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06-072, SMWM, A California Corporation o C -0 7;;{ AGREEMENT FOR DESIGN, PROJECT, AND CONSTRUCTION ADMINISTRATION SERVICES BETWEEN THE CITY OF CUPERTINO AND SMWM, A CALIFORNIA CORPORATION, 032443 FOR THE LIBRARY AND COMMUNITY HALL UPGRADE PROJECT THIS AGREEMENT is made and entered into this ,;lS"Tttay of S~PT~tVl6c~ 2006 by and between the City of Cupertino, a municipal corporation, hereinafter referred to as CITY, and SMWM, a California Corporation, hereinafter referred to as CONSULTANT. RECITALS WHEREAS, the CITY OF CUPERTINO desires to obtain Design, Project, and Construction Administration consultant services for the Library and Community Hall Upgrade Project; and WHEREAS, SMWM has the necessary professional expertise and skill to perform the Design, Project, and Construction Administration services required. NOW, THEREFORE, the purpose of this Agreement is to retain SMWM as CONSULTANT TO THE CITY to perform those services specified in Exhibit A of this Agreement. THE PARTIES HEREBY AGREE AS FOLLOWS: Section 1. Scope of Services. CONSULTANT shall perform those services specified in detail in Exhibit A, entitled "Scope and Fee Proposal", which is attached hereto and incorporated herein. Section 2. Term of Agreement. The term ofthis AGREEMENT shall be commence on September 11, 2006, and continue through March 15,2007, inclusive, subject to the provisions of Exhibit A, of this AGREEMENT. In the event that the services called for under this AGREEMENT are not completed within the time specified above, the City Manager may extend the time for completion. This section does not preclude the recovery of damages for delay by either party. BASIC AGREEMENT Section 3. Schedule of Performance. The services of CONSULT ANT are to be completed according to the schedule set out in Exhibit A, which is attached hereto and incorporated herein. CONSULT ANT is not responsible for delays beyond CONSULTANT'S reasonable control. Section 4. Compensation. The compensation to be paid to CONSULTANT for professional services and reimbursable expenses, shall not exceed FOURTY ONE THOUSAND and 00/100 Dollars ($41,000). The rate and schedule of payment is set out in Exhibit A, which is attached hereto and incorporated herein. Section 5. Method of Payment. Upon completion of each task, as specified in Exhibit A, the CONSULTANT shall furnish to the CITY a detailed statement of the work performed for compensation during the term of this Agreement. Consultant may submit monthly invoices for interim progress payments during the course of each phase. Section 6. Independent Contractor. It is understood and agreed that CONSULTANT, in the performance of the work and services agreed to be performed by CONSULTANT, shall act as and be an independent contractor and not an agent or employee of CITY; and as an independent contractor, CONSULTANT shall obtain no rights to retirement benefits or other benefits which accrue to CITY'S employees, and CONSULTANT hereby expressly waives any claim it may have to any such rights. Section 7. No Third Party Rights. CONSULTANT'S services under this agreement are intended for the sole benefit of CITY and shall not create any third party rights or benefits. SMWM Basic Agreement Page 2 of 12 BASIC AGREEMENT Section 8. Project Coordination. (a) CITY: The City Manager shall be representative of CITY for all purposes under this agreement. Ralph Qualls, Director of Public Works, is hereby designated as the CITY PROJECT MANAGER for the City Manager, and shall supervise the progress and execution ofthis agreement. (b) CONSULTANT: CONSULTANT shall assign a single CONSULTANT PROJECT MANAGER to have overall responsibility for the progress and execution of this agreement for CONSULTANT. Linda Sobuta is hereby designated as the PROJECT MANAGER for CONSULTANT. Should circumstances or conditions subsequent to the execution of this agreement require a substitute CONSULTANT PROJECT MANAGER for any reason, the CONSULTANT PROJECT MANAGER designee shall be subject to the prior written acceptance and approval ofthe CITY PROJECT MANAGER. Section 9. Assignability / Sub consultants / Employees. The parties agree that the expertise and experience of CONSULT ANT are material considerations for this Agreement. CONSULTANT shall not assign or transfer any interest in this Agreement or the performance of any obligations hereunder, without the prior written consent of CITY, and any attempt by CONSULT ANT to so assign this Agreement or any rights, duties, or obligations arising hereunder shall be void and of no effect. CONSULT ANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULT ANT hereunder. No sub consultant of CONSULTANT will be recognized by CITY as such; rather, all sub consultants are deemed to be contractors of CONSULT ANT, and it agrees to be responsible for their performance. CONSULTANT shall give its collective professional attention to the fulfillment of the provisions of this agreement by all of its employees and sub consultants, if any, and shall keep the work under its control. If any employee or sub consultant of CONSULT ANT fails or refuses to carry out the provisions of this SMWM Basic Agreement Page 3 of 12 BASIC AGREEMENT agreement or appears to be incompetent or to act in a disorderly or improper manner, such employee or sub consultant shall be discharged immediately from the work under this agreement on demand of the PROJECT MANAGER. Section 10. Indemnification. CONSULTANT shall defend, indemnify, and hold harmless CITY, its officers, agents and employees of any and all claims, loss, or liability arising out of or resulting, in any way, from the work performed under this Agreement to the extent due to the negligent acts (active or passive) or omissions by CONSULT ANT'S officers, employees, or agents. The acceptance of said services and duties by CITY should not operate as a waiver of such right of indemnification. This provision of Section 9 shall survive the term of the AGREEMENT. Section 11. Insurance Requirements. The CONSULTANT shall maintain at all times during the performance of the Agreement the following insurance and endorsements: A. Workers' Compensation and Employer's Liability Insurance: Workers' compensation insurance indicating compliance with State's workers' compensation laws and employer's liability insurance with a minimum of one million dollars ($1,000,000.00) per accident for injury, death or disease to any employee. The policy shall contain an endorsement waiving all rights of subrogation against the City, its officers, officials, employees or volunteers. B. Professional Liability, General Liability and Automobile Liability Coverage: 1. Automobile Liability Insurance shall include coverage for bodily injury and property damage for owned (if any), hired and non-owned vehicles and shall not be less than one million dollars ($1,000,000.00), combined single limit for anyone occurrence. 2. Comprehensive or Commercial General Liability Insurance shall include coverage for bodily injury, property damage and personal injury for premises operations, product/completed operations and contractual SMWM Basic Agreement Page 4 of 12 BASIC AGREEMENT liability. The amount of the insurance shall not be less than one million dollars ($1,000,000.00) per occurrence and one million dollars ($1,000,000.00) aggregate, combined single limit. (Claims made policies are not acceptable.) Consultant shall also provide aggregate limits endorsement and primary insurance endorsement. 3. Professional liability Insurance (including Contractual Liability) shall include coverage for claims for professional acts, errors or omissions and shall not be less than one million dollars ($1,000,000.00) per claim, and two million dollars ($1,000,000.00) in the aggregate. C. Additional Insurance Provisions 1. The CITY shall have the right to inspect or obtain a copy of the original policies of insurance. 2. The general and auto liability policies shall be endorsed to name the CITY, its officers, officials, employees or volunteers as insureds for liability arising out of work or operations performed by or on behalf ofthe Consultant including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant's insurance (at least as broad as ISO Form CG 20 37 07 04 or CG 20 10 11 85), as a separate Owner's and Contractor's Protective Liability Policy, or on the Entity's own form. 3. The general, auto, and professional liability policies shall be endorsed to provide primary insurance coverage for all claims related to the services provided under this contract. 4. CONSULTANT shall furnish to the CITY within 15 days following the execution of this Agreement, the required certificates and endorsements. The certificate of insurance shall state the policy will not be cancelled without thirty (30) days written notice to the CITY. 5. All policies, endorsements, certificates, and/or binders shall be subject to approval by the City Manager of the City of Cupertino as to form and content. SMWM Basic Agreement Page 5 of 12 BASIC AGREEMENT These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Section 12. Nondiscrimination. CONSULTANT shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, disability, ethnicity, or national origin in connection with or related to the performance of this Agreement. Section 13. Termination. A. CITY or CONSULT ANT shall have the right to terminate this Agreement without cause, by giving not less than thirty (30) days written notice of termination. B. If CONSULT ANT fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, CITY may terminate this Agreement upon thirty (30) days written notice if consultant fails to take steps to correct such failure within the notice period. C. CITY'S City Manager is empowered to terminate this Agreement on behalf of CITY. D. In the event of termination, CONSULT ANT shall deliver to CITY, copies of all reports, documents, and other work performed by CONSULT ANT under this Agreement, and upon receipt thereof, CITY shall pay CONSULT ANT for services performed and reimbursable expenses incurred to the date of termination. Section 14. Governing Law. CITY and CONSULTANT agree that the law governing this Agreement shall be that of the State of California. SMWM Basic Agreement Page 6 of 12 BASIC AGREEMENT Section 15. Compliance With Laws. Consistent with its professional standard of care, CONSULTANT shall comply with all applicable laws, ordinances, codes and regulations of the federal, state, and local governments. Section 16. Confidential Information. All data, documents, discussions, or other information developed or received by or for CONSULT ANT in performance of this Agreement are confidential and not to be disclosed to any person except as authorized by the CITY, or as required by law. Section 17. Ownership of Materials. All reports, documents, or other material developed or discovered by CONSULTANT or any other person engaged directly or indirectly by CONSULTANT to perform the services required hereunder shall be and remain the property of CITY to be used solely for this PROJECT. Hard copies of consultants work product shall constitute the project deliverables. Electronic documents, if any, shall be provided as a courtesy only without any warranty or guarantee. The CITY holds CONSULTANT harmless for any reuse of or modification to the documents. Section 18. Waiver. CONSULTANT agrees that waiver by CITY of any breach or violation of any term or condition of this Agreement shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent breach or violation of the same or any other term or condition. The acceptance by CITY of the performance of any work or services by CONSULTANT shall not be deemed to be a waiver of any term or condition of this Agreement. SMWM Basic Agreement Page 7 of 12 BASIC AGREEMENT Section 19. Consultant's Books and Records. A. CONSULTANT shall maintain any and all ledgers, books of accounts, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to CITY for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to CONSULTANT pursuant to this Agreement. B. CONSULTANT shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period ofthree (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement. C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Attorney, City Manager, or a designated representative of any of these officers. Copies of such documents shall be provided to CITY for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at CONSULTANT'S address indicted for receipt of notice in this Agreement. D. Where CITY has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment, or termination of CONSULTANT'S business, CITY may, by written request by any of the above-named officers, require that custody of the records be given to CITY and that the records and documents be maintained in City Hall. Access to such records and documents shall be granted to any party authorized by CONSULTANT, CONSULTANT'S representatives, or CONSULTANT'S successor-in-interest. Section 20. Interest of Consultant. CONSULT ANT covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or SMWM Basic Agreement Page 8 of 12 BASIC AGREEMENT degree with the performance of the services hereunder. CONSULTANT further covenants that, in the performance of this agreement, no sub consultant or person having such an interest shall be employed. CONSULTANT certifies that no one who has or will have any financial interest under this agreement is an officer or employee of CITY. It is expressly agreed that, in the performance ofthe services hereunder, CONSULTANT shall at all times be deemed an independent CONSULT ANT and not an agent or employee of CITY. Section 21. Gifts. A. CONSULTANT is familiar with CITY'S prohibition against the acceptance of any gift by a CITY officer or designated ,employee, which prohibition is found in the City of Cupertino Administrative Procedures. B. CONSULTANT agrees not to offer any CITY officer or designated employee any gift prohibited by the Administrative Procedures. C. The offer or giving of any prohibited gift shall constitute a material breach of this Agreement by CONSULTANT. In addition to any other remedies, CITY may have in law or equity, CITY may terminate this Agreement for such breach as provided in Section 13 of this Agreement. Section 22. Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be personally served or mailed, postage prepaid and return receipt requested, addressed to the respective parties as follows: To CITY: TerryW. Greene Ci ty Architect City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 408 777 3248 To CONSULTANT: Linda Sobuta Project Manager SMWM 989 Market Street, Third Floor SMWM Basic Agreement Page 9 of 12 BASIC AGREEMENT San Francisco, CA 94103 415-546-0400 Notice shall be deemed effective on the data personally delivered or, if mailed, three (3) days after deposit in the mail. Section 23. Venue. In the event that suit shall be brought by either party hereunder, the parties agree that venue shall be exclusively vested in the state courts of the County of Santa Clara, or where otherwise appropriate, exclusively in the United States District Court for the Northern District of California, San Jose, California. Section 24. Agreement Binding/Prior Agreements and Amendments. The terms, covenants, and conditions of this agreement shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and sub consultants of both parties. This AGREEMENT, including all Exhibits attached hereto, represents the entire understanding ofthe parties as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This AGREEMENT may only be modified by a written amendment duly executed by the parties to this Agreement. Section 25. Costs and Attorneys Fees. The prevailing party in any action brought to enforce the terms of this agreement or arising out of this agreement may recover its reasonable costs and attorneys' fees expended in connection with such an action from the other party. SMWM Basic Agreement Page 1 0 of 12 BASIC AGREEMENT Section 26. Electronic Transmission of Information. From time to time, the CONSULT ANT may transmit design or other information to the CITY, CITY'S Representative, or Contractor via electronic transmission. The CITY, CITY'S Representative, or CONTRACTOR shall not be entitled to and hereby agrees not to alter or modify any such information without the express written consent of the CONSULTANT. Similarly, the CITY, CITY'S Representative, and Contractor shall not use any information for any purpose not expressly covered by this Agreement. The CONSULTANT shall not be responsible for any destruction or corruption of such information during or after transmission to CITY, CITY'S Representative, and Contractor and shall be entitled to appropriate additional compensation in the event retransmission or recreation is required. Notwithstanding the foregoing, the Contractor may use electronically transmitted information to prepare submittals, as-built drawings and record drawings. CONSULT ANT shall not be responsible for any changes made by the CONTRACTOR or for the CONTRACTOR'S work product. Section 27. Job Site Safety. In no event shall CONSULTANT be responsible for job site safety issues. Such issues shall be the responsibility of the Construction Contractors, who shall be required by CITY to defend, indemnify, and hold harmless CONSULT ANT and CITY for such issues. Section 28. Dispute Resolution. Any dispute related to the services hereunder shall be resolved by the parties pursuant to applicable law. SMWM Basic Agreement Page 11 of 12 BASIC AGREEMENT WITNESS THE EXECUTION HEREOF on the day and year first herein above writ en. NOTARY PUBLIC CERTIFICATION State of California County of 5'""A J..J FK. ~ c:u ~ Go O~d/'r" /_m--3-/_y ~eforeme, :J~("'t'~ a. L~ n lit , Notary Public, personally appeared l>CH.t(~ Cl~iT'~",..' /WtHf1JJY ~ Gf!PH€';" known to me (or proved to me on the basis of satisfactory evidence) to be the person (s) whose name (s) is / are subscribed to the within instrument and acknowledged to me that he / she / they executed the same in his / her / their capacity (ies), and that by his / her / their signature (s) on the instrument the person (s) or the entity upon behalf of which the person (s) acted, executed the instrument. WITNES~ ~d ~ ,.,1 P.O. #: 0..3 ~ 'I '13 CITY OF CUPERTINO a municipal corporation ,-, B: date tf ~;) t7b Attest: 10300 Torre Avenue Cupertino, CA 95014 408 777 3223 CONSULTANT By: SMWM.A C...l:4.,,:.. u"...,...4.h...... _~~V1_ Date:~W~ 2006 Name: .D.......I~ ~.s Title: ,J.tc.c. p(~~:cl..-t ~..{.L Date: S c.~ t, 20~6 Name: ~"t-..r ~'^l.t..tu- Title: V:~ rreC:c::l.c.-f Tax J.D. #: 989 Market Street, Third Floor San Francisco, CA 94103 415-546-0400 Account#:420-9232-9300 Amount: $ 41,000.00 Signature of Notary Public 18 JEFFREY B. LEITH I ~ COMM. .'630275 IU <1:l. NOTARY PUBt.JC.CALIFORNIA :l: SMWM J' N' SA~ISCO COUNTY :! Basic Agreem Il My. Exp. Jan. 13, 2010 I Page 1 2 of 12 989 Market Street, 3rd mDBlT A "1~'~""J~'~I~ _,.ii r~, 4155460400 41S 882 7098 www.smwm.com 1 September 2006 Terry Greene, AlA City Architect City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Project: Cupertino Library and Community Hall Changes Re: Scope and Fee Proposal Dear Terry, SMWM, a California corporation (hereinafter the "Architect") is pleased to submit to the City of Cupertino (hereinafter the "Owner") this proposal to provide professional services for the following project, I. Scope and Description A. Scope of Work Library Children's Large Book Area Lighting 1. Review the current light level in this area and determine the appropriate light level. 2, Recommend and specify an alteration to provide the required light level. Library Children's Story Time Room Lighting 1, Review the current light level in this area and determine the appropnate light level. 2, Recommend and specify an alteration to provide the required light level. Library Lobby Desk Task Light Upgrade 1, Evaluate the current Owner-selected task lights that have been Installed at the Lobby desk for their ability to proVide appropriate light. Also assess whether the quality and appearance of the light fixtures are appropriate for the publiC space 2, If necessary, recommend and specify alternative task lights, Community Hall Council Desk Work Surface 1, Design an extension for the curved desk work surface that can be attached directly to the existing desk top with minimum disruption to the existing plastic laminate surfaces, if possible, The work surface should be extended approximately 4 inches, if possible, Solution will need to comply with disabled access requirements, Community Hall Storage Compartments Behind Council Desk 1, Design custom millwork for storage bins and/or cabinets to be located behind the council desk and along the wall with the concealed curtain. The cabinets should have a flat counter surface at about desk height with shelves below concealed by doors and shall accommodate the council desk in its retracted position With the chairs in place Consideration will be given to recessing the rear cabinet in the existing wall, Owner (Pete Coglianese and Kimberly Smith) to provide information on any specific equipment or other items to be stored in these cabinets, Page 1 ~ \ '. ~ ~ ~ Community Hall Automatic Door 1, Select and specify the necessary hardware to provide for the installation of an automatic push- button door-opening system on one of the four leaves between the pre function space and the main council room, 2, In the event it proves inadvisable to reconfigure the existing door, specify a new door and hardware to match the existing doors, Community Hall Patio Wall Cleaning and Protective Coating 1, Review the causes of the efflorescence on the exterior brick walls surrounding the two patios, 2. In conjunction with the Owner's contractor, recommend cleaning and mitigation measures to prevent future recurrence of the efflorescence, if possible, 3, Specify a graffiti resistant coating for the walls. B. Description of Basic Services For each of the projects described above, the Architect will provide the following services: 1. Visit the site to review the existing conditions, 2. Attend meetings with the Owner, including select user groups, to review the Architect's proposed design, Up to three (3) total meetings are included in this proposal. 3, Prepare construction documents, consisting of a small set of drawings and specifications. Assemble into as many as four (4) bid packages for pricing by the Owner's selected contractors, 4, Submit documents to permitting agencies as required, Respond to comments from permitting agencies, 5, Respond to contractor's requests for Information and review required submittals, 6, Visit the site two (2) times to review the progress of construction and observe that the work is in general conformance with the contract Documents. C. Assumptions and Exclusions 1. Design and construction of the different projects listed above will occur concurrently to minimize duplication of site visits, meetings and other staffing and scheduling inefficiencies, 2, The Architect will prepare up to four (4) bid packages 3, The contractors selected by the Owner will be responsible for providing all estimates of probable construction cost. 4, The Owner's total budget, including the deSign fee and construction costs, is $210,000, In the event the Owner has identified discrete budgets for each of the projects listed above, the Owner will be responsible for communication that information to the Architect prior to the Architect commencing work, 5, All permit fees will be paid directly by the Owner. II. Compensation A. Basic Services Compensation for the Architect's services identified in Section I "Scope and Description" will be computed on an Hourly (Time & Matenals) Basis, In accordance with the rate schedule attached hereto, with a Not-to-Exceed Total Fee of $37,000.00. B. Additional Services Upon request, the Architect can provide additional services that are not included in the basic services as defined in Section I above and are considered additional services Fees for Additional Services, if authorized in writing by Owner, will be computed as a lump sum or on an hourly (time and materials) basis, per the attached rate schedule, Page 2 . ;, C. Reimbursable Expenses Reimbursable expenses are in addition to the Architect's fees for services, and include the costs of copying, printing, postage, messenger, delivery and other direct project-related costs. Reimbursable expenses will be billed monthly at cost plus ten percent (10%), The Architect's reimbursable expenses are estimated to be approximately $4,000, and will not exceed this budget without your prior authorization. \II. Schedule The Architect is available to begin this work as soon as authorized by Owner. We assume the initial design and documentation, pending timely input and review by the Owner, can be completed in 4-6 weeks, The duration of the modifications will depend on when and how the Owner chooses to contract the work. Our proposed fee assumes that all modifications will occur concurrently, to avoid duplication of meetings/site visits and allow for efficient progress review by the Architect. IV. Terms and Conditions This proposal is based on terms and conditions contained in the Standard Form of Agreement between Owner and Architect with Standard Form of Architect's ServICes, AlA Document B 141-1997, In the event the terms and conditions contained in the form of agreement provided by the Owner vary substantially from the AlA B 141-1997, the Architect reserves the right to revise this proposal to respond to the requirements of the Owner's agreement. This proposal represents our understanding of the project and supersedes all prior negotiations, representations or agreements, either written or oral. If this proposal is acceptable to you, please sign where indicated below and return a signed copy of this proposal to SMWM. SMWM must receive a copy of this signed proposal in order for us to proceed with this work in advance of the execution of a written contract. We appreciate the opportunity to submit this proposal and look forward to working with you on this project. 'S:~a.~ b~~ Linda A Sobuta, Vice President SMWM, A California Corporation Donald Cremers, Vice President SMWM, A California Corporation cc Project File 2.3.00 encl. SMWM Rate Schedule Accepted by: CITY OF CUPERTINO ~4t'A(o'.~ O~"--ntzJrf; Signature ~-.):J--017 Date 4+~?L)L A 7?-LJt?CJD Printed Name and Title AUlA'!} &fy /JIcJ-t~~~~ Page 3 SMWM RATE SCHEDULE (All Rates Indicated Shall be in Effect Unti/30 June 2007) SMWM, A California Corporation 989 Market Street, Third Floor San Francisco, CA 94103 (415) 546-0400 RATE SCHEDULE Principal Associate Principal Senior Construdion Administrator Senior Project Manager/Senior Project ArchitecV Senior Project Designer/Senior Project Planner/ Senior Graphic Designer Project Manager/Project ArchitecV Project Designer/Project Planner Senior Designer/Drafter/Planner Intermediate DesignerlDrafter/Planner Designer/Drafter/Planner IT/CAD Manager Contracts Administrator Technical Administrative Administrative $21000 - $260/hr $19500 $190,00 $160,00 $135,00 $115.00 $95,00 $80,00 $115,00 $115.00 $75,00 $60,00