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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 $3,214,439.80.

Prepared by: Gail Leech, Management Analyst

Submitted by: Donna Landeros, City Manager


RECOMMENDATION
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.

PREVIOUS ACTION
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 hold.

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.

BACKGROUND
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 administration.


FISCAL IMPACT
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.


Attachments:
Resolution
LPA Contract
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


RESOLUTION NO.


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 $3,214,439.80

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; and

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
SERVICES
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 "Design Professional."

RECITALS
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 public works.
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 City.
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 Budget.
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 Design Professional.

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 this Agreement.

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 completed.)
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 construction.
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 18.
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 Design Professional.
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 responsibility.
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 certification.
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 above:
7.1.2.1 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 Services rendered.
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 following items:
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 dispute.
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 Professional.
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 (4) above.
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 for Convenience.
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 assignment.
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 Project.
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 the Documents.
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 paragraph.

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 this Agreement.
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 - Indemnity.

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 Notice.
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 contained herein.
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
__________________________________
DESIGN PROFESSIONAL
__________________________________
Title:____________________
ATTEST:
__________________________________
City Clerk


APPROVED AS TO FORM:
__________________________________
City Attorney


 

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov