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HomeMy WebLinkAbout22-Parks and Recreation . . . CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Kerry Morford, Interim Director Subject: RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING 1HE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH DAVID EVANS AND ASSOCIATES IN THE AMOUNT OF $113,567 FOR THE PURPOSE OF PREPARING PRELIMINARY PLANS FOR THE PROPOSED VERDEMONT COMMUNITY CENTER. Dept: Parks, Recreation & Community Services Dept. Date: April 30, 2007 MCtC Meeting Date: May 7, 2007 Synopsis of Previous Council Action: Recommended motion: I) Adopt Resolution. 2) Authorize the Director of Finance to amend'the FY 2006-07 Development Impact Fees (OIF) Budget and transfer $88,600 from account number 268-488-5504-7745 ("Park & Facility Design Services PR0712") to account number 268-488-5504-7743 ("Select & Design Verdemont Community Center PR04-28"). Contact person: ~ bL7v1t5'-'/o-v~ Si~nat~re Phone: 384-5030 Kerry Morford Supporting data attached: StaffRepart. Resa & Agreement Ward: 5 FUNDING REQUIREMENTS: Amount: $113,567.00 Source: (Acct. No.) 268-488-5504-7741 Select and Design Community (Acct. Description Center in the Verdemont Area Finance: Council Notes: 5bJn- Agenda Item No. d..~ e e e CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subiect: Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the City Manager to execute a professional services agreement with David Evans and Associates in the amount of $113,567 for the purpose of preparing preliminary plans for the proposed Verdemont community center. Backl!round: Late last calendar year, a Request for Proposal (RFP) was issued for providing design and engineering services to develop four new park sites and facilities as follows: I. Little Mountain Trail 2. Electric Avenue Historic Park 3. A 30 acre park in the Verdemont area 4. A Community Center within the 30 acre park The subject of this staff report covers the Community Center project. The other projects will be addressed in a separate staff report to be presented to the City Council at their next meeting on May 21,2007. Six firms submitted proposals for the four projects but only four firms responded to the community center project. Below is a table identifying the bidders and their costs for the community center project. Verdemont Name Community Center RHA Landscape Arch., $225,670 Riverside WLC Architects, $515,755 Rancho Cucamonga Community Works Design Group, No Bid Riverside David Evans & Assoc., $384,969 Ontario BMLA, Corona $309,371 RJM Design Group, No Bid San Juan Capistrano Work requested by the RFP for this project included: a) involving focus groups to determine amenities, b) use of the input to prepare conceptual designs, c) preparing preliminary engineering and estimated costs for construction, and d) preparing bid documents. The community center was identified as a 15,000 square foot building to be located within the 30-acre park designated for the Verdemont area. e e e After a review of the proposals by staff and a Parks and Recreation Commission ad hoc committee, David Evans and Associates (DEA) was determined to be the best qualified and most responsive proposer. DEA has extensive experience in designing parks, athletic fields, park facilities, and community centers. Recent experience includes projects in Coachella Valley, Burbank, Fontana, Pasadena and Oceanside to name a few. DEA proposed a cost of $384,969 and a timeframe of 10 months to perform the work. Funding for this project is available with a budget transfer, but not for all of the work proposed. To bring the costs within our funding limits the following is recommended: . Eliminate the "fly through" task which is not needed for preparing the preliminary or final design. The "fly through" task is a three dimensional computer animation that provides a simulated tour of the project. . Three phases are proposed for this project: I) Preparation of preliminary and schematic building designs for review, 2) Preparation of one final plan, and 3) Preparation of plans and specifications for bid documents. It is recommended that only the first phase of work be performed at this time. The other phases can follow if additional project funds are made available next fiscal year. Phase one work alone will take approximately 5 Yz months so if additional funds are appropriated to the project next fiscal year, the remaining work can be performed without any interruption. Following the above two recommendations will result in a cost of $113,567. This approach was discussed with the Parks and Recreation Commission ad hoc committee and subsequently brought to the full Commission who recommended supporting this position on a unanimous vote. David Evans and Associates is also agreeable to proceeding in the above marmer. The funding source for this project is the Park Improvement Impact Fee. While the resources are available, a transfer is required within the fund from one account to another. There will be no impacts to any of the other listed projects in the fund. A transfer is therefore requested in the amount of $88,600 from 268-488-5504-7745, Park and Facility Design Services to 268-488-5504-7743, Select and Design Community Center in the Verdemont Area. Staff recommends that the budget transfer described above be approved and that a contract be awarded to David Evans and Associates in the amount of $ 113,567 for the purpose of preparing preliminary plans for the proposed Verdemont community center. Financial Impact: Total cost to award contract as described in staff report is $113,567. A total of $25,000 is available in the Parks AS 1600 Parkland Development Impact Fee Fund in account number 268-488-5504-7743 ("Select & Design Verdemont Community Center PR04-28"). A budget amendment to transfer $88,600 from another project in the same fund, account number 268-488-5504-7745 ("Park & Facility Design Services PR0712") is requested. Recommendation: I) Adopt Resolution. 2) Authorize the Director of Finance to amend the FY 2006-07 Development Impact Fees (DIF) Budget and transfer $88,600 from account number 268-488-5504-7745 ("Park & Facility Design Services PR0712") to account number 268-488-5504-7743 ("Select & Design V erdemont Community Center PR04-28"). RESOLUTION NO. 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 2 SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A 3 PROFESSIONAL SERVICES AGREEMENT WITH DAVID EVANS AND ASSOCIATES IN THE AMOUNT OF $113,567 FOR THE PURPOSE OF PREPARING 4 PRELIMINARY PLANS FOR THE PROPOSED VERDEMONT COMMUNITY CENTER. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 6 OF SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1. The City Manager is hereby authorized to execute on behalf of the City the Professional Services Agreement between the City of San Bernardino and David Evans and 9 Associates in the amount of $113,567 for preparing preliminary plans for the proposed 10 11 Verdemont Community Center, a copy of which is attached hereto, marked Exhibit "A", and 12 incorporated herein by reference. 13 SECTION 2. The authorization granted hereunder shall expire and be void and of no 14 further effect if the agreement is not executed by both parties and returned to the Office of the 15 City Clerk within thirty (30) days following effective date of the resolution. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 1 SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH DAVID EVANS AND 2 ASSOCIATES IN THE AMOUNT OF $113,567 FOR THE PURPOSE OF PREPARING 3 PRELIMINARY PLANS FOR THE PROPOSED VERDE MONT COMMUNITY CENTER. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a Meeting, thereof, day of ,2007, by the following vote to wit: 6 held on the 7 8 COUNCIL MEMBERS 9 ESTRADA 10 BAXTER 11 BRINKER 12 DERRY 13 KELLEY 14 JOHNSON 15 MC CAMMACK 16 AYES NAYS ABSTAIN ABSENT 17 18 19 20 21 22 Rachel G. Clark, City Clerk City of San Bernardino The foregoing resolution is hereby approved this day of ,2007. 23 Approved as to form: 24 :: By: J~2~~(d~ Patrick J. Morris, Mayor City of San Bernardino 27 28 EXHIBIT" An AGREEMENT FOR SERVICES TO PROVIDE PRELIMINARY PLANS AND A FINAL SCHEMATIC DESIGN FOR THE PROPOSED VERDEMONT COMMUNITY CENTER THIS AGREEMENT is made and entered into this day of 2007 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("City"), and David Evans and Associates, Inc. ("Consultant"). WITNESSETH: A. WHEREAS, City proposes to have Consultant prepare preliminary plans and a final schematic design for the proposed Community Center to be located in the Verdemont area of the City; and B. WHEREAS, Consultant represents that it has that degree of specialized expertise contemplated within California Government Code, Section 371m, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, City and Consultant desire to contract for specific services in connection with the project described below (the "Project") and desire to set forth their rights, duties and liabilities in connection with the services to be performed; and D. WHEREAS, no official or employee of City has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONSULTANT 1.1. Scope of Services. Consultant shall provide professional services for the proposed Verdemont Community Center project as follows: Perform data collection and analysis, conduct two public meetings, prepare three preliminary designs for review, develop a computer model board, prepare schematic base plans based on the preferred alternative, perform a building systems analysis and finalize the schematic design. The aforementioned work is to be performed as identified in the Consultant's proposal for this project dated January 22, 2007, with the exception of Task 4.IF, Prepare Computer Enhanced "Flv Through", which work will not be performed. Said proposal is on file in the office of the Director of Parks, Recreation and Community Services. 1.2. 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 fields and circumstances 1 EXHIBIT" A" in accordance with sound professional practices. Consultant also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant's performance of this Agreement. 1.3. Warrantv. Consultant warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including,. but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Consultant shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of Consultant's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, Consultant shall not engage in, nor permit its agents to engage in, discrimination in employment of Persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, or any other category protected by law, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non-Exclusive Agreement. Consultant acknowledges that City may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. 1.7. Business License: The Consultant shall obtain and maintain a valid City Business Registration Certificate during the term of this Agreement. 1.8. Dutv of Lovaltv/Conflict of Interest: The Consultant understands and agrees that as the City's consultant, Consultant shall maintain fiduciary duty and a duty of loyalty to the City in performing Consultant's obligations under this Agreement. Consultant, in performing its obligations under this Agreement, is governed by California's conflict of interest laws, Government Code Section 87100 et seq., and Title 2, California Code of Regulations Section 18700 et seq. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, Contractor shall be 2 EXHIBIT U AU compensated for such services for the fixed amount of$1 13,567. 2.2. Additional Services. Consultant shall not receive compensation for any services provided outside the scope of services specified in this Agreement unless the City, prior to Consultant performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. Consultant may submit invoices to City's Director of Parks, Recreation and Community Services Department for approval on a progress basis, but no more often than monthly. Said invoice shall be based on the total of all Consultant's services which have been completed to City's sole satisfaction. City shall pay Consultant's invoice within forty-five (45) days from the date City receives said invoice. Each invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of Consultant's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City or the Director of Parks, Recreation and Community Services Department for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 3.0. TIME OF PERFORMANCE 3.1. Commencement and Completion of Work. The professional services to be performed pursuant to this Agreement shall commence within five (5) days from the Effective Date of this Agreement. Said services should be completed within five and a half (5 1/2) months unless otherwise approved by the Director of Parks, Recreation and Community Services Department. Failure to commence work in a timely manner and/or diligently pursue work to completion may be grounds for termination of this Agreement. 3.2. Excusable Delays. Neither party shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but not be limited to, acts of God, fire, strikes, material shortages, compliance with laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a party. 4.0. TERM AND TERMINATION 4.1. Term. This Agreement shall commence on the Effective Date and continue until satisfactory completion of all work contemplated herein. 4.2. Notice of Termination. The City reserves and has the right and privilege 3 EXHIBIT U AU of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing written notice to Consultant. The termination of this Agreement shall be deemed effective upon receipt of the notice of termination. In the event of such termination, Consultant shall immediately stop rendering services under this Agreement unless directed otherwise by the City. 4.3. 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. Compensation for work in progress shall be prorated as to the percentage of work completed as of the effective date of termination in accordance with the fees set forth herein. In ascertaining the professional services actually rendered hereunder up to the effective 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 pertaining to the services contemplated herein whether delivered to the City or in the possession of the Consultant. 4.4 Documents. In the event of termination of this Agreement, all documents prepared by Consultant in its performance of this Agreement including, but not limited to, finished or unfinished design, development and construction documents, data studies, drawings, maps and reports, shall be delivered to the City within ten (10) days of delivery of termination notice to Consultant, at no 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. 5.0. INSURANCE 5.1. Minimum Scope and Limits of Insurance. Consultant shall obtain and maintain during the life of this Agreement all of the following insurance coverages: (a) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation Insurance as required by the State of California. 4 EXHIBIT U AU (d) Professional errors and omissions ("E&O") liability insurance with policy limits of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. Consultant shall obtain and maintain, said E&O liability insurance during the life of this Agreement and for three years after completion of the work hereunder. 5.2. Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are addition- al insureds with respect to this subject project and contract with City." (b) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 5.3. Certificates of Insurance. Consultant shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. 5.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Consultant may be held responsible for payments of damages to persons or property. 6.0. GENERAL PROVISIONS 6.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 6.2. Representatives. The Director of Parks, Recreation & Community Services or his designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement. 5 EXHIBIT U AU Consultant shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalf of Consultant called for by this Agreement, except as otherwise expressly provided in this Agreement. 6.3. Proiect Managers. City shall designate a Project Manager to work directly with Consultant in the performance of this Agreement. Consultant shall designate a Project Manager who shall represent it and be its agent in all consultations with City during the term of this Agreement. Consultant or its Project Manager shall attend and assist in all coordination meetings called by City. 6.4. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO CONSULTANT: Jeffrey K. Rupp, Project Principal David Evans and Associates, Inc 800 North Haven, Suite 300 Ontario, CA 91764 Fax: 909-481-5757 Tel: 909-481-5750 IF TO CITY: Director Parks, Recreation & Comm. Services 547 N. Sierra Way San Bernardino, CA 92410 Fax: 909-384-5160 Tel: 909-384-5030 6.5. Attornevs' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the City shall be considered as "attorneys' fees" for the purposes of this paragraph. 6.6. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 6.7. Assignment. Consultant shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Consultant's intere'st in this 6 EXHIBIT U A" Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Consultant of Consultant's obligation to perform all other obligations to be performed by Consultant hereunder for the term of this Agreement. 6.8 Indemnification and Hold Harmless. Consultant shall protect, defend, indemnify and hold harmless City and its elected and appointed officials, officers, and employees from any and all claims, liabilities, expenses, including attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not by way of limitation, all civil claims or workers' compensation claims, arising out of or in any way connected with the intentional or negligent acts, errors or omissions of Consultant, its employees, agents or subcontractors in the performance of this Agreement. 6.9. Independent Contractor. Consultant is and shall be acting at all times as an independent contractor and not as an employee of City. Consultant shall secure, at his expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Consultant and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. 6.10 Ownership of Documents. All findings, reports, documents, information and data including, but not limited to, computer tapes or discs, files and tapes furnished or prepared by Consultant or any of its subcontractors in the course of performance of this Agreement, shall be and remain the sole property of City. Consultant agrees that any such documents or information shall not be made available to any individual or organization without the prior consent of City. Any use of such documents for other projects not contemplated by this Agreement, 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 not contemplated by this Agreement or use of incomplete documents furnished by Consultant. Consultant shall deliver to City any findings, reports, documents, information, data, in any form, including but not limited to, computer tapes, discs, files audio tapes or any other Project related items as requested by City or its authorized representative, at no additional cost to the City. 6.11 Public Records Act Disclosure. Consultant has been advised and is aware that all reports, documents, information and data including, but not limited to, computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors, and provided to City may be subject to public disclosure as required h7' the California Public Records Act (California Government Code Section 6250 et. seq.). Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which Consultant informs City of such trade secret. The City will endeavor to maintain as 7 EXHIBIT U AU confidential all information obtained by it that is designated as a trade secret. The City shall not, in any way, be liable or responsible for the disclosure of any trade secret including, without limitation, those records so marked if disclosure is deemed to be required by law or by order of the Court. 6.12. Responsibilitv for Errors. Consultant shall be responsible for its work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, 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 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. 6.13. Prohibited Employment. Consultant will not employ any regular employee of City while this Agreement is in effect. 6.14. Order of Precedence. In the event of an inconsistency or conflict in this Agreement and any of the attached Exhibits or Attachments, the terms set forth in this Agreement shall prevail. 6.15. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 6.16. No Third Partv Beneficiarv Rights. This Agreement is entered into for the sole benefit of City and Consultant and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 6.17. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 6.18. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 6.19 Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement. 6.20. Waiver. The delay or failure of either party at any time to reqUire 8 EXHIBIT" An performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of 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. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 6.21. Severabilitv. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance. 6.22. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 6.23. Corporate Authoritv. 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. III III 9 I I EXHIBIT U A" AGREEMENT FOR SERVICES TO PROVIDE PRELIMINARY PLANS AND A FINAL SCHEMATIC DESIGN FOR THE PROPOSED VERDEMONT COMMUNITY CENTER IN WITNESS WHEREOF, the partie~ hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, A Municipal Corporation, DAVID EVANS & ASSOCIATES, INC., Consultant By Signature Fred Wilson, City Manager Name and Title Approved as to form: James F. Penman, City Attorney By 10 AGREEMENT FOR SERVICES TO PROVIDE PRELIMINARY PLANS AND A FINAL SCHEMATIC DESIGN FOR THE PROPOSED VERDE MONT COMMUNITY CENTER THIS AGREEMENT is made and entered into this day of 2007 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("City"), and David Evans and Associates, Inc. ("Consultant"). WITNESSETH: A. WHEREAS, City proposes to have Consultant prepare preliminary plans and a final schematic design for the proposed Community Center to be located in the Verdemont area of the City; and B. WHEREAS, Consultant represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, City and Consultant desire to contract for specific services in connection with the project described below (the "Project") and desire to set forth their rights, duties and liabilities in connection with the services to be performed; and D. WHEREAS, no official or employee of City has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONSULTANT 1.1. Scope of Services. Consultant shall provide professional services for the proposed Verdemont Community Center project as follows: Perform data collection and analysis, conduct two public meetings, prepare three preliminary designs for review, develop a computer model board, prepare schematic base plans based on the preferred alternative, perform a building systems analysis and finalize the schematic design. The aforementioned work is to be performed as identified in the Consultant's proposal for this project dated January 22, 2007, with the exception of Task 4.lF, Prepare Computer Enhanced "Flv Through", which work will not be performed. Said proposal is on file in the office of the Director of Parks, Recreation and Community Services. 1.2. 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 fields and circumstances 1 in accordance with sound professional practices. Consultant also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant's performance of this Agreement. 1.3. Warranty. Consultant warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Consultant shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of Consultant's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, Consultant shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, or any other category protected by law, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non-Exclusive Agreement. Consultant acknowledges that City may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. 1.7. Business License: The Consultant shall obtain and maintain a valid City Business Registration Certificate during the term of this Agreement. 1.8. Dutv of Loyaltv/Conflict of Interest: The Consultant understands and agrees that as the City's consultant, Consultant shall maintain fiduciary duty and a duty of loyalty to the City in performing Consultant's obligations under this Agreement. Consultant, in performing its obligations under this Agreement, is governed by California's conflict of interest laws, Government Code Section 87100 et seq., and Title 2, California Code of Regulations Section 18700 et seq. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, Contractor shall be 2 compensated for such services for the fixed amount of$113,567. 2.2. Additional Services. Consultant shall not receive compensation for any services provided outside the scope of services specified in this Agreement unless the City, prior to Consultant performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. Consultant may submit invoices to City's Director of Parks, Recreation and Community Services Department for approval on a progress basis, but no more often than monthly. Said invoice shall be based on the total of all Consultant's services which have been completed to City's sole satisfaction. City shall pay Consultant's invoice within forty-five (45) days from the date City receives said invoice. Each invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of Consultant's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City or the Director of Parks, Recreation and Community Services Department for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 3.0. TIME OF PERFORMANCE 3.1. Commencement and Completion of Work. The professional services to be performed pursuant to this Agreement shall commence within five (5) days from the Effective Date of this Agreement. Said services should be completed within five and a half (5 1/2) months unless otherwise approved by the Director of Parks, Recreation and Community Services Department. Failure to commence work in a timely manner and/or diligently pursue work to completion may be grounds for termination of this Agreement. 3.2. Excusable Delays. Neither party shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but not be limited to, acts of God, fire, strikes, material shortages, compliance with laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a party. 4.0. TERM AND TERMINATION 4.1. Term. This Agreement shall commence on the Effective Date and continue until satisfactory completion of all work contemplated herein. 4.2. Notice of Termination. The City reserves and has the right and privilege 3 of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing written notice to Consultant. The termination of this Agreement shall be deemed effective upon receipt of the notice of termination. In the event of such termination, Consultant shall immediately stop rendering services under this Agreement. unless directed otherwise by the City. 4.3. Comoensation. 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. Compensation for work in progress shall be prorated as to the percentage of work completed as of the effective date of termination in accordance with the fees set forth herein. In ascertaining the professional services actually rendered hereunder up to the effective 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 pertaining to the services contemplated herein whether delivered to the City or in the possession of the Consultant. 4.4 Documents. In the event of termination of this Agreement, all documents prepared by Consultant in its performance of this Agreement including, but not limited to, finished or unfinished design, development and construction documents, data studies, drawings, maps and reports, shall be delivered to the City within ten (10) days of delivery of termination notice to Consultant, at no 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. 5.0. INSURANCE 5.1. Minimum Scooe and Limits of Insurance. Consultant shall obtain and maintain during the life of this Agreement all of the following insurance coverages: (a) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. ( c) Workers' compensation insurance as required by the State of California. 4 (d) Professional errors and omissions ("E&O") liability insurance with policy limits of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. Consultant shall obtain and maintain, said E&O liability insurance during the life of this Agreement and for three years after completion of the work hereunder. 5.2. Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are addition- al insureds with respect to this subject project and contract with City." (b) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 5.3. Certificates of Insurance. Consultant shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. 5.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Consultant may be held responsible for payments of damages to persons or property. 6.0. GENERAL PROVISIONS 6.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 6.2. Representatives. The Director of Parks, Recreation & Community Services or his designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement. 5 Consultant shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalf of Consultant called for by this Agreement, except as otherwise expressly provided in this Agreement. 6.3. Proiect Managers. City shall designate a Project Manager to work directly with Consultant in the performance of this Agreement. Consultant shall designate a Project Manager who shall represent it and be its agent in all consultations with City during the term of this Agreement. Consultant or its Project Manager shall attend and assist in all coordination meetings called by City. 6.4. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO CONSULTANT: Jeffrey K. Rupp, Project Principal David Evans and Associates, Inc 800 North Haven, Suite 300 Ontario, CA 91764 Fax: 909-481-5757 Tel: 909-481-5750 IF TO CITY: Director Parks, Recreation & Comm. Services 547 N. Sierra Way San Bernardino, CA 92410 Fax: 909-384-5160 Tel: 909-384-5030 6.5. Attornevs' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the City shall be considered as "attorneys' fees" for the purposes of this paragraph. 6.6. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 6.7. Assignment. Consultant shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Consultant's interest in this 6 Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Consultant of Consultant's obligation to perform all other obligations to be performed by Consultant hereunder for the term of this Agreement. 6.8 Indemnification and Hold Harmless. Consultant shall protect, defend, indemnify and hold harmless City and its elected and appointed officials, officers, and employees from any and all claims, liabilities, expenses, including attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not by way of limitation, all civil claims or workers' compensation claims, arising out of or in any way connected with the intentional or negligent acts, errors or omissions of Consultant, its employees, agents or subcontractors in the performance of this Agreement. 6.9. Independent Contractor. Consultant is and shall be acting at all times as an independent contractor and not as an employee of City. Consultant shall secure, at his expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Consultant and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. 6.10 Ownership of Documents. All findings, reports, documents, information and data including, but not limited to, computer tapes or discs, files and tapes furnished or prepared by Consultant or any of its subcontractors in the course of performance of this Agreement, shall be and remain the sole property of City. Consultant agrees that any such documents or information shall not be made available to any individual or organization without the prior consent of City. Any use of such documents for other projects not contemplated by this Agreement, 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 not contemplated by this Agreement or use of incomplete documents furnished by Consultant. Consultant shall deliver to City any findings, reports, documents, information, data, in any form, including but not limited to, computer tapes, discs, files audio tapes or any other Project related items as requested by City or its authorized representative, at no additional cost to the City. 6.11 Public Records Act Disclosure. Consultant has been advised and is aware that all reports, documents, information and data including, but not limited to, computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors, and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et. seq.). Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of whichConsultant informs City of such trade secret. The City will endeavor to maintain as 7 confidential all information obtained by it that is designated as a trade secret. The City shall not, in any way, be liable or responsible for the disclosure of any trade secret including, without limitation, those records so marked if disclosure is deemed to be required by law or by order of the Court. 6.12. Responsibilitv for Errors. Consultant shall be responsible for its work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, 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 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. 6.13. Prohibited Emplovrnent. Consultant will not employ any regular employee of City while this Agreement is in effect. 6.14. Order of Precedence. In the event of an inconsistency or conflict in this Agreement and any of the attached Exhibits or Attachments, the terms set forth in this Agreement shall prevail. 6.15. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 6.16. No Third Partv Beneficiarv Rights. This Agreement is entered into for the sole benefit of City and Consultant and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 6.17. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 6.18. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 6.19 Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement. 6.20. Waiver. The delay or failure of either party at any time to reqUIre 8 performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of 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. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 6.21. Severabilitv. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance. 6.22. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 6.23. Corporate Authoritv. 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. //1 III 9 AGREEMENT FOR SERVICES TO PROVIDE PRELIMINARY PLANS AND A FINAL SCHEMATIC DESIGN FOR THE PROPOSED VERDE MONT COMMUNITY CENTER IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, A Municipal Corporation, DAVID EVANS & ASSOCIATES, INC., Consultant By Fred Wilson, City Manager Signature Name and Title Approved as to form: James F. Penman, City Attorney ByiJ+~~4J 10