the event that there is insufficient time to grant such extensions prior to the
completion date of the contract, the City may, at the time of acceptance of the work, waive liquidated
damages that may have accrued for failure to complete on time, due to any of the above, after
hearing evidence as to the reasons for such delay, and making a finding as to the causes of same.
5. Termination. If, during the term of the contract, the City determines that the Consultant is not
faithfully abiding by any term or condition contained herein, the City may notify the Consultant in
writing of such defect or failure to perform. This notice must give the Consultant a 10 (ten) calendar
day notice of time thereafter in which to perform said work or cure the deficiency.
If the Consultant has not performed the work or cured the deficiency within the ten days specified in
the notice, such shall constitute a breach of the contract and the City may terminate the contract
immediately by written notice to the Consultant to said effect. Thereafter, neither party shall have any
further duties, obligations, responsibilities, or rights under the contract except, however, any and all
obligations of the Consultant's surety shall remain in full force and effect, and shall not be
extinguished, reduced, or in any manner waived by the termination thereof.
In said event, the Consultant shall be entitled to the reasonable value of its services performed from
the beginning date in which the breach occurs up to the day it received the City's Notice of
Termination, minus any offset from such payment representing the City's damages from such breach .
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"Reasonable value" includes fees or charges for goods or services as of the last milestone or task
satisfactorily delivered or completed by the Consultant as may be set forth in the Agreement payment
schedule; compensation for any other work, services or goods performed or provided by the
Consultant shall be based solely on the City's assessment of the value of the work-in-progress in
completing the overall workscope.
The City reserves the right to delay any such 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, however, shall the Consultant be entitled to receive in excess of the
compensation quoted in its proposal.
The City also reserves the right to terminate the contract for convenience, providing a 30 (thirty)
calendar day notice, at any time upon a determination by the Director that termination of the contract
is in the best interest of the City. In this case the Consultant will be paid compensation due and
payable to the date of termination .
6. Ability to Perform. The Consultant warrants that it possesses, or has arranged through
subcontracts, all capital and other equipment, labor, materials, and licenses necessary to carry out
and complete the work hereunder in compliance with any and all applicable federal, state, county,
city, and special district laws, ordinances, and regulations.
7. Sub-contract Provisions. No portion of the work pertinent to this contract shall be subcontracted
without written authorization by the City, except that which is expressly identified in the Consultant's
proposal. Any substitution of sub-consultants must be approved in writing by the City. For any sub-
contract for services in excess of $25,000, the subcontract shall contain all provisions of this
agreement.
8. Contract Assignment. The Consultant shall not assign, transfer, convey or otherwise dispose of the
contract, or its right, title or interest, or its power to execute such a contract to any individual or
business entity of any kind without the previous written consent of the City.
9. Inspection. The Consultant shall furnish City with every reasonable opportunity for City to ascertain
that the services of the Consultant are being performed in accordance with the requirements and
intentions of this contract. All work done and all materials furnished, if any, shall be subject to the
City's inspection and approval. The inspection of such work shall not relieve Consultant of any of its
obligations to fulfill its contract requirements.
10. Record Retention and Audit. For the purpose of determining compliance with various laws and
regulations as well as performance of the contract, the Consultant and sub-consultants shall maintain
all books, documents, papers, accounting records and other evidence pertaining to the performance
of the contract, including but not limited to the cost of administering the contract. Materials shall be
made available at their respective offices at all reasonable times during the contract period and for
three years from the date of final payment under the contract. Authorized representatives of the City
shall have the option of inspecting and/or auditing all records. For Federally funded projects, access
to records shall also include authorized representatives of the State and Federal government. Copies
shall be furnished if requested.
11. Conflict of Interest. The Consultant shall disclose any financial, business, or other relationship with
the City that may have an impact upon the outcome of this contract, or any ensuing City construction
project. The Consultant shall also list current clients who may have a financial interest in the outcome
of this contract, or any ensuing City construction project which will follow. The Consultant staff shall
provide a Conflict of Interest Statement where determined necessary by the City.
The Consultant covenants that it presently has no interest, and shall not acquire any interest-direct,
indirect or otherwise-that would conflict in any manner or degree with the performance of the work
hereunder. The Consultant further covenants that, in the performance of this work, no sub-consultant
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or person having such an interest shall be employed. The Consultant certifies that no one who has or
will have any financial interest in performing this work is an officer or employee of the City. It is
hereby expressly agreed that, in the performance of the work hereunder, the Consultant shall at all
times be deemed an independent Consultant and not an agent or employee of the City.
12. Rebates, Kickbacks or Other Unlawful Consideration. The Consultant warrants that this contract
was not obtained or secured through rebates, kickbacks or other unlawful consideration, either
promised or paid to any City employee. For breach or violation of the warranty, the City shall have
the right in its discretion; to terminate the contract without liability; to pay only for the value of the work
actually performed; to deduct from the contract price; or otherwise recover the full amount of such
rebate, kickback or other unlawful consideration.
13. Covenant Against Contingent Fees. The Consultant warrants by execution of this contract that no
person or selling agency has been employed, or retained, to solicit or secure this contract upon an
agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting
bona fide employees or bona fide established commercial or selling agencies maintained by the
Consultant for the purpose of securing business. For breach or violation of this warranty, the City has
the right to annul this contract without liability; pay only for the value of the work actually performed,
or in its discretion, to deduct from the contract price or consideration, or otherwise recover the full
amount of such commission, percentage, brokerage, or contingent fee.
14. Compliance with Laws and Wage Rates. The Consultant shall keep itself fully informed of and
shall observe and comply with all applicable state and federal laws and county and City of San Luis
Obispo ordinances, regulations and adopted codes during its performance of the work. This includes
compliance with prevailing wage rates and their payment in accordance with California Labor Code.
For purposed of this paragraph, "construction" includes work performed during the design and
preconstruction phases of construction, including but not limited to, inspection and land surveying
work.
15. Payment of Taxes. The contract prices shall include full compensation for all taxes that the
Consultant is required to pay.
16. Permits, Licenses and Filing Fees. The Consultant shall procure all permits and licenses, pay all
charges and fees, and file all notices as they pertain to the completion of the Consultant's work. The
City will pay all application fees for permits required for the completion of the project including building
and regulatory permit application fees. Consultant will provide a 10 day notice for the City to issue a
check.
17. Safety Provisions. The Consultant shall conform to the rules and regulations pertaining to safety
established by OSHA and the California Division of Industrial Safety.
18. Public and Employee Safety. Whenever the Consultant's operations create a condition hazardous
to the public or City employees, it shall, at its expense and without cost to the City, furnish, erect and
maintain such fences, temporary railings, barricades, lights, signs and other devices and take such
other protective measures as are necessary to prevent accidents or damage or injury to the public
and employees.
19. Preservation of City Property. The Consultant shall provide and install suitable safeguards,
approved by the City, to protect City property from injury or damage. If City property is injured or
damaged resulting from the Consultant's operations, it shall be replaced or restored at the
Consultant's expense. The facilities shall be replaced or restored to a condition as good as when the
Consultant began work.
20 . Immigration Act of 1986. The Consultant warrants on behalf of itself and all sub-consultants
engaged for the performance of this work that only persons authorized to work in the United States
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pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be
employed in the performance of the work hereunder.
21. Consultant Non-Discrimination. In the award of subcontracts or in performance of this work, the
Consultant agrees that it will not engage in, nor permit such sub-consultants as it may employ, to
engage in discrimination in employment of persons on any basis prohibited by State or Federal law.
22. Accuracy of Specifications. The specifications for this project are believed by the City to be
accurate and to contain no affirmative misrepresentation or any concealment of fact. Consultants are
cautioned to undertake an independent analysis of any test results in the specifications, as City does
not guaranty the accuracy of its interpretation of test results contained in the specifications package.
In preparing its proposal, the Consultant and all sub-consultants named in its proposal shall bear sole
responsibility for proposal preparation errors resulting from any misstatements or omissions in the
specifications that could easily have been ascertained by examining either the project site or accurate
test data in the City's possession. Although the effect of ambiguities or defects in the specifications
will be as determined by law, any patent ambiguity or defect shall give rise to a duty of Consultant to
inquire prior to proposal submittal. Failure to so inquire shall cause any such ambiguity or defect to
be construed against the Consultant. An ambiguity or defect shall be considered patent if it is of such
a nature that the Consultant, assuming reasonable skill, ability and diligence on its part, knew or
should have known of the existence of the ambiguity or defect. Furthermore, failure of the Consultant
or sub-consultants to notify City in writing of specification defects or ambiguities prior to proposal
submittal shall waive any right to assert said defects or ambiguities subsequent to submittal of the
proposal.
To the extent that these specifications constitute performance specifications, the City shall not be
liable for costs incurred by the successful Consultant to achieve the project's objective or standard
beyond the amounts provided therefor in the proposal.
In the event that, after awarding the contract, any dispute arises as a result of any actual or alleged
ambiguity or defect in the specifications, or any other matter whatsoever, Consultant shall
immediately notify the City in writing, and the Consultant and all sub-consultants shall continue to
perform, irrespective of whether or not the ambiguity or defect is major, material, minor or trivial, and
irrespective of whether or not a change order, time extension, or additional compensation has been
granted by City. Failure to provide the hereinbefore described written notice within one (1) working
day of Consultant's becoming aware of the facts giving rise to the dispute shall constitute a waiver of
the right to assert the causative role of the defect or ambiguity in the plans or specifications
concerning the dispute.
23. Indemnification for Professional Liability. To the fullest extent permitted by law, the
Consultant shall indemnify, protect, defend and hold harmless the 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 cost which arise out
of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the
Consultant.
24. Non-Exclusive Contract. The City reserves the right to contract for the services listed in this
proposal from other consultants during the contract term.
25. Standards. Documents shall conform to City Standards and City furnished templates shall be used .
26. Consultant Endorsement. Technical reports, plans and specifications shall be stamped and signed
by the Consultant where required.
27. Required Deliverable Products and Revisions. The Consultant will be required to provide
documents addressing all elements of the workscope. Plans shall be prepared using City's
standardized title blocks and coversheets. Draft plans may be submitted for review using either the
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full D (24x36) format or a reduced 11x17 format. Consultant shall ensure that drawings and notes are
clearly legible if using the reduced format. Specifications and bid documents shall conform to
standard City formats unless authorized. The City's current Standard Specifications and Engineering
Standards must be incorporated where applicable.
City staff will review any documents or materials provided by the Consultant and, where necessary,
the Consultant will respond to staff comments and make such changes as deemed appropriate.
Submittals shall include the previous marked up submittal (returned to the Consultant) to assist in the
second review. Changes shall be made as requested or a notation made as to why the change is
not appropriate.
2 copies of the draft preliminary reports, technical studies and 50% plans and estimate
1 copy of the final preliminary reports, technical studies plus markups
2 copies of the 90% plans, specifications and estimate plus 50% markups
2 copy of the 100% plans, specifications and estimate plus 90% markups
1 copy of the final plans, specifications and estimates plus 100% markups
1 copy of the final record drawings after construction
Draft reports and plan submittals shall be submitted as paper copies.
Final documents shall be submitted as camera-ready original, unbound, each page printed on only
one side, including any original graphics in place and scaled to size, ready for reproduction AND one
electronic copy submitted in Adobe Acrobat format including all original stamps and signatures
In the event the City will be compiling the final specifications, incorporating the Consultant's work, the
final specifications will also be required to be submitted in Microsoft Word format.
In the event the City will be completing the Record Drawings, the final plans will also be required to
be submitted in AutoCAD
Electronic files shall be submitted on CD and all files must be compatible with the Microsoft operating
system. Each CD must be clearly labeled and have a printed copy of the directory. Files may be
emailed to the City in lieu of putting them on CD.
28. Ownership of Materials . Upon completion of all work under this contract, ownership and title to all
reports, documents, plans, specifications, and estimates produced as part of this contract will
automatically be vested in the city and no further agreement will be necessary to transfer ownership
to the City. The Consultant shall furnish the City all necessary copies of data needed to complete the
review and approval process.
It is understood and agreed that all calculations, drawings and specifications, whether in hard copy or
machine readable form, are intended for one-time use in the construction of the project for which this
contract has been entered into.
The Consultant is not liable for claims, liabilities, or losses arising out of, or connected with the
modification, or misuse by the City of the machine-readable information and data provided by the
Consultant under this agreement. Further, the Consultant is not liable for claims, liabilities, or losses
arising out of, or connected with any use by City of the project documentation on other projects,
except such use as may be authorized in writing by the Consultant.
29. Release of Reports and Information. Any reports, information, data, or other material given to,
prepared by or assembled by the Consultant as part of the work or services under these
specifications shall be the property of City and shall not be made available to any individual or
organization by the Consultant without the prior written approval of the City.
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The Consultant shall not issue any news release or public relations item of any nature, whatsoever,
regarding work performed or to be performed under this contract without prior review of the contents
thereof by the City and receipt of the City's written permission.
30. Copies of Reports and Information. If the City requests additional copies of reports, drawings,
specifications, or any other material in addition to what the Consultant is required to furnish in limited
quantities as part of the work or services under these specifications, the Consultant shall provide
such additional copies as are requested, and City shall compensate the Consultant for the costs of
duplicating of such copies at the Consultant's direct expense.
31. Attendance at Meetings And Hearings. As part of the work scope and included in the contract price
is attendance by the Consultant at up to 3 public meetings to present and discuss its findings and
recommendations. Consultant shall attend as many "working" meetings with staff as necessary in
performing workscope tasks.
32. Requests for Review. The Consultant shall respond to all requests for submittal review or
contractor RFl's within two weeks of receipt of the information from the City.
33. Project Proposal Submittal. Upon completion of the project scoping meeting, the Consultant shall
submit a proposed workscope, compensation and schedule within 10 working days. The cost
proposal shall include all costs including miscellaneous direct cost items.
34. Consultant Invoices. The Consultant shall deliver a monthly invoice to the City, itemized by project
work phase or, in the case of on-call contracts, by project title. Invoice must include a breakdown of
hours billed and miscellaneous charges and any sub-consultant invoices, similarly broken down, as
supporting detail.
35. Payment. For providing services as specified in this Agreement, City will pay and Consultant shall
receive therefore compensation in a total sum not to exceed the individual agreed upon project fee.
Should the Consultant's designs, drawings or specifications contain errors or deficiencies, the
Consultant shall be required to correct them at no increase in cost to the City.
For on-call services, the City will pay and the Consultant shall receive compensation as agreed to on
a project by project basis.
The Consultant shall be reimbursed for hours worked at the hourly rates attached to this agreement.
Hourly rates include direct salary costs, employee benefits, overhead and fee. In addition, the
Consultant shall be reimbursed for direct costs other than salary and vehicle cost that have been
identified and are attached to this agreement. The Consultant's personnel shall be reimbursed for per
diem expenses at a rate not to exceed that currently authorized for State employees under State
Department of Personnel Administration rules.
36. Payment Terms. The City's payment terms are 30 days from the receipt and approval by the City of
an original invoice and acceptance by the City of the materials, supplies, equipment or services
provided by the Consultant (Net 30).
37. Resolution of Disputes. Any dispute, other than audit, concerning a question of fact arising under
this contract that is not disposed of by agreement shall be decided by a committee consisting of the
City's Project Manager and the City Director of Public Works, who may consider written or verbal
information submitted by the Consultant. Not later than thirty days after completion of all deliverables
necessary to complete the plans, specifications and estimate, the Consultant may request review by
the City Council of unresolved claims or disputes, other than audit, in accordance with Chapter 1.20
Appeals Procedure of the Municipal Code.
Any dispute concerning a question of fact arising under an audit of this contract that is not disposed of
by agreement, shall be reviewed by the City's Chief Fiscal Officer. Not later than 30 days after
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issuance of the final audit report, the Consultant may request a review by the City's Chief Fiscal
Officer of unresolved audit issues. The request for review must be submitted in writing.
Neither the pendency of a dispute, nor its consideration by the City will excuse the consultant from full
and timely performance in accordance with the terms of this contract.
38. Disadvantaged Business Enterprise (DBE) Use for Federally Funded Projects. This agreement
is subject to Title 49, Part 26 Code of Federal Regulations entitled "Participation by Disadvantaged
Business Enterprises in Department of Transportation Financial Assistance Programs" when project
work is for a federally funded project. In order to ensure the State Department of Transportation
achieves its federally mandated statewide overall DBE goal, the City encourages the participation of
DBEs as defined in 49 CFR 26 in the performance of this agreement. The City will make a
determination on a project by project basis for reasonably expected DBE participation to compete for
the sub-consulting opportunities in this agreement. The Consultant is responsible to be fully informed
regarding the requirements of 49 CFR, Part 26. Participation of DBE's in the specified percentage is
not a condition of award.
The Consultant shall notify the City of any changes to its anticipated DBE participation on federally
funded projects, maintain records of DBE usage and complete and submit to the City the final report
of DBE utilization prior to receiving final payment. Records shall show the name and business
address of each DBE and the total dollar amount actually paid to each.
The Consultant shall pay all sub-consultants within 10 calendar days from receipt of each payment
made to the Consultant by the City.
The Consultant shall carry out applicable requirements of Title 49 CFR 26 in the award and
administration of US DOT assisted agreements. Failure by the Consultant to carry out these
requirements is a material breach of this agreement, which may result in the termination of this
agreement or such other remedy as the City deems appropriate.
39. Agreement Parties.
City: David Athey
City of San Luis Obispo
919 Palm Street
San Luis Obispo, CA 93401
Consultant: Jim Duffy
Ten Over Studio
539 Marsh Street
San Luis Obispo, CA 93401
All written notices to the parties hereto shall be sent by United States mail, postage prepaid by
registered or certified mail addressed as shown above.
40. Incorporation by Reference. City Request for Qualifications Specification No. 50410.2016.AD and
Consultant's proposal dated July 20, 2016, are hereby incorporated in and made a part of this
Agreement.
41. 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 Engineer.
42. Working Out of Scope. If, at any time during the project, the consultant is directed to do work by
persons other than the City Project Manager and the Consultant believes that the work is outside of
the scope of the original contract, the Consultant shall inform the Project Manager immediately. If the
Project Manager and Consultant both agree that the work is outside of the project scope and is
necessary to the successful completion of the project, then a fee will be established for such work
based on Consultant's hourly billing rates or a lump sum price agreed upon between the City and the
Consultant. Any extra work performed by Consultant without prior written approval from the City
Project Manager shall be at Consultant's own expense.
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43. 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 upon the parties hereto. For and in consideration of the payments and
agreements hereinbefore mentioned to be made and performed by City, Consultant agrees with City
to do everything required by this Agreement, the said specification and incorporated documents.
Authority to Execute Agreement. Both City and Consultant 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.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and
year first above written.
CITY OF SAN LUIS OBISPO,
A Mu icipal Corporation
APPROVED AS TO FORM :
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