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HomeMy WebLinkAbout2006 CON CDC Katz Architecture - Playhouse on PlazaORIGIN IL AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND JEFF KATZ ARCHITECTURE THIS AGREEMENT is entered into this 5th day of December, 2006, by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, (the "CDC"), and Jeff Katz Architecture (the "CONTRACTOR"). RECITALS WHEREAS, the CDC desires to employ a CONTRACTOR to provide architectural design services during the design and construction of the first phase Playhouse on Plaza remodel. This phase includes only code conformance life/safety issues. WHEREAS, the CDC has determined that the CONTRACTOR is a professional architecture firm and is qualified by experience and ability to perform the services desired by the CDC, and the CONTRACTOR is willing to perform such services. FOLLOWS: NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS I . ENGAGEMENT OF CONTRACTOR. The CDC hereby agrees to engage the CONTRACTOR and the CONTRACTOR hereby agrees to perform the services hereinafter set forth in accordance with all terms and conditions contained herein, The CONTRACTOR represents that all services required hereunder will be performed directly by the CONTRACTOR or under direct supervision of the CONTRACTOR. 2. SCOPE OF SERVICES. The CONTRACTOR will perform services as set forth in the attached Exhibit A. The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CDC for such services, except as authorized in advance by the CDC. The CONTRACTOR shall appear at meetings cited in Exhibit A to keep staff and CDC Board advised of the progress on the project. The CDC may unilaterally, or upon request from the CONTRACTOR, from time to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under this Agreement. Upon doing so, the CDC and the CONTRACTOR agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 15% from the base amount. 3. PROJECT COORDINATION AND SUPERVISION. Mr. Stephen M. Kirkpatrick hereby is designated as the Project Coordinator for the CDC and will monitor the progress and execution of this Agreement. The CONTRACTOR shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONTRACTOR. Mr. Jeff Katz hereby is designated as the Project Director for the CONTRACTOR. 4. COMPENSATION AND PAYMENT. The base compensation for this project is $ $67,000. Reimbursable expenses are allowed up to a not to exceed amount of $5,000. The compensation for the CONTRACTOR shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit A shall not exceed the schedule given in Exhibit A (the Base amount) without prior written authorization from the CDC's Project Coordinator. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit A as determined by the CDC. The CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CDC and for furnishing of copies to the CDC, if requested. months. 5. LENGTH OF AGREEMENT. The work shall be completed within 6 6. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR for this Project, whether paper or electronic, shall become the property of the CDC for use with respect to this Project, and shall be turned over to the CDC upon completion of the Project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONTRACTOR hereby assigns to the CDC and CONTRACTOR thereby expressly waives and disclaims, any copyright in, and the right to reproduce, all written material, drawings, plans, specifications or other work prepared under this agreement, except upon the CDC's prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONTRACTOR shall, upon request of the CDC, execute any further document(s) necessary to further effectuate this waiver and disclaimer. The CONTRACTOR agrees that the CDC may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium or method utilize the CONTRACTOR's written work product for the CDC's purposes, and the CONTRACTOR expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. Any modification or reuse by the CDC of documents, drawings or specifications prepared by the CONTRACTOR shall relieve the CONTRACTOR from liability under Section 14 but only with respect to the effect of the modification or reuse by the CDC, or for any liability to the CDC should the documents be used by the CDC for some project other than what was expressly agreed upon within the Scope of this project, unless otherwise mutually agreed. 7. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners or joint venturers with one another. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employee of the CDC and are not entitled to any of the rights, benefits, or privileges of the CDC's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONTRACTOR and the CONTRACTOR's employees, and it is recognized by the parties that a substantial inducement to the CDC for entering into this Agreement was, and is, the professional reputation and competence of the CONTRACTOR and its employees. Neither this Agreement nor any interest herein may be assigned by the CONTRACTOR without the prior written consent of the CDC. Nothing herein contained is intended to prevent the CONTRACTOR from employing or hiring as many employees, or subcontractors, as the CONTRACTOR may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its subcontractor(s) shall require the subcontractor to adhere to the applicable terms of this Agreement. 8. CONTROL. Neither the CDC nor its officers, agents or employees shall have any control over the conduct of the CONTRACTOR or any of the CONTRACTOR's employees except as herein set forth, and the CONTRACTOR expressly agrees not to represent that the CONTRACTOR or the CONTRACTOR's agents, servants, or employees are in any manner agents, servants or employees of the CDC, it being understood that the CONTRACTOR, its agents, servants, and employees are as to the CDC wholly independent contractors and that the CONTRAC- TOR's obligations to the CDC are solely such as are prescribed by this Agreement. 9. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the performance of the services to be provided herein, shall comply with all applicable State and Federal statutes and regulations, and all applicable ordinances, rules and regulations of the City of National City, whether now in force or subsequently enacted. The CONTRACTOR, and each of its subcontractors, shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 10. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONTRACTOR represents and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONTRACTOR to practice its profession. 1 I . STANDARD OF CARE. A. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR'S trade or profession currently practicing under similar conditions and in similar locations. The CONTRACTOR shall take all special precautions necessary to protect the CONTRACTOR'S employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of' the work site. 3 B. Unless disclosed in writing prior to the date of this agreement, the CONTRACTOR warrants to the CDC that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONTRACTOR's professional performance or the furnishing of materials or services relating thereto. C. The CONTRACTOR is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONTRACTOR has been retained to perform, within the time requirements of the CDC, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CDC otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CDC are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CDC for any increased costs that result from the CDC's later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 12. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONTRACTOR will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CDC setting forth the provisions of this non-discrimination clause. 13. CONFIDENTIAL INFORMATION. The CDC may from time to time communicate to the CONTRACTOR certain confidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CDC. The CONTRACTOR shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 13, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONTRACTOR without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONTRACTOR shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CDC. In its performance hereunder, the CONTRACTOR shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. 4 CONTRACTOR shall be liable to CDC for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 14. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR agrees to defend, indemnify, and hold harmless the City of National City, its officers and employees, and the Community Development Commission of the Cty of Naitonal City, its officers and employees against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONTRACTOR's negligent performance of this Agreement. 15. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar state or Federal acts or laws applicable; and shall indemnify, and hold harmless the CDC and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CDC or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONTRACTOR under this Agreement. 16. INSURANCE. The CONTRACTOR, at its sole cost and expense, shall purchase and maintain, and shall require its subcontractors, when applicable, to purchase and maintain throughout the term of this agreement, the following insurance policies: A. Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include non -owned vehicles. C. Comprehensive general liability insurance, with minimum limits of $1,000,000 combined single limit per occurrence, covering all bodily injury and property damage arising out of its operation under this Agreement. D. Workers' compensation insurance covering all of CONSULTANT's employ- E. The aforesaid policies shall constitute primary insurance as to the CDC, its officers, employees, and volunteers, so that any other policies held by the CDC shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CDC of cancellation or material change. F. Said policies, except for the professional liability and worker's compensation policies, shall name the CDC and its officers, agents and employees as additional insureds. G. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. H. Any aggregate insurance limits must apply solely to this Agreement. 1. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A VIII ecs. 5 according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City's Risk Manager. J. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY's Risk Manager. If the CONTRACTOR does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CDC may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. 17. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of -court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CDC shall, in addition, be limited to the amount of attorney's fees incurred by the CDC in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 18. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 19. TERMINATION. A. This Agreement may be terminated with or without cause by the CDC. Termination without cause shall be effective only upon 60-day's written notice to the CONTRACTOR. During said 60-day period the CONTRACTOR shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CDC for cause in the event of a material breach of this Agreement, misrepresentation by the CONTRACTOR in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CDC. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONTRACTOR as provided for herein. 6 D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR, whether paper or electronic, shall immediately become the property of and be delivered to the CDC, and the CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CDC by the CONTRACTOR's breach, if any. Thereafter, ownership of said written material shall vest in the CDC all rights set forth in Section 6. E. The CDC further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONTRACTOR. 20. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To the CDC: To the CONTRACTOR: Mr. Brad Raulston Executive Director Community Development Commission of the City of National City 1243 National City Boulevard National City, CA 91950-4301 Mr. Jeff Katz Principal Jeff Katz Architecture 7290 Navajo Road, Suite 106 San Diego, CA 92119 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 21. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform 7 services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONTRACTOR also agrees not to specify any product, treatment, process or material for the project in which the CONTRACTOR has a material financial interest, either direct or indirect, without first notifying the CDC of that fact. The CONTRACTOR shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CDC in which the CONTRACTOR has a financial interest as defined in Government Code Section 87103. The CONTRACTOR represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CDC. The CONTRACTOR shall be strictly liable to the CDC for all damages, costs or expenses the CDC may suffer by virtue of any violation of this Paragraph 21 by the CONTRACTOR. 22. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state or legal holiday. B. Counterparts. This Agreement ma.y be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules Exhibit A — Proposal The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. I. b:ntire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. 8 J. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. K. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CDC JEFF TZ ARCHITECTURE (Two sr_ natures equired for a corporation) By: Ro orriso , Chairman Jeff Katz,; P incipal (Sole Proprietor) APPROVED AS TO FORM: Seta4A: -AL George H. Eiser, III CDC Legal Counsel 9 EXHIBIT "A" Jeff Katz Architecture November 2, 2006 Mr. Stephen M. Kirkpatrick City Engineer The City of National City 1243 National City Boulevard National City, CA 91950 RE: Architectural Services Playhouse on Plaza Renovation Scope of Work and Fee Proposal Dear Steve: z 0 a- D r1 W Based on our meetings to discuss this project and a site visit to inspect the existing conditions, I have prepared the following fee proposal for the renovation to the existing Playhouse to correct the code compliance deficiencies identified in the report prepared by Cornerstone Building Group. Work will be based on the schematic design concepts prepared previously (by others) and will include architectural, structural, electrical and mechanical/plumbing modifications to correct the code issues. Work will also include removal of asbestos containing material as identified in the report prepared previously and which is included in the Cornerstone Report. Other work identified in the report which is unrelated to code compliance will not be addressed as part of this proposed scope of work. It should be noted that the proposed design is limited to those items identified in the Report as Code deficiencies or discovered during our non-invasive site observation visits. Jeff Katz Architecture and our consultant team will assume no liability for those portions of the existing building systems that remain, and which condition cannot be evaluated by visual observation. We are proposing to offer the following scope of services: CONSTRUCTION DOCUMENTS PHASE Prepare as -built drawings of existing conditions. 7290 Navajo Road, Suite 106 • San Diego, California 92119 (619) 698-9177 • Fax (619) 698-9178 Playhouse on Plaza Renovation November 2, 2006 Page 2 Prepare drawings and specifications suitable for bidding to clearly delineate the Contractor's scope of work, including required architectural, structural, mechanical and electrical design. No Civil Engineering or Landscape work is included either. It is assumed for this proposal that the City of National City will provide all required General and Supplementary Conditions and Bidding Information. Plans and specifications to indicate locations of identified asbestos containing materials and appropriate specification procedures for removing such material. Submit plans to City of National City Building Department for plan check, and perform all required revisions to construction documents based on Building Department's plan check comments (Note: plan check and permit fees are not included). Prepare Opinion of Probable Construction Cost Estimate. Meet with City of National City as required to review final design and construction documents. For the purpose of this proposal assume 3 meetings with staff. BIDDING PHASE Provide final original drawings and specifications for use in bid packages. For this proposal it is assumed that the City of National City will advertise, assemble and distribute bid packages. Interpret and clarify contract documents for contractors, and assist in issuing addenda as required. Attend a Pre -Bid walkthru at the site with all interested contractors; Participate in bid opening, review contractor's detailed cost breakdown, and assist the City of National City in evaluation of the bids. CONSTRUCTION ADMINISTRATION PHASE Construction contract administration services are based on a Four month construction period, from Authorization to Proceed through Punchlist Inspection. The following services will be provided: Attend Pre -Construction conference. Review and approve or take other appropriate action upon Contractor's submittals and shop drawings as required by contract documents. Jeff Katz Architecture • 7290 Navajo Road, Suite 106 • San Diego, California 92119 (619) 698-9177 • Fax (619) 698-9178 Playhouse on Plaza Renovation November 2, 2006 Page 3 Interpret contract documents (including all subconsultant disciplines) for proper execution and progress of construction, including responding to contractor's requests for information and clarification. Make one scheduled site visit every other week during the course of construction (total of 8) to observe the project, and prepare site visit report. Site visit shall include meeting with contractor and City representative to review progress of construction, review pending RFI and Change Order information, and observe the construction to verify work is proceeding in accordance with construction documents. Make one additional site visit to perform Punchlist Inspection, and one additional visit to perform Final Inspection. Punchlist Inspection will include a detailed listing of all items remaining to be completed by the Contractor. Final Inspection will certify that all work has been completed in accordance with construction documents. Assist in reviewing and processing contractor's progress payment requests, and certifying the amounts due to the Contractor. ADDITIONAL SERVICES TO BE PROVIDED ON AN HOURLY BASIS The following items are not included in the Basic Services, and will be provided as additional services only after written authorization is received. Unless a subsequent fixed fee proposal is provided, the work will be done on an hourly basis per the attached Hourly Rate Schedule (Exhibit 'A'). Revisions to Contract Documents resulting from Owner requested changes to documents previously approved by the Owner, or due to code or zoning changes made subsequent to Owner approval. Services required because of significant changes in the project (not due to the design team's acts or omissions) including, but not limited to, size, quality, complexity, schedule, or the method for bidding and contracting for construction. Construction site visits provided in excess of the visits defined under the Construction Administration Phase which are requested by the City, or made necessary through delays in the construction schedule or other elements outside the control of the Architect (for either Architect or subconsultant engineers). Revisions to drawings to include work beyond that identified in the Cornerstone Building Group report as indicated to be code compliance items. Jeff Katz Architecture • 7290 Navajo Road, Suite 106 San Diego, California 92119 1619) 698-9177 Fax (619) 698-9178 Playhouse on Plaza Renovation November 2, 2006 Page 4 Design of building Fire Alarm System Plan check and permit fees (if paid by the consultant) will be a reimbursable expense, charged at 1.1 times the Consultant's cost. All delivery, printing and reproduction costs will be a reimbursable expense, charged at 1.1 times the Consultant's cost. I propose to provide the stated basic services for a fixed fee of Sixty Seven Thousand Dollars ($67,000.00). Invoices will be submitted monthly, in a format acceptable to the City, for the percentage of work completed during the month. I am available to meet with you at any time to review and discuss the proposed scope of services and fee proposal. if this is acceptable please prepare a contract and/or Notice To Proceed so we can begin. If you have any questions regarding this scope of work please do not hesitate to contact me at (619) 698-9177. Respectfully, Jeff Katz, AIA Principal Jeff Katz Architecture • 7290 Navajo Road, Suite 106 • San Diego, California 92119 (619) 698-9177 • Fax (619) 698-9178 Exhibit "A" HOURLY RATE SCHEDULE The following rates apply to work performed on an hourly basis. Principal Architect $ 120.00 per hour Project Manager $ 95.00 per hour Specification Writer $ 90.00 per hour Construction Administrator $ 100.00 per hour Drafter $ 65.00 per hour Secretarial $ 40.00 per hour Structural Engineer $ 140.00 per hour Civil Engineer $ 120.00 per hour Mechanical Engineer $ 115.00 per hour Electrical Engineer $ 125.00 per hour Landscape Architect $ 100.00 per hour Reimbursable Expenses will be charged at 1.1 times the direct cost. Note: These rates will remain in effect until December 31, 2007, at which time they may be adjusted as a result of salary reviews. Jeff Katz Architecture • 7290 Navajo Road, Suite 106 • San Diego, California 92119 (619) 698-9177 • Fax (619) 698-9178 RESOLUTION NO. 2006 — 260 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN AGREEMENT WITH JEFF KATZ ARCHITECTURE IN THE AMOUNT OF $72,000 TO DESIGN AND PREPARE BID DOCUMENTS FOR THE LIFE SAFETY AND ADA UPGRADES REQUIRED AT THE PLAYHOUSE ON PLAZA FACILITY WHEREAS, the CDC desires to employ a Contractor to provide architectural design services during the design and construction of the first phase Playhouse on Plaza remodel, which addresses only code conformance life and safety issues; and WHEREAS, the CDC has determined that Jeff Katz Architecture is a professional architecture firm, and is qualified by experience and ability to perform the services desired by the CDC, and Jeff Katz Architecture is willing to perform such services for $72,000. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby authorizes the Chairman to execute an agreement with Jeff Katz Architecture in the amount of $72,000 to provide architectural design services during the design and construction of the first phase Playhouse on Plaza remodel, which addresses only code conformance life and safety issues. Said Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 5th day of December 2006. on Morrison, Chairman APPROVED AS TO FORM: George H. Eiser, Ill Legal Counsel Passed and adopted by the Community Development Commission of National City, California, on December 5, 2006, by the following vote, to -wit: Ayes: Councilmembers Morrison, Natividad, Parra, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman Comrpunity Development Commission Secretary C ►4i elopment Commission By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2006-260 of the Community Development Commission of the City of National City, California, passed and adopted on December 5, 2006. Secretary Community Development Commission By: Deputy City of National City, California COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE December 5.2006 AGENDA ITEM NO. 20 ITEM TITLE Resolution of the Community Development Commission of the City of National CiTt;.\ approving an agreement with Katz Architecture in the amount of $72,000 to design and prepare bid documents for the Life Safety and ADA upgrades required at the Playhouse on Plaza facility, and authorizing the Chairman to sign the agreement. PREPARED BY Stephen Kirkpatrick DEPARTMENT Engineering Ext. 4383 EXPLANATION See Attached. Environmental Review: N/A Financial Statement: As determined on October 17, 2006 funding to accomplish this work is available within the CDC budget.. STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMEND ION N/A ATTACHMENTS 1. Resolution 2. B & S Staff Report 3. Jeff Katz Architecture Agreement Account No. Resolution No. aoo(,o - eVe Katz73 C Q.,00b Explanation The Community Development Commission of National City acquired the property known as the Playhouse on Plaza in May 2005. In May of 2006 the Community Development Commission was presented a "Due Diligence Report," prepared by Cornerstone Building Group, that listed all the deficiencies of the building and a cost analysis of the required upgrades/repairs. The repairs were estimated at $640,000. In September 2006 retired Building and Safety Director Kathleen Trees reviewed the Cornerstone report and separated out the identified upgrades/repairs that focused on Life Safety and ADA upgrades. This was considered a phased approach to the project with the first step being to repair/upgrade the building to simply allow use as a playhouse. According to the Cornerstone report these item of work were estimated to cost approximately $266,000 of the $640,000 total. The Building and Safety Report is attached. On October 17, 2006 the Engineering Department prepared a Council report that presented these previous findings to Council. The report requested that $265,509 be allocated from the Community Development Commission for the project. The report further detailed a plan to hire an architectural firm to design the project and prepare biddable documents for the repairs. Staff met on site with Jeff Katz Architecture and his sub -consultant team. The consultant team also reviewed the Cornerstone report and all available documents on the building. Based upon this information Jeff Katz Architecture submitted a proposal for the work. Staff has reviewed the proposal and believes it to be complete and a fair cost for the contemplated work It is recommended that the Community Development Commission of the City of National City approve an agreement with Katz Architecture in the amount of $72,000 to design and prepare bid documents for the Life Safety and ADA upgrades required at the Playhouse on Plaza facility, and authorizing the Chairman to sign the agreement RESOLUTION NO. 2006 — 260 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN AGREEMENT WITH JEFF KATZ ARCHITECTURE IN THE AMOUNT OF $72,000 TO DESIGN AND PREPARE BID DOCUMENTS FOR THE LIFE SAFETY AND ADA UPGRADES REQUIRED AT THE PLAYHOUSE ON PLAZA FACILITY WHEREAS, the CDC desires to employ a Contractor to provide architectural design services during the design and construction of the first phase Playhouse on Plaza remodel, which addresses only code conformance life and safety issues; and WHEREAS, the CDC has determined that: Jeff Katz Architecture is a professional architecture firm, and is qualified by experience and ability to perform the services desired by the CDC, and Jeff Katz Architecture is willing to perform such services for $72,000. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby authorizes the Chairman to execute an agreement with Jeff Katz Architecture in the amount of $72,000 to provide architectural design services during the design and construction of the first phase Playhouse on Plaza remodel, which addresses only code conformance life and safety issues. Said Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 5th day of December, 2006. Ron Morrison, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: George H. Eiser, III Legal Counsel • • Staff Report The "Due Diligence Report" prepared by the Cornerstone Building Group provided the City with recommendations to upgrade the Playhouse on Plaza in order to meet the current building code requirements and the industry standard of care. In addition, the study provided the City with a rough order of magnitude (ROM) estimate for the recommendations in the study. Per the study, the cost to complete all of the recommendations is estimated at $640,000. Due to budget considerations staff reviewed the report to determine what must be done per the building code before the building can be occupied and what could potentially be postponed to a later date. The California Building Code does not require that a building be brought up to code unless there is a change of use which changes the occupancy classification of the building to a higher occupancy classification. A permit was issued to the Lamb's Players in 1978 to convert the building to a theater. At the time the permit was issued the building met all code requirements. The use of the building has not changed since the permit was issued. The Playhouse will remain as a theater and the occupancy classification of A2 will remain unchanged. In addition, there is currently no proposal for remodeling the building, therefore per the California Building Code at this time there is not a requirement to upgrade to current code. The building code, however, does require that the building be maintained and all life safety issues be corrected. The building must also meet current ADA requirements per Federal law. With a goal of getting the Playhouse ready for occupancy, the recommendations in the report have been divided them into phases. These phases include 1) life safety upgrades, 2) liability upgrades, 3) comfort upgrades, 4) maintenance and 5) seismic upgrades. Staff is recommending that all life safety and liability upgrades be done immediately so the building can be occupied and that all others be scheduled as CIP projects for a later date as funds become available. Below is look at each of these issues and the staff's recommendation. Life Safety The life safety upgrades are those problems which will affect the life and safety of the occupants of the building. These items must be completed before the playhouse can be occupied by anyone. Staff is recommending that all of these items be done as soon as possible at a total cost of $141,688 plus 10% for General Contractor O&P ($14,168), architectural services ($45,000) and 10% contingency ($20,085) for a total of $220,941. These include: • Repair of the broken roof truss ($36,000). Failure to repair the truss will endanger the lives of the occupants. • Replace the black iron pipe on the roof ($7,013). Failure to repair the pipe may result in a fire which could endanger the occupants and destroy the building. • Perform all electrical upgrades ($27,475). Electrical deficiencies can result in a fire that could endanger the occupants and destroy the building. I • Restripe parking lot ($2,000) • Slurry seal parking lot ($10,000) • Replace asbestos floor tile ($9,000) • Install roof ladder ($1,650). • Demo wall heater ($75) • Install floor drain in restroom ($2,450) • Install vent at janitor's sink ($700) • Install a new water heater ($3,400) • Replace rear access stairs ($4,190) Seismic Upgrades The California Building Code does not require the City to upgrade the seismic elements of the building after a change of occupancy. The structure is a single story wood frame structure over a basement. This type of structure has performed well in previous earthquakes; however, to preserve the investment the City has made, these repairs should be added to the CIP list to be done at the earliest possible time. The total cost of the seismic upgrades is ($105,886) plus 10% for General Contractor O&P ($10,586) and 10% contingency ($11,647) for a total of $128,119. This includes: • Install shear walls ($45,806) • Install holdowns ($3,900) • New stucco ($56,160) AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND JEFF KATZ ARCHITECTURE THIS AGREEMENT is entered into this 5th day of December, 2006, by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and Jeff Katz Architecture (the "CONTRACTOR"). RECITALS WHEREAS, the CITY desires to employ a CONTRACTOR to provide architectural design services during the design and construction of the first phase Playhouse on Plaza remodel. This phase includes only code conformance life/safety issues. WHEREAS, the CITY has determined that the CONTRACTOR is a professional architecture firm and is qualified by experience and ability to perform the services desired by the CITY, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: l . ENGAGEMENT OF CONTRACTOR. The CITY hereby agrees to engage the CONTRACTOR and the CONTRACTOR hereby agrees to perform the services hereinafter set forth in accordance with all terms and conditions contained herein. The CONTRACTOR represents that all services required hereunder will be performed directly by the CONTRACTOR or under direct supervision of the CONTRACTOR. 2. SCOPE OF SERVICES. The CONTRACTOR will perform services as set forth in the attached Exhibit A. The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as authorized in advance by the CITY. The CONTRACTOR shall appear at meetings cited in Exhibit A to keep staff and City Council advised of the progress on the project. The CITY may unilaterally, or upon request from the CONTRACTOR, from time to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under this Agreement. Upon doing so, the CITY and the CONTRACTOR agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 15% from the base amount. PROJECT COORDINATION AND SUPERVISION. Mr. Stephen M. Kirkpatrick hereby is designated as the Project Coordinator for the CITY and will monitor the progress and execution of this Agreement. The CONTRACTOR shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONTRACTOR. Mr. Jeff Katz hereby is designated as the Project Director for the CONTRACTOR. 4. COMPENSATION AND PAYMENT. The base compensation for this project is $ $67,000. Reimbursable expenses are allowed up to a not to exceed amount of $5,000. The compensation for the CONTRACTOR shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit A shall not exceed the schedule given in Exhibit A (the Base amount) without prior written authorization from the City's Project Coordinator. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit A as determined by the CITY. The CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY and for furnishing of copies to the CITY, if requested. 5. LENGTH OF AGREEMENT. The work shall be completed within 6 months. 6. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR for this Project, whether paper or electronic, shall become the property of the CITY for use with respect to this Project, and shall be turned over to the CITY upon completion of the Project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONTRACTOR hereby assigns to the CITY and CONTRACTOR thereby expressly waives and disclaims, any copyright in, and the right to reproduce, all written material, drawings, plans, specifications or other work prepared under this agreement, except upon the CITY's prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONTRACTOR shall, upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer. The CONTRACTOR agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium or method utilize the CONTRACTOR's written work product for the CITY's purposes, and the CONTRACTOR expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. Any modification or reuse by the CITY of documents, drawings or specifications prepared by die CONTRACTOR shall relieve the CONTRACTOR from liability under Section 14 but only with respect to the effect of the modification or reuse by the CITY, or for any liability to the 2 CITY should the documents be used by the CITY for some project other than what was expressly agreed upon within the Scope of this project, unless otherwise mutually agreed. 7. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners or joint venturers with one another. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employee of the CITY and are not entitled to any of the rights, benefits, or privileges of the CITY's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONTRACTOR and the CONTRACTOR's employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONTRACTOR and its employees. Neither this Agreement nor any interest herein may be assigned by the CONTRACTOR without the prior written consent of the CITY. Nothing herein contained is intended to prevent the CONTRACTOR from employing or hiring as many employees, or subcontractors, as the CONTRACTOR may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its subcontractor(s) shall require the subcontractor to adhere to the applicable terms of this Agreement. 8. CONTROL. Neither the CITY nor its officers, agents or employees shall have any control over the conduct of the CONTRACTOR or any of the CONTRACTOR's employees except as herein set forth, and the CONTRACTOR expressly agrees not to represent that the CONTRACTOR or the CONTRACTOR's agents, servants, or employees are in any manner agents, servants or employees of' the CITY, it being understood that the CONTRACTOR, its agents, servants, and employees are as to the CITY wholly independent contractors and that the CONTRAC- TOR's obligations to the CITY are solely such as are prescribed by this Agreement. 9. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the performance of the services to be provided herein, shall comply with all applicable State and Federal statutes and regulations, and all applicable ordinances, rules and regulations of the City of National City, whether now in force or subsequently enacted. The CONTRACTOR, and each of its subcontractors, shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 10. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONTRACTOR represents and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONTRACTOR to practice its profession. I I. STANDARD OF CARE. A. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR'S trade or profession currently practicing under similar conditions and in similar locations. The CONTRACTOR shall take all special precautions necessary 3 to protect the CONTRACTOR's employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this agreement, the CONTRACTOR warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONTRACTOR's professional performance or the furnishing of materials or services relating thereto. C. The CONTRACTOR is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONTRACTOR has been retained to perform, within the time requirements of the CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CITY otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CITY for any increased costs that result from the CITY's later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 12. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONTRACTOR will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 13. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONTRACTOR certain confidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONTRACTOR shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 13, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CON "TRACTOR without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONTRACTOR shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In its performance hereunder, the CONTRACTOR shall comply 4 �p with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONTRACTOR shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 14. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR agrees to defend, indemnify, and hold harmless the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONTRACTOR's negligent performance of this Agreement. 15. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar state or Federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONTRACTOR under this Agreement. 16. INSURANCE. The CONTRACTOR, at its sole cost and expense, shall purchase and maintain, and shall require its subcontractors, when applicable, to purchase and maintain throughout the term of this agreement, the following insurance policies: A. Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include non -owned vehicles. C. Comprehensive general liability insurance, with minimum limits of $1,000,000 combined single limit per occurrence, covering all bodily injury and property damage arising out of its operation under this Agreement. D. Workers' compensation insurance covering all of CONSULTANT's employ- E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. F. Said policies, except for the professional liability and worker's compensation policies, shall name the CITY and its officers, agents and employees as additional insureds. G. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. I -I. Any aggregate insurance limits must apply solely to this Agreement. ees. 5 7 I. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according, to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City's Risk Manager. J. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY's Risk Manager. If the CONTRACTOR does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. 17. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of -court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 18. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 19. TERMINATION. A. This Agreement may he terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to the CONTRACTOR. During said 60-day period the CONTRACTOR shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CITY for cause in the event of a material breach of this Agreement, misrepresentation by the CONTRACTOR in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY 6 C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONTRACTOR as provided for herein. D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONTRACTOR's breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 6. E. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONTRACTOR. 20. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To the CITY: To the CONTRACTOR: Mr. Ron Morrison Chairman City of National City 1243 National City Boulevard National City, CA 91950-4301 Mr. Jeff Katz Principal Jeff Katz Architecture 7290 Navajo Road, Suite 106 San Diego, CA 92119 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 7 21. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONTRACTOR also agrees not to specify any product, treatment, process or material for the project in which the CONTRACTOR has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONTRACTOR shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONTRACTOR has a financial interest as defined in Government Code Section 87103. The CONTRACTOR represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CITY. The CONTRACTOR shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Paragraph 21 by the CONTRACTOR. 22. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules Exhibit A — Proposal The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F, Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall he governed by and construed in accordance with the laws of the State of California. 1. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made 8 by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. J. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. K. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. Community Development Commission of the City of National City By: Ron Morrison, Chairman % — ,; rincipal (Sole Proprietor) JEFF TZ ARCHITECTURE (Two si. ature r-quired for a corporation) APPROVED AS TO FORM: George H. Eiser, III Legal Counsel 9 /1 R EXHIBIT "A":. Jeff Katz Architecture November 2, 2006 Mr. Stephen M. Kirkpatrick `? City Engineer e? The City of National City j 1243 National City Boulevard o-- National City, CA 91950 RE: Architectural Services Playhouse on Plaza Renovation � :-IScope of Work and Fee Proposal Dear Steve: Based on our meetings to discuss this project and a site visit to inspect the existing conditions, I have prepared the following fee proposal for the renovation to the existing Playhouse to correct the code compliance deficiencies identified in the report prepared by Cornerstone Building Group. Work will be based on the schematic design concepts prepared previously (by others) and will include architectural, structural, electrical and mechanical/plumbing modifications to correct the code issues. Work will also include removal of asbestos containing material as identified in the report prepared previously and which is included in the Cornerstone Report. Other work identified in the report which is unrelated to code compliance will not be addressed as part of this proposed scope of work. It should be noted that the proposed design is limited to those items identified in the Report as Code deficiencies or discovered during our non-invasive site observation visits. Jeff Katz Architecture and our consultant team will assume no liability for those portions of the existing building systems that remain, and which condition cannot be evaluated by visual observation. We are proposing to offer the following scope of services: CONSTRUCTION DOCUMENTS PHASE Prepare as -built drawings of existing conditions. 72 )l i la ojo Rood, Sinlr 1116 • ..S'an 1)irgo, California 92119 (619) 69/f'9177 . FAN (619) 698-917R 1,;6t- Playhouse on Plaza Renovation November 2, 2006 Page 2 Prepare drawings and specifications suitable for bidding to clearly delineate the Contractor's scope of work, including required architectural, structural, mechanical and electrical design. No Civil Engineering or Landscape work is included either. It is assumed for this proposal that the City of National City will provide all required General and Supplementary Conditions and Bidding Information. Plans and specifications to indicate locations of identified asbestos containing materials and appropriate specification procedures for removing such material. Submit plans to City of National City Building Department for plan check, and perform all required revisions to construction documents based on Building Department's plan check comments (Note: plan check and permit fees are not included). Prepare Opinion of Probable Construction Cost Estimate. Meet with City of National City as required to review final design and construction documents. For the purpose of this proposal assume 3 meetings with staff. BIDDING PHASE Provide final original drawings and specifications for use in bid packages. For this proposal it is assumed that the City of National City will advertise, assemble and distribute bid packages. Interpret and clarify contract documents for contractors, and assist in issuing addenda as required. Attend a Pre -Bid walkthru at the site with all interested contractors, Participate in bid opening, review contractor's detailed cost breakdown, and assist the City of National City in evaluation of the bids. CONSTRUCTION ADMINISTRATION PHASE Construction contract administration services are based on a Four month construction period, from Authorization to Proceed through Punchlist Inspection. The following services will be provided: Attend Pre -Construction conference. Review and approve or take other appropriate action upon Contractor's submittals and shop drawings as required by contract documents. Jeff Katz Architecture 7290 Navajo Road, Suite 106 • San Diego, California 92119 (619)698-9177• Fax (619) 698-9178 i3 Playhouse on Plaza Renovation November 2, 2006 Page 3 Interpret contract documents (including all subconsultant disciplines) for proper execution and progress of construction, including responding to contractor's requests for information and clarification. Make one scheduled site visit every other week during the course of construction (total of 8) to observe the project, and prepare site visit report. Site visit shall include meeting with contractor and City representative to review progress of construction, review pending RFI and Change Order information, and observe the construction to verify work is proceeding in accordance with construction documents. Make one additional site visit to perform Punchlist Inspection, and one additional visit to perform Final Inspection. Punchlist Inspection will include a detailed listing of all items remaining to be completed by the Contractor. Final Inspection will certify that all work has been completed in accordance with construction documents. Assist in reviewing and processing contractor's progress payment requests, and certifying the amounts due to the Contractor. ADDITIONAL SERVICES TO BE PROVIDED ON AN HOURLY BASIS The following items are not included in the Basic Services, and will be provided as additional services only after written authorization is received. Unless a subsequent fixed fee proposal is provided, the work will be done on an hourly basis per the attached Hourly Rate Schedule (Exhibit 'A'). Revisions to Contract Documents resulting from Owner requested changes to documents previously approved by the Owner, or due to code or zoning changes made subsequent to Owner approval. Services required because of significant changes in the project (not due to the design team's acts or omissions) including, but not limited to, size, quality, complexity, schedule, or the method for bidding and contracting for construction. Construction site visits provided in excess of the visits defined under the Construction Administration Phase which are requested by the City, or made necessary through delays in the construction schedule or other elements outside the control of the Architect (for either Architect or subconsultant engineers). Revisions to drawings to include work beyond that identified in the Cornerstone Building Group report as indicated to be code compliance items. Jeff Kalz ,Architecture • 7290 Navajo Road, Sail() 106 • San Diego, California 92119 (619) 698-9177• Fax (619) 698-9178 ry Playhouse on Plaza Renovation November 2, 2006 Page 4 Design of building Fire Alarm System Plan check and permit fees (if paid by the consultant) will be a reimbursable expense, charged at 1.1 times the Consultant's cost. All delivery, printing and reproduction costs will be a reimbursable expense, charged at 1.1 times the Consultant's cost. I propose to provide the stated basic services for a fixed fee of Sixty Seven Thousand Dollars ($67,000.00). Invoices will be submitted monthly, in a format acceptable to the City, for the percentage of work completed during the month. I am available to meet with you at any time to review and discuss the proposed scope of services and fee proposal. If this is acceptable please prepare a contract and/or Notice To Proceed so we can begin. If you have any questions regarding this scope of work please do not hesitate to contact me at (619) 698-9177. Respectfully, Jeff Katz,"AIA Principal Jeff Katz Architeclurc 7290 Navajo Road, Suite 106 • San Diego, California 92119 6191698-9177 • Fax (619) 698-9178 /5 Exhibit "A" HOURLY RATE SCHEDULE The following rates apply to work performed on an hourly basis. Principal Architect $ 120.00 per hour Project Manager $ 95.00 per hour Specification Writer $ 90.00 per hour Construction Administrator $ 100.00 per hour Drafter $ 65.00 per hour Secretarial $ 40.00 per hour Structural Engineer $ 140.00 per hour Civil Engineer $ 120.00 per hour Mechanical Engineer $ 115.00 per hour Electrical Engineer $ 125.00 per hour Landscape Architect $ 100.00 per hour Reimbursable Expenses will be charged at 1.1 times the direct cost. Note: These rates will remain in effect until December 31, 2007, at which time they may be adjusted as a result of salary reviews. Jeff Katz Architecture • 7290 Navajo Road, Suite 106 • San Diego, California 92119 (619) 698-9177 • Fax (619) 698-9178 /4, City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Della, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 December 21, 2006 Jeff Katz, Principal Jeff Katz Architecture 7290 Navajo Road Suite 106 San Diego, CA 92119 Project: National City — Playhouse on Plaza Life Safety and ADA Upgrades Dear Mr. Katz: On December 5th, 2006, the Community Development Commission of the City of National City passed and adopted Resolution No. 2006-260 approving an agreement for preparation of bid documents. We are pleased to enclose one fully executed original agreement and one certified copy of the Resolution for your records. Should you have any questions, please contact Mr. Brad Raulston, Executive Director, community Development Commission at 336-4250. Sincerely, 4 Michael R. Dall'a City Clerk JAH Enclosure cc: Engineering File C2006-58 ® Recycled Paper