CITY COUNCIL AGENDA ITEM NO. 22
Meeting Date: April 24, 2007
Subject/Title: Approve a Resolution Authorizing the City Manager to Execute
an Agreement with LPA, Inc., for the architectural planning, design and
related services of the New City Hall (CIP No. 337-31390), including the
Civic Center Parking Facility and Civic Center Plaza, in an amount not to
exceed $2,922,218, plus 10% contingency of $292,221.80, for a total of
Prepared by: Gail Leech, Management Analyst
Submitted by: Donna Landeros, City Manager
Approve a resolution authorizing the City Manager to execute an agreement
with LPA, Inc., for the architectural design of the New City Hall (CIP No.
337-31390), including the Civic Center Parking Facility and Civic Center
Plaza, in an amount not to exceed $2,922,218, plus 10% contingency of
$292,218.80, for a total of $3,214,439.80.
In October 2004, the City reopened negotiations with the School District for
additional site acreage for the New City Hall, which resulted in a change in
the New City Hall footprint and therefore put the New City Hall project on
On March 28, 2006, City Council adopted a resolution to close the existing
Kaplan McLaughlin Diaz (KMD) contract.
On July 23, 2006, the City entered into an interim agreement with LPA for
architectural planning, pre-design and related services in order to
facilitate the City Hall project while the formal agreement between the
parties was being negotiated.
Through staff planning sessions and community outreach meetings, the scope
of the New City Hall project has been amended to accurately reflect the
needs of the community and to lay the foundation for the future Downtown
Brentwood. The project has been expanded to include a Civic Center Parking
Facility, to address the parking needs once all of the community facilities
have been built around the civic square, and a Civic Center Plaza to provide
for a community gathering place, reception area or other outdoor event
locale. Staff has been working with LPA under an interim agreement to begin
work on conceptual designs and planning and now requires direction to move
forward with the architectural process for the new City Hall project. This
process includes, but is not limited to, programming, schematic and design
phases, completion of contract and bid documents and contract
This contract price will not exceed $3,214,439.80. This includes 10%
contingency and reimbursable expenditures. The funds associated with this
project are included in the 2006/07 – 2010/11 CIP Budget which includes the
New City Hall, CIP Project No. 337-31390.
Exhibit A – City Hall Scope of Services
Exhibit B – Civic Center Parking Structure
Exhibit C – Civic Center Plaza
Exhibit D – Insurance Requirements
Exhibit E – Construction Budget
A RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT WITH LPA, INC., FOR THE ARCHITECTURAL PLANNING, DESIGN AND RELATED
SERVICES OF THE NEW CITY HALL (CIP PROJECT NO. 337-31390), INCLUDING THE
CIVIC CENTER PARKING FACILITY AND CIVIC CENTER PLAZA, IN AN AMOUNT NOT TO
EXCEED $2,922,218, PLUS 10% CONTINGENCY OF $292,218.80, FOR A TOTAL OF
WHEREAS, in October 2004, the City reopened negotiations with the School
District for additional site acreage for the New City Hall, which resulted
in a change in the New City Hall footprint; and
WHEREAS, on March 28, 2006, City Council adopted a resolution to close the
existing Kaplan McLaughlin Diaz (KMD) contract; and
WHEREAS, on July 23, 2006, the City entered into an interim agreement with
LPA for architectural planning, pre-design and related services in order to
facilitate the City Hall project while the formal agreement between the
parties was being negotiated; and
WHEREAS, through staff planning sessions and community outreach meetings,
the scope of the new City Hall project has been amended to accurately
reflect the needs of the community and to lay the foundation for the future
Downtown Brentwood; and
WHEREAS, the project has been expanded to include a Civic Center Parking
Facility, to address the parking needs once all of the community facilities
have been built around the civic square, and a Civic Center Plaza to provide
a community gathering place, reception area or other outdoor event locale;
WHEREAS, staff has been working with LPA under an interim agreement to begin
work on conceptual designs and planning and now requires direction to move
forward with the architectural process for the new City Hall project; and
WHEREAS, the total cost of this contract will not exceed $3,214,439.80,
which is included in the 2006/07 – 2010/11 CIP Budget, CIP No. 337-31390.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood
hereby approves and authorizes the City Manager to execute an agreement with
LPA, Inc., for the architectural planning, design and related services of
the New City Hall, including the Civic Center Parking Facility and Civic
Center Plaza in an amount not to exceed $3,214,439.80.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at
a regular meeting held on the 24th day of April 2007 by the following vote:
AGREEMENT FOR PROFESSIONAL DESIGN
THIS AGREEMENT, made and entered into this __ day of ___________, 2007 by
and between the CITY OF BRENTWOOD, a municipal corporation existing under
the laws of the State of California, hereinafter referred to as "City", and
LPA, Inc., a California professional corporation, hereinafter referred to as
A. On or about July 31, 2006, City and Design Professional entered into an
Interim Agreement for Architectural Services (the "Interim Agreement"),
under which Design Professional was to provide certain architectural
planning, pre-design and related services in connection with the Project, as
defined below. The terms and conditions of the Interim Agreement are
incorporated herein by this reference. In the event of a conflict between
the Interim Agreement and this Agreement, the terms of this Agreement shall
govern. The non-conflicting terms of the Interim Agreement shall remain in
full force and effect.
B. As provided in the Interim Agreement, the parties contemplated entering a
more comprehensive agreement regarding the rights and responsibilities of
City and Design Professional in connection with the public work of
improvement referred to as the new City Hall, more fully described in
Exhibit "A", attached hereto and incorporated herein (the "Project").
C. City desires to continue the engagement of Design Professional to provide
certain professional design, architectural, construction administration and
related services ("Services") for the Project by reason of its
qualifications and experience performing such services and Design
Professional has offered to provide the required Services on the terms and
in the manner set forth herein.
D. Design Professional represents that its employees are duly licensed and
qualified to provide architectural design services in California and to
perform the Services described in this Agreement, and that Design
Professional’s employees have the necessary expertise in the design of
NOW, THEREFORE, City and Design Professional agree as follows:
SECTION 1 - SCOPE OF SERVICES
The scope of services subject to this Agreement and to be performed by
Design Professional for the Project is as provided in Section 5 and further
described in Exhibit "A", Scope of Services, attached hereto and
incorporated herein. Any changes in the Scope of Services must be approved
in advance, in writing, by the City Manager or her designee. If City
requests changes in the Scope of Services, Design Professional shall confirm
the direction in writing and submit it to City Manager for approval within
five (5) working days of the request. Design Professional shall also provide
City with a written estimated not-to-exceed cost for any change in the Scope
of Services at least one (1) working day prior to commencing any Services
related to the changed Scope.
SECTION 2 - REPRESENTATIONS AND RESPONSIBILITIES
2.1 Design Professional.
2.1.1 Design Professional acknowledges that in entering into this Agreement
the City, not being skilled in such matters, is relying upon Design
Professional for the technical and professional quality of all Services and
that neither City nor City's consultants shall perform any duties of Design
Professional or assume any responsibility or liability for the professional
or technical adequacy of the Documents prepared by Design Professional.
Design Professional shall perform the Services in a competent, professional
manner, in accordance with the professional standard of care and generally
accepted practices utilized by design professionals in metropolitan areas of
California experienced in the design and construction administration of
public projects of similar size, scope and complexity. Design Professional
agrees to perform the Services in accordance with these standards. The
acceptance of Design Professional's services by City does not operate as a
release of Design Professional from these obligations.
2.1.2 Upon completion of the Project in accordance with the construction
documents, the Project will comply with all Applicable Laws (as defined in
section 2.1.4) and be suitable for its intended purpose, as documented in
the original "Needs Assessment" by Gibson/Salmon Group, from a study in
2002, a copy of which is in LPA, Inc.’s possession, and subsequent
directives, if any, from City.
2.1.3 Design Professional accepts the relationship of trust and confidence
established between it and City by this Agreement. Design Professional shall
use its professional efforts, skill, judgment, and abilities to assist and
work with City to design the Project, to produce the necessary design and
construction documents, and to further the interests of City in accordance
with City's requirements and procedures, each in accordance with the
standard of care established in this Agreement and professional standards
that apply to Design Professional. Design Professional shall be responsible
for the professional quality, technical accuracy and coordination of all
Services. Design Professional shall, without additional compensation,
correct or revise any errors or deficiencies in its Services. Design
Professional shall furnish City with every reasonable opportunity for City
to ascertain that the Services are being performed in accordance with the
requirement and intentions of this Agreement.
2.1.4 Design Professional shall perform the Services in full compliance with
all applicable federal, state and local laws and regulations in effect at
the time such services are rendered (collectively, "Applicable Laws").
2.1.5 Design Professional shall be responsible for employing or engaging all
persons necessary to perform the Services. All of Design Professional's
employees and subconsultants (the "Design Team") shall be qualified by
training and experience to perform their assigned tasks. Design Professional
shall keep the Services under its control. If any employee or sub-consultant
of Design Professional fails or refuses to carry out the Services in
accordance with the provisions of this Agreement or appears to be
incompetent or to act in a disorderly or improper manner, he or she shall be
discharged immediately from the work under this Agreement on demand of City.
2.1.6 Design Professional has designated Jim Wirick, Principal, License
#C15598 as Design Professional's representative ("Representative"), who is
authorized to act on behalf of the Design Professional with respect to the
Project and whose duties shall include, without limitation, directing and
coordinating the work of Design Professional and the Design Team. Design
Professional warrants and represents that the Representative is licensed by
the State of California to perform architectural services and that the
Services hereunder will be performed by the Representative or under his/her
direct supervision and responsible control. The Representative shall
represent Design Professional, and all actions taken by the Representative
shall be deemed to have been taken by Design Professional.
2.1.7 Concurrently with the execution of this Agreement, Design Professional
shall submit, for City's approval, a team or staffing proposal for the
Project, complete with job descriptions, names and previous experience of
all personnel. Design Professional has designated the Representative,
Principal, Project Design Professional, and/or Job Captain for the Project
as stated in the attached Exhibit "C" - Key Personnel, which exhibit is
incorporated herein by this reference. Design Professional shall not change
or reassign Key Personnel without City's prior for approval, and shall not
replace any Key Personnel with individuals to whom City has a reasonable
objection. Any replacement Representative or employee presented to City for
approval shall have substantially equivalent or better qualifications than
the Representative or employee whom he or she replaces.
2.1.8 Design Professional's Services are unique and personal. Design
Professional shall not assign or transfer any of its interests or
obligations under this Agreement without the City's written consent. Design
Professional shall not subcontract its duties under this Agreement without
the City's prior written consent. No subconsultant will be recognized by
City as such; rather, all subconsultants are deemed to be the agents of
Design Professional, and Design Professional agrees to be responsible for
their performance. Design Professional is specifically authorized to
subcontract with the sub-consulting firms listed in Exhibit "A" to assist in
providing the Services.
2.1.9 Design Professional acknowledges that its Services will be based upon,
include, and integrate, design services that have been or will be performed
by design professionals retained by City. Design Professional shall provide
the cooperative and interactive effort required to perform fully the
Services provided for in this Agreement, including but not limited to the
full coordination and integration of design services performed by others
into the design and construction documents for the Project, which may
include geotechnical engineering. Design Professional shall furnish
complete, coordinated construction documents for the Project.
2.2.1 City shall provide information in a timely manner regarding
requirements for and limitations on the Project, including a written program
which shall set forth City's objectives, schedule, constraints and criteria,
including space requirements and relationships, flexibility, expandability,
special equipment, systems and site requirements. Pursuant to its
responsibilities under Section 1, Design Professional shall assist City in
identifying and determining the necessary information and requirements.
2.2.2 City shall provide a Construction Budget for the Project. A copy of
City's approved Construction Budget is attached as Exhibit E.
2.2.3 The City shall designate in writing a representative authorized to act
on the City's behalf with respect to the Project. The City or such
designated representative shall examine the documents submitted by Design
Professional and shall timely render decisions pertaining thereto, to avoid
unreasonable delay in the progress of the Design Professional's Services.
2.2.4 To the extent called for by the scope of the Project, the City shall
furnish a legal description and all existing and available land surveys of
the site, giving, as applicable, grades and lines of streets, alleys,
pavements and adjoining property; rights-of-way, restrictions, easements,
encroachments, zoning, deed restrictions, boundaries and contours of the
site; locations, dimensions and complete data pertaining to existing
buildings, other improvements and trees; and information concerning
available service and utility lines, both public and private.
2.2.5 The City shall provide the services of a geotechnical engineer to
prepare a report for use by Design Professional. Such services may include
but are not limited to test borings, test pits, soil bearing seismicity
values, paving sections criteria, percolation tests, air and water pollution
tests, ground corrosion and resistivity tests, including necessary
operations for determining subsoil, air and water conditions.
2.2.6 Design Professional shall identify tests required to meet all
applicable laws and regulations or required in Design Professional's
judgment, including but not limited to tests required to meet the California
Building Code requirements, water infiltration test and HVAC commissioning.
2.2.7 The City shall determine the necessity of and furnish all legal and
accounting services that may be necessary at any time for the Project to
meet the City's needs and interests. Such services shall include auditing
services the City may require to verify the Contractor's Applications for
Payment or to ascertain how or for what purposes the Contractor has used the
money paid by or on behalf of the City.
2.2.8 The services, information, surveys and reports required by this
Section 2.2 shall be furnished at the City's expense. Design Professional
shall be entitled to rely upon the accuracy and completeness thereof,
provided that Design Professional shall review all such information with the
due care expected of one design professional relying on the work of another
for any errors, inconsistencies, inaccuracies, or incompleteness, and shall
promptly inform the City upon discovery of any of the same.
2.2.9 City shall provide prompt written notice to the Design Professional if
the City becomes aware of any fault or defect in the Project or
non-conformance with the Contract Documents.
2.2.10 City anticipates retaining the services of one or more qualified
general contractors ("Contractor") for construction of the Project. Such
Contractor may provide scheduling and cost-forecasting services, and may
review Design Professional's in-progress design documents for cost and
constructability through completion of the Construction Documents. City's
retention of a Contractor shall not relieve Design Professional of its
responsibility for providing accurate and complete Services, consistent with
the terms of this Agreement.
2.2.11 City shall apply for and obtain all Certificates of Occupancy,
licenses and permits which may be required by governmental authorities
having jurisdiction over the Project and which are prerequisite to
occupancy, use or operation of the Project by City. Design Professional
shall render necessary assistance with reference to the foregoing.
SECTION 3 - CONSTRUCTION BUDGET
3.1 Design Professional acknowledges that the City has established a
Construction Budget for the Project of Thirty Nine Million Dollars
($39,000,000), as further described in Exhibit E. The Construction Budget
includes the total cost to the City of all work designed or specified by
Design Professional, including alternates, fees and permits, construction
testing included in the general conditions, an escalation allowance, a
design contingency, and a construction contingency. The Construction Budget
does not include payments to Design Professional or its consultants, land
acquisition costs, financing costs, special district fees, or the City's
administrative costs. The Estimated Construction Cost is equal to the
Construction Budget, less the escalation allowance, permit fees, and the
design and construction contingencies. The Estimated Construction Cost for
the Project is $34,580,000.
3.2 The size of the Project and the type and quality of construction are
dependent upon the Construction Budget. Therefore, Design Professional will
exercise its professional judgment in determining the balance between the
size and features of the Project, the type of construction, and the quality
of construction to achieve a solution for the City within the Construction
Budget. Design Professional shall include contingencies for design, bidding
and price escalation, recommend what materials, equipment, component systems
and types of construction are to be included in the contract documents,
recommend reasonable adjustments in the scope of the Project, and include in
the Contract Documents alternate bid items as may be necessary to adjust the
Estimated Construction Cost to the Construction Budget.
3.3 Design Professional shall review the Estimated Construction Cost at each
phase of its Services. If the Estimated Construction Cost is more than 75%
of the Construction Budget, Design Professional shall prepare a report
identifying and explaining any variances and, as part of its Basic Services,
shall develop revisions to the type or quality of construction to bring the
Estimated Construction Cost back to no more than 75% of the Construction
3.4 If the lowest bona fide bid exceeds the Estimated Construction Cost by
more than Five Percent (5%) not including add alternates and including such
deductive bid alternatives as are acceptable to the City, the City may:
3.4.1 Give written approval of an increase in such fixed limit; or
3.4.2 Authorize rebidding of the Project within a reasonable time; or
3.4.3 Terminate the Project; or
3.4.4 Cooperate in revising the Project scope, schedule and quality as
required to reduce the construction cost.
3.5 If the City chooses to revise the Project scope, schedule and quality as
required to reduce the construction cost, the Design Professional, as a
Basic Service and without additional compensation, shall modify the
Documents in such ways as may be acceptable to City as necessary to bring
the cost of construction within the estimated construction cost and shall
assist in rebidding the Project.
3.6 Design Professional shall assist City in evaluating the Construction
Budget, and shall review the estimates of Construction Cost prepared by the
City, if any. Estimates of construction costs and detailed Construction Cost
Estimates prepared by the Design Professional represent the Design
Professional’s judgment as a design professional familiar with the
construction industry. It is recognized, however, that neither the Design
Professional nor the City have control over the cost of labor, materials or
equipment, over the Contractor’s methods of determining bid prices, or over
competitive bidding, market or negotiating conditions. Accordingly the
Design Professional cannot and does not warrant or represent that bids or
negotiated prices will not vary from the City’s Project Budget or from any
estimate of Construction Cost or evaluation prepared or agreed to by the
SECTION 4 - INDEPENDENT CONTRACTOR
The services to be provided to the City as set forth in this Agreement shall
be provided by Design Professional as an independent contractor as defined
in Labor Code 3353, under the control of the City as to the result of the
work but not the means by which the result is accomplished, and nothing
herein contained shall be construed to make Design Professional an agent or
employee of the City while providing these services. Design Professional
shall be entitled to no other benefits or compensation except as provided in
SECTION 5 - SCOPE OF DESIGN PROFESSIONAL'S BASIC SERVICES
5.1 Design Professional's Basic Services consist of those Services (i)
described below in Sections 5.2 through 5.11, and as more particularly
described in Exhibits "A", “B” and “C” - Scope of Services; (ii) established
by Design Professional's proposal dated April 11, 2007 ("Proposal "); and
(iii) any other Services expressly identified in this Agreement as part of
Basic Services. Any changes in the Scope of Services must be approved in
advance, in writing, by the City Manager or her designee, or if verbally
requested by City, confirmed in writing by Design Professional within five
(5) working days.
5.1.1 Design Professional shall be responsible for the professional quality,
technical accuracy and coordination of all Services. Design Professional
shall, without additional compensation, correct or revise any errors or
deficiencies in its Services.
5.1.2 Design Professional shall furnish City with every reasonable
opportunity for City to ascertain that the Services are being performed in
accordance with the requirements and intentions of this Agreement.
5.2 Programming Phase. As part of Basic Services, Design Professional shall
provide such Programming Services as established in the Proposal, as
provided in this Agreement, including Exhibit A hereto.
5.3 Site Master Planning Phase. Based on the mutually agreed upon Program
and Construction Budget, Design Professional shall provide such Master
Planning Services, and shall provide such Deliverables, as may be required
or requested by City, as established in the Proposal, as provided in this
Agreement, including Exhibit A hereto, or pursuant to the Interim Agreement.
The approved Master Plan, if any, shall serve as the basis for Design
Professional's initiation of the Conceptual Design. (Note: This service is
5.4 Schematic Design Phase.
5.5.1 The Design Professional shall review the Program and Master Plan
furnished by the City to ascertain the requirements of the Project and shall
arrive at a mutual understanding of such requirements with the City. Based
on these documents, the Design Professional shall provide conceptual design
services and such Deliverables as provided in this Agreement, including
Exhibit A and the Interim Agreement. When the City has approved the
conceptual design, that document, along with the Master Plan, shall provide
the basis for all future design efforts. The approved conceptual design will
become part of the Master Plan.
5.5.2 The Design Professional shall provide a preliminary evaluation of the
City's Program, schedule and Construction Budget requirements, each in terms
of the other, subject to the limitations set forth in Section 3.
5.5.3 The Design Professional shall review with the City, City's
Representative, and/or consultants, site use and improvements, selection of
materials, building systems and equipment, alternative approaches to design,
and alternative methods of Project delivery.
5.5.4 Based on the mutually agreed-upon Program, Master Site Plan,
Conceptual Design, schedule and Construction Budget requirements, the Design
Professional shall prepare, for approval by the City, Schematic Design
Documents consisting of drawings and other documents illustrating the scale
and relationship of Project components, and which shall include, but not be
limited to, studies which define the overall Project plan for finishes and
any items which may be specified in Exhibit A. Design Professional shall
further provide such Schematic Design Phase Services as established in the
Proposal, as provided in this Agreement, including Exhibit A hereto.
5.5 Design Development Phase. Based on the approved Schematic Design
Documents and any adjustments authorized by the City in the program,
schedule or Construction Budget, the Design Professional shall prepare, for
approval by the City, Design Development Documents consisting of drawings
and other documents to fix and describe the size and character of the
Project as to architectural, structural, mechanical and electrical systems,
materials and such other elements as may be appropriate. Design Professional
shall further provide such Design Development Phase Services as established
in the Proposal, as provided in this Agreement, including Exhibit A hereto.
5.6 Construction Documents Phase. Based on the approved Design Development
Documents and any further adjustments in the Program, Construction Budget,
or Design Schedule authorized by the City, the Design Professional shall
prepare, for approval by the City, Construction Documents consisting of
Drawings and Specifications setting forth in detail the requirements for the
construction of the Project. Design Professional shall further provide such
Construction Documents Phase Services as provided in this Agreement,
including Exhibit A hereto.
5.7 Bidding or Negotiation Phase. The Design Professional, following the
City's approval of the Construction Documents and of any adjustments in the
Program, Construction Budget, or Design Schedule, shall provide such Bidding
Phase Services as provided in this Agreement, including Exhibit A hereto.
Such Services shall include, without limitation, assisting the City in
obtaining bids and assisting in preparing and awarding contracts for
5.8 Construction Phase – Administration of the Construction Contract.
5.8.1 The Construction Phase shall commence when City awards a contract for
construction of the Project and, together with Design Professional's
obligation to provide Basic Services under this Agreement, shall end ninety
(90) days after the date of Final Completion of the Work, except as
otherwise provided in this Agreement or to the extent the delay is caused by
Design Professional. Design Professional's responsibilities during the
Construction Phase shall extend more than ninety (90) days past Final
Completion if necessary for Design Professional to fulfill its
responsibilities during the Dispute Resolution Process set forth in Section
5.8.2 The Design Professional shall assist City with the general
administration of the Contract for Construction as provided in the
Construction Contract, this Agreement, including Exhibit A hereto, and the
Proposal. Design Professional shall have authority to act on City's behalf
only to the extent provided in this Agreement, the Proposal, and the General
Conditions, and the duties, responsibilities and limitations of authority of
the Design Professional during the Construction Phase shall not be
restricted, modified or extended without written agreement of the City and
5.8.3 Design Professional shall provide the Construction Phase and
Administration Services provided in this Agreement, including Exhibit A
hereto. Such Services shall include, without limitation, services related to
site visits; progress and quality of the Work; deviations from the Contract
Documents and construction schedule; Certificates for Payment; Change Orders
and Construction Change Directives; and/or rendering initial decisions
regarding Project disputes.
5.8.4 The Design Professional shall neither have control over or charge of,
nor be responsible for, the construction means, methods, techniques,
sequences or procedures, or for safety precautions and programs in
connection with the Work, or the acts or omissions of Contractor or any
other persons performing any of the Work, all of which shall be Contractor's
5.9 Project Close-Out Phase. Design Professional shall provide Project
Close-Out Phase Services as provided in this Agreement, including Exhibit A
hereto. Such Services shall include, without limitation, services required
in evaluating the contract accounting and in obtaining beneficial occupancy
for City; punch list clearance; preparing Record Documents; and final
5.10 Reports. Design Professional shall prepare and deliver to City with
each Payment Application a written monthly progress report that includes: a)
a brief summary of the Services performed, identifying tasks completed, in
progress or pending, b) an estimate of the percentage complete for each
task, c) explanation of significant deviations from the approved Scope or
Schedule, d) progress relative to schedule and any corrective actions by
Design Professional, e) summary of costs incurred, and f) a summary of
activities planned for the coming month.
5.11 Project Representation Beyond Basic Services.
5.11.1 Upon City's request, the Design Professional shall provide one or
more "Project Representatives" approved by City to assist Design
Professional in carrying out Design Professional's responsibilities at the
site, beyond the requirements set forth for Basic Services. Such additional
Project Representative shall be considered an Additional Service and Design
Professional and shall be compensated as defined under Section 7.2.
5.11.2 Project Representatives shall be selected, employed and directed by
the Design Professional. The duties, responsibilities and limitations of
authority of Project Representatives and Design Professional's compensation
therefor shall be mutually determined by the parties.
5.11.3 The Project Representative shall not be changed without City's prior
written approval, and if in City's good faith opinion, the Project
Representative's presence is harmful to the Project, the Project
Representative shall be promptly replaced with a Representative that meets
with City's approval. City shall not exercise its right of removal without
seven (7) days' prior written notice of City's concerns and a good faith
effort to resolve its objections.
SECTION 6 - TERM, PROGRESS AND COMPLETION
6.1 The term of this Agreement shall begin on the date the City Council
approves this Agreement and shall expire upon completion of the Services or
when terminated as provided in Section 9.
6.2 Design Professional shall continue performance of the Services under the
Interim Agreement and shall promptly commence performance of the Services
under this Agreement upon execution of this Agreement, and shall diligently
pursue performance of all of the Services until completion.
6.3 The Design Professional shall submit for the City's approval a schedule
for the performance of the Design Professional's Services which may be
adjusted as the Project proceeds ("Schedule"). This Schedule shall include
allowances for periods of time required for the City's review and for
approval of submissions by authorities having jurisdiction over the Project.
Time limits established by this Schedule approved by the City shall not be
exceeded by the Design Professional without City's prior approval. Design
Professional shall perform the Services in accordance with this Schedule,
attached hereto as Exhibit "E", which Exhibit is incorporated herein by this
reference, and any updates to the Schedule. Design Professional shall work
such overtime or engage such personnel and equipment as necessary to
maintain the Schedule without additional compensation unless the delay is
caused by circumstances entirely outside of Design Professional's control.
6.4 Time is of the essence in the performance of this Agreement.
SECTION 7 - PAYMENTS TO DESIGN PROFESSIONAL
7.1 Compensation for Basic Services.
7.1.1 City shall pay Design Professional for full and faithful performance
of Basic Services an amount not to exceed Two Million, Nine Hundred Twenty
Two Thousand, Two Hundred and Eighteen Dollars ($2,922,218) (the "Contract
Price"). The Contract Price includes all Reimbursable Expenses required for
completion of the Basic Services. Design Professional's fee proposal shall
be supported by a staffing plan and cash flow schedule describing the
Services to be performed by Design Professional and the Design Team in each
of the phases of the Project, as those phases are described in Section 4,
Exhibit A, and the Interim Agreement.
7.1.2 Progress payments for Basic Services shall be determined on the basis
of percentage of work completed for each Phase, updated to show progress,
provided that such payments shall not exceed the Contract Price as described
184.108.40.206 Programming Phase - $70,000.
7.1.3 Schematic Design Phase - fifteen percent (15%).
7.1.4 Design Development Phase - twenty percent (20%).
7.1.5 Contract Documents Phase - forty percent (40%).
7.1.6 Bidding or Negotiations Phase - five percent (5%).
7.1.7 Contract Administration Phase - fifteen percent (15%).
7.1.8 Post Contract Phase - five percent (5%).
7.1.9 Payments for various items of services may be modified with approval
of City so long as there is no change in the Contract Price.
7.1.10 This fee for Basic Services shall include the fees for the
subconsultants identified in Exhibit A. Fees for Design Professional's
subconsultants shall be included without mark-up by Design Professional;
administration and coordination of the Design Team and subconsultants shall
be included in the Contract Price.
7.1.11 If the Contract Time initially established for the Construction Phase
of the Project is exceeded or extended through no fault of the Design
Professional, Design Professional may make a claim for additional
compensation for any Basic Services rendered during the additional period of
time, if any, only as provided in this section. The fact that more time is
required to perform a portion of the Services shall not entitle Design
Professional to Additional Compensation without a demonstration to the
reasonable satisfaction of the City that the scope of services has been
expanded, the scope of the Project has been materially modified, or other
causes set forth in this Agreement entitle Design Professional to an
equitable adjustment of its fee. If Design Professional believes that events
or directions may entitle it to additional compensation, it shall promptly
notify City, including an estimate of the financial and schedule impact. If
City specifically requests, Design Professional shall provide a detailed
cost proposal, supported by a staffing plan and cash flow projection, for
the Additional Services. Design Professional's proposal for Additional
Services shall be based on the billing rates listed in Exhibit A or, at
City's option, provide a lump sum fee including Reimbursable Expenses. These
rates shall not be increased during the term of this Agreement, except as
provided in Exhibit A.
7.2 Compensation for Additional Services.
7.2.1 City shall pay Design Professional for authorized Additional Services
in accordance with the billing rates and schedule of fees attached hereto as
Exhibit A. These rates shall not be increased during the term of this
Agreement, except as provided in this Agreement. City shall pay only for
Additional Services authorized by the City Manager or her designee in
writing. If City makes a verbal request for Additional Services, Design
Professional shall confirm the request in writing and submit to City Manager
for approval within five (5) working days of the request, subject to the
provisions of Section 7.2.2. Payments on account of the Design
Professional's Additional Services shall be made monthly in accordance with
Section 7.4 upon presentation of the Design Professional's statement of
7.2.2 Design Professional and City shall agree upon an estimated
not-to-exceed cost for any proposed Additional Services. If the City makes a
verbal request for Additional Services, Design Professional shall provide
City with a written estimated not-to-exceed cost for such Additional
Services at least one (1) working day prior to commencing the Additional
Services, in addition to the written confirmation requirements of Section
7.2.1. In no event shall City pay for Additional Services made necessary by
Design Professional's errors or oversights.
7.3 Reimbursable Expenses. As part of compensation for Basic Services and
Additional Services, City shall reimburse Design Professional for the
following actual documented and reasonable expenditures times 1.05
("Reimbursable Expenses") made by Design Professional in the course of
performing Services under this Agreement. Design Professional shall develop
a budget for Reimbursable Expenses, which shall not be exceeded without
City's prior written approval. Reimbursable Expenses include only the
7.3.1 The expense of reproductions, standard form documents, postage and
handling of Drawings, Specifications and other construction Documents
prepared in connection with the Project;
7.3.2 Fees paid for securing approval of authorities having jurisdiction
over the Project;
7.3.3 When incurred in connection with Basic Services, expense of
transportation and reasonable living expenses in connection with out-of-town
travel for personnel of Design Professional and Design Team;
7.3.4 When incurred in connection with authorized Additional Services only,
expense of transportation in connection with the Project and reasonable
living expenses in connection with out-of-town travel beyond the Project
site for personnel of Design Professional and Design Team: as follows
a. During the design phases of the Project, Design Professional's personnel
will be traveling from Roseville, CA. These costs are included in the
Contract Price for Basic Services.
b. During construction, the parties anticipate that Design Professional will
send a representative from its Roseville office to routine project meetings
and site inspections, and Reimbursable Expenses for travel will be limited
to travel from that location.
c. Design Professional will be compensated for travel from its Orange County
office during construction with the City's prior written approval.
7.3.5 Expense of renderings and mock-ups for City Council approval requested
by the City as part of Basic Services.
7.3.6 Other expenses as City may approve in writing in advance.
7.4 Payment Procedure.
7.4.1 Design Professional shall submit written applications for payments in
a form satisfactory to City on or before the first day of each month on
account of Basic Services, Additional Services and Reimbursable Expenses
provided during the preceding month. The payment applications shall include
a detailed description of the Services performed since Design Professional
submitted its previous invoice, allocated to the activities described in
Section 7.1, above, and shall be based on the rates in Exhibit D.
7.4.2 For Additional Services of Design Professional's subconsultants, City
shall pay Design Professional a multiple of one (1.15) times the amounts
billed to the Design Professional for such services. Pursuant to Civil Code
Section 3321, Design Professional shall pay Design Professional's
subconsultants within fifteen (15) days of receiving payment from City.
7.4.3 For Reimbursable Expenses, as described in Section 7.3, a multiple of
one (1.05) times the expenses incurred by the Design Professional.
7.4.4 Provided a payment application is timely submitted, satisfies all
requirements of the Contract Documents, and is approved by City, City shall,
in accordance with Civil Code Section 3320, make payments of undisputed
amounts to the Design Professional within thirty (30) days of receipt of
Design Professional's written invoices. No payment made hereunder prior to
completion and acceptance of the Project shall be construed as evidence of
acceptance of any part of the Services.
7.4.5 Payment Disputes. If City disagrees with any portion of a billing, the
City shall notify Design Professional within ten (10) days of the
disagreement, and the City and the Design Professional shall attempt to
resolve the disagreement. City's payment of any amounts shall not constitute
a waiver of any disagreement and City shall promptly pay all amounts not in
SECTION 8 - CONFLICT OF INTEREST
Design Professional understands that its professional responsibility on this
Project is solely to City. Design Professional warrants that it presently
has no interest, and will not acquire any direct or indirect interest, that
would conflict with its performance of this Agreement. Design Professional
shall not knowingly, and shall take reasonable steps to ensure that it does
not, employ or engage a person having such an interest in the performance of
this Agreement. If after employment or engagement of a person, Design
Professional discovers that that person has a direct or indirect interest
that would conflict with his or her performance of this Agreement, Design
Professional shall promptly disclose the relationship to the City and take
such action as the City may direct to remedy the conflict.
SECTION 9 - TERMINATION
9.1 Termination for Default.
9.1.1 Events of Default. If Design Professional at any time: refuses or
neglects to prosecute the Services in a timely fashion or in accordance with
the Schedule; or is adjudicated a bankrupt, or commits any act of
insolvency, or makes an assignment for the benefit of creditors without
City's consent; or fails to make prompt payment, without just cause, to its
subconsultants or any persons furnishing Services in connection with this
Agreement or otherwise materially breaches its obligations under contract
with its subconsultants; or fails in any respect to properly and diligently
prosecute its Services; or submits a payment application, sworn statement,
affidavit or document of any nature whatsoever that contains material false
statements; or disregards any laws, statutes, ordinances, rules, regulations
or orders of any governmental body or public or quasi-public authority
having jurisdiction over those activities for which Design Professional is
responsible under the Contract Documents or the site of the Project; or
otherwise fails to perform fully any and all of the agreements herein
contained, Design Professional shall be in default.
9.1.2 Notice of Default. Upon the occurrence of any of the Events of
Default, City shall provide written Notice of Default to Design
9.1.3 Cure Period. If Design Professional fails to cure the default within
seven days of the date of the Notice of Default, City may, at its sole
option, (i) terminate this Agreement, without prejudice to any right or
remedy available to it under this Agreement, at law or in equity; and/or
(ii) without prejudice to any other rights or remedies, as deemed
appropriate in City's sole discretion, accept assignment of Design
Professional's subconsultant agreements and/or (3) obtain the remaining the
Services by whatever reasonable method City may deem expedient.
9.1.4 In the event City elects to terminate, City shall have the right to
immediate possession of all Documents, subject to Section 11, and work in
progress prepared by Design Professional, whether located at the Project, at
Design Professional's place of business, or at the offices of a
subconsultant, and may employ any other person or persons to finish the
Services and provide the materials therefor. The City's damages shall
include all costs to City of completing the Services including but not be
limited to, expenses incurred by City in causing the services called for
under this Agreement to be provided by others, including without limitation
the cost of any additional architectural, engineering, consulting,
managerial and administrative services, any costs incurred in retaining
another architect and/or engineering consultants, any damages which City
incurs as a result of a delay in completion of the Project, attorneys' fees
and expenses, any costs or damages sustained by City by reason of Design
Professional's default, and any other damages, costs and expenses City may
incur by reason of completing the Project or any delay thereof. If such
costs and damages shall exceed the unpaid balance, then Design Professional
shall promptly pay to City the difference. These obligations for payment
shall survive termination of the Agreement.
9.2 Termination for Convenience.
9.2.1 In addition to the foregoing right to terminate for default, City
reserves the absolute right to terminate this Agreement for convenience,
without cause, upon 72-hours' written notice to Design Professional. In the
event of such termination, Design Professional shall cease performing
Services promptly after receipt of such notice. As the sole and exclusive
remedy in the event of such termination, Design Professional shall be
entitled to payment in an amount not to exceed the Contract Price which
shall be calculated as follows: (1) Payment for Services then satisfactorily
completed and accepted by City, plus (2) Payment for Additional Services
satisfactorily completed and accepted by City, plus (3) Reimbursable
Expenses actually incurred by Design Professional, as approved by City, (4)
plus Payment for Services then completed as of the date of notice of
termination that are of reasonable benefit to the City. The amount of any
payment made to Design Professional prior to the date of termination of this
Agreement shall be deducted from the amounts described in (1), (2), (3) and
9.2.2 As an Additional Service, upon request of City, Design Professional
shall facilitate any new architect's assumption of Design Professional's
duties following a termination pursuant to this Section 9.2. Design
Professional shall include similar termination for convenience provisions in
its contracts with Design Professional's subconsultants.
9.2.3 Design Professional shall not be entitled to any claim or lien against
City or the Project for any additional compensation or damages in the event
of such termination and payment. In addition, the City's right to withhold
funds under Section 7.4.5 shall be applicable in the event of a Termination
9.2.4 Assignment. In the event of Termination for Convenience, Design
Professional shall, at City's request, assign to City all of its right,
title and interest in and to all or some of the subconsulting agreements
under this Agreement subject to: a) each subconsultant's consent and b) the
City’s assumption of any and all liability therefore based solely on events
occurring following the assignment and subject further to the City’s
indemnification of the Design Professional for any and all claims and
liabilities arising based solely on events occurring following the
9.3 Conversion of Termination. If this Agreement is terminated by City for
default and it is later determined that the default termination was in
error, such termination automatically shall be converted to and treated as a
Termination for Convenience under Section 9.2 and Design Professional shall
be entitled to receive only the amounts payable hereunder in the event of a
Termination for Convenience.
9.4 No Effect on Other Obligations. Termination of the Contract, either for
Default or Convenience, shall not constitute a release of continuing
performance obligations that would otherwise survive completion of the
Project, including without limitation, claims for personal injury or
property damage occurring prior to termination or to indemnity claims.
SECTION 10 - PUBLICITY AND PROJECT INFORMATION
10.1 All public relations matters arising out of or in connection with the
Project shall be the responsibility of and be handled by City. Design
Professional shall obtain City's prior written approval of the text of any
announcement or publication to be made by or on behalf of Design
Professional or any consultant in connection with the Project.
SECTION 11 - DOCUMENTS
11.1 The plans, drawings, specifications, estimates, programs, reports,
models, and other documents and materials prepared by or on behalf of Design
Professional or its subconsultants in connection with the Project, including
all drafts and working documents, electronic and paper forms, and any
electronic media upon which they were prepared or stored (collectively the
"Documents"), are instruments of service and shall be and remain the
property of the Design Professional for use solely with respect to this
11.2 Design Professional shall deliver copies of all Documents to City upon
(1) the substantial completion date of the Project, (2) the date of
termination of this Agreement for any reason, or (3) at any time requested
by City, upon five (5) days written notice.
11.3 Design Professional and Design Professional's subconsultants
individually shall be deemed the authors of the Documents and shall retain
all common law, statutory and other reserved rights, including copyright in
those Documents furnished by them, subject to the provisions set forth in
Sections 11.4 through 11.5, below. Submission or distribution of the
Documents to meet official regulatory requirements or for similar purposes
in connection with the Project is not to be construed as publication in
derogation of the rights reserved in this Section.
11.4 The Documents may be used by City and its agents, employees,
representatives, and assigns, in whole or in part, or in modified form, for
all purposes City may deem advisable only in connection with completion and
maintenance of, and additions to, the Project, without further employment of
or payment of any compensation to Design Professional; provided, however,
that if this Agreement is terminated for any reason prior to completion of
the Project and if under such circumstances City uses, or engages the
services of and directs another design professional to use, such documents
to complete the Project, CITY agrees to release and hold Design Professional
harmless from any and all liability, costs, and expenses (including
reasonable legal fees and disbursements), relative to claims arising out of
matters and/or events which occur subsequent to the termination of this
Agreement as a result of causes other than the fault or negligence of Design
Professional, or anyone for whose acts it is responsible, in preparation of
the Documents. Design Professional shall not be responsible for deficiencies
solely attributable to modifications to the Documents performed by others,
or that arise from use of the Documents on a site other than that shown in
11.5 City's interest in the Documents includes the following single,
exclusive license from Design Professional for the Project: Design
Professional, for itself, its employees, heirs, successors and assigns,
hereby grants (and if any subsequent grant is necessary, agrees to grant) to
City an irrevocable, perpetual, royalty-free, fully paid-up, sole and
exclusive license and right to use and exercise any and all of the
copyrights or other intellectual property rights that Design Professional
may author or create, alone or jointly with others, in or with respect to
the Documents, including without limitation all drawings, designs and
graphic representations. City's license shall include the right to
sublicense, shall be for all purposes with respect to each right of
copyright, and shall be without restriction, except that City may not build
or sublicense others to build an additional work of improvement that
embodies Design Professional's copyright protected designs without Design
Professional's prior written consent, which consent Design Professional may
condition solely upon additional payment to Design Professional which shall
be determined through reasonable and good faith negotiations between Design
Professional and City. Notwithstanding the foregoing, City may use the
Documents to construct or have constructed at the location of the Project a
work of improvement similar or identical to the Project if the Project does
not proceed as contemplated in this Agreement, and such work of improvement
shall not constitute an "additional work of improvement" under this
11.6 Design Professional may use and reuse plans, drawings, specifications
and other data prepared pursuant to this Agreement in its architectural
practice, but only in their separate constituent parts and not as a whole.
Design Professional's use of any instruments of service prepared in
connection with the Project, including any Documents, shall, in all events,
be subject to the provisions of Section 11.5. Design Professional shall
indemnify, defend, protect and hold City and the Indemnified Parties free
and harmless from liability, if any, arising from the use of such
instruments of service or Documents, including without limitation any plans,
drawings, specifications and other data by Design Professional.
11.7 Design Professional shall cause to be included in all subconsultant
contracts and agreements with respect to the design and construction of the
Project that Design Professional negotiates, language which is consistent
with this Section 11.
11.8 All reports, information, data, and exhibits prepared or assembled by
Design Professional in connection with the performance of its services
pursuant to this Agreement are confidential until released by the City to
the public, and the Design Professional shall not make any of these
documents or information available to any individual or organization not
employed by the Design Professional or the City without the written consent
of the City before any such release.
SECTION 12 - INDEMNITY
12.1 To the fullest extent permitted by law (including, without limitation,
California Civil Code Section 2782 and 2782.8), Design Professional shall
defend (with legal counsel reasonably acceptable to the Public Agency)
indemnify and hold harmless the City of Brentwood and its officers, agents,
departments, officials, representatives and employees (collectively
"Indemnitees") from and against any and all claims., loss, cost, damage,
injury (including, without limitation, injury to or death of an employee of
Design Professional or its subconsultants), expense and liability of every
kind, nature and description (including, without limitation, fines,
penalties, incidental and consequential damages, court costs, attorneys
fees, litigation expenses and fees of expert consultants or expert witnesses
incurred in connection therewith, and costs of investigation), that arise
out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of Design Professional, any subconsultant, anyone directly or
indirectly employed by them, or anyone that they control (collectively
"Liabilities"). Such obligations to defend, hold harmless and indemnify any
Indemnitees shall not apply to the extent that such Liabilities are caused
by the sole negligence, active negligence, or willful misconduct of such
Indemnitee or of other third parties not under the control or the
supervision of the Design Professional.
12.2 Design Professional's obligation to defend Indemnitees for Liabilities
covered by professional liability insurance does not include the obligation
to defend actions or proceedings brought against the City, but, to the
extent a Liability is caused by Design Professional's professional act or
omission, Design Professional will reimburse City of attorney's fees, expert
and consulting witness fees, and costs incurred by the City in connection
with actions or proceedings.
12.3 Design Professional agrees to obtain executed indemnity agreements with
provisions identical to those set forth in this Section 12 from each and
every subconsultant listed in Exhibit A. If Design Professional fails to
obtain such indemnity obligations from others as required, Design
Professional shall be fully responsible for all obligations under this
Section 12. City's failure to monitor compliance with this requirement
imposes no additional obligations on City and will in no way act as a waiver
of any rights hereunder. The defense and indemnity obligations as set forth
herein are binding on the successors, assigns or heirs of Design
Professional and shall survive the termination of this Agreement.
12.4 Limitation on Indemnity Obligations. Without affecting any of the
rights of City under any provision of this Agreement, Design Professional
shall not be required to indemnify and hold harmless City for liability
attributable to the active negligence of City or of other third parties not
under the control or the supervision of the Design Professional, provided
such active negligence is determined by agreement between the parties or by
the findings of a court of competent jurisdiction. In instances where City
is shown to have been actively negligent and where City active negligence
accounts for only a percentage of the liability involved, the obligation of
Consultant will be for that entire portion or percentage of liability not
attributable to the City or other third parties not under the control or the
supervision of the Design Professional.
12.5 Design Professional's submission of insurance certificates or
submission of other proof of compliance with the insurance requirements in
this Agreement does not relieve Design Professional from its obligations
under this Section 12. The obligations of this Section shall apply whether
or not such insurance policies are applicable to any of the Liabilities.
SECTION 13 - INSURANCE
Design Professional shall, at all times it is performing services under this
Agreement, provide and maintain insurance in the types and with limits set
forth in Exhibit D to this Agreement and meet all other requirements set
forth in Exhibit D.
SECTION 14 - RECORDS AND AUDITS
14.1 Design Professional shall establish and maintain complete and accurate
records (hard copy, as well as computer readable data) pertaining to the
Project and this Agreement, including, without limitation, complete and
accurate records of the number of hours worked by persons and Reimbursable
Expenses on the Project during each phase under this Agreement, estimates,
price quotations, agreements, purchase orders, leases, contracts,
commitments, arrangements, notes, daily diaries, reports, drawings,
receipts, vouchers, monthly, quarterly, yearly or other financial data
relating to the Project, and any and all other information or documentation
that may, in City's and Design Professional's reasonable judgment, have any
bearing on or pertain to any matters, rights, duties, or obligations under
or covered by this Agreement or the Contract Documents. Design
Professional's accounting systems shall conform to generally accepted
accounting principles and all records shall provide a breakdown of total
costs charged under this Agreement, including properly executed payrolls,
time records, utility bills, invoices and vouchers. Such records shall also
include but not be limited to: accounting records, written policies and
procedures, sub-consultant files (contracts, correspondence, change order
files, including documentation covering negotiated settlements),
constructability or peer reviews, coordination documents, logs and
supporting documentation, general ledger entries, insurance information, and
any other documents relating to the Project.
14.2 Design Professional shall permit City and its authorized
representatives to inspect and examine Design Professional's books, records,
accounts, and any and all data relevant to the Project and this Agreement at
any reasonable time for the purpose of auditing and verifying statements,
invoices, or bills submitted by Design Professional, or for any other
reasonable purpose pursuant to this Agreement, and shall provide such
assistance as may be reasonably required in the course of such inspection.
City further reserves the right to examine and re-examine said books,
records, accounts, and data during the three (3) year period following the
termination of this Agreement; and Design Professional shall in no event
dispose of, destroy, alter, or mutilate said books, records, accounts, and
data in any manner whatsoever for three (3) years after the termination of
14.3 Pursuant to California Government Code Section 10527, the parties to
this Agreement shall be subject to the examination and audit of
representative of the Auditor General of the State of California for a
period of three (3) years after final payment under the Agreement. The
examination and audit shall be confined to those matters connected with the
performance of this Agreement including, but not limited to, the cost of
administering the Agreement.
SECTION 15 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant,
or condition of this Agreement or of any provisions of any ordinance or law
shall not be deemed to be a waiver of such term, covenant, condition,
ordinance or law or of any subsequent breach or violation of same or of any
other term, covenant, condition, ordinance or law. The subsequent acceptance
by either party of any fee or other money which may become due hereunder
shall not be deemed to be a waiver of any preceding breach or violation by
the other party of any term, covenant, or condition of this Agreement of any
applicable law or ordinance.
SECTION 16 - COSTS AND ATTORNEYS FEES
Each party will be responsible for all of its own attorneys' fees in
connection with the preparation, negotiation, and execution of this
Agreement, as well as in connection with any disputes arising under or in
connection with this Agreement, except as provided in Section 12 -
SECTION 17 - NON-DISCRIMINATION
Design Professional warrants that it is an Equal Opportunity Employer and
shall comply with applicable regulations governing equal employment
opportunity. Neither Design Professional nor any of its subcontractors shall
discriminate in the employment of any person because of race, color,
national origin, ancestry, physical handicap, medical condition, marital
status, sex, or age, unless based upon a bona fide occupational
qualification pursuant to the California Fair Employment and Housing Act.
SECTION 18 - DISPUTE RESOLUTION
18.1 All claims, disputes or other matters in question between the parties
to this Agreement which arise from or in connection with this Agreement
shall be resolved as provided in this Section.
18.2 At all times during the pendency of a Claim, Design Professional shall
continue performing its services unless otherwise directed by City so long
as the City continues to make payment on all undisputed invoices. City's
failure to make payments as required hereunder as set out in Civil Code
Section 3320 shall not justify suspension or termination of Design
Professional's work or Services, provided City has complied with the
provisions of Civil Code Section 3320.
18.3 For the purposes of this Section 18, a "Claim" is a request, demand or
assertion by Design Professional seeking an adjustment or interpretation of
Contract terms, payment of money, extension of time, or other relief with
respect to its obligations under the Contract Documents. The term "Claim"
also includes other disputes and matters in question between the parties
arising out of or relating to the Contract Documents. The responsibility to
substantiate a Claim rests with the party making the Claim. A "Dispute
Resolution Proceeding" includes any of the mechanisms to resolve Claims
provided in this section.
18.4.1 A Notice of Potential Claim shall be made to City at the earliest
opportunity in an effort to afford maximum opportunity to avoid Project
delay or cost impacts. Notice shall be provided if Design Professional
believes additional cost is involved for reasons including but not limited
to (1) a written order for a minor change in the Work or Services, (2) an
order by City to stop the Work or Services where the claimant allegedly was
not at fault, (3) failure of payment by City, (4) termination of the
Contract by City, or (5) City's suspension.
18.4.2 The Notice of Potential Claim from Design Professional must be made
by written notice and shall contain the information listed below; provided
that, if any of the required information is not available at the time the
Notice of Potential Claim is submitted, Design Professional shall provide
all information which is available and a statement indicating when the
remaining information will be provided.
a. The date of the event giving rise to the Claim and, if applicable, the
date when the event ceased;
b. The nature of the occurrence or condition giving rise to the Claim;
c. Identification of the contractual provisions affected and a detailed
explanation of how the Claim is contrary to those provisions; and
d. An estimate of effect upon the Design Schedule, including an itemized
breakdown of additional cost, if any.
18.5 Notice of Potential Claim by any party must be initiated within ten
(10) days after occurrence of the event giving rise to such Claim or within
ten (10) days after the claimant first recognizes the condition giving rise
to the Claim, whichever is later. To the maximum extent possible, Notice of
Potential Claim shall be provided before the additional work or service is
performed or the additional cost is incurred, with a specific request that a
response be provided by the date identified in order to avoid any harm
contemplated by the Notice of Potential Claim.
18.6 City and Design Professional shall attempt to resolve their disputes by
reasonable business-like negotiations prior to the commencement of any
litigation. Upon receipt of a Notice of Potential Claim, the affected
parties shall attempt to resolve it through direct negotiations at a special
meeting which is called solely for the resolution of disputes. The meeting
shall be held within a reasonable time not to exceed fourteen (14) days of a
written request for the meeting, which request shall specify the nature of
the dispute to be resolved. The meeting shall be attended by non-attorney
project representatives of the affected parties, who shall attempt in good
faith to resolve the dispute and have authority sufficient to do so.
18.7 If the Project representatives are unable to resolve the Claim, any
party may request a senior management meeting. Upon such a request, a senior
management representative from Contractor, City, and Design Professional
each shall review the Claim in detail and then meet face-to-face to discuss
and resolve the matter. This senior management meeting shall occur no later
than fourteen (14) days after the affected parties have declared an impasse
in their efforts to resolve the dispute, unless the parties agree upon a
longer period of time. This meeting shall be for the express purposes of (1)
exchanging and reviewing all pertinent non-privileged documents and
information relating to the matters and issues in dispute, (2) freely and
candidly discussing each party's position, and (3) reaching agreement upon a
reasonable, compromise resolution of the Claim.
18.8 If the dispute has not been resolved as provided above, any party may
initiate mediation proceedings in which the remaining parties shall
participate. These proceedings shall be conducted by a third-party mediator
who is acceptable to all of the parties to the mediation and experienced in
design and construction in California on projects of similar type and scope.
No party shall be permitted to file a legal action without first requesting
mediation and making a good faith attempt to reach a mediated settlement.
The entire mediation process, once commenced by a meeting with the mediator,
shall last until agreement is reached by the parties, but not more than
sixty (60) days, unless the maximum time is extended by the agreement of all
parties to the dispute.
18.9 Design Professional shall cause the provisions of this Section 18 to be
incorporated in contracts with all subconsultants listed in Exhibit A, so
that all such parties shall also be bound to this dispute resolution
procedure. This dispute resolution procedure shall not in any way affect any
statutes of limitation relating to any Claim, dispute or other matter
arising out of the Contract Documents.
SECTION 19 - LITIGATION
Design Professional shall testify at City's request if litigation is brought
against City in connection with Design Professional's services under this
Agreement. Unless the action is brought by Design Professional, or is based
upon Design Professional's actual or alleged negligence or other wrongdoing,
City shall compensate Design Professional for time spent in preparation for
testimony, testimony, and travel at Design Professional's standard hourly
rates at the time of actual testimony.
SECTION 20 - NOTICES
Written notice may be accomplished by personal delivery, by transmitting a
copy by facsimile machine, by use of the United States mail, by use of
overnight delivery service, by electronic mail ("e-mail"), or any standard
form of telegraphic communications. The written notice shall become
effective when the notice is hand-delivered to the party or its
representative at the Project or at the office address of the party
appearing below, upon transmission by facsimile machine as evidenced by a
facsimile confirmation (if transmitted before 5:00 p.m. at the place of
delivery on a business day, otherwise on the next business day), two days
after mailing by U.S. Mail, or upon the receipt of the notice as evidenced
by a delivery receipt. If notice is accomplished by e-mail, the notice shall
become effective when the e-mail enters an information processing system
that the recipient has designated or uses for the purpose of receiving
e-mail, and from which the recipient is able to retrieve the e-mail.
To City: City of Brentwood
Attn: Gail Leech
150 City Park Way
Brentwood, CA 94513
To Design Professional: LPA, Inc.
James Wirick, Principal
5161 California Avenue, Suite 100
Irvine, CA 92617
SECTION 21 - AGREEMENT CONTAINS ALL UNDERSTANDINGS; AMENDMENT
21.1 This document represents the entire and integrated agreement between
City and Design Professional and supersedes all prior negotiations,
representations, and agreements, either written or oral, except as otherwise
expressly provided herein.
21.2 This document may be amended only by written instrument signed by both
City and Design Professional.
21.3 This Agreement was the subject of negotiation between the parties, and
no ambiguity or uncertainty in this Agreement shall be construed against any
of the parties based upon drafting/authorship of any of the provisions
SECTION 22 - GOVERNING LAW
This Agreement shall be governed by the laws of the State of California. The
location for resolution of any and all claims, controversies or disputes
arising from or related to this Contract or any breach thereof shall be
Contra Costa County, California.
IN WITNESS WHEREOF, CITY and Design Professional have executed this
Agreement the day and year first above written.
CITY OF BRENTWOOD
APPROVED AS TO FORM: