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CITY OF ARCADIA
PROFESSIONAL SERVICES AGREEMENT
DESIGN SERVICES
1. PARTIES AND DATE.
This Agreement is made and entered into this 'A day of N Of—CAA
,
2011 by and between the City of Arcadia, a charter city organized under the
Constitution and laws of the State of California with its principal place of business at 240
West Huntington Drive, Arcadia, California 91066 -6021 ( "City ") and EX NOVO, INC., a
California Corporation with its principal place of business at 1242 East Colorado Blvd.,
Suite B, Pasadena, CA. 91106 ( "Consultant "). City and Consultant are sometimes
individually referred to as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of
certain professional services required by the City on the terms and conditions set forth
in this Agreement. Consultant represents that it is experienced in providing design
services to public clients, is licensed in the State of California, and is familiar with the
plans of City.
2.2 Project.
City desires to engage Consultant to render such services for the City Hall
Renovation project ( "Project ") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to
furnish to the City all labor, materials, tools, equipment, services, and incidental and
customary work necessary to fully and adequately supply the professional design
services necessary for the Project ( "Services "). The Services are more particularly
described in Exhibit "A" attached hereto and incorporated herein by reference. All
Services shall be subject to, and performed in accordance with, this Agreement, the
exhibits attached hereto and incorporated herein by reference, and all applicable local,
state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from March 15, 2011 to
March 15, 2012, unless earlier terminated as provided herein. Consultant shall
complete the Services within the term of this Agreement, and shall meet any other
established schedules and deadlines.
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3.2 Responsibilities of Consultant.
3.2.1 Control and Payment of Subordinates, Independent Contractor.
The Services shall be performed by Consultant or under its supervision. Consultant will
determine the means, methods and details of performing the Services subject to the
requirements of this Agreement. City retains Consultant on an independent contractor
basis and not as an employee. Consultant retains the right to perform similar or
different services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Consultant shall also not be
employees of City and shall at all times be under Consultant's exclusive direction and
control. Consultant shall pay all wages, salaries, and other amounts due such
personnel in connection with their performance of Services under this Agreement and
as required by law. Consultant shall be responsible for all reports and obligations
respecting such additional personnel, including, but not limited to: social security taxes,
income tax withholding, unemployment insurance, disability insurance, and workers'
compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Services
expeditiously, within the term of this Agreement, and in accordance with the Schedule of
Services set forth in Exhibit "B" attached hereto and incorporated herein by reference.
Consultant represents that it has the professional and technical personnel required to
perform the Services in conformance with such conditions. In order to facilitate
Consultant's conformance with the Schedule, City shall respond to Consultant's
submittals in a timely manner. Upon request of City, Consultant shall provide a more
detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by
Consultant shall be subject to the prior written approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represented to City
that certain key personnel will perform and coordinate the Services under this
Agreement. Should one or more of such personnel become unavailable, Consultant
may substitute other personnel of at least equal competence upon prior written approval
of City. In the event that City and Consultant cannot agree as to the substitution of key
personnel, City shall be entitled to terminate this Agreement for cause. As discussed
below, any personnel who fail or refuse to perform the Services in a manner acceptable
to the City, or who are determined by the City to be uncooperative, incompetent, a
threat to the adequate or timely completion of the Project or a threat to the safety of
persons or property, shall be promptly removed from the Project by the Consultant at
the request of the City. The key personnel for performance of this Agreement are as
follows: Nancy Wagner.
3.2.5 City's Representative. The City hereby designates Jason
Kruckeberg, Assistant City Manager /Development Services Director, or his designee, to
act as its representative for the performance of this Agreement ( "City's
Representative "). City's Representative shall have the power to act on behalf of the
City for all purposes under this Contract. Consultant shall not accept direction or orders
from any person other than the City's Representative or his designee.
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3.2.6 Consultant's Representative. Consultant hereby designates, Nancy
Wagner, or her designee, to act as its representative for the performance of this
Agreement ( "Consultant's Representative "). Consultant's Representative shall have full
authority to represent and act on behalf of the Consultant for all purposes under this
Agreement. The Consultant's Representative shall supervise and direct the Services,
using his best skill and attention, and shall be responsible for all means, methods,
techniques, sequences and procedures and for the satisfactory coordination of all
portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with
City staff in the performance of Services and shall be available to City's staff,
consultants and other staff at all reasonable times.
3.2.8 Standard of Care, Performance of Employees. Consultant shall
perform all Services under this Agreement in a skillful and competent manner,
consistent with the standards generally recognized as being employed by professionals
in the same discipline in the State of California. Consultant represents and maintains
that it is skilled in the professional calling necessary to perform the Services. Finally,
Consultant represents that it, its employees and subcontractors have all licenses,
permits, qualifications and approvals of whatever nature that are legally required to
perform the Services, including a City Business License, and that such licenses and
approvals shall be maintained throughout the term of this Agreement. As provided for in
the indemnification provisions of this Agreement, Consultant shall perform, at its own
cost and expense and without reimbursement from the City, any services necessary to
correct errors or omissions which are caused by the Consultant's failure to comply with
the standard of care provided for herein. Any employee of the Consultant or its sub -
consultants who is determined by the City to be uncooperative, incompetent, a threat to
the adequate or timely completion of the Project, a threat to the safety of persons or
property, or any employee who fails or refuses to perform the Services in a manner
acceptable to the City, shall be promptly removed from the Project by the Consultant
and shall not be re- employed to perform any of the Services or to work on the Project.
3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of
and in compliance with all local, state and federal laws, rules and regulations in any
manner affecting the performance of the Project or the Services, including all Cal /OSHA
requirements, and shall give all notices required by law. Consultant shall be liable for all
violations of such laws and regulations in connection with Services. If the Consultant
performs any work knowing it to be contrary to such laws, rules and regulations and
without giving written notice to the City, Consultant shall be solely responsible for all
costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials,
directors, officers, employees and agents free and harmless, pursuant to the
indemnification provisions of this Agreement, from any claim or liability arising out of any
failure or alleged failure to comply with such laws, rules or regulations.
3.2.9.1 Immigration Reform and Control Act. Consultant
acknowledges that Consultant, and all subcontractors hired by Consultant to perform
services under this Agreement, are aware of and understand the Immigration Reform
and Control Act ( "IRCA "). Consultant is and shall remain in compliance with the IRCA
and shall ensure that any subcontractors hired by Consultant to perform services under
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this Agreement are in compliance with the IRCA. In addition, Consultant agrees to
indemnify, defend and hold harmless the City, its agents, officers and employees, from
any liability, damages or causes of action arising out of or relating to any claims that
Consultant's employees, or the employees of any subcontractor hired by Consultant,
are not authorized to work in the United States for Consultant or its subcontractor and /or
any other claims based upon alleged IRCA violations committed by Consultant or
Consultant's subcontractor(s).
3.2.10 Insurance.
3.2.10.1 Time for Compliance. Consultant shall not
commence Work under this Agreement until it has provided evidence satisfactory to the
City that it has secured all insurance required under this section. In addition, Consultant
shall not allow any subcontractor to commence work on any subcontract until it has
provided evidence satisfactory to the City that the subcontractor has secured all
insurance required under this section; provided, however, that in lieu thereof, the
Consultant may provide evidence to the City that all subcontractors are additional
insureds under the Consultant's policies of insurance.
3.2.10.2 Minimum Requirements. Consultant shall, at its
expense, procure and maintain for the duration of the Agreement insurance against
claims for injuries to persons or damages to property which may arise from or in
connection with the performance of the Agreement by the Consultant, its agents,
representatives, employees, subcontractors and volunteers. Consultant shall also
name and obtain insurer's consent to naming City, its directors, officials, officers,
employees, agents and volunteers as an additional insured with proof of certificate of
insurance that they are an additional insured. Such insurance shall meet at least the
following minimum levels of coverage:
(A) Minimum Scope of Insurance. Coverage shall be
when commercially available (occurrence based) at least as broad as the latest version
of the following: (1) General Liability: Insurance Services Office Commercial General
Liability coverage for premises and operations, contractual liability, personal injury,
bodily injury, independent contractors, broadform property damage, explosion, collapse,
and underground, products and completed operations; (2) Automobile Liability:
Insurance Services Office Business Auto coverage for any auto owned, leased, hired,
and borrowed by Consultant or for which Consultant is responsible; and (3) Workers'
Compensation and Employer's Liability: Workers' Compensation insurance as required
by the State of California and Employer's Liability Insurance.
City, its directors, officials, officers, employees, agents and volunteers shall be listed as
additional insured. Any deductibles or self- insured retentions must be declared to and
approved by City and conform to the requirements provided in Section 3.2.10.6 herein.
(B) Minimum Limits of Insurance. Consultant shall
maintain limits no less than: (1) General Liability: $1,000,000 combined single limit per
occurrence for bodily injury, personal injury and property damage, with an aggregate
limit of $1,000,000. If Commercial General Liability Insurance or other form with general
aggregate limit is used, either the general aggregate limit shall apply separately to this
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Agreement/location or the general aggregate limit shall be twice the required
occurrence limit; (2) Automobile Liability. $1,000,000 combined single limit per accident
for bodily injury and property damage; and (3) Workers' Compensation and Employer's
Liability.- Workers' Compensation limits as required by the Labor Code of the State of
California. Employer's Liability limits of $1,000,000 per accident for bodily injury or
disease.
3.2.10.3 Professional Liability. Consultant shall procure and
maintain, and require its sub - consultants to procure and maintain, for a period of three
(3) years following completion of the Project, errors and omissions liability insurance
appropriate to their profession. Such insurance shall be in an amount not less than
$1,000,000 per claim, and shall be endorsed to include contractual liability.
3.2.10.4 Insurance Endorsements. The insurance policies
shall contain the following provisions, or Consultant shall provide endorsements on
forms supplied or approved by the City to add the following provisions to the insurance
policies:
(A) General Liability. The general liability policy shall be
endorsed to state that: (1) the City, its directors, officials, officers, employees and
volunteers shall be covered as additional insured with respect to liability arising out of
Services operations and for completed operations performed by or on behalf of the
Consultant, including materials, parts or equipment furnished in connection with such
work; and (2) the insurance coverage shall be primary insurance as respects the City,
its directors, officials, officers, employees and volunteers, or if excess, shall stand in an
unbroken chain of coverage excess of the Consultant's scheduled underlying coverage.
Any insurance or self - insurance maintained by the City, its directors, officials, officers,
employees and volunteers shall be excess of the Consultant's insurance and shall not
be called upon to contribute with it in any way.
(B) Automobile Liability. The automobile liability policy
shall be endorsed to state that: (1) the City, its directors, officials, officers, employees,
agents and volunteers shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned,
leased, hired or borrowed by the Consultant or for which the Consultant is responsible;
and (2) the insurance coverage shall be primary insurance as respects the City, its
directors, officials, officers, employees, agents and volunteers, or if excess, shall stand
in an unbroken chain of coverage excess of the Consultant's scheduled underlying
coverage. Any insurance or self- insurance maintained by the City, its directors, officials,
officers, employees, agents and volunteers shall be excess of the Consultant's
insurance and shall not be called upon to contribute with it in any way.
(C) Workers' Compensation and Employers Liability
Coverage. The insurer shall agree to waive all rights of subrogation against the City, its
directors, officials, officers, employees, agents and volunteers for losses paid under the
terms of the insurance policy which arise from work performed by the Consultant.
(D) All Coverages. Each insurance policy required by this
Agreement shall be endorsed to state that: (A) coverage shall not be, reduced or
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canceled except after thirty (30) days prior written notice by certified mail, return receipt
requested of cancellation, of intended non - renewal or endorsement reduction in limit or
scope of coverage; provided, however, that in the event of cancellation due solely to
non - payment of premium, ten (10) days notice of cancellation for non - payment of
premium may instead be given to the City.; and (B) any failure to comply with reporting
or other provisions of the policies, including breaches of warranties, shall not affect
coverage provided to the City, its directors, officials, officers, employees, agents and
volunteers.
3.2.10.5 Separation of Insureds; No Special Limitations. All
insurance required by this Section shall contain standard separation of insureds
provisions. In addition, such insurance shall not contain any special limitations on the
scope of protection afforded to the City, its directors, officials, officers, employees,
agents and volunteers.
3.2.10.6 Deductibles and Self- Insurance Retentions. Any
deductibles or self- insured retentions must be declared to and approved by the City.
Consultant shall guarantee that, at the option of the City, either: (1) the insurer shall
reduce or eliminate such deductibles or self- insured retentions as respects the City, its
directors, officials, officers, employees, agents and volunteers; or (2) the Consultant
shall procure a bond guaranteeing payment of losses and related investigation costs,
claims and administrative and defense expenses.
3.2.10.7 Acceptability of Insurers. Insurance is to be placed
with insurers with a current A.M. Best's rating no less than A:VIII, admitted or approved
to do business in California, and satisfactory to the City.
3.2.10.8 Verification of Coverage. Consultant shall furnish City
with complete and accurate copies of current certificates of insurance and
endorsements effecting coverage required by this Agreement on forms satisfactory to
the City. The certificates and endorsements for each insurance policy shall be signed
by a person authorized by that insurer to bind coverage on its behalf, and shall be on
forms provided by the City if requested. Copies of all certificates and endorsements
must be received and approved by the City before work commences. The City reserves
the right to require complete, certified copies of all required insurance policies, at any
time.
3.2.10.9 Safety. Consultant shall execute and maintain its
work so as to avoid injury or damage to any person or property. In carrying out its
Services, the Consultant shall at all times be in compliance with all applicable local,
state and federal laws, rules and regulations, and shall exercise all necessary
precautions for the safety of employees appropriate to the nature of the work and the
conditions under which the work is to be performed. Safety precautions as applicable
shall include, but shall not be limited to: (A) adequate life protection and life saving
equipment and procedures; (B) instructions in accident prevention for all employees and
subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang
planks, confined space procedures, trenching and shoring, equipment and other safety
devices, equipment and wearing apparel as are necessary or lawfully required to
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prevent accidents or injuries; and (C) adequate facilities for the proper inspection and
maintenance of all safety measures.
3.2.10.10 Material Breach. Lack of insurance does not negate
Consultant's obligations under this Agreement. Maintenance of proper insurance
coverage is a material element of this Agreement and failure to maintain or renew
coverage or to provide evidence of renewal may be treated by the City as a material
breach of the Agreement.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including
reimbursements which receive the City's prior written authorization, for all Services
rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and
incorporated herein by reference. The total compensation shall not exceed Thirty four
thousand nine hundred dollars ($34,900) without written approval of the City
Manager. Extra Work may be authorized, as described below, and if authorized, will be
compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation. Consultant shall submit to City a
monthly itemized statement which indicates work completed and hours of Services
rendered by Consultant. The statement shall describe the amount of Services and
supplies provided since the initial commencement date, or since the start of the
subsequent billing periods, as appropriate, through the date of the statement. City'
shall, within forty -five (45) days of receiving such statement, review the statement and
pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed
for any expenses unless prior written authorization is obtained from the City.
3.3.4 Extra Work. At any time during the term of this Agreement, City
may request that Consultant perform Extra Work. As used herein, "Extra Work" means
any work which is determined by City to be necessary for the proper completion of the
Project, but which the parties did not reasonably anticipate would be necessary at the
execution of this Agreement. Consultant shall not perform, nor be compensated for,
Extra Work without prior written authorization from City's Representative.
3.4 Accounting Records.
3.4.1 Maintenance and Inspection. Consultant shall maintain complete
and accurate records with respect to all costs and expenses incurred under this
Agreement. All such records shall be clearly identifiable. Consultant shall allow a
representative of City during normal business hours to examine, audit, and make
transcripts or copies of such records and any other documents created pursuant to this
Agreement. Consultant shall allow inspection of all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the date of
final payment under this Agreement.
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3.5 General Provisions.
3.5.1 Termination of Agreement.
3.5.1.1 Grounds for Termination. City may, by written notice
to Consultant, terminate the whole or any part of this Agreement at any time and without
cause by giving written notice to Consultant of such termination, and specifying the
effective date thereof, at least seven (7) days before the effective date of such
termination. Upon termination, Consultant shall be compensated only for those services
which have been adequately rendered to City, and Consultant shall be entitled to no
further compensation. Consultant may not terminate this Agreement except for cause.
3.5.1.2 Effect of Termination. If this Agreement is terminated
as provided herein, City may require Consultant to provide all finished or unfinished
Documents and Data and other information of any kind prepared by Consultant in
connection with the performance of Services under this Agreement. Consultant shall be
required to provide such document and other information within fifteen (15) days of the
request.
3.5.1.3 Additional Services. In the event this Agreement is
terminated in whole or in part as provided herein, City may procure, upon such terms
and in such manner as it may determine appropriate, services similar to those
terminated.
3.5.2 Delivery of Notices. All notices permitted or required under this
Agreement shall be given to the respective parties at the following address, or at such
other address as the respective parties may provide in writing for this purpose:
Consultant: Ex Novo Inc.
1242 East Colorado Blvd., Suite B
Pasadena CA 91106
Attn: Nancy Wagner
Principal
City: City of Arcadia
240 West Huntington Drive
Arcadia, CA 91066 -6021
Attn: Jason Kruckeberg, Assistant City Manager/
Development Services Director
Such notice shall be deemed made when personally delivered or when mailed, forty -
eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and
addressed to the party at its applicable address. Actual notice shall be deemed
adequate notice on the date actual notice occurred, regardless of the method of service.
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3.5.3 Ownership of Materials and Confidentiality.
3.5.3.1 Documents & Data; Licensing of Intellectual Propertv.
This Agreement creates a non - exclusive and perpetual license for City to copy, use,
modify, reuse, or sublicense any and all copyrights, designs, and other intellectual
property embodied in plans, specifications, studies, drawings, estimates, and other
documents or works of authorship fixed in any tangible medium of expression, including
but not limited to, physical drawings or data magnetically or otherwise recorded on
computer diskettes, which are prepared or caused to be prepared by Consultant under
this Agreement ( "Documents & Data "). Consultant shall require all subcontractors to
agree in writing that City is granted a non - exclusive and perpetual license for any
Documents & Data the subcontractor prepares under this Agreement. Consultant
represents and warrants that Consultant has the legal right to license any and all
Documents & Data. Consultant makes no such representation and warranty in regard
to Documents & Data which were prepared by design professionals other than
Consultant or provided to Consultant by the City. City shall not be limited in any way in
its use of the Documents and Data at any time, provided that any such use not within
the purposes intended by this Agreement shall be at City's sole risk.
3.5.3.2 Confidentiality. All ideas, memoranda, specifications,
plans, procedures, drawings, descriptions, computer program data, input record data,
written information, and other Documents and Data either created by or provided to
Consultant in connection with the performance of this Agreement shall be held
confidential by Consultant. Such materials shall not, without the prior written consent of
City, be used by Consultant for any purposes other than the performance of the
Services. Nor shall such materials be disclosed to any person or entity not connected
with the performance of the Services or the Project. Nothing furnished to Consultant
which is otherwise known to Consultant or is generally known, or has become known, to
the related industry shall be deemed confidential. Consultant shall not use City's name
or insignia, photographs of the Project, or any publicity pertaining to the Services or the
Project in any magazine, trade paper, newspaper, television or radio production or other
similar medium without the prior written consent of City.
3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with
one another, and shall take any additional acts or sign any additional documents as
may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.5.5 Indemnification.
3.5.5.1 To the fullest extent permitted by law, Consultant shall
defend, indemnify and hold the City, its officials, officers, employees, volunteers and
agents free and harmless from any and all claims, demands, causes of action, costs,
expenses, liability, loss, damage or injury, in law or equity, to property or persons,
including wrongful death, in any manner arising out of or incident to any alleged acts,
omissions or willful misconduct of Consultant, its officials, officers, employees, agents,
consultants and contractors arising out of or in connection with the performance of the
Services, the Project or this Agreement, including without limitation the payment of all
consequential damages and attorney's fees and other related costs and expenses.
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Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil
Code Section 2782.8, the above indemnity shall be limited, to the extent required by
Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of the Consultant. Consultant shall
defend with Legal Counsel of City's choosing, at Consultant's own cost, expense and
risk, any and all such aforesaid suits, actions or other legal proceedings of every kind
that may be brought or instituted against City, its directors, officials, officers, employees,
agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree
that may be rendered against City or its directors, officials, officers, employees, agents
or volunteers, in any such suit, action or other legal proceeding arising from
Consultant's performance of the Services, the Project or this Agreement; except to the
extent that liability is caused by any negligence or willful misconduct by the City or its
directors, officials, officers, employees, agents or volunteers. Consultant shall
reimburse City and its directors, officials, officers, employees, agents and /or volunteers,
for any and all legal expenses and costs incurred by each of them in connection
therewith or in enforcing the indemnity herein provided. Consultant's obligation to
indemnify shall not be restricted to insurance proceeds, if any, received by the City, its
directors, officials, officers, employees, agents or volunteers and shall take effect
immediately upon execution of this Agreement.
3.5.5.2 The duty to defend and to hold harmless, as
set forth above, shall include the duty to defend as established by Section 2778 of the
California Civil Code, and the duty to defend shall arise upon the making of any claim or
demand against the City, its respective officials, officers, agents, employees and
representatives, notwithstanding that no adjudication of the underlying facts has
occurred, and whether or not Consultant has been named in the claim or lawsuit.
3.5.6 Entire Agreement. This Agreement contains the entire Agreement
of the Parties with respect to the subject matter hereof, and supersedes all prior
negotiations, understandings or agreements. This Agreement may only be modified by
a writing signed by both Parties.
3.5.7 Governing Law. This Agreement shall be governed by the laws of
the State of California. Venue shall be in Los Angeles County.
3.5.8 Time of Essence. Time is of the essence for each and every
provision of this Agreement.
3.5.9 City's Right to Employ Other Consultants. City reserves right to
employ other consultants in connection with this Project.
3.5.10 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties.
3.5.11 Assignment or Transfer. Consultant shall not assign, hypothecate,
or transfer, either directly or by operation of law, this Agreement or any interest herein
without the prior written consent of the City. Any attempt to do so shall be null and void,
and any assignees, hypothecates or transferees shall acquire no right or interest by
reason of such attempted assignment, hypothecation or transfer.
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3.5.12 Construction; References; Captions. Since the Parties or their
agents have participated fully in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and not strictly for
or against any Party. Any term referencing time, days or period for performance shall
be deemed calendar days and not work days. All references to Consultant include all
personnel, employees, agents, and subcontractors of Consultant, except as otherwise
specified in this Agreement. All references to City include its elected officials, officers,
employees, agents, and volunteers except as otherwise specified in this Agreement.
The captions of the various articles and paragraphs are for convenience and ease of
reference only, and do not define, limit, augment, or describe the scope, content, or
intent of this Agreement.
3.5.13 Amendment: Modification. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing and signed by
both Parties.
3.5.14 Waiver. No waiver of any default shall constitute a waiver of any
other default or breach, whether of the same or other covenant or condition. No waiver,
benefit, privilege, or service voluntarily given or performed by a Party shall give the
other Party any contractual rights by custom, estoppel, or otherwise.
3.5.15 No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
3.5.16 Invalidity; Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions shall continue in full force and effect.
3.5.17 Prohibited Interests. Consultant maintains and warrants that it has
not employed nor retained any company or person, other than a bona fide employee
working solely for Consultant, to solicit or secure this Agreement. Further, Consultant
warrants that it has not paid nor has it agreed to pay any company or person, other than
a bona fide employee working solely for Consultant, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty, City shall have the
right to rescind this Agreement without liability. For the term of this Agreement, no
member, officer or employee of City, during the term of his or her service with City, shall
have any direct interest in this Agreement, or obtain any present or anticipated material
benefit arising therefrom.
3.5.18 Equal Opportunity Employment. Consultant represents that it is an
equal opportunity employer and it shall not discriminate against any subcontractor,
employee or applicant for employment because of race, religion, color, national origin,
handicap, ancestry, sex, sexual orientation or age. Such non - discrimination shall
include, but not be limited to, all activities related to initial employment, upgrading,
demotion, transfer, recruitment or recruitment advertising, layoff or termination.
Consultant shall also comply with all relevant provisions of City's Minority Business
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Enterprise program, Affirmative Action Plan or other related programs or guidelines
currently in effect or hereinafter enacted.
3.5.19 Labor Certification. By its signature hereunder, Consultant certifies
that it is aware of the provisions of Section 3700 of the California Labor Code which
require every employer to be insured against liability for Worker's Compensation or to
undertake self- insurance in accordance with the provisions of that Code, and agrees to
comply with such provisions before commencing the performance of the Services.
3.5.20 Authority to Enter Agreement. Consultant has all requisite power
and authority to conduct its business and to execute, deliver, and perform the
Agreement. Each Party warrants that the individuals who have signed this Agreement
have the legal power, right, and authority to make this Agreement and bind each
respective Party.
3.5.21 Counterparts. This Agreement may be signed in counterparts,
each of which shall constitute an original.
3.6 Subcontracting.
3.6.1 Prior Approval Required. Consultant shall not subcontract any
portion of the work required by this Agreement, except as expressly stated herein,
without prior written approval of City. Subcontracts, if any, shall contain a provision
making them subject to all provisions stipulated in this Agreement.
SIGNATURES ON NEXT PAGE
Revised 12/10 LM
12
In witness whereof the parties have executed this Professional Services
Agreement on the date set forth below.
CITY OF ARCADIA
Donald Penman
City Manager
Dated:. 3 -Ito 2011
Mi, i . A. it R OL.
APPROVED AS TO FORM:
;tzpL Y
Steph n P. Deitsch
City Attorney
Revised 1110 LM
13
EX NOVO, INC.
VV n �
[Name]
C& W
[Title]
Dated: 3--7- , 2011
CONCUR:
Jason uckeberg Date
Assista t City Manager/
Development Services Director
EXHIBIT "A"
SCOPE OF SERVICES
Provide the following professional services for the City Hall Renovation Project:
1. Preliminary Engineering and Building Floor Plan Changes
2. Design Concept Development and Space Planning
3. Engineering Space Planning and Furniture Design & Specs
4. Signage Design
5. Pricing Plan
6. Color Board and Renderings (Optional)
7. Working Drawings and Specifications
8. Plan Check
9. Bid Document and Contractor Selection
10. Construction Phase Services
11.Additional Design Services (used if City requests additional work of unforeseen
conditions such as electrical, mechanical, structural items that may change
scope)
A -1
u �x H i D rr -A //
exjnovo�
INTERIOR PLANNING & DESIGN
Ex Novo, Inc.
5482 Wilshire Blvd, Suite 398
Los Angeles, CA 90036
(562) 673 -5167
nwagner @exnovoinc.com
January 13, 2011
City of Arcadia City Hall Renovation
COA -11 -2050
Phillip A. Wray Bill to: Same
Deputy Director of Development Services/ City Engineer
City of Arcadia
240 West Huntington Drive
Arcadia, CA 91066 -6021
PROPOSAL
PROJECT SCOPE:
Interior Design services relative to the renovations and improvements of City of Arcadia City Hall (hereinafter
referred to as "Client'), located in Arcadia, California. Ex Novo, Inc. will design within the prescribed phases
below.
PRELIMINARY ENGINEERING FOR BUILDING FLOOR PLAN CHANGES
Using the AutoCAD files of the Base Building Architectural drawings provided by the client Ex Novo,
Inc. shall field verify the shell and core, column and window mullion spacing and the location of all
existing demising partitions along with interior partitions of the designated areas to be remodeled.
2. This information will be updated on the AutoCAD files and used to produce the plans and documents
hereafter.
3. Survey and research building walls and structural members in locations with proposed changes
DESIGN CONCEPT DEVELOPMENT AND SPACE PLANNING
Interview City Staff representatives for design direction, color preference, image and atmosphere to be
created within the different areas that will include:
a. ADA accessible Cashier counter - Redesign the cahier public counter to meet ADA accessibility
standards.
b. ADA accessible Engineering counter - Add to the existing counter to meet ADA accessibility
standards.
C. Development Services Department (DSD) Engineering and Administration Area — Redesign
the northerly portion of the building to remove one wall and relocate one wall.
d. Lobby Improvements — Add a wall in the lobby to separate the area opposite the cashiers counter
from the rest of the lobby.
e. DSD Community Development (CD) Area — Redesign south end of main hallway to incorporate
hallway into the CD front counter area.
2. Develop 2 design concepts compatible with the desired function and design direction set by the Client
for the space. Ex Novo, Inc. shall prepare sketches to present these design concepts to Client
representatives.
a. Create Floor Plans of all interior remodeled areas
b. Selection of flooring, wall covering, paint, tile replacement and interior doors.
3. Prepare Space Plans of the areas of remodel listed above with possible alternates if proposed changes
by client are not feasible,
4. Meet with Client representatives to present the preliminary design concepts and space planning. This
meeting will include loose samples of proposed materials and space plans.
5. Refine the design concept and space plans (if required) per Client requirements and comments.
6. Present the selected design concept and final space plan to the Client for final approval.
7. Prepare preliminary take off estimates of all materials selected.
SIGNAGE DESIGN
1. Survey and document all existing signage.
2. Prepare preliminary cost estimate for all new signage.
3. Design 2 signage theme concepts to present to the client.
4. Prepare details for approved sign concepts.
5. Prepare location plan and schedule of all signs.
6. Prepare cost estimates for all signs.
PRICING PLAN
Prepare and submit to a General Contractor Space and Design Development Plans that include the
following, to the extent they can be determined at this phase of the planning, for the purpose of
preliminary pricing requirements which may include some of the following:
a. Building Standard and upgraded construction
b. Areas to receive standard and upgraded finishes
C. Above - standard conditions
d. Millwork and plumbing
e. Special electrical requirements
f. Typical telephone and electrical outlets
g. Special HVAC requirements
h. Typical lighting information
COLOR BOARDS /RENDERINGS OPTIONAL
Prepare a Color Board showing selected finishes for the space.
2. Prepare a colored rendering of the final design concept selected to represent the Client's image in the
front lobby area and any other areas requested.
WORKING DRAWINGS AND SPECIFICATIONS
Using the Base Plans as provided by the Building Owner, Ex Novo, Inc. will proceed to prepare
Construction Documents and specifications. These Documents shall include areas of remodel:
a. Cover sheets identifying building department and handicap notes, and other details,
specifications, and schedules applicable to the interiors.
b. A demolition plan (if required).
C. A dimensioned partition plan indicating the location and type of walls and doors.
d. An electrical plan indicating the location of standard power and telephone outlets, along with
specialty equipment requirements. (If required)
e. A reflected ceiling plan indicating the recommended ceiling tile pattern and location of light fixtures
and switches, along with specialty soffit and lighting details. (If required)
f. A finish plan indicating type and location of wall and floor finishes, detailed finish schedule and
window coverings specifications.
g. A door and hardware schedule itemizing the type, size and specifications of doors, frames and
hardware (if required).
h. Elevations and details of specialty design areas.
2. Meet with Client representatives for approval of the Construction Documents.
3. Review the Construction Documents with Client representatives and obtain a final sign -off.
4. Specifications will be format compatible with Arcadia City Standards.
PLAN CHECK
Upon final sign -off, Ex Novo, Inc. shall submit two sets of complete Construction Documents for Plan
Check and applicable permits.
2. The Client shall provide a check for the full amount of the Plan Check fee. (Ex Novo, Inc. will provide
the Client with the amount required by submitting a Plan Check Fee request form and 48 hours notice_)
The General Contractor will be responsible for obtaining and paying for the permits required, including
the Building Permit.
BID DOCUMENT AND CONTRACTOR SELECTION
While Basic Construction Documents are in the Building Department, Ex Novo Inc. will assist client in
coordinating bid packages as required.
2. Hold a job walk and Pre -Bid meeting for contractors to review the drawings, schedule and job site
condition.
Review the bids on behalf of the Client, and prepare a spreadsheet comparing line item bids from the
various contractors.
4. Meet with Client representatives for the final contractor selection. The selection of all contractors and /or
engineers shall be at the sole discretion of the Client, and Ex Novo, Inc. shall have no responsibility
for or liability regarding the same.
4. Assist the client with questions/ clarifications on the design and technical specifications related to Phase
2 of the project.
CONSTRUCTION PHASE SERVICES
Make personal visits during the course of construction to the project site to observe the progress of
work, and to generally review conformance to plans and specifications. Ex Novo, Inc. shall have no
inspection responsibility for the construction.
2. Attend weekly construction meetings during the course of construction.
3. Monitor the schedule and budget during construction.
4. Review all shop drawings and submittals pertaining to the architectural and design elements of the
space.
5. Prepare a Punchlist of items deemed incomplete or unfinished for review and follow -up by the
Contractor(s).
6. Follow -up with Contractor and the Client to ensure that all items are completed.
NOTE: It is the position of Ex Novo, Inc. that in order to facilitate adequate control of the construction methods
and interpretations of the Construction Documentation developed by Ex Novo, Inc., all projects
must include Construction Observation. In the event that you decline this service, Ex Novo, Inc.
shall not be held liable for interpretation, errors, omissions, construction or code discrepancies
related to this project.
COMPENSATION AND REIMBURSABLES
See Exhibit A.
BILLINGS
1. Ex Novo, Inc. shall invoice at the first of each month for work performed and expenses incurred during
the previous month. Payment of the invoice is expected within thirty (30) days of receipt of the invoice.
Outstanding invoices will be charged a 1.5% per month service fee.
2. If payment for all undisputed amounts due for services and expenses is not received within 30 days of
presentation of invoices, Ex Novo, Inc. may suspend services under this contract. Client shall waive
any claim against Ex Novo, Inc. and shall defend and indemnify Ex Novo, Inc. from and against any
claims for injury or loss stemming from this cessation of service. Ex Novo, Inc. shall also receive any
costs associated with premature project demobilization. In the event the project is remobilized, Client
shall also pay the cost of remobilization, and shall renegotiate appropriate contract terms and
conditions, such as those associated with budget, schedule, or scope of service.
3. In the event any bill or portion thereof is disputed by the Client, the Client shall notify Ex Novo, Inc.
within ten (10) business days of receipt of the bill in question, and the Client and Ex Novo, Inc. shall
work together to resolve the matter within 60 days of its being called to the attention of Ex Novo, Inc. If
resolution of the matter is not attained within 60 days, either party may terminate this contract in
accordance with conditions indicated below (see "Termination ").
GENERAL PROVISIONS & CONTRACT CLARIFICATIONS
ASSUMPTIONS AND DISCLAIMERS
This proposal assumes the following:
a. Project completion date of approximately: TBD
b. In the event that Ex Novo, Inc. reasonably relies upon measurements or other details provided by
the Client, then Ex Novo, Inc. shall be indemnified and held harmless for all failures, errors and
delays caused by such reasonable reliance.
C. The total professional fee is subject to change based upon determining the actual rentable square
footage for the project space in accordance with the terms more fully described above.
d. If and to the extent that Agreement Time initially established in this Agreement is exceeded or
extended through no fault of Ex Novo, Inc., compensation for any Basic Services required for
such extended period of Administration of this Agreement shall be in addition to the Basic Fee
and shall be computed on an hourly basis based upon the Ex Novo, Inc. hourly rate schedule in
effect during said extended period.
e. Ex Novo, Inc. shall not be responsible for any delays or modifications regarding matters and /or
situations which are beyond its control which may affect its ability to complete the work as
described herein, including but not limited to strikes, labor unrest, material or labor shortages,
discontinuance or modification of materials or equipment and the like.
2. The Americans with Disabilities Act (ADA) requires the removal of architectural barriers in existing
facilities where such removal is readily achievable. The Client acknowledges that the definition of
"readily achievable" contained in the ADA is flexible and subject to interpretation on a case -by -case
basis. The requirements of the ADA will therefore be subject to various and possibly contradictory
interpretations. Ex Novo, Inc. will use its reasonable professional efforts and judgment to interpret
applicable ADA requirements and to advise the Client as to the modifications to the Client's facility that
may be required to comply with the ADA. Such interpretation and advice will be based on what is
known about ADA interpretations at the time this service is rendered. Ex Novo, Inc., however, cannot
and does not warrant or guarantee that the Client's facility will fully comply with interpretations of ADA
requirements by regulatory bodies or court decisions.
REMODELING AND REHABILITATION
Inasmuch as the remodeling and /or rehabilitation of an existing building requires that certain
assumptions be made regarding existing conditions and because some of these assumptions cannot be
verified without expending great sums of additional money or destroying otherwise adequate or
serviceable portions of the building, the Client agrees that Ex Novo, Inc. shall not be liable for any
additional costs due to conditions that could not be verified by a visual inspection of the existing
premises without opening up any existing walls, ceilings or other structures.
MEDIATION OF DISPUTES
In the event of a dispute or controversy which arises out of this Agreement, the services provided
hereunder or any alleged breach of the same, the parties hereto shall voluntarily mediate the dispute or
controversy prior to the filing of any civil lawsuit regarding the same. The mediator shall be mutually
selected from the panel of mediators in the Alternative Dispute Resolution Department of the Los
Angeles Superior Court, the cost of which shall be shared equally by the party. In the event that a party
shall fail to meaningfully participate in the mediation, said party shall be prohibited from making any
claim whatsoever for attorney's fees and expenses in any subsequent litigation or proceeding.
In the event a party meaningfully participates in Mediation prior to filing any litigation or proceeding and
prevails in said action, the prevailing party shall be entitled to an award of reasonable attorney's fees
and expenses, including, but not limited to those fees and expenses incurred in Mediation.
TERMINATION
Either party upon ten (10) days written notice served to the other party may terminate this Agreement.
In the event of a termination, Ex Novo, Inc. shall be entitled to compensation for all services performed
up to the termination date, together with all Reimbursable Expenses then due and payable.
LIMITATION OF LIABILITY
The Client and Ex Novo, Inc. have discussed their risks, rewards and benefits of the project and the Ex
Novo, Inc. total fee for services. The risks have been allocated such that the Client agrees that to the
fullest extent permitted by law, the total liability of Ex Novo, Inc. to the Client for any and all injuries,
claims, losses, expenses, damages or claim expenses arising out of this agreement from any cause or
causes including but not limited to the negligence, errors, omissions, strict liability, breach of contract or
warranty of Ex Novo, Inc. shall not exceed the total compensation received by Ex Novo, Inc.
2. It is mutually understood and agreed that our services and obligations are limited in scope to those
items of work as hereinabove set forth in this proposal and that Ex Novo, Inc. in no way assumes
responsibility for the work as administered or designed by others.
3. Ex Novo, Inc. will not be responsible for the failure of others to meet commitments, or for the
performance or workmanship of contractors, engineers, suppliers, or trade sources
4. The client hereby agrees that Ex Novo, Inc. shall not be liable to the client for any special, indirect or
consequential damages, whether caused by Ex Novo's negligence, errors, omissions, strict liability,
breach of contract or other cause or causes whatsoever, including but not limited to lost profits or
revenues, or loss of use of the project, facilities or equipment.
5. Insurance
a. Ex Novo, Inc. only maintains such insurance as will protect it from claims arising from conduct of its
professional practice. Ex Novo, Inc. shall not be liable for payments for damages in excess of its
available limits of insurance.
b. The Client shall be responsible for purchasing and maintaining its own liability insurance and, at its
option, may purchase and maintain such insurance as will protect it against claims which may arise
from operations under this Agreement.
MISCELLANEOUS PROVISIONS
This Agreement shall be governed by, and construed in accordance with the laws of the State of
California.
This Agreement shall be binding on and enforceable by and against the parties to it and their respective
heirs, legal representatives, successors, and assigns.
This Agreement shall be altered, amended, or modified, in whole or in part, only upon the written
consent of all parties to this Agreement.
4. This Agreement shall only be assigned by either party with the consent of the other party, which consent
shall not be unreasonably withheld.
5. Client agrees that Ex Novo, Inc. may have the exclusive right to take and use video, photographs,
drawings, or descriptions of the project in any media for display, advertising or promotional purposes.
Client shall not be entitled to a payment or royalty from Ex Novo, Inc. for the right to use the same.
6. In the event that Ex Novo, Inc. or any of its principals or employees are compelled to participate in any
third party legal proceeding, whether civil, administrative or criminal as a result of their work pursuant to
this Agreement, Client shall pay, as Additional Services, for any time expended by Ex Novo, Inc., or its
employees for the same on an hourly basis at the rates listed herein. Client shall also pay for any
reimbursable expenses which may be incurred as a result thereof. This provision shall survive the
completion or termination of the Agreement. Thank you for the opportunity to provide this Agreement
for Services to you. If the Terms and Conditions set forth above meet with your approval, please sign
and date this Agreement and return two copies to Ex Novo, Inc. When this Agreement has been
approved and executed by both parties, it will be construed as a final and legally binding contract.
ACCEPTED AND APPROVED:
Name Nancy Wagner, Principal
City of Arcadia Ex Novo, Inc.
Print Name
Date Date
Project Manager: Nancy Wagner
Exhibit "B"
SCHEDULE OF SERVICES
The term of this Agreement shall be from March 15, 2011 to March 15, 2012, unless
earlier terminated or extended by amendment accordingly.
M]
Exhibit "C"
COMPENSATION
Compensation of $34,900 per attached cost estimate and hourly rates.
C -1
0
City of Arcadia
Project Cost Proposal
Exhibit A
Revised 2 -18 -11
COMPENSATION AND REIMBURSABLE EXPENSES
COMPENSATION
Ex Novo, Inc. proposes to provide the above listed professional services for a fee based upon the
following phases:
PHASE
MEETINGS
FEE
OPTIONAL
ITEMS
Preliminary Engineering and Building Floor Plan Changes
1
$2500.00
Design Concept Development and Space Planning
3
$3950.00
Engineering Space Planning and Furniture Design &Specs
1
$1500.00
Signage Design
5
$5200.00
Pricing Plan
2
$1500.00
Color Boards and Renderings ( Optional)
$3000.00
Working Drawings and Specifications
2
$3100.00
Plan Check
$1000.00
Bid Document and Contractor Selection
1
$3000.00
8
Estimated 5
Construction Phase Services
hours a week
$5000.00
Additional Design Services ( For add services to be used if
client requests additional work of if unforeseen conditions
$5150.00
such as electrical, mechanical, structural items that may
change scope listed in contract)
TOTAL
$26,750.00
$8150.00
Grand TOTAL Fee and Optional Items
$34,900
NOTE: Construction phase Services will increase if project is phased. Fee listed above is for an 8 week
construction schedule. If schedule increases estimate 5 hours/ week per week.
REIMBURSABLE EXPENSES
1. In addition to the compensation for Design Services, Ex Novo, Inc. shall be reimbursed at a fixed
fee not to exceed $2500.00 for all out -of- pocket expenses incurred during the project.
Reimbursable expenses shall include the following: drawing reproduction, renderings,
messenger, and delivery services; local travel shall be reimbursed at fifty-
five cents per mile ($0.55), or the current Federal IRS standard. Ex Novo
exnovoQ Inc, shall inform client in writing if additional reimbursable fees are required.
INTERIOR PLANNING & DESIGN
1242 East Colorado Boulevard a Suite B • Pasadena a California 91106 a 626.628.2770 • www.exnovoinc.com
t
ADDITIONAL SERVICES
1. Any services not provided above. Some examples are as follows:
a. Work requested by the Client that is outside the scope of services listed above.
b. Changes in the scope and/or quality of the proiect.
C. Changes to work which has been completed by Ex Novo, Inc. and approved by the Client
in an earlier phase of the project.
d. ADA and Title 24 upgrades for elevators, restrooms, entrances, and other affected areas.
e. Path of Travel and Handicap Accessibility sheets.
f. Applications for Modifications or Variances to existing building conditions.
g. Engineering or Engineering Plan Check.
h. Plan Check Revisions.
2. Additional services will be billed on an hourly basis. Current rates are as follows:
Principal
$125.00
Designer
$75.00
Project Manager
$125.00
Technical Coordinator
$75.00
Senior Designer
$95.00
Design Assistant
$55.00
Job Captain
$95.00
Clerical
$55.00
e x n ovo uz
INTERIOR PLANNING d DESIGN
1242 East Colorado Boulevard • Suite B • Pasadena • California 91106 • 626.628.2770 • www.exnovoinc.com