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PW Bret Harte Restroom Project DesignAGREEMENT FOR PROFESSIONAL SERVICES WITH ABEY ARNOLD ASSOCIATES, INC. FOR DESIGN SERVICES This Agreement is made and entered into this day of Sem_ , 2017, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and ABEY ARNOLD ASSOCIATES, INC., a corporation authorized to do business in California (hereinafter "CONSULTANT"). RECITALS WHEREAS, the CITY has determined that professional engineering design services are required in connection with the Bret Harte Park Restroom Project; and WHEREAS, the CONSULTANT has agreed to render such services; AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: A. CITY'S Project Manager. The Director of Public Works is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. CONSULTANT'S Project Director. CONSULTANT shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONSULTANT. Phil Abey is hereby designated as the PROJECT DIRECTOR for CONSULTANT. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONSULTANT shall notify the CITY within ten (10) business days of the substitution. i��1�1fYI�•Y�)�K�]►6Y4MII:\►11M CONSULTANT shall perform the duties and/or provide the services to develop the plan specifications and estimate for the installation of a restroom facility at Bret Harte Park as described in CONSULTANT'S letter dated September 5, 2017, marked as Exhibit "A," attached hereto, and incorporated herein. ���1�1t1110 &slows CITY shall compensate CONSULTANT as provided in Paragraph 4, and shall perform the duties related to the development of the plan specfication and estimate as described in Exhibit "A" attached hereto. 1 -3 - 61�g 1 4. COMPENSATION. For the full performance of the services described herein by CONSULTANT, CITY shall pay CONSULTANT on a time and materials basis for services rendered in accordance with the rates shown in the "Scope of Work and Fee" included in Exhibit "A" attached hereto, in an amount not to exceed $12,000. Payment will be made monthly upon receipt by PROJECT MANAGER of itemized invoices submitted by CONSULTANT. 5. TERM OF AGREEMENT. The term of this Agreement shall commence upon the date of execution of this Agreement and end on March 1, 2018 when the work shall have been completed, unless the parties agree to extend this Agreement for another 90 days, as approved in writing by City Manager. 6. TERMINATION. A. Discretionary. Either party may terminate this Agreement without cause upon thirty (30) days written notice mailed or personally delivered to the other party. B. Cause. Either party may terminate this Agreement for cause upon fifteen (15) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such fifteen (15) day time period. C. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. D. Return of Documents. Upon termination, any and all CITY documents or materials provided to CONSULTANT and any and all of CONSULTANT's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. 7. OWNERSHIP OF DOCUMENTS. A. Upon completion of all work under this Agreement, ownership and title to all reports, documents, plans, specifications, and estimates produced as part of this Agreement will automatically be vested in the CITY; and no further agreement will be necessary to transfer ownership to the CITY. CONSULTANT shall furnish to CITY all necessary copies of data needed to complete the review and approval process. 6. B. It is understood and agreed that all calculations, drawings and specifications, whether in hard copy or machine-readable form, are intended for one-time use in the construction of the project described in Exhibit A. C. CONSULTANT shall not be liable for claims, liabilities, or losses arising out of, or connected with the modification or misuse by CITY of, the machine-readable information and data provided by CONSULTANT under this Agreement; further, CONSULTANT shall not be liable for claims, liabilities, or losses arising out of, or connected with any use by CITY of the project documentation on other projects in addition to the project that is described in Exhibit A, or for the completion of the project described in Exhibit A by others, except only such use as may be authorized in writing by CONSULTANT. 8. INSPECTION AND AUDIT. Upon reasonable notice, CONSULTANT shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONSULTANT in connection with its performance of its duties under this Agreement. CONSULTANT shall fully cooperate with CITY or its agent in any such audit or inspection. 9. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. Scope of Coverage. During the term of this Agreement, CONSULTANT shall maintain, at no expense to CITY, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. 3. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million dollars ($1,000,000) per claim/two million dollars ($2,000,000) aggregate, to cover any claims arising out of the CONSULTANT's performance of services under this Agreement. Where CONSULTANT is a professional 3 not required to have a professional license, CITY reserves the right to require CONSULTANT to provide professional liability insurance pursuant to this section. 4. If it employs any person, CONSULTANTshall maintain worker's compensation insurance, as required by the State of California, with statutory limits, and employer's liability insurance with limits of no less than one million dollars ($1,000,000) per accident for bodily injury or disease. CONSULTANT's worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against CITY. B. Other Insurance Requirements. The insurance coverage required of the CONSULTANT in subparagraph A of this section above shall also meet the following requirements: Except for professional liability and Worker's Compensation insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additionally named insureds under the policies. 2. The additional insured coverage under CONSULTANT'S insurance policies shall be primary with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in CONSULTANT'S policies shall be at least as broad as ISO form CG20 01 04 13. 3. Except for professional liability insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4. By execution of this Agreement, CONSULTANT hereby grants to CITY a waiver of any right to subrogation which any insurer of CONSULTANT may acquire against CITY by virtue of the payment of any loss under such insurance. CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of subrogation endorsement from the insurer. 5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured. 4 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthermore, the requirements for coverage -and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. C. Deductibles and SIR'S. Any deductibles or self-insured retentions in CONSULTANT's insurance policies must be declared to and approved by the PROJECT MANAGER and City Attorney, and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or CITY or other additional insured party. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONSULTANT shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. D. Proof of Insurance. CONSULTANT shall provide to the PROJECT MANAGER or CITY'S City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements from CONSULTANT. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. 11. INDEMNIFICATION. A. Except as otherwise provided in Paragraph B., CONSULTANT shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by CITY, and hold harmless CITY, its officers, agents, employees and volunteers (collectively, the "City Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to reasonable attorney's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS"), arising out of CONSULTANT'S performance of its obligations or conduct of its operations under this Agreement. The CONSULTANT's obligations apply regardless of whether or not a liability is caused or contributed to by the active or passive negligence of the City Indemnitees. However, to the extent that liability is caused by the active negligence or willful misconduct of the City Indemnitees, the CONSULTANT's indemnification obligation shall be reduced in proportion to the City Indemnitees' share of liability for the active negligence or willful misconduct. In addition, the acceptance or approval of the CONSULTANT's work or work, product by the CITY or any of its directors, officers or 5 employees shall not relieve or reduce the CONSULTANT's indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CONSULTANT'S performance of or operations under this Agreement, CONSULTANT shall provide a defense to the City Indemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. B. Where the services to be provided by CONSULTANT under this Agreement are design professional services to be performed by a design professional as that tern is defined under Civil Code Section 2782.8, CONSULTANT shall, to the fiillest extent pennitted by law, indemnify, release, defend and hold harmless the City Indemnitees from and against any CLAIMS that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT in the performance of its duties and obligations under this Agreement or its failure to comply with any of its obligations contained in this Agreement, except such CLAIM which is caused by the sole negligence or willful misconduct of CITY. C. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement, and shall survive the termination or completion of this Agreement for the frill period of time allowed by law. 12. NONDISCRIMINATION. CONSULTANT shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. CONSULTANT shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the perfonnance of its duties and obligations under this Agreement. CONSULTANT shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONSULTANT shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences fi•om any noncompliance or violation of any applicable laws, ordinances, codes or regulations. 14. NO THIRD PARTY BENEFICIARIES. CITY and CONSULTANT do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 6 15. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY's Project Manager: TO CONSULTANT's Project Director: 16. INDEPENDENT CONTRACTOR. Bill Guerin Director of Public Works City of San Rafael 111 Morphew Street San Rafael, CA 94901 Phil Abey Abey Arnold Associates 1005 A Street, Suite 305 San Rafael, CA 94901 For the purposes, and for the duration, of this Agreement, CONSULTANT, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONSULTANT and CITY expressly intend and agree that the status of CONSULTANT, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEMENT -- AMENDMENTS. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONSULTANT and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement -shall not be altered or modified except by a written amendment to this Agreement signed by the CONSULTANT and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. 7 CONSULTANT agrees that CITY may deduct from any payment due to CONSULTANT under this Agreement, any monies which CONSULTANT owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the teens and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 21. CITY BUSINESS LICENSE / OTHER TAXES. CONSULTANT shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code CONSULTANT shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work perfonned under this Agreement, until CONSULTANT has provided CITY with a completed Internal Revenue Service ]�onn W-9 (Request for Taxpayer Identification Number and Certification). 22. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL CONSULTANT By:�. JIMASrT2, City na er 8 Printed Name: Title of Corporate Officer: ATTEST: - - I3.e.c dZ-,e ESTHER C. BER E, City Clerk APPROVED AS TO FORM: ROBERT F. EPSTEIN, C Atto y and, By: Printed Name: Title of Corporate Officer: n. September 5, 2017 Kevin McGowan Department of Public Works City of San Rafael 1 1 1 Morphew Street San Rafael, CA 94901 Dear Kevin: The following is our scope of work and fee proposal for generating Plans, Specifications & Estimate (PS&E) for bidding and installation of a single user restroom at Bret Harte Park. Project Understanding: After visiting the site, it appears that the restroom would be best located near the current entrance as you have discussed with Molly Blauvelt. The existing wood arbor, deck and bench system would be removed and off - hauled as part of this phase. The existing bulletin board and tiles attached to the arbor can be salvaged and stored for later use. Preliminary Considerations: • Use base topographic and existing conditions plans provided by San Rafael Public Works for PS&E. • A more detailed opinion of probable installation cost will be provided once the scope is clarified. • We received an estimate for a single user restroom from The Public Restroom Company for Albert Park earlier this year. The amount was $90,000, delivered to the site. This doesn't include site work and hookups. DPW can choose between this model and the CXT- "Ozark 1 " single user restroom that is under consideration. • A new replacement wood arbor and bench system will be under future work. A good location for this would be further into the site, adjacent to the basketball court. This will allow continued maintenance access from the street, using the existing access gates. • If the new building is located near the street, we can have the perimeter fencing end at one end and start up at the other, using the building itself as a barrier. This would eliminate the odd space between a low perimeter fence and the building. • In locating the new building, it would be nice to increase the width of the pedestrian entry. • It is assumed that the existing walkway into the park and the adjacent paving is accessible and we would set the finish floor elevation in relation to these. • It is assumed that parks maintenance will want to keep the existing chain link swing gates for maintenance access. • We will need confirmation on the invert elevation of the adjacent sanitary sewer and if we can break into the sewer riser with a new connection for the restroom or, if we have to chase the line downhill for the sewer connection. Exhibit A • It appears there is a water supply to the site. We will need to confirm size of line and pressure. • It appears there is electrical availability at the adjacent street light. We will need to confirm the need for a new electrical panel. • If funding is available, we can include planting and irrigation design between the restroom and the street to improve the entry into the park and softening of the rear view of the restroom building. • The salvaged bulletin board and tiles could possibly be attached to the entry side of the restroom. • We could look at attaching the wood Bret Harte Park sign and hours directly to the new restroom building to simplify the entry. • There will be a need to replacing some paving around the perimeter of the new restroom to heal construction and adapt to existing grades. We can look at keeping the existing brick paving. • Some chain link fence will need to be removed and possibly replaced. Scope of Work and Fee Work Task Fee I. Plans, Specifications & Estimate: $12,000.00 A. One public meeting B. Two meetings with City Staff. C. 50% and 100% PS&Es. II. Construction Phase bidding assistance, site visits, RFIs, Change Orders would be on a time and materials basis. Item I will be billed monthly on a time and materials basis not to exceed $12,000.00. Any work provided in addition to items above will be billed as extra services at $175.00 per hour for consultation and meeting time, $150 per hour for design time and $100.00 per hour for drafting and administration or on an agreed upon lump sum basis. Please let me know if you have any questions or concerns. Sincerely, Phil Abey San Rafael Bret Harte Restroom Proposal 2 of 2 TRANSMITTAL TO: Phil Abey Abey Arnold Associates 1005 A Street, Suite 305 San Rafael, CA 94903 SUBJECT: Bret Harte Park Restroom Project WE ARE SENDING: Enclosed Hand Delivered THE FOLLOWING: Three Agreements FOR YOUR: Information Review Revision RECEIVED SEP 15 2x,17 PUBLIC WORKS DEPT CITY OF SAN RAFAEL Date: September 8, 2017 File No.: 06.01.239 Under Separate Cover Other: Approval Signature File COMMENTS: Please sign all three agreements and return. A fully executed copy will be mailed to you. Thank you. �OLA Dianne Mitchell 1 Administrative Assistant I it Enclosure CITY OF SAN RAFAEL 1 .0. FIFTH AVENUE, SAN RAFAEL, CALIFORNIA.• Gary O. Phillips, Mayor • Kate Colin, Vice Mayor • Maribeth Bushey, Councilmember • John Garpblin, Councilmember • Andrew Cuyugan McCullough, Counciimember CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Public Works Project Manager: Kevin McGowan Extension: 3389 Contractor Name: Abey Arnold Associates Contractor's Contact: Phil Abey Contact's Email: abeyarnold.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor 9/6/2017 D Currently in b. Email contract (in Word) & attachments to City system — Atty c/o Laraine.Gittens@cityofsanrafael.org Albert Park 2 City Attorney a. Review, revise, and comment on draft agreement 9/7/2017 ❑x LAG and return to Project Manager 9/7/2017 ❑X LAG b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Project Manager Forward three (3) originals of final agreement to 9/13/2017 ❑X contractor for their signature 4 Project Manager When necessary, * contractor -signed agreement N/A agendized for Council approval *PSA > $20,000; or Purchase > $35,000; or Or ❑ Public Works Contract> $125,000 Click here to Date of Council approval enter a date. PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City 9-18-17 KM Attorney with printed copy of this routing form 6 City Attorney Review and approve hard copy of signed 9'%27 h-7agreement 7 City Attorney Review and approve insurance in PINS, and bonds (for Public Works Contracts) 9�Z� )n 8 City Manager/ Mayor Agreement executed by Council authorized official Wall 9 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager