PSA-Design-Long.pdf

DESIGN CONSULTANT AGREEMENT NO.

by and between the City of Santa Monica and

Name of Design Consultant i May 2019

DESIGN CONSULTANT AGREEMENT

TABLE OF CONTENTS

ARTICLE 1 - GENERAL PROVISIONS

1.1 DEFINITIONS

ARTICLE 2 - BASIC SERVICES

2.1 GENERAL

2.1.1 Standard of Care

2.1.2 Fiduciary Relationship

2.1.3 Agreement Duration .................................................................. Error! Bookmark not defined.

2.1.4 Scope of Basic Services; Excluded Design Services

2.1.5 Key Personnel

2.1.6 Consultants

2.1.7 Cooperation with the Construction Manager

2.1.8 Consultation with the City, Review Agencies

2.1.9 Site Background Data

2.1.10 Acceptance Not a Waiver

2.1.11 Coordination

2.1.12 Attendance at Meetings

2.1.13 Notice of Objections

2.1.14 Construction Budgets

2.1.15 Licensing

2.1.16 Written Authorization by the City

2.1.17 Authority of the Design Consultant

2.1.18 Independent Design Review

2.1.19 Time of the Essence

2.2 SCHEMATIC DESIGN PHASE

2.2.1 Project Program

2.2.2 Applicable Code Requirements

2.2.3 Alternate Approaches

2.2.4 Schematic Studies

2.2.5 Estimated Project Construction Cost

2.3 DESIGN DEVELOPMENT PHASE

2.3.1 Design Development Documents

2.3.2 Systems Criteria

2.3.3 Estimated Project Construction Cost

2.4 CONSTRUCTION DOCUMENTS PHASE

2.4.1 Construction Documents

2.4.2 City Review

2.4.3 Content, Completeness

2.4.4 Changes, Corrections

2.4.5 Final Approval

2.4.6 Estimated Project Construction Cost

2.5 BID PHASE

2.5.1 Pre-Qualification

2.5.2 Addenda, Clarifications

2.5.3 Pre-Bid Conference

2.5.4 Bid Evaluations

2.5.5 Budget; Revisions

2.6 CONSTRUCTION PHASE

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2.6.1 Duration

2.6.2 Administration

2.6.3 Attendance at Meetings

2.6.4 Communications

2.6.5 Requests for Information

2.6.6 No Delay

2.6.7 Corrections

2.6.8 Site Observations - General

2.6.9 Site Observations - Frequency

2.6.10 Notice of Defective Work

2.6.11 Testing, Inspection

2.6.12 Substantial, Final Completion

2.6.13 Interpretations

2.6.14 Construction Means, Methods

2.6.15 Change Orders

2.6.16 Record Documents

2.7 WARRANTY INSPECTION PHASE

2.8 INDEPENDENT REVIEWS

2.8.1 Design Status

2.8.2 Review Process

2.8.3 Independent Cost Estimate

2.9 PROJECT SCHEDULE

2.9.1 Time Limits

2.9.2 Criteria for Time Increase

ARTICLE 3 - ADDITIONAL SERVICES

3.1 LIST OF ADDITIONAL SERVICES

3.2 DISPUTE REGARDING ADDITIONAL SERVICES

3.2.1 Notification in Writing

3.2.2 Performance of Services

ARTICLE 4 - CITY RIGHTS AND RESPONSIBILITIES

4.1 ADMINISTRATION

4.1.1 City Response

4.1.2 City Furnished Services

4.1.3 Approvals by Reviewing Agencies

4.2 SURVEYS AND REPORTS

4.2.1 Test, Inspections, Reports

4.2.2 Land Survey

4.2.3 Geotechnical Data

4.2.4 City’s Expense

4.2.5 City Liability

ARTICLE 5 - COMPENSATION

5.1 BASIC SERVICES COMPENSATION

5.1.1 Design Consultant’s Fee

5.1.2 Monthly Payments

5.2 REIMBURSABLE EXPENSES

5.2.1 Reimbursement by the City

5.2.2 Estimate

5.2.3 Records of Reimbursable Expenses

5.3 ADDITIONAL SERVICES COMPENSATION

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5.3.1 Lump Sum

5.3.2 Direct Personnel Expense

5.3.3 Notice

5.3.4 Disputes

ARTICLE 6 - PAYMENTS

6.1 APPLICATIONS FOR PAYMENT

6.1.1 Monthly Applications

6.1.2 Reimbursable Expenses, Additional Services

6.2 PAYMENTS BY THE CITY

ARTICLE 7 - THE DESIGN CONSULTANT’S BOOKS AND RECORDS

7.1 MAINTENANCE OF BOOKS AND RECORDS

7.2 INSPECTION OF FILES

ARTICLE 8 - OWNERSHIP AND USE OF DOCUMENTS

8.1 PROPERTY OF THE CITY

8.2 BIDDING

8.3 TERMINATION

ARTICLE 9 - TERMINATION OF AGREEMENT

9.1 TERMINATION BY THE CITY

9.1.1 For Cause

9.1.2 For Convenience

9.2 TERMINATION BY THE DESIGN CONSULTANT

9.2.1 Termination of the Agreement

9.2.2 Payment for Services

9.3 PAYMENT DISPUTES

ARTICLE 10 - INDEMNIFICATION AND INSURANCE

10.1 INDEMNIFICATION

10.1.2 Survival

10.2 INSURANCE

10.2.1 Basic Insurance Requirements

ARTICLE 11 - DISPUTE RESOLUTION

11.1 NEGOTIATION

11.2 MEDIATION

11.3 ARBITRATION OR LITIGATION

11.3.1 Arbitration with the Contractor

11.3.2 Litigation with the Contractor

11.3.3 Arbitration without the Contractor

11.4 LITIGATION

11.5 COST OF LITIGATION

ARTICLE 12 - NON-DISCRIMINATION

ARTICLE 13 - NOTICES

13.1 NOTICE FORM AND DELIVERY

13.2 NOTICE RECIPIENTS

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ARTICLE 14 - GOVERNING LAW

ARTICLE 15 - FEDERAL GRANTS

ARTICLE 16 - WAIVER

ARTICLE 17 - NO THIRD PARTIES

ARTICLE 18 - EXTENT OF AGREEMENT

ARTICLE 19 - SEVERABILITY

ARTICLE 20 - SUCCESSORS AND ASSIGNS

ARTICLE 21 - CONFIDENTIALITY

ARTICLE 22 - EXHIBITS

ARTICLE 23 - EXECUTION IN COUNTERPARTS

DESIGN CONSULTANT AGREEMENT

By and Between the

CITY OF SANTA MONICA

and

Name of Design Consultant

This DESIGN CONSULTANT AGREEMENT (“Agreement”) is entered into on _________________(“Execution Date”), by and between the City of Santa Monica, a municipal corporation, located at 1685 Main Street, Santa Monica, California, and Name of Design Consultant, a Type of Entity (i.e. Corporation, Partnership etc.), located at Address of Consultant, for professional services on the following Project: Name of Project (“Project”).

ARTICLE 1 - GENERAL PROVISIONS

1.1 DEFINITIONS

1.1.1 ADDENDUM, ADDENDA. Written or graphic information (including, without limitation, Drawings or Special Provisions and Technical Specifications) prepared and issued by the City Engineer prior to the receipt of the Contractor’s Bid, which modify or interpret the Bid Documents by additions, deletions, clarifications or corrections.

1.1.2 ADDITIONAL SERVICES. Services listed in Article 3 (Additional Services) of this

Agreement that are requested or Approved by the City in writing prior to their being performed by the Design Consultant and that do not arise, in whole or in part, from the fault, negligence or breach of this Agreement by the Design Consultant or from the occurrence of any error, omission, conflict, ambiguity or violation of Applicable Code Requirements in the Construction Documents prepared by the Design Consultant or its Consultants.

1.1.3 AGREEMENT. This Professional Services Agreement By and Between the City and the

Design Consultant.

1.1.4 APPLICABLE CODE REQUIREMENTS. All applicable federal, state and municipal laws, statutes, building codes, ordinances and regulations of governmental authorities having jurisdiction over the Project, Work, Site, Design Consultant, or the City.

1.1.5 APPLICATION FOR PAYMENT. An itemized application for payment prepared and submitted by the Design Consultant for review and Approval by the City, which is prepared, submitted, and accompanied by supporting documentation in accordance with this Agreement.

1.1.6 APPROVAL, APPROVE, APPROVED, CONSENT. Whether capitalized or not capitalized, shall mean, unless otherwise stated, either an express approval contained in a written statement signed by the approving individual or entity or deemed approved in accordance with the terms, conditions and procedures set forth in this Agreement. All such approvals by or on behalf of the City may be granted or withheld in the sole discretion of the City.

1.1.7 AUTHORIZATION TO PROCEED. The City’s issuance of a writing, including but not limited to signature on the Plans, authorizing the Design Consultant to proceed with each phase of the Agreement.

1.1.8 BASIC SERVICES. Those services to be provided by the Design Consultant pursuant to Article 2 (Basic Services) of this Agreement.

1.1.9 BID PHASE. The Phase of the Design Consultant’s Basic Services described in Section

2.5 (Bid Phase) of this Agreement.

1.1.10 CHANGE ORDER. A written instrument signed by the City, or by the City and the Contractor, describing a deletion, addition or change to the Work of the Contractor.

1.1.11 CITY. The City of Santa Monica, a municipal corporation.

1.1.12 CITY ARCHITECT. The City Architect of the City of Santa Monica, or its designee.

1.1.13 CLAIM. A written demand or assertion by the City or the Design Consultant seeking adjustment of the compensation hereunder, extension of time, payment of money, recovery of damages, resolution of a disputed interpretation of this Agreement or the Contract Documents or other relief. A claim does not include the following, and the procedures for processing of claims do not apply to the following:

(i) Penalties or forfeitures prescribed by statute or regulation imposed by a governmental agency.

(ii) Tort claims for personal injury or death.

(iii) False claims liability under California Government Code Section 12650, et seq.

(iv) Defects in the Work first discovered by the City after Final Payment by the City to the Contractor.

(v) Stop notices.

(vi) The right of the City to specific performance or injunctive relief to compel performance of any provision of the Contract Documents.

1.1.14 CONSTRUCTION BUDGET. The City’s written statement of funds available for the Project, as set forth in Exhibit “A” to this Agreement. The term “Construction Budget” includes adjustments to the Construction Budget as may be developed and Approved by the City in writing. Any adjustments to the Construction Budget will conform to the changes in the Engineering News-Record (ENR) Construction Cost Index or Approved changes in the Project Program.

1.1.15 CONSTRUCTION CONTRACT. The written contract executed between the City and the

Contractor for construction of the Project designed by the Design Consultant.

1.1.16 CONSTRUCTION COSTS. The total costs to construct those elements of the Project designed or specified by the Design Consultant. Construction Costs do not include any of the following:

(i) The cost of professional services to be rendered by the Design Consultant, Consultants or the Construction Manager.

(ii) Land acquisition costs.

(iii) Finance costs.

(iv) The City’s administrative costs.

1.1.17 CONSTRUCTION DOCUMENTS. The Drawings, Special Provisions and Technical

Specifications, and blank bid form for use in construction prepared by the Design Consultant for the City’s approval. Construction Documents also include all bidding addenda, plans, tracings, programs, reports, calculations, models and other material containing designs, specifications or engineering information prepared by the Design Consultant (or its Consultants) including, without limitation, computer aided design materials, electronic and BIM data files, files and paper copies.

1.1.18 CONSTRUCTION DOCUMENTS PHASE. The Phase of the Design Consultant’s Basic

Services described in Section 2.4 (Construction Documents Phase) of this Agreement.

1.1.19 CONSTRUCTION MANAGER. The individual, partnership, corporation, joint venture or other legal entity under contract with the City to perform construction management services for the Project. The term “Construction Manager” means Construction Manager or Construction Manager’s authorized representative. In the event there is no Construction Manager assigned to the Project, the Construction Manager shall mean the City.

1.1.20 CONSTRUCTION PHASE. The Phase of the Design Consultant’s Basic Services described in Section 2.6 (Construction Phase) of this Agreement.

1.1.21 CONSULTANTS. The design professionals, of any Tier, retained by the Design Consultant or the City to perform any portion of the services required by this Agreement.

1.1.22 CONTRACTOR. The individual or firm under contract with the City to serve as the General

Contractor for construction of the Project. The term “Contractor” means the Contractor or the Contractor’s authorized representative.

1.1.23 CONTRACT DOCUMENTS. The following collection of documents are designated as the contract documents:

(i) Notice Inviting Pre-Qualification Statements, Pre-Qualification Statement, and Pre-

Qualification Checklist (if applicable).

(ii) Executed Construction Contract between the City and the Contractor.

(iii) Notice Inviting Bids.

(iv) Instructions to Bidders.

(v) Bidding Addenda.

(vi) Contractor’s Bid.

(vii) General Conditions

(viii) Special Provisions and Technical Specifications.

(ix) Payment and Performance Bonds.

(x) Insurance Forms.

(xi) Plans and Drawings.

(xii) Reports listed in the Bidding Documents.

(xiii) Supplements, Attachments, Modifications and Exhibits attached to the above items.

(xiv) Change Orders.

(xv) Field Orders.

1.1.24 CONTRACT SUM. The total amount of compensation stated in the Construction Contract that is payable to the Contractor for the performance of the Work in accordance with the Contract Documents.

1.1.25 CONTRACT TIME. The total number of Days set forth in the Construction Contract within which Final Completion of the Work must be achieved by the Contractor, including Approved extensions of time permitted under the terms of the Contract Documents.

1.1.26 COORDINATION. Whether capitalized or not, refers to the process of ensuring that all parts of the documents prepared by the Design Consultant or its Consultants are consistent and in conformance with each and all other parts.

1.1.27 COST NOT TO EXCEED. The maximum amount of compensation payable by the City pursuant to Article 2 (Basic Services) for Basic Services performed in accordance with this

1.1.28 DAY. Whether capitalized or not, unless otherwise specifically provided, means calendar day, including weekends and legal holidays.

1.1.29 DEFECTIVE WORK. Work by the Contractor that is unsatisfactory, faulty, omitted, incomplete, deficient, or does not conform to the Applicable Code Requirements, the Contract Documents, the directives of the City, or the requirements of any inspection, reference standard, test, code or Approval specified in the Contract Documents.

1.1.30 DELAY. Whether capitalized or not, includes any circumstances involving disruption, hindrance, or interference in the performance of the Work.

1.1.31 DESIGN CONSULTANT. The individual or firm under contract with the City to provide design or engineering services for the Project and responsible for preparing the Contract Documents for the Project. The term “Design Consultant” means Design Consultant or Design Consultant’s authorized representative.

1.1.32 DESIGN CONSULTANT’S FEE. The fee payable by the City pursuant to Paragraph 5.1.1

(Design Consultant’s Fee) for performance by the Design Consultant of its Basic Services.

1.1.33 DESIGN DEVELOPMENT PHASE. The Phase of the Design Consultant’s Basic Services described in Section 2.3 (Design Development Phase) of this Agreement.

1.1.34 DRAWINGS. The graphic and pictorial portions of the Contract Documents prepared by the Design Consultant and/or its Consultants showing the design, location, and dimensions of the Work, generally including Plans, elevations, sections, details, schedules, and diagrams. The term “Drawings” may be used interchangeably with “Plans.”

1.1.35 ENR CONSTRUCTION COST INDEX. The current construction cost index as published in the Engineering News-Record by the McGraw-Hill Publishing Company or its successors.

1.1.36 ESTIMATED PROJECT CONSTRUCTION COST. The Design Consultant’s written estimates of the Construction Costs..

1.1.37 EXCLUDED DESIGN SERVICES. Those design and engineering services referred to in Paragraph 2.1.4 (Scope of Basic Services; Excluded Design Services) of this Agreement and listed in Exhibit “B” to this Agreement that are excluded from the scope of the Design Consultant’s Basic Services.

1.1.38 FIELD ORDER. A written instrument signed by the City or Construction Manager that requests performance of Work in one of the following categories:

(i) Over which there is a dispute as to whether the Work is or is not Extra Work.

(ii) Involving Extra Work which the City requests be performed without a unilateral

Change Order adjustment to the Contract Sum or Contract Time and before all terms of an adjustment to the Contract Sum or Contract Time are fully agreed upon by the City and the Contractor.

1.1.39 FINAL COMPLETION. The point at which all of the following have been accomplished:

(i) Construction of the Project is completed to the satisfaction of the City in accordance with the Contract Documents, including minor corrective or completion items.

(ii) All requirements of the Contract Documents entitling the Contractor to Final Payment shall have been performed by the Contractor (including without limitation delivery of all warranties and guarantees, equipment operation and maintenance manuals, Record Documents and schedules, and certificates required prior to occupancy).

(iii) All Approvals and acceptances shall have been made pursuant to Applicable Code Requirements.

(iv) All rubbish, tools, scaffolding and surplus materials and equipment shall have been removed from the Site.

1.1.40 GENERAL CONDITIONS. That portion of the Contract Documents between the City and its Contractor (titled, “General Conditions”) setting forth the general terms and conditions for construction of the Project, in a form identical, or substantially similar, to that attached hereto as Exhibit “C”.

1.1.41 INTEREST RATE. The lesser of the “prime rate” reported in the Wall Street Journal from time to time or the maximum rate permitted by law.

1.1.42 LOSSES: Any and all losses, costs, liabilities, Claims, damages, actions, judgments, settlements, expenses, attorneys’ fees, fines and penalties.

1.1.43 MODIFICATION: Modification of Agreement: An amendment, change, or alteration of any of the terms or conditions of the Agreement memorialized in writing and executed by the parties.

1.1.44 PERIOD OF INACTIVITY: Any period of time that the Design Consultant is not actively furnishing services to the City under this Agreement, including without limitation any period of time in which the Project has been suspended or abandoned or the Design Consultant’s services have been suspended by the City.

1.1.45 PHASE(S). The phases of services comprising the Design Consultant’s Basic Services as set forth in Article 2 (Basic Services) of this Agreement.

1.1.46 PLANS. The graphic and pictorial portions of the Contract Documents prepared by the Design Consultant and/or its Consultants showing the design, location, and dimensions of the Work, generally including plans, elevations, sections, details, schedules, and diagrams.

The term “Plans” may be used interchangeably with “Drawings.”

1.1.47 PROJECT. The Work described generally on the first page of this Agreement.

1.1.48 PROJECT ARCHITECT OR ENGINEER. The individual assigned by the Design

Consultant pursuant to Paragraph 2.1.5.3 of this Agreement to be in charge of the Project on behalf of the Design Consultant.

1.1.49 PROJECT PROGRAM. The City-approved written statement of the City’s design objectives, constraints, and criteria, including space requirements and relationships, flexibility and expandability, special equipment and systems, Site requirements, and performance criteria.

1.1.50 PROJECT SCHEDULE. The schedule attached here to as Exhibit “D” showing Project milestones, funding, design, design review, construction, and other deadlines applicable to the Project.

1.1.51 RECORD DOCUMENTS. The as-built documents showing the condition of the Work as actually built, including, without limitation, the locations of mechanical, electrical, plumbing, HVAC or similar portions of the Work that are shown diagrammatically in the Contract Documents Approved by the City. These documents are maintained by the Contractor on the Site and delivered, along with an electronic version of the documents, to the City upon Final Completion.

1.1.52 REIMBURSABLE EXPENSES. Those expenses that are reimbursable to the Design

Consultant by the City as provided in Section 5.2 (Reimbursable Expenses) of this

1.1.53 REVIEW AGENCIES. Any and all governmental agencies and departments (including but not limited to the Coastal Commission, State Energy Commission, and the MTA) having jurisdiction to review and Approve/reject the Contract Documents or the Work based on compliance/non-compliance with Applicable Code Requirements.

1.1.54 SCHEMATIC DESIGN PHASE. The Phase of the Design Consultant’s Basic Services described in Section 2.2 (Schematic Design Phase) of this Agreement.

1.1.55 SEPARATE CONTRACTOR. A person or firm, other than the Contractor, under separate contract with the City or other entity to perform construction at the Site or supply materials or equipment to the Project.

1.1.56 SITE: The physical site located within the City of Santa Monica where the Project is to be constructed, including all adjacent areas for staging, storage, parking and temporary offices.

1.1.57 SPECIAL PROVISIONS AND TECHNICAL SPECIFICATIONS. The portion of the Contract Documents consisting of the written requirements for materials, equipment, standards, skill, quality for the Work, and performance of related services. These provisions may also contain amendments, deletions, or additions to the General Conditions.

1.1.58 SUBCONTRACTOR: A person or firm that has a contract with a Contractor to perform a portion of the Work. The term “Subcontractor” includes suppliers and vendors and is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor.

1.1.59 SUB-SUBCONTRACTOR: A person or firm that has a contract with a Subcontractor to perform a portion of the Work. The term “Sub-subcontractor” includes suppliers and vendors and is referred to throughout the Contract Documents as if singular in number and means a Sub-subcontractor or an authorized representative of the Sub-subcontractor.

1.1.60 SUBMITTALS. All shop drawings, samples, exemplars, product data and other Submittals required to be submitted by the Contractor under the Contract Documents.

1.1.61 SUBSTANTIAL COMPLETION, SUBSTANTIALLY COMPLETE. The point at which the Work is sufficiently complete, as determined by the City for its intended purpose, and the Contractor has fulfilled its obligations under the Contract Documents as determined by the City, except for minor punchlist items which do not impair the City’s ability to so occupy and utilize the Project.

1.1.62 TIER. The contractual level of a Consultant with respect to the Design Consultant or a

Subcontractor with respect to the Contractor. For example, a “first-tier” Subcontractor is under contract with the Contractor. A Sub-subcontractor under subcontract with a first-tier Subcontractor is in the “second tier,” and so on.

1.1.63 WARRANTY INSPECTION PHASE. The Phase of the Design Consultant’s Basic

Services described in Section 2.7 (Warranty Inspection Phase) of this Agreement.

1.1.64 WORK. All labor, materials, equipment, services, permits, licenses and taxes, and all other things necessary for by the Contractor to perform its obligations and complete the Project, including without limitation any changes or additions requested by the City, in accordance with the Contract Documents and all Applicable Code Requirements.

ARTICLE 2 - BASIC SERVICES

2.1 GENERAL

2.1.1 Standard of Care. All services performed in connection with this Agreement shall be performed in a manner consistent with the standard of care under California law applicable to design professionals who specialize in providing such services for projects of the type, scope, and complexity of the Project.

2.1.2 Fiduciary Relationship. The Design Consultant acknowledges the relationship of trust and confidence between it and the City, and agrees to provide, in its capacity as a fiduciary to the City, professional services in a manner consistent with the City’s economic and governmental best interests.

2.1.3 Agreement Duration. This Agreement begins on the Execution Date and terminates on

_________, 20___ (“Expiration Date”), unless sooner terminated or extended in accordance with the provisions of this Agreement. In the event of delays in the performance of the services beyond the control of the Design Consultant, the City may, at its sole and complete discretion, extend the Expiration Date for a limited time period in writing pursuant to a Notice of Extension issued by the Director of Public Works, City Engineer, Capital Program Manager, or other designee of the City Manager. The Notice of Extension shall specify the revised Expiration Date, and must be issued prior to Expiration Date of the Agreement.”

2.1.4 Scope of Basic Services; Excluded Design Services. Unless otherwise expressly designated as Excluded Design Services, the Design Consultant’s Basic Services shall be conclusively presumed to include any and all professional services within the general scope of the services that are reasonably required to achieve the Project Program or are of the type customarily performed by architects or engineers, whether or not such services are expressly listed in this Agreement. Excluded Design Services consist of and are limited to the services listed in Exhibit “B” to this Agreement.

2.1.5 Key Personnel.

2.1.5.1. The services to be provided by the Design Consultant under this Agreement shall be performed by the persons whose names and functions are set forth on Exhibit “E” hereto. The furnishing of services by these individuals, and any individuals Approved by the City to replace them, is of the essence to this Agreement. If any persons identified on Exhibit “E” cease employment with the Design Consultant, then the Design Consultant shall promptly substitute a person Approved by the City of at least equal qualifications to perform the same functions, which Approval may be granted or withheld in the City’s sole discretion. If the City is dissatisfied with the services rendered by any person whose name is set forth on Exhibit “E” (or by any replacement therefore or addition thereto Approved by the City), or by any other person performing services for the Project, the Design Consultant shall promptly substitute a different person reasonably acceptable to the City of at least equal qualifications to perform the same function. The Design Consultant shall not remove, substitute or reduce the level of effort if any of the personnel described in Exhibit “E” (or any replacements thereof or additions thereto) from the Project without the City’s prior written Approval, which may be granted or withheld in the City’s sole discretion. All persons working for the Design Consultant who are not Consultants shall be the employees of the Design Consultant and not of the City.

The Design Consultant shall be solely responsible for any workers’ compensation obligations, withholding taxes, unemployment insurance and any other employer obligations with respect to employees working for the Design Consultant.

2.1.5.2 In the event the Design Consultant ceases its business operations altogether or shall be in default under this Agreement, the City shall have the right, but not the obligation, without liability or obligation to the Design Consultant or any other person or entity, to directly engage the services of or employ any of the following:

(i) Any of the individuals identified on Exhibit “E”.

(ii) Any replacements for such individuals.

(iii) Any other persons performing any of the services to be provided by the

Design Consultant under this Agreement.

In the event that, during the term of this Agreement, the Design Consultant shall learn that any of the persons described in clauses (i), (ii) or (iii), above, will be leaving the employ of the Design Consultant, the Design Consultant shall promptly notify the City and the City shall have the rights described in this Paragraph 2.1.5.2 to directly employ or engage the services of such persons (in which event, compensation for Basic Services set forth in Section 5.1 [Basic Services Compensation] of this Agreement shall be equitably reduced to reflect the elimination from the scope of services to be performed by the Design Consultant the services that such persons will perform directly by the City). Nothing contained in this Paragraph 2.1.5.2 shall be deemed to create any obligation or liability of the City to the Design Consultant with respect to the employment or engagement of services of any persons under situations not described in this Paragraph 2.1.5.2.

2.1.5.3 A staff member identified by the Design Consultant firm as the Project Architect or

Engineer shall be Approved by the City. So long as the Project Architect or Engineer performs in a manner acceptable to the City and remains in the Design Consultant’s employ, the Project Architect or Engineer shall remain in charge of all services required under this Agreement, shall attend design-related meetings for the Project, and shall not be replaced or have his/her level of effort reduced without written Approval by the City, which Approval may be granted or withheld in the City’s sole discretion. The Project Architect or Engineer shall, if requested by the City, be replaced with another individual satisfactory to and Approved by the City.

The City-approved Project Architect or Engineer shall be the person named below:

Name of Project Architect or Engineer

2.1.5.4 The following individual(s), or their Approved replacement, named below shall attend design-related meetings as requested by the City:

Attendee(s)

2.1.5.5 Recognizing the necessity of a close working relationship with the City, the Design Consultant’s principals and employees shall furnish the best skill, efforts, and judgment of its organization in the performance of the duties and responsibilities under this Agreement, subject at all times to the City’s discretion, and to provide their knowledge, ideas, experience and abilities relating to the design and construction of the Project.

2.1.6 Consultants.

2.1.6.1 The Design Consultant may employ, with the City’s prior written Approval not to be unreasonably withheld, at no additional cost to the City beyond the Basic Services compensation set forth in Section 5.1 (Basic Services Compensation) of this Agreement, Consultants to assist it in the performance of its Basic Services under this Agreement. References in this Agreement to such Consultant shall mean Consultants, of every Tier, employed, directly or indirectly, by the Design Consultant to perform the services required by this Agreement. The Design Consultant’s Consultants shall be retained by written agreements which obligate such Consultant to be bound by the obligations assumed by the Design Consultant under this Agreement, including without limitation the obligation to indemnify and defend the City and provide professional liability and general liability insurance coverage. All contracts between the Design Consultant and its Consultants shall be submitted to the City for review prior to execution and prior to the Consultant performing any services for the Project. Consultants providing Basic Services who have already been Approved by the City as of the date of this Agreement are named below:

Discipline

Consultant Name

2.1.6.2 The Design Consultant shall be responsible for the professional quality, technical accuracy and the Coordination of all applicable Contract Documents prepared by the Design Consultant and its Consultants, including without limitation all Drawings, Special Provisions and Technical Specifications, designs, reports, recommendations, testing and other services furnished under this Agreement and shall, as part of its Basic Services and without additional compensation or reimbursement by the City, correct or revise any errors, omissions, conflicts, ambiguities or deficiencies in the Contract Documents.

2.1.6.3 Nothing in this Agreement shall create any contractual relationship between the

City and any Consultants retained by the Design Consultant under the terms of this Agreement. The Design Consultant is as responsible for the performance of services by its Consultants as it would be if it had rendered these services itself.

The Design Consultant is not responsible for consultants or others separately employed by the City; however, the Design Consultant is responsible to coordinate the services provided by the Design Consultant and its Consultants with the services and documents of such consultants or others separately employed by the City. The terms and form of agreement to be used between the Design Consultant and its Consultants shall be consistent with the terms of this Agreement.

2.1.6.4 In the performance of its services the Design Consultant shall abide by and ensure that its and its Consultants’ Drawings, Specifications, and other documents conform to all Applicable Code Requirements.

2.1.7 Cooperation with the Construction Manager. The Design Consultant shall cooperate with other professionals including, without limitation, the Construction Manager or any other Construction or Project Manager the City may employ for the Project.

2.1.8 Consultation with the City, Review Agencies. To the extent required by the City, the

Design Consultant shall consult with authorized employees, agents, and representatives of the City and, in conjunction with the City, the Design Consultant shall consult with representatives of the Review Agencies relative to the design and construction of the Project.

2.1.9 Site Background Data. Subject to Paragraph 4.2.5 (City Liability) of this Agreement, the

Design Consultant shall review all surveys; seismic data; mechanical, geotechnical, and other test reports; environmental documents; and any other documentation furnished or made available by the City. From an examination of the Site and a review of available information, the Design Consultant shall determine whether such data are sufficient for purposes of design or whether additional data are needed and, if so, recommend the manner in which such data and any needed services be obtained. The Design Consultant shall evaluate, or cause its Consultants to evaluate, all soils data, design recommendations and other soil-related construction inspection reports provided by any soils consultants or soils testing agencies retained by the City or the Design Consultant, to determine the adequacy and suitability of such data and recommendations for purposes of foundation design and construction. The Design Consultant shall also cause its Consultants to visit the Site both:

(i) Before and during design as part of the evaluation of soil data and foundation design recommendations and

(ii) During the construction of subsurface components of the Project.

Visitation of the Site such be at such frequency and for such duration as is appropriate because of the progress and nature of such construction to determine the acceptability of such construction and its consistency with the intent of the design as expressed in the Contract Documents and with any directives of the Design Consultant or its Consultants.

2.1.10 Acceptance Not a Waiver. Review, Approval, acceptance, or payment for the Design

Consultant’s services, whether by the City or others and whether during the Schematic Design Phase, Design Development Phase, Construction Documents Phase, Bid Phase, Construction Phase, Warranty Inspection Phase, or otherwise, shall not relieve the Design Consultant from its sole responsibility for errors and omissions in services provided by the Design Consultant or its Consultants.

2.1.11 Coordination. Periodically throughout the duration of the Project or as necessary as determined by the City, the Design Consultant shall meet with the City for the purpose of doing all of the following:

(i) Analyzing coordination between programming and design activities.

(ii) Implementing Project Program components.

(iii) Evaluating the responsiveness of design to the Project Program and the City’s objectives.

(iv) Coordinating the design with the Project and other City construction and ongoing operations.

(v) Coordinating the design and construction activities.

(vi) Coordinating the design with plant operations for utility tie-in and shutdowns.

2.1.12 Attendance at Meetings. The Design Consultant and Consultants shall attend all meetings determined by the City as reasonably necessary to resolve Project issues during the Design Phases of the Project (Schematic Design Phase, Design Development Phase, and Construction Documents Phase).

2.1.13 Notice of Objections. The Design Consultant shall give the City immediate written notice within three (3) Days if, at any time during performance of this Agreement, the Design Consultant objects to any decision or action by the City on the basis that it is in conflict with any advice or recommendation of the Design Consultant. Failure to provide such immediate notice shall be deemed to be the Design Consultant’s Approval of such decision or action as being consistent with the Design Consultant’s recommendations.

2.1.14 Construction Budgets. The Construction Budget shall not be adjusted except upon written direction by the City for changes, additions or deletions by the City to the Project

Program. No other act, direction or Approval, written or verbal, or course of conduct, by the City shall be construed as authorization of an adjustment in the Construction Budget.

The Design Consultant shall notify the City in writing whenever it appears that the Construction Budget or any Estimated Project Construction Cost provided by the Design Consultant may be exceeded, for any reason, and shall make recommendations to reduce the Construction Budget. The Design Consultant shall notify the City, in writing, within seven (7) Days after receipt of any request or direction or that the Design Consultant believes constitutes a change, addition or deletion to the Project Program that requires an adjustment to the Construction Budget. This time period may be adjusted by mutual agreement. Failure by the Design Consultant to submit such written notice in a timely manner shall conclusively waive the Design Consultant’s right to an adjustment of the Construction Budget on account of such direction or information.

2.1.15 Licensing. All design and engineering services shall be performed by Architects and

Engineers, and other professionals as appropriate, duly licensed in their respective fields of specialization by the appropriate agencies of the State of California.

2.1.16 Written Authorization by the City. Each Phase of Basic Services shall be subject to a separate Authorization to Proceed to be issued by the City. The Design Consultant shall immediately commence services on each Phase upon issuance by the City of a written Authorization to Proceed. Services on a Phase shall be based on documents, if any, from the prior Phase Approved by the City in writing, any written directives by the City with respect thereto, and any adjustments authorized by the City in the Project Program or Construction Budget. Approval by the City of documents prepared by the Design Consultant in any Phase shall not be construed as Approval of any change, addition or deletion to the Project Program nor shall it entitle the Design Consultant to a change in the Construction Budget unless the Design Consultant submits to the City written notice, prior to such Approval, informing the City of the specific change, addition, or deletion and the effect thereof on the Construction Budget.

2.1.17 Authority of the Design Consultant. The Design Consultant’s authority to act on behalf of the City is limited to its scope of authority set forth in this Agreement. Notwithstanding anything else stated in this Agreement or the Contract Documents, the Design Consultant does not have the express or implied authority to obligate the City to any expenditure of money or extension of contractual time periods, including without limitation any adjustment to the price or time of performance on the Construction Contract.

2.1.18 Independent Design Review. All Construction Documents prepared during the

Schematic, Design Development, Construction Documents or Construction Phases are subject to independent reviews, as defined in Section 2.8 (Independent Reviews) of this

2.1.19 Time of the Essence. All time limits set forth in this Agreement are of the essence to this

2.2 SCHEMATIC DESIGN PHASE

2.2.1 Project Program. The Design Consultant and the City shall confer and jointly develop a Project Program that, based on the Design Consultant’s judgment of the Construction Cost, is within the Construction Budget. The City shall have the right to change, add to or delete portions of the Project Program at any time; provided however, that such change, addition or deletion shall not, except as provided in Paragraph 2.1.14 (Construction Budgets), result in an adjustment to the Construction Budget.

2.2.2 Applicable Code Requirements. The Design Consultant shall prepare and submit to the City an outline of provisions of Applicable Code Requirements which apply to this Project.

The outline shall include a written report and diagrammatic Drawings which delineate the design criteria. This graphic documentation of the design criteria shall be updated with each subsequent submittal.

2.2.3 Alternate Approaches. The Design Consultant shall review with and recommend to the

City alternative approaches to the design, and recommend the contracting mode best suited to the Project Program, Project Schedule, Applicable Code Requirements, and Construction Budget.

2.2.4 Schematic Studies. The Design Consultant shall prepare schematic design studies consistent with and incorporating the Project Program requirements, including Site Plans, floor Plans, elevations, sections, and other sketches, or graphic materials needed to describe the Project in three dimensions. The Design Consultant shall also prepare a descriptive outline indicating proposed architectural, structural, mechanical, and electrical systems and materials and other systems. Schematic studies shall be consistent with the Construction Budget and Project Schedule and shall be revised until Approved in writing by the City.

2.2.5 Estimated Project Construction Cost. The Design Consultant shall submit a preliminary written Estimated Project Construction Cost based on the documents submitted and Approved by the City in this Phase. If the preliminary Estimated Project Construction Cost exceeds the Construction Budget, the City may, at its discretion, do either one or a combination of the following:

(i) Give written Approval of an increase in the Construction Budget.

(ii) Require the Design Consultant, at its own cost, and without reimbursement by the

City, to revise the Schematic Phase documents in cooperation with the City so as to reduce the Estimated Project Construction Cost to an amount that is within the

To the extent the City selects the latter option, the City agrees to accept the Design Consultant’s reasonable revisions in the Project to lower the Estimated Project Construction Cost, so long as the proposed revisions are consistent with Project Program and do not, in the City’s sole discretion, materially compromise the aesthetic, structural or functional elements of the Project.

2.3 DESIGN DEVELOPMENT PHASE

2.3.1 Design Development Documents. Upon the City’s Authorization to Proceed and based on Schematic Design Phase documents Approved in writing by the City, the Design Consultant shall prepare, for Approval by the City, Design Development Phase documents consisting of Drawings, outline specifications, and narratives as needed to establish and describe the size and character of the Project. The Design Consultant shall incorporate into the Design Development Phase documents architectural, structural, mechanical, and electrical systems, materials, and such other elements and other systems appropriate to the Project. The Design Development Phase documents shall be consistent with the Project Program, the Construction Budget, and the Project Schedule.

2.3.2 Systems Criteria. The Design Consultant shall submit documentation supporting the design criteria for the structural elements (including structural loading); HVAC, plumbing, electrical, lighting and communication systems; and other specialized building systems.

2.3.3 Estimated Project Construction Cost. The Design Consultant shall submit a preliminary written Estimated Project Construction Cost based on the documents submitted and Approved by the City in this Phase. If preliminary Estimated Project Construction Cost exceeds the Construction Budget, the City may, at its discretion, do either one or a combination of the following:

(i) Give written Approval of an increase in the Construction Budget.

(ii) Require the Design Consultant, at its own cost, and without reimbursement by the

City, to revise the Design Development Phase documents in cooperation with the City so as to reduce the Estimated Project Construction Cost to an amount that is within the Construction Budget.

Construction Cost so long as the proposed revisions are consistent with Project Program requirements and do not, in the City’s sole discretion, materially compromise the aesthetic, structural or functional elements of the Project.

2.4 CONSTRUCTION DOCUMENTS PHASE

2.4.1 Construction Documents. Upon the City’s Authorization to Proceed and based on Design Development Phase documents Approved in writing by the City and any written adjustments in the scope or quality of the Project or in the Construction Budget, the Design Consultant shall prepare, for Approval by the City, Construction Documents setting forth in detail the requirements for the construction of the Project. The Construction Documents shall describe the quality, configuration, size and relationships of all components to be incorporated into the Project. The Construction Documents shall be consistent with the Project Program, the Construction Budget, and the Project Schedule. The Construction Documents shall, where applicable, use the same terms as defined in the General Conditions.

2.4.2 City Review. The Design Consultant shall submit Construction Documents to the City for review and Approval upon 50% completion and upon the Design Consultant’s determination that the documents are 100% complete and coordinated. Such submittal shall be in electronic format if requested, and shall include the following:

(i) Copies of each of the Construction Documents.

(ii) Calculations as required by the City or other Review Agencies for the structural, HVAC, electrical, plumbing, communications.

(iii) Other specialized building system calculations.

Unless directed otherwise in writing by the City, the Construction Document Phase shall not be considered 100% complete until all Approvals by the City and Review Agencies have been granted.

2.4.3 Content, Completeness. The Design Consultant shall be responsible for the content of all Construction Documents. All Construction Documents prepared or signed by the Design Consultant or its Consultants shall be complete, coordinated and contain directions as will:

(i) Enable a competent Contractor to carry them out.

(ii) Require a minimum of corrections by Review Agencies.

(iii) Be sufficiently complete and free of conflicts so as to be capable of definitive pricing by the Contractor with a minimum of further clarifications or detailing of the Design Consultant or its Consultants.

2.4.4 Changes, Corrections. Submittals of Construction Documents shall either incorporate any changes or corrections required by the City or Review Agencies, or be accompanied by a written statement as to why such changes were not incorporated. The City may, in its sole discretion, reject the Design Consultant’s explanation and require the Design Consultant to make the changes or corrections to the Construction Documents as previously requested by the City. Such changes shall not constitute grounds for adjustment of the Construction Budget or Project Schedule.

2.4.5 Final Approval. When all City and Review Agency required changes or corrections have been incorporated by the Design Consultant, the corrected 100% complete Construction Documents will be deemed to be final and ready for competitive bidding. The Design Consultant shall provide to the City one (1) electronic set, XXX sets of prints, and the 100% complete set of all remaining Construction Documents for the Project. The Drawings and Special Provisions and Technical Specifications shall also be submitted on computer disk or usb flash drive in a software language format acceptable to the City. Construction Documents submitted by the Design Consultant to the City for bidding purposes shall be signed and stamped by the Design Consultant and its Consultants responsible for preparing same.

2.4.6 Estimated Project Construction Cost.

2.4.6.1 Upon 50%, 90% and final correction of the Construction Documents, the Design

Consultant shall prepare and submit for the City’s Approval XXX copies of the Design Consultant’s then-current Estimated Project Construction Cost.

2.4.6.2 If the Estimated Project Construction Cost, upon 50% completion of the

Construction Documents, exceeds the Construction Budget, the City may, at its discretion, do either one or a combination of the following:

(i) Give written Approval of an increase in the Construction Budget.

(ii) Require the Design Consultant, at its own cost and without reimbursement by the City, to revise the Construction Documents in cooperation with the City so as to reduce the Estimated Project Construction Cost to within the

Construction Costs, so long as the proposed revisions are consistent with Project Program requirements and do not, in the City’s sole discretion, materially compromise the aesthetic, structural or functional elements of the Project.

2.4.6.3 If the Estimated Project Construction Cost for the corrected 90% complete

Construction Documents exceeds the Construction Budget, the City may, at its discretion, do one or a combination of the following:

(i) Give written Approval of an increase in the Construction Budget.

(ii) Authorize the solicitation of bids.

(iii) Require the Design Consultant, at its own cost and without compensation by the City, to revise the Construction Phase Documents in cooperation with the City so as to reduce the Estimated Project Construction Cost to within the Construction Budget.

Construction Costs, so long as the proposed revisions are consistent with Project Program requirements and do not, in the City’s sole discretion, materially compromise the aesthetic, structural or functional elements of the Project.

2.5 BID PHASE

2.5.1 Pre-Qualification. If pre-qualification of bidders is required by the City, the Design Consultant shall recommend pre-qualification criteria and assist the City in the preparation of the pre-qualification documents. If requested by the City, the Design Consultant shall participate with the City in the evaluation of pre-qualification submittals.

2.5.2 Addenda, Clarifications.