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Contract - Robert Thornton Architects Inc. 2011-07-26 AGREEMENT FOR CONSULTANT SERVICES This Agreement is made and effective as of 31/4.ky , 2011, between the Costa Mesa Sanitary District, a sanitary district ("District"), and Robert Thornton Architects, Inc., a corporation ("Consultant"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: Recitals WHEREAS, the District desires to engage a professional to provide Architectural, Structural, Mechanical, and Electrical Engineering design services for the ground floor reception area remodel addition at District Headquarters; and WHEREAS, Consultant represents that it is professionally qualified to provide said services; and NOW, THEREFORE the parties hereto do hereby agree as follows: 1. TERM This Agreement shall commence on the effective date noted above and shall remain and continue in effect until tasks described herein are completed as stated in the proposal dated June 28, 2011, and as revised July 08, 2011 (Exhibit A), unless sooner terminated pursuant to the provisions of this Agreement. 2. SERVICES Consultant shall perform the tasks described and set forth in Consultant's proposal attached hereto as Exhibit A and incorporated herein as though set forth in full. Consultant shall complete the tasks according to the schedule of performance which is also set forth in Exhibit A. 3. PERFORMANCE Consultant shall, at all times, faithfully, competently and to the best of his/her/its ability, experience, and talent perform all tasks described herein. Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Consultant hereunder in meeting its obligations under this Agreement. /// /// 1 4. DISTRICT MANAGEMENT • District's General Manager shall represent District in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by Consultant, but not including the authority to enlarge the Tasks to be Performed or change the compensation due to Consultant. The General Manager shall be authorized to act on District's behalf and to execute all necessary documents which enlarge the Tasks to be Performed or change Consultant's compensation, subject to Section 5 hereof. 5. PAYMENT (a) The District agrees to pay Consultant in accordance with the tasks as set forth in Exhibit A. This amount shall not exceed Eleven Thousand Three Hundred Eighty Dollars ($11,380.00) for the total term of this Agreement unless additional payment is approved as provided in this Agreement. Said sum includes travel and other costs. (b) Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the District Manager. Consultant shall be compensated for any additional services in the amounts and in the manner as agreed to by General Manager and Consultant at the time District's written authorized is given to Consultant for the performance of said services. The District Manager may approve additional work not to exceed the greater of One Thousand One Hundred Thirty Eight Dollars ($1,138.00) or ten percent (10%) of the total contract sum. Any additional work in excess of this cumulative amount shall be approved by the Board of Directors. (c) Consultant will submit invoices upon task completion. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the District disputes any of Consultant's fees, it shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice. 6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE (a) The District may, at any time, for any reasons, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon the Consultant at least ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. If the District suspends or terminates a portion of this Agreement, such suspension or termination shall not make voice or invalidate the remainder of this Agreement. 2 f �r� r (b) In the event this Agreement is terminated pursuant to this Section, the District shall pay to Consultant the actual value of the work performed up to the time of termination, provided that the work performed is of value to the District. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the District pursuant to Section 5. 7. DEFAULT OF CONSULTANT (a) The Consultant's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, District shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Consultant. If such failure by the Consultant to make progress in the performance of work hereunder arises out of causes beyond the Consultant's control, and without fault of negligence of the Consultant, it shall not be considered a default. (b) If the General Manager or his/her delegate determines that the Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall cause to be served upon the Consultant a written notice of the default. The Consultant shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time, the District shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement. 8. OWNERSHIP OF DOCUMENTS (a) Consultant shall maintain complete and accurate records with respect to the,professional services required by this Agreement and will produce the work product specified)n. Exhibit A and other such information required by District that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to the representatives of District or its designees at reasonable times to such books and records; shall give District the right to examine and audit said books and records; shall permit District to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. 3 (b) Upon completion, termination or suspension of this Agreement, all work product reduced to any medium and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the District and may be used, reused or otherwise disposed of by the District without the permission of the Consultant. With respect to computer files, Consultant shall make available to the District, at the Consultant's office and upon reasonable written request by the District, the necessary computer software and hardware for purposes of accessing, compiling, transferring and printing computer files. 9. INDEMNIFICATION • (a) Indemnification for Professional Liability. When the law establishes a professional standard of care for Consultant's services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend and hold harmless District and any and all of its officials, employees and agents ("Indemnified Parties") from and against any and all losses, liabilities, damages, costs and expenses, including attorney's fees and costs to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subconsultants (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement. (b) Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend and hold harmless District, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorney's fees and costs, court costs, interest, defense costs and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including, but not limited to, officers, agent, employees or subconsultants of Consultant. 10. INSURANCE Consultant shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit B attached to and part of this Agreement. t/I III III 4 11. INDEPENDENT CONSULTANT (a) Consultant is and shall at all times remain as to the District a wholly independent.Consultant. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither District nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the District. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against District, or bind District in any manner. (b) No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement, District shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for District. District shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder. 12. LEGAL RESPONSIBILITIES The Consultant shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Consultant shall at all times observe and comply with all such laws and regulations. The District, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Consultant to comply with this Section. 13. UNDUE INFLUENCE Consultant declares and warrants that no undue influence or pressure has been used against or in concert with any officer or employee of the Costa Mesa Sanitary District in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement or financial inducement. No officer or employee of the Costa Mesa Sanitary District will receive compensation, directly or indirectly, from Consultant, or from any officer, employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling the District to any and all remedies at law or in equity. Ill /// /// 5 , ,s 14. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES No member, officer, or employee of District, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Project during his/her tenure or for one year thereafter, shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceed thereof, for work to be performed in connection with the Project performed under this Agreement. 15. RELEASE OF INFORMATION/CONFLICTS OF INTEREST (a) All information gained by Consultant in performance of this Agreement shall be considered confidential and shall not be released by Consultant without District's prior written authorization. Consultant, its officers, employees, agents or subconsuitants, shall not without written authorization from the District Manager or unless requested by the District Counsel, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the District. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives District notice of such court order or subpoena. (b) Consultant shall promptly notify District should Consultant, its officers, employees, agents or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admissions, or other discovery request, court order, or subpoena from any person or party regarding this Agreement and the work performed thereunder or with respect to any project or property located within the District. District retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with District and to provide the opportunity to review any response to discovery requests provided by Consultant. However, District's right to review any such response does not imply or mean the right by District to control, direct, or rewrite said response. (c) Consultant covenants that neither he/she nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree with the performance of their services hereunder. Consultant further covenants that in the performance of this Agreement, no person having such interest shall be employed by them as an officer, employee, agent or subconsultant. Consultant further covenants that Consultant has not contracted with nor is performing any services, directly or indirectly, with any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the District or the study area and further covenants and agrees that Consultant and/or its subconsultants shall provide no service or enter into any agreement or agreements with a/any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning 6 ' • property in the District or the study area prior to the completion of the work under this Agreement. 16. NOTICES Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given by: (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice: To District: Costa Mesa Sanitary District 628 West 19th Street Costa Mesa, California 92627 Attn: District Clerk To Consultant: Robert Thornton Architects, Inc. P,O. Box 1512 Newport Beach, California 92659 • • 17. ASSIGNMENT The Consultant shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the District. Because of the personal nature of the services to be rendered pursuant to this Agreement, only Robert Thornton shall perform the services described in this Agreement. Robert Thornton may use assistants, under its direct supervision, to perform some of the services under this Agreement; however, all client contact and interaction regarding professional services shall be provided by Robert Thornton. Consultant shall provide District fourteen (14) day's notice prior to the departure of Robert Thornton from Consultant's employ. Should he/she leave Consultant's employ, the District shall have the option to immediately terminate this Agreement, within three (3) days of the close of said notice period. Upon termination of this agreement, Consultant's sole compensation shall be payment for actual services performed up to, and including, the date of termination or as may be otherwise agreed to in writing between the Board of Directors and the Consultant. //I //1 III 7 18. LICENSES At all times during the term of this Agreement, Consultant shall have in full force and effect, all licenses required of it by law for the performance of the services described in this Agreement. 19. GOVERNING LAW The District and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the municipal, superior or federal district court with jurisdiction over the Costa Mesa Sanitary District. 20. ENTIRE AGREEMENT This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. 21. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL In the event of conflict, the requirements of District's Request for Proposals and this Agreement shall take precedence over those contained in the Consultant's proposals. • 22. MODIFICATION No modification to this Agreement shall be effective unless it is in writing and signed by authorized representatives of the parties hereto. 23. AUTHORITY TO EXECUTE THIS AGREEMENT The person or persons executing this Agreement on behalf of Consultant . warrants and represents that he/she has the authority to execute this Agreement on 8 behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder. 24. INTERPRETATION In the event of conflict or inconsistency between this Agreement and any other document, including any proposal or Exhibit hereto, this Agreement shall control unless a contrary intent is clearly stated. 25. MODIFICATION This Agreement may not be modified orally but only in writing, signed by a person with authority to amend this Agreement. 26. BUSINESS LICENSE Consultant shall obtain a business license from the City of Costa Mesa unless legally exempt. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed this day and year first above written. COSTA MESA SANITARY DISTRICT ROBERT THORT•N -6.CHITECTS, INC. /_ / 4 District Manager Signature ATTEST:, 17 - C Tr4bsg-473---( Typed Name ` -Distr�iCt Clerk A i=-f-r -T ezie4 a q L--- U Title APPROVED->S,T'O FORM: ' District Counsel 9 Exhibit A Robert Thornton Arch,tects,Inc. G.O.Box 1512 . Newport Beech . CA 92659-1512 (949)650-9876 ® FAX (949)215-5927 June 28,2011 Rev. July 08,2011 Mr. Scott Carroll District Manager Costa Mesa Sanitary District 628 W. 19th Street Costa Mesa,CA 92627-2716 Re: Ground floor reception area remodel-addition to the CMSD HQ building located at 628 W. 19th Street,Costa Mesa,CA. Thank you for the opportunity to submit the following proposal for Architectural,Structural, Mechanical and Electrical Engineering for the above referenced project located at 628 W. 19th Street,Costa Mesa,CA. L Project Description: Lobby Addition The following is an outline of the services required to execute the Construction Document portion of the project.The fees indicated shall not exceed the amount quoted unless there is a change in the scope of the work. Architectural and Structural Engineering: 1. Enclose building corner to add approx. 114 SF to lobby area. 2. Drawings and calculations. 3. City plan check process. Mechanical Engineering: = - 1. Provide initial site visit to verify existing mechanical e4iipmert.. 2. Provide mechanical demo plan. 3. Provide new air distribution plan. • • 4. Provide new AC unit for additional square footage,if existing AC unit(s)do not have enough capacity. 5. Provide new Title 24 calculations for new square footage and possible new AC unit. • Electrical Engineering: 1. Provide initial site visit to verify existing conditions. 2. Provide power and outlet plan for lobby addition. 3. Title-24 energy calculations. 4. Electrical engineer requires letter from CMSD giving Edison permission to release peak load demands values for electrical engineers use. Liability Insurance: General Liability: $500.00 Automobile Liability: $380.00 $880.00 Services Not Provided: 1. Plumbing Engineering. IL Fees: From Section I Our fees for performing these services will be a lump sum of S 11,380.00 (Eleven Thousand Three Hundred Eighty Dollars) III. Schedule for Payment: A. Upon signature of contract. $ 20% B.' Progress Meeting For drawing approval $ 20% C. Submittal to Building Department for Plan Check. $ 55% E. Upon agency approval for issuance of Building Permit. $ 5% Total $ 100%of fee • IV. Construction Administration Services:Architect 1. Participate in contractor interviews and selection process. 2. Attend construction job site meetings. This portion will be billed separately at$150.00/HR. V. General A. All plan check,permit, and other construction fees shall be paid by the client. B. After permit is issued,any City/Inspector required drawings and or site visits will be billed on a time and material basis. C. In the event that this agreement is terminated at any point to the project completion,Robert Thornton Architects,Inc. shall be reimbursed on a time-expended basis. D. Liability of the Architect and Engineer to the client and all other parties shall be limited to the total amount of their respective fees paid. E. Fees valid for 30 days from proposal date unless retainer is received. F. Reimbursable Expenses include any direct expenses incurred,such as reproduction costs,airfare,deliveries,parking,etc.will be billed in addition to the professional service fees. G. Interest rate of 18%will be applied to invoiced payments not received within 30 days of invoice date. This proposal is based on our understanding of the services required to execute the project.If this meets with your approval,please sign both copies,retain one copy for your ales and return one copy. Thank you. We look forward to providing our services, Bob Thornton Robert Thornton Architects,Inc. APPROVED AND ACCEPTED: Mr. Scott Carroll Date District Manager 1 Exhibit B Consultant agrees to provide insurance in accordance with the requirements set forth herein. If Consultant uses existing coverage to comply with these requirements and that coverage does not meet the requirements set forth herein, Consultant agrees to amend, supplement or endorse the existing coverage to do so. The following coverages will be provided by Consultant and maintained on behalf of the DISTRICT and in accordance with the requirements set forth herein. Commercial General Liability Insurance under a standard ISO-CGL form with an edition date of 1985 or earlier with a combined single limit of One Million Dollars ($1,000,000.00) per occurrence and a Two Million Dollar ($2,000,000.00) aggregate. Coverage to be provided by insurers admitted/authorized to do business in the state of California and approved by the DISTRICT. Defense coverage must be in addition to policy limits. If umbrella coverage is used, it must include dropdown coverage if underlying coverage does not apply, and the umbrella policy must have the same starting and ending date as the primary policy. Coverage is required to be maintained until the project is completed. Consultant agrees to provide evidence of insurance by certificates or copies of policies. DISTRICT must approve any exclusions to the policies added by endorsement. Liability insurance to be endorsed to add DISTRICT as an additional insured using standard ISO additional insured endorsement No. CG 20 10 with an edition date of 1990.or earlier. Coverage provided to DISTRICT by this insurance is not to be restricted in any way. All coverage and limits available under Contractor's insurance will apply to DISTRICT regardless of any minimums set forth here. Coverage will not be limited to the DISTRICT's vicarious liability. Business Auto Coverage under standard ISO form including symbol 1 auto coverage with limits of no less than One Million Dollars ($1,000,000.00) and scheduled under any umbrella policy. Workers' Compensation Coverage for the statutory amounts required. Consultant agrees to waive rights of subrogation and its statutory immunity under workers' compensation statutes as to DISTRICT. Employer's Liability Coverage with limits of no less than One Million Dollars ($1,000,000.00). All insurance coverage required here to apply on a primary non-contributing basis in relation to any insurance or self-insurance available or applicable to DISTRICT. Consultant agrees to require sub-consultants or any other party involved in the project by Consultant to carry the same insurance as required here. Any failure, actual or alleged, on the part of DISTRICT to monitor compliance with these requirements will not be deemed as a waiver of any rights on the part of DISTRICT. DISTRICT has no additional obligations by virtue of requiring the insurance set forth here. ' ` . . . 4 - - t "o