HomeMy WebLinkAboutAGMT - David Volz Design (Meritage Memorial) 3 l
DESIGN PROFESSIONAL SERVICES AGREEMENT
FOR
A MEMORIAL IN SEAL BEACH
between
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City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
David Volz Design
151 Kalmus Drive Suite M8
Costa Mesa, CA 92626
(714) 641-1300
This Design Professional Services Agreement ("the Agreement") is made as of August
13, 2012 (the "Effective Date"), by and between David Volz Design ("Consultant"), a
Corporation, and the City of Seal Beach ("City"), a California charter city, (collectively,
"the Parties").
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RECITALS
A. City desires certain professional services.
B. Pursuant to the authority provided by its City Charter and Government
Code § 37103, if applicable, City desires to engage Consultant to provide memorial
design services in the manner set forth herein and more fully described in Section 1.
C. Consultant represents that the principal members of its firm are qualified
professional landscape architects and are fully qualified to perform the services
contemplated by this Agreement in a good and professional manner; and it desires to
perform such services as provided herein.
NOW THEREFORE, in consideration of the Parties' performance of the
promises, covenants, and conditions stated herein, the Parties hereto agree as follows.
AGREEMENT
1.0 Scope of Services
1.1. Consultant shall provide those services ("Services") set forth in the
attached Exhibit A. To the extent that there is any conflict between Exhibit A and this
Agreement, this Agreement shall control.
1.2. Consultant shall perform all services under this Agreement on a timely,
regular basis and in a manner reasonably satisfactory to the City.
1.3. In performing this Agreement, Consultant shall comply with all applicable
provisions of federal, State, and local law.
1.4. As a material inducement to City to enter into this Agreement, Consultant
hereby represents that it has the experience necessary to undertake the services to be
provided. In light of such status and experience, Consultant hereby covenants that it
shall follow the customary professional standards in performing all services.
1.5. By executing this Agreement, Consultant represents that, to the extent
required by the standard of practice, Consultant (a) has investigated and considered the
scope of services to be performed, (b) has carefully considered how the services should
be performed, and (c) understands the facilities, difficulties and restrictions attending
performance of the services under this Agreement.
2.0 Term
The term of this Agreement shall commence as of the Effective Date and shall
continue for 60 days unless previously terminated as provided by this Agreement.
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3.0 Consultant's Compensation
City will pay Consultant in accordance with the fee schedule set forth in Exhibit B
for Services but in no event will the City pay more than $29,000. Consultant will not be
compensated for any work performed not specified in the Scope of Services unless the
City authorizes such work in advance and in writing.
4.0 Method of Payment
4.1. Consultant shall submit to City monthly invoices for all services rendered
pursuant to this Agreement. Such invoices shall be submitted within 15 days of the end
of the month during which the services were rendered and shall describe in detail the
services rendered during the period, the days worked, number of hours worked, the
hourly rates charged, and the services performed for each day in the period. City will
pay Consultant within 30 days of receiving Consultant's invoice. City will not withhold
any applicable federal or state payroll and other required taxes, or other authorized
deductions from payments made to Consultant.
4.2. Upon receipt of 24 hours' notice from City, Consultant shall allow City or
City's agents or representatives to inspect at Consultant's offices during reasonable
business hours all records, invoices, time cards, cost control sheets and other records
maintained by Consultant in connection with this Agreement. City's rights under this
Section 4.2 shall survive for two years following the termination of this Agreement.
5.0 Termination
5.1. This Agreement may be terminated by City, without cause, or by
Consultant based on reasonable cause, upon giving the other party written notice
thereof not less than thirty 30 days prior to the date of termination.
5.2. This Agreement may be terminated by City upon 10 days' notice to
Consultant if Consultant fails to provide satisfactory evidence of renewal or replacement
of comprehensive general liability insurance as required by this Agreement at least 20
days before the expiration date of the previous policy.
6.0 Party Representatives
6.1. The City Manager is the City's representative for purposes of this
Agreement.
6.2. David J. Volz is the Consultant's representative for purposes of this
Agreement. It is expressly understood that the experience, knowledge, capability, and
reputation of_David J. Volz were a substantial inducement for City to enter into this
Agreement. Therefore, David J. Volz shall be responsible during the term of this
Agreement for directing all activities of Consultant and devoting sufficient time to
personally supervise the services hereunder. Consultant may not change its
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representative without the prior written approval of City, which approval shall not be
unreasonably withheld.
7.0 Notices
7.1. All notices permitted or required under this Agreement shall be deemed
made when personally delivered or when mailed 48 hours after deposit in the United
States Mail, first class postage prepaid and addressed to the party at the following
addresses:
To City: City of Seal Beach
211 - 8th Street
Seal Beach, California 90740
Attn: City Manager
To Consultant: David Volz Design
151 Kalmus Drive, Suite M8
Costa Mesa, CA 92626
Attn: David J. Volz
7.2. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
8.0 Independent Contractor
8.1. Consultant is an independent contractor and not an employee of the City.
All services provided pursuant to this Agreement shall be performed by Consultant or
under its supervision, and all personnel shall possess the qualifications, permits, and
licenses required by State and local law to perform such Services, including, without
limitation, a City of Seal Beach business license as required by the Seal Beach
Municipal Code. Consultant will determine the means, methods, and details of
performing the services. Consultant shall be solely responsible for the satisfactory work
performance of all personnel engaged in performing the services and compliance with
the customary professional standards.
8.2. Any additional personnel performing services under this Agreement on
behalf of Consultant shall also not be employees of City and shall at all times be under
Consultant's exclusive direction and control. Consultant shall pay all wages, salaries,
and other amounts due such personnel in connection with their performance of services
under this Agreement and as required by law. Consultant shall be responsible for all
reports and obligations respecting such additional personnel, including, but not limited
to: Social Security taxes, income tax withholding, unemployment insurance, disability
insurance, and workers' compensation insurance.
8.3. Consultant shall indemnify and hold harmless City and its elected officials,
officers and employees, servants, designated volunteers, and agents serving as
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independent contractors in the role of City officials, from any and all liability, damages,
claims, costs and expenses of any nature to the extent arising from Consultant's
personnel practices. City shall have the right to offset against the amount of any fees
due to Consultant under this Agreement any amount due to City from Consultant as a
result of Consultant's failure to promptly pay to City any reimbursement or
indemnification arising under this Section 8.
9.0 Confidentiality
Consultant covenants that all data, documents, discussion, or other information
developed or received by Consultant or provided for performance of this Agreement are .
deemed confidential and shall not be disclosed by Consultant without prior written
authorization by City. City shall grant such authorization if applicable law requires
disclosure. All City data shall be returned to City upon the termination of this
Agreement. Consultant's covenant under this Section shall survive the termination of
this Agreement.
10.0 Subcontractors
No portion of this Agreement shall be subcontracted without the prior written
approval of City. Consultant is fully responsible to City for the performance of any and
all subcontractors.
11.0 Assignment
Consultant shall not assign or transfer any interest in this Agreement whether by
assignment or novation, without the prior written consent of City. Any purported
assignment without such consent shall be void and without effect.
12.0 Insurance
12.1. Liability Insurance. Consultant shall procure and maintain in full force and
effect for the duration of this Agreement insurance against claims for injuries to persons
or damages to property and professional negligence which may arise from or in
connection with the performance of the services hereunder by Consultant, and its
agents, representatives, employees and subcontractors.
12.2. Minimum Scope of Insurance. Unless otherwise approved by City,
coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage
(occurrence form CG 0001).
Insurance Services Office form number CA 0001 (Ed. 1/87) covering
Automobile Liability, code 1 (any auto).
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Workers' Compensation insurance as required by the State of California
and Employer's Liability Insurance.
Professional Liability insurance. Consultant shall provide to City the
standard form issued by the carrier.
12.3. Minimum Limits of Insurance. Consultant shall maintain limits no less
than:
General Liability: $2,000,000 per occurrence and in the aggregate for
bodily injury, personal injury and property damage. Commercial General
Liability Insurance or other form with a general aggregate limit shall apply
separately to this Agreement or the general limit shall be twice the
required occurrence limit.
Automobile Liability: $1,000,000 per accident for bodily injury and
property damage.
Employer's Liability: $1,000,000 per accident and in the aggregate for
bodily injury or disease and Workers' Compensation Insurance in the
amount required by law.
Professional Liability: $1,000,000 per claim/aggregate.
12.4. Deductibles and Self-Insured Retentions. Consultant shall inform City of
any deductibles or self-insured retentions except with respect to professional liability
insurance.
12.5. Other Insurance Provisions. The general liability and automobile liability
policies are to contain, or be endorsed to contain, the following provisions:
12.5.1. City, its officers, officials, employees, designated volunteers
and agents serving as independent contractors in the role of City officials, are to be
covered as additional insureds as respects: liability arising out of activities performed
by or on behalf of Consultant; products and completed operations of Consultant;
premises owned, occupied or used by Consultant; or automobiles owned, leased, hired
or borrowed by Consultant. The coverage shall contain no limitations on the scope of
protection afforded to City, its officers, officials, employees, designated volunteers or
agents serving as independent contractors in the role of City officials which are not also
limitations applicable to the named insured.
12.5.2. For any claims related to this Agreement, Consultant's
insurance coverage shall be primary insurance as respects City, its officers, officials,
employees, designated volunteers and agents serving as independent contractors in the
role of City officials. Any insurance or self-insurance maintained by City, its officers,
officials, employees, designated volunteers or agents serving as independent
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contractors in the role of City officials shall be excess of Consultant's insurance and
shall not contribute with it.
12.5.3. Consultant's insurance shall apply separately to each
insured against whom claim is made or suit is brought, except with respect to the limits
of the insurer's liability.
12.5.4. Each insurance policy required by this clause shall be
endorsed to state that coverage shall not be canceled or materially modified except
after 30 days' prior written notice by first class mail has been given to City, or 10 days'
prior written notice by express overnight mail if cancellation is due to nonpayment of
premiums.
12.5.5 Each insurance policy, except for the professional liability policy,
required by this clause shall expressly waive the insurer's right of subrogation against
City and its elected officials, officers, employees, servants, attorneys, designated
volunteers, and agents serving as independent contractors in the role of City officials.
12.6. Acceptability of Insurers. Insurance is to be placed with insurers with a
current A.M. Best's rating of no less than A:VIII unless waived in writing by City's Risk
Manager.
12.7. Verification of Coverage. All insurance coverages shall be confirmed by
execution of endorsements on forms approved by City. The endorsements are to be
signed by a person authorized by that insurer to bind coverage on its behalf. All
endorsements are to be received and approved by City before services commence. As
an alternative to City forms, Consultant's insurer may provide complete, certified copies
of all required insurance policies, including endorsements effecting the coverage
required by these specifications.
13.0 Indemnification, Hold Harmless, and Duty to Defend
13.1 Indemnity for Design Professional Services. In connection with its design
professional services, Consultant shall hold harmless and indemnify City, and its
elected officials, officers, employees, servants, designated volunteers, and those City
agents serving as independent contractors in the role of City officials (collectively,
"Indemnitees"), with respect to any and all claims, demands, damages, liabilities,
losses, costs or expenses, including reimbursement of attorneys' fees and costs of
defense (collectively, "Claims" hereinafter), including but not limited to Claims relating to
death or injury to any person and injury to any property, which arise out of, pertain to, or
• relate to in whole or in part to the negligence, recklessness, or willful misconduct of
Consultant or any of its officers, employees, subcontractors, or agents in the
performance of its design professional services under this Agreement.
13.2 Other Indemnitees. In connection with any and all claims, demands,
damages, liabilities, losses, costs or expenses, including attorneys' fees and costs of
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defense (collectively, "Damages" hereinafter) not covered by Subsection 13.1,
Consultant shall defend, hold harmless and indemnify the Indemnitees with respect to
any and all Damages, including but not limited to, Damages relating to death or injury to
any person and injury to any property, which arise out of, pertain to, or relate to the acts
or omissions of Consultant or any of its officers, employees, subcontractors, or agents
in the performance of this Agreement, except for such loss or damage arising from the
sole negligence or willful misconduct of the City, as determined by final arbitration or
court decision or by the agreement of the parties. Consultant shall defend Indemnitees
in any action or actions filed in connection with any such Damages with counsel of
City's choice, and shall pay all costs and expenses, including all attorneys' fees and
experts' costs actually incurred in connection with such defense. Consultant's duty to
defend pursuant to this Subsection 13.2 shall apply independent of any prior, concurrent
or subsequent misconduct, negligent acts, errors or omissions of Indemnitees.
14.0 Conflict of Interest
14.1. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the Services, or which
would conflict in any manner with the performance of the Services. Consultant further
covenants that, in performance of this Agreement, no person having any such interest
shall be employed by it. Furthermore, Consultant shall avoid the appearance of having
any interest, which would conflict in any manner with the performance of the Services.
Consultant shall not accept any employment or representation during the term of this
Agreement which is or may likely make Consultant "financially interested" (as provided
in California Government Code §§ 1090 and 87100) in any decision made by City on
any matter in connection with which Consultant has been retained.
14.2. Consultant further warrants and maintains that it has not employed or
retained any person or entity, other than a bona fide employee working exclusively for
Consultant, to solicit or obtain this Agreement. Nor has Consultant paid or agreed to
pay any person or entity, other than a bona fide employee working exclusively for
Consultant, any fee, commission, gift, percentage, or any other consideration contingent
upon the execution of this Agreement. Upon any breach or violation of this warranty,
City shall have the right, at its sole and absolute discretion, to terminate this Agreement
without further liability, or to deduct from any sums payable to Consultant hereunder the
full amount or value of any such fee, commission, percentage or gift.
14.3. Consultant warrants and maintains that it has no knowledge that any
officer or employee of City has any interest, whether contractual, noncontractual,
financial, proprietary, or otherwise, in this transaction or in the business of Consultant,
and that if any such interest comes to the knowledge of Consultant at any time during
the term of this Agreement, Consultant shall immediately make a complete, written
disclosure of such interest to City, even if such interest would not be deemed a
prohibited "conflict of interest" under applicable laws as described in this Subsection.
15.0 Equal Opportunity
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•
Consultant affirmatively represents that it is an equal opportunity employer.
Consultant shall not discriminate against any subcontractor, employee, or applicant for
employment because of race, religion, color, national origin, handicap, ancestry, sex,
sexual orientation, or age. Such non-discrimination includes, but is not limited to, all
activities related to initial employment, upgrading, demotion, transfer, recruitment or
recruitment advertising, layoff, or termination.
16.0 Labor Certification
By its signature hereunder, Consultant certifies that it is aware of the provisions
of Section 3700 of the California Labor Code that require every employer to be insured
against liability for Workers' Compensation or to undertake self-insurance in accordance
with the provisions of that Code, and agrees to comply with such provisions before
commencing the performance of the Services.
17.0 Entire Agreement
This Agreement contains the entire Agreement of the Parties with respect to the
subject matter hereof, and supersedes all prior negotiations, understandings, or
agreements. This Agreement may only be modified by a writing signed by both Parties.
18.0 Severability
The invalidity in whole or in part of any provisions of this Agreement shall not
void or affect the validity of the other provisions of this Agreement.
19.0 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
of the State of California.
20.0 No Third Party Rights
No third party shall be deemed to have any rights hereunder against either Party
as a result of this Agreement.
21.0 Waiver
No waiver of any default shall constitute a waiver of any other default or breach,
whether of the same or other covenant or condition. In no event shall the making by
City of any payment to Consultant constitute or be construed as a waiver by City of any
breach of covenant, or any default which may then exist on the part of Consultant, and
the making of any such payment by City shall in no way impair or prejudice any right or
remedy available to City with regard to such breach or default. No waiver, benefit,
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privilege, or service voluntarily given or performed by a Party shall give the other Party
any contractual rights by custom, estoppel, or otherwise.
22.0 Prohibited Interests
Consultant maintains and warrants that it has not employed nor retained any
company or person, other than a bona fide employee working solely for Consultant, to
solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor
has it agreed to pay any company or person, other than a bona fide employee working
solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other
consideration contingent upon or resulting from the award or making of this Agreement.
For breach or violation of this warranty, City has the right to rescind this Agreement
without liability. For the term of this Agreement, no member, officer or employee of City,
during the term of his or her service with City, shall have any direct interest in this
Agreement, or obtain any present or anticipated material benefit arising therefrom.
23.0 Attorneys' Fees
If a Party commences any legal, administrative or other action against the other
Party arising out of or in connection with this Agreement, the prevailing Party in such
action shall be entitled to have and recover from the losing Party all of its attorneys' fees
and other costs incurred in connection therewith.
24.0 Exhibits
All exhibits referenced in this Agreement are hereby incorporated into the
Agreement as if set forth in full herein. In the event of any material discrepancy
between the terms of any exhibit so incorporated and the terms of this Agreement, the
terms of this Agreement shall control.
25.0 Corporate Authority
The persons executing this Agreement on behalf of the Parties warrant that they
are duly authorized to execute this Agreement on behalf of said Parties and that by their
execution, the Parties are formally bound to the provision of this Agreement.
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IN WITNESS WHEREOF, the Parties hereto, through their respective authorized
representatives have executed this Agreement as of the date and year first above
written.
CITY OF SEAL BEACH CONSULTANT
11io J' 2-CPC-.51(c4,..
By: K.' . '� By: t <<t_.._/: �l°Z..
�II R. Ingram, Ci anager '`�r'`
Name: ARIL ; C6 16-Z.
Its: ,l i I I Jr'‘- i\.il;. it 1 l b 112_4
Attest:
By: �J' By:
Linda Devine, ity Clerk
Name:
Its:
Approved as to Form:
By: �����
ui 'n Barrow, City Attorney
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David V®Iz Design
FEE PROPOSAL SEAL BEACH MEMORIAL
(Based on Hourly Rate Schedule through 2015) City of Seal Beach
May 9, 2012
REVISED 8-03-12
$1 5 $175 $135 $125 $1 AD Total 1 Fee
A. Design Development
1. Preliminary Concept Preparation and Review
a. Review with City Staff 2 3 3 8 $ 1,260.00
b. Design preparation 2 30 12 44 $ 7,260.00
c. Committee review meeting 2 2 4 $ 740.00
2. Final Concept Preparation and Review
a. Prepare final concept plans 2 18 5 25 $ 4,215.00
b. Committee review meeting 2 4 3 9 $ 1,435.00
Design Development Total 90 $ 14,910.00
B. Construction Documents
1. Construction Documents, Landscape Architecture
a. Plans and Specifications 5 18 30 4 57 $ 8,635.00
b. Submittals 4 4 8 $ 1,240.00
c. Prepare final plans 4 4 8 $ 1,240.00
Construction Documents LA Total 73 $ 11,115.00
C. Construction Period Services
1. Bidding Assistance 1 1 $ 175.00
2. Reviews 2 2 4 $ 620.00
3. Site visits(4 anticipated) 2 2 2 6 $ 970.00
4. Punch List 2 2 $ 350.00
5. Close out 2 2 2 6 $ 850.00
Construction Period Services Total 19 $ 2,965.00
B. Geotechnical Services City supplied data
C. Electrical Engineering if needed (unknown)
D. Civil Engineering/Structural Engineering if needed (unknown)
E. Survey City supplied data
F. Fine Art Piece if needed (unknown)
ASSUMPTIONS:
1. The Construction Document fees are based upon the assumption that the memorial will not be an overly complicated
construction with a construction budget of$50,000 to$80,000. A more complicated construction would add to the
needed design fees.
2. Water features, lights and fine art sculpture are not currently contemplated to be a part of the memorial.
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