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2011/01/25 City Council Resolution 2011-06RESOLUTION NO. 2011-06 A RESOLUTION OF THE COUNCIL OF THE CITY OF ROHNERT PARK AUTHORIZING AND APPROVING MASTER DESIGN PROFESSIONAL AGREEMENT FOR MUNICIPAL ENGINEERING SERVICES WITH WINZLER AND KELLY WHEREAS, the City desires general municipal engineering services, general city planning services, development review services, design services and construction management services related to capital projects and studies; and WHEREAS, Winzler and Kelly is qualified to provide such services. NOW, THEREFORE, be it resolved by the City Council of the City of Rohnert Park that it does hereby authorize and approve an agreement by and between Winzler and Kelly, a California Corporation, and the City of Rohnert Park, a municipal corporation, for general municipal engineering services, general city planning services, development review services, design services and construction management services related to capital projects and studies. BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed to execute this agreement in substantially similar form to the attached agreement for and on behalf of the City of Rohnert Park. DULY AND REGULARLY ADOPTED this 25th day of January, 2011. ATTEST: City CITY OF ROHNERT PARK - - � �AIIPORNIP AHANOTU: AYE CALLINAN: AYE MACKENZIE YE STAFFORD: AYE BELFORTE: AYE AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0) City of Rohnert Park 130 Avram Ave. Rohnert Park, CA 94928 MASTER AGREEMENT WITH WINZLER AND KELLY FOR DESIGN PROFESSIONAL SERVICES THIS AGREEMENT is entered into as of the day of , 2011, by and between the CITY OF ROHNERT PARK ( "City "), a California municipal corporation, and Winzler and Kelly, ('Design Professional "), a California Corporation. Recitals WHEREAS, City desires to obtain design WHEREAS, Design Professional skilled and able to provide such services WHEREAS, City desires to retain Design provide the services described in Section k,dof this NOW, I THE PARTIES on an as- needed basis; ;sents to City that Design Professional is Section 1 of this Agreement; and to this Agreement to COVENANTS, 1. Scope of Services Sub3ect to such policy direction and approvals as City may determine roix tr>e o time, besig rofesmonal shall perform the services set out in the "DesignGonsu tarit equ�rements" ( "Services ") atta&hbd hereto as Exhibit A. Additional work for spedo projects by sepa `Task Order" in accordance with the terms of this Agreement. Design P�roessiona]'s place of work is at 495 Tesconi Circle, Santa Rosa, CA 95401. :: 2. T1rne:of Performance. The term of this Agreement shall be from the date of its execution until Dec "e. tber 31, 201, unless earlier terminated in accordance with Section 18, and maybe extended for successive one -year term(s) upon mutual, written approval by the City Manager and/or his/her desige'yand Design Professional. A. Work authorized by a separate Task Order as contemplated by this Agreement shall be subject to the Schedule of Performance set forth in the Task Order. B. The services of Design Professional are to commence upon receipt of a written notice to proceed from City, but in no event prior to receiving a fully executed Agreement/Task Order from City and obtaining and delivering the required insurance coverage, and satisfactory evidence thereof, to City. Any changes to the dates in this Section or in the Task Order must be approved in writing by City. 4- 1257804v1A 80078/0012 OAK #4844 -8147 -5591 v4 OAK #4844 -8147 -5591 v105 Compensation and Method of Payment. A. Compensation. The compensation to be paid to Design Professional, including both payment for professional services and reimbursable expenses, shall be at the rate and schedules attached hereto as Exhibit B. Under no circumstances shall the total amount City pays Design Professional for the Services exceed Forty-five Thousand Dollars ($45,000); provided, however, that work authorized by a separate Task Order as contemplated by this Agreement shall be subject to the compensation set forth in the individual Task Order and may exceed $45,000. The total amount authorized for the Payment by City under this Agreement shall not be deemed a waiver of unsatisfactory work, even if such, . defects were known to City at the time of payment. B. Timing of Payment. (1) Design Professional°sfia��l submit itehljed monthly invoices for work performed, J,0Jty°shall make payi&i`t, in full, within thirty (30) days after apl5roval of the invoice by-ti ity, (2) Payments due and payable toDesgn Professional for current services must be wrthln t1 e current budget and within an available, unexhausted` and unencumbered appropriation of the City. In the event the >C1ty hnot approprik d sufficient funds for payment of Design Professionalervices beyond the current fiscal year, this Agreement shall covernthose costyincurred up to the µ conchzsion of the cutxent�fiscal year, payment for additional work is conditional upom, fiiture City appropriation. C Chan "es m Compensation Design Professional will not undertake any work that�will Incur ccl is in excess ofthemount sett fprth in Section 3(A) without prior written amendirie�it�tiothis Agreement �. s D. Standard of Quatlty. City relies upon the professional ability of Design Professional a material iiiMment the htering into this Agreement. All work performed by Design Professorial under this Agreement shall be in accordance with all applicable legal requirements and shal_1 meet the standard of quality ordinarily to be expected of competent professionals in Design ProfessxoraI's field of expertise. f.b._ E. Taxes: 'Design Professional shall pay all taxes, assessments and premiums under the federal Social Security Act, any applicable unemployment insurance contributions, Workers Compensation insurance premiums, sales taxes, use taxes, personal property taxes, or other taxes or assessments now or hereafter in effect and payable by reason of or in connection with the services to be performed by Design Professional. F. No Overtime or Premium Pay. Design Professional shall receive no premium or enhanced pay for work normally understood as overtime, i.e., hours that exceed forty (40) hours per work week, or work performed during non - standard business hours, such as in the evenings or on weekends, unless specifically required by the applicable task order and authorized -2- 1257804v1A 80078/0012 OAK #48448147 -5591 v4 OAK #48448147 -5591 v105 by City in writing. Design Professional shall not receive a premium or enhanced pay for work performed on a recognized holiday. Design Professional shall not receive paid time off for days not worked, whether it be in the form of sick leave, administrative leave, or for any other form of absence. 4. Amendment to Task Order and /or Scope of Services. City shall have the right to amend the Task Order and /or Scope of Services within the Agreement by written notification to the Design Professional. In such event, the compensation and time of performance shall be subject to renegotiation upon written demand of either party to the Agreement. Failure of the Design Professional to secure City's written authorization for extra or changed work shall constitute a waiver of any and all.right to adjustment in the contract price or time due, whether by way of compensation, restitution, quantum meruit, etc for work done without the appropriate City authorization. 5. Duties of City. City shall proN Professional that is reasonably necessary to p, rights of approval and discretion with respect this Agreement. I A. The plans, specificat material prepared by. or on behalf of Deft drafts and working docuMk -nts, and includ "Documents "), shall b and remam;;the prod not. Design ProfesslQn l shall dehuax all L Services, (2) the date 6f, ,t0rtamatiopx6'f this writing, or (4)payment of all ooze glue tc agents, deem City shall obtain* i consent shall not 'A written consent from damages resulting fr was not a proximate ing the Scope projects and u by Design City retains all gs contemplated by .ates, programs, reports, models, and other nal und6k, this Agreement including all lc and paper ferms (collectively the ty whether the Services are completed or to City' (1) the completion of the I for any reason, (3) request by City in rofessional. ,nts may be tts�ed by City and its officers, elected officials, assigns, m whole or in part, or in modified form, for all Wd, wltliczut further employment of or payment of any 1a1 1� pity desires to modify Documents before using them, om Design Professional for any such modification, and such withheld. If City modifies Documents without obtaining ssional, Design Professional shall not be liable to City for any i modified Documents, provided that the Design Professional damages. C. Design Professional retains the copyright in and to the intellectual property depicted in the Documents subject to Design Professional's limitations. and City's rights and licenses set forth in this Agreement. City's ownership interest in the Documents includes the following single, exclusive license from Design Professional: Design Professional, for itself, its employees, heirs, successors and assigns, hereby grants (and if any subsequent grant is necessary, agrees to grant) to City an irrevocable, perpetual, royalty -free, fully paid, sole and exclusive license and right to use and exercise any and all of the copyrights or other intellectual property rights that Design Professional may author or create, alone or jointly with others, in or -3- 1257804v1A 80078/0012 OAK #4844 - 8147 -5591 v4 OAK #4844 -8147 -5591 v105 with respect to the Documents, including without limitation all analysis, reports, designs and graphic representations. City's license shall include the right to sublicense, shall be for all purposes with respect to each right of copyright, and shall be without restriction. D. Design Professional shall include language that is consistent with this Section 6 in all subcontracts and agreements that Design Professional negotiates with respect to the Services. E. All reports, information, data, and exhibits prepared or assembled by Design Professional in connection with the performance of its Services pursuant to this Agreement are confidential until released by City to the public, and the Design Professional shall not make any of these documents or information availablefo3 any individual or organization not employed by the Design Professional or City without tht Wrltten�,consent of City before any such release. This provision shall not apply to information th4t (1) is af�ready in the public domain, (2) was previously known by Design Professlonal,5(3�`Design Professional is required to provide by law, or (4) reasonably required by Design Professional to conduct�lts�efense in a legal or similar proceeding, so long as Design Professf IU notifies City in writing before use of such information. VA A. Design Professional wi not employ or�otherwise incur an obligation to pay other consultants, specialists or expertsffor s&,V ees in connection with this Agreement without the prior written approval of City.' Any consultants, spectahsts or experts approved by City are listed in Exh'b B. Design Profes §tonal represents that it has, or will secure at its own expense, all personnel requled in, perfoxmmg the services. All of the Services required hereunder � 1 b��p�erformed by f 'Desl �rofessxon l or under Design Professional's supervis on and all'p rsonnel engaged in th64' shall be qualified to perform such services. C. Des g , es' al shall make every reasonable effort to maintain stability and continuity of Desltn Professlox al's key personnel assigned to perform the Services. Key personnel contract are listed in Exhibit D. �.,.,. D Design Professional shall provide City with a minimum twenty (20) days prior written notice of any changes in Design Professional's Key Personnel, provided that Design Professional receives such novice, and shall not replace any Key Personnel with anyone to whom City has a reasonable objection. E. Design Professional will not utilize subconsultants other than those listed in Exhibit D without advance written notice to City. Design Professional will not utilize a subconsultant to whom City has a reasonable objection. Subconsultants providing professional services will provide professional liability insurance as required in Exhibit C unless City waives this requirement, in writing. -4- 1257804v1A 80078/0012 OAK #48448147 -5591 v4 OAK #48448147 -5591 v105 Conflict of Interest. A. Design Professional understands that its professional responsibility is solely to City. Design Professional warrants that it presently has no interest, and will not acquire any direct or indirect interest, that would conflict with its performance of this Agreement. Design Professional shall not knowingly, and shall take reasonable steps to ensure that it does not, employ a person having such an interest in the performance of this Agreement. If Design Professional discovers that it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Design Professional shall promptly disclose the relationship to City and take such action as City may direct to remedy the conflict. B. Design Professional (incluc employees) covenants and represents that it does, property and shall not acquire any interest, dir, , or any other source of income, interest in real Axal any manner or degree by the performance of Dest Professional further covenants and represents that person having any such interest shall perform any C. Design Pr( the Political Reform Act because his/her rendition of ii and direction of City the riicipals, associates and professional )w have any investment or interest in real lirect, in the aroa scovered by this contract or investment wif, would be affected in ofessional's Service §hereunder. Design e verf, ance of its dude's -. .hereunder no this within the meaning of id arxiuef at conclusions with respect to ion or counsel independent of the control normal contract monitoring; and i respect to any City decision beyond counsel (FPPC Reg. 18700(a)(2)). 9""4D Interest of Memb" ers and Employees of City. No member of City and no other officer, elece d�official, employe, agent of yolunteer of City who exercises any functions or responsibilitiegmeonnection wkt he carrying out of any project to which this Agreement pertains, shall haveany personal iiterest, direct or indirect, in this Agreement, nor shall any such person participate mly decision i elating to this Agreement which affects its personal interests or the interest of any corpoxattop partnership or association in which he /she is directly or indirectly interested. 10. Liability of Members and Employees of City. No member of City and no other officer, elected official, employee, agent or volunteer of City shall be personally liable to Design Professional or otherwise in the event of any default or breach of City, or for any amount which may become due to Design Professional or any successor in interest, or for any obligations directly or indirectly incurred under the terms of this Agreement. -5- 1257804v1A 80078/0012 OAK #4844 - 8147 -5591 v4 OAK #4844 - 8147 -5591 v105 11. Indemnity. A. To the fullest extent permitted by law (including, without limitation, California Civil Code Sections 2782 and 2782.8), Design Professional shall defend (with legal counsel reasonably acceptable to City), indemnify, and hold harmless City and its officers, elected officials, employees, agents, and volunteers (collectively "Indemnitees ") from and against any and all claims, loss, cost, damage, injury (including, without limitation, injury to or death of an employee of Design Professional or its subconsultants), expense and liability of every kind, nature and description (including, without limitation, fines, penalties, reasonable court costs and reasonable attorneys' fees, litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith, and costs Ofi— ettigation), that arise out of, pertain to, or relate to the negligence, recklessness, or willful msconduct of Design Professional, any subconsultant, anyone directly or indirectly employed by 46m, or anyone that they control (collectively "Liabilities "). Such negligence, recklessness, or willful„misconduct includes without limitation the failure of Design Professional to disclose inf6m. known by Design :z fr' Professional to be material to performing the Ser -51ces. Such obligationtsto defend, hold . harmless and indemnify any Indemnitee shall ndtxapply to the extent thatsui Liabilities are ,< caused by the negligence, active negligence, or willful misconduct of such Trideinnitee. Notwithstanding any provision of this.greement tot e contr"' , the extent of Resign Professional's obligation to defend, iiidemriify, and holdarnless shall be governed by the provisions of California Civil Code Secttd� 2782.8. x B. Neither terminati6 . f thi 'WgW lent riot completion of the Services shall release Design ProfessionaEfrom its obligations under this Section 133 as long as the event giving rise to the claim, loss ;cost; damage injury, exp., abiht occurred prior to the effective date of any such termination or completion C Des1 r . Professional agrees toyobtain executed indemnity agreements with provisions tdertieal to those 'set Forth m tlr section from each and every subconsultant or any other pe Tspn or entity evolved by, for, with or of behalf of Design Professional in the performance of this Agreement If�Design Professional fails to obtain such indemnity obligations from others as ret uJred, Design Professional shall be fully responsible for all obligations 6&r, this Section!MJC ty's failure to monitor compliance with this requirement imposes no additional obligations;on City and will in no way act as a waiver of any rights hereunder. The obligation to mddinnify and defend City as set forth herein is binding on the successors, assigns or =hems of Design Professional and shall survive the termination of this Agreement or this section D. Design Professional's compliance with the insurance requirements does not relieve Design Professional from the obligations described in this Section 11, which shall apply whether or not such insurance policies are applicable to a claim or damages. 12. Independent Contractor.. It is understood that Design Professional, in the performance of the work and services agreed to be performed by Design Professional, shall act as and be an independent contractor as defined in Labor Code 3353 and not an agent or employee of City; and as an independent contractor, Design Professional shall obtain no rights to retirement benefits or other benefits which accrue to City's employees, and Design Professional -6- 1257804v1A 80078/0012 OAK #4844 - 8147 -5591 v4 OAK #4844 -8147 -5591 v105 hereby expressly waives any claim it may have to any such rights. Design Professional, its officers, employees and agents shall not have any power to bind or commit City to any decision. 13. Compliance with Laws. A. General. Design Professional shall (and shall cause its agents and subcontractors), at its sole cost and expense, comply with all applicable federal, state and local laws, codes, ordinances and regulations now in force or which may hereafter be in force during the term of this Agreement. Any corrections to Design Professional's reports or other Documents (as defined in Section 6) that become necessary as a result of Design Professional's failure to comply with these requirements shall be made at the: Design Professional's expense. B. Updates. Should Design Professional become aware that the requirements referenced in subparagraph A above change after the ,date of a`report or other Document is prepared, Design Professional shall be responsible fornotifying City of such change in requirements. Design Professional will bring the.d uments into cod orlrxance with the newly issued requirements at the written direction ofGil�y. Design Professional's ,,costs for providing services pursuant to this paragraph shall be submitted to Ci ty as Addih onal��r S e� vices. F � C. Licenses and Permits. Design Professional represents that it has the skills, expertise, licenses and permits necessary to perform the Services. Design Professional shall perform all such Services in the manner and according to the standards observed by a competent practitioner of the same profession m whl Des 1, g T,il essional is engaged. All products of whatsoever nature whichDesignProfessioal delivers to Crty pursuant to this Agreement shall conform to the standadfquality�normally �bseve by a person practicing in Design Professional's profession Permits and /or hcenss shall be obtained and maintained by Design Professional without additional conljensation throughout the term of this Agreement. Except as otherwise alloyed by C1tyn its solakdscretion, Design Professional and all subconsultants shall have acquirerattlterexperise,ausmes license froti City in accordance with Chapter 5.04 of the Rojul rk M".,Ipal Code,�prior to City's:zssu'ance of an authorization to proceed with the Services fiuch license(ftiast be`kept valid throughout the term of this Agreement. N Ibl Docum ents Stampe i Design Professional shall have documents created as part of the Services to be performed under this Agreement stamped by registered professionals for the disciplinesiered by Desl'gn Professional's Documents as required by Section 6735 of the Business and Pro %ssionals Code or any other applicable law or regulation. Design Professional shall redto stamp any documents not prepared under its direct supervision. The City wi115afbe charged an additional fee to have such documents stamped. . E. Workers' Compensation. Design Professional certifies that it is aware of the provisions of the California Labor Code which require every employee to be insured against liability for workers' compensation or to undertake self - insurance in accordance with the provisions of that Code, and Design Professional certifies that it will comply with such provisions before commencing performance of this Agreement. F. Prevailing Wage. Design Professional and Design Professional's sub - consultants, shall, to the extent required by the California Labor Code, pay not less than the latest -7- 1257804v1A 80078/0012 OAK #4844 -8147 -5591 v4 OAK #4844 - 8147 -5591 v105 prevailing wage rates to workers and professionals as determined by the Director of Industrial Relations of the State of California pursuant to California Labor Code, Part 7, Chapter 1, Article 2. Copies of the applicable wage determination are on file at City Clerk's office. This provision to comply with prevailing wage laws takes precedence over the provisions of paragraph 31. G. Injury and Illness Prevention Program. Design Professional certifies that it is aware of and has complied with the provisions of California Labor Code Section 6401.7, which requires every employer to adopt a written injury and illness prevention program. H. City Not Responsible. City is not Professional's failure to comply with any and all of the n 14. Nonexclusive Agreement. Design exclusive Agreement and that City shall have the with others providing the same or similar service City desires. � 4 �. 15. Confidential Information. All developed or received by or for Design Profe confidential and not to be discloseddWAny pe law, or as otherwise allowed by this Ari?F 16. Insurance. Design requirements of Exhibit 111Q . , or liable for Design set forth in this Agreement. nds that this is not an and enter into contracts Design Professional as ssions =orother information of this Agreement are ,d by City, d required by -e in accordance with the 17. Assignment Prohibited. Desi"rof6sional` "sh tnot assign any of its rights nor transfer any of its oblgatxo�ns under this Agreement without the prior written consent of City and any attempt to so assign or sh transeKrlthout such consent shall be void and without legal effect and shall const tut&�"arounds "fog A. If Design Profe9 slonal at any time refuses or neglects to prosecute its Services in a tfikly fashion or 1b accordance with the schedule, or is adjudicated a bankrupt, or commits any act'oflnsolvency, or makes an assignment for the benefit of creditors without City's consent, or fails to rnake;prompt "" i ment to persons furnishing labor, equipment, materials or services, or fails in any respecfto properly and diligently prosecute its Services, or otherwise fails to perform fully any And,a�l`l of the agreements herein contained, Design Professional shall be in default. B. If Design Professional fails to cure the default within .seven (7) days after written notice thereof, City may, at its sole option, take possession of any Documents or other materials (in paper and electronic form) prepared or used by Design Professional and (1) complete any such work, labor, materials or services as may be necessary to overcome the default and deduct the cost thereof from any money then due or thereafter to become due to Design Professional under this Agreement; and /or (2) terminate Design Professional's right to proceed with this Agreement. -8- 1257804v1A 80078/0012 OAK #4844 -8147 -5591 v4 OAK #4844 -8147 -5591 v105 C. In the event City elects to terminate, City shall have the right to immediate possession of all Documents and work in progress prepared by Design Professional, whether located at Design Professional's place of business, or at the offices of a subconsultant, and may employ any other person or persons to finish the Services and provide the materials therefor. In case of such default termination, Design Professional shall not be entitled to receive any further payment under this Agreement until the Services are completely finished. D. In addition to the foregoing right to terminate for default, City reserves the absolute right to terminate this Agreement without cause, upon 72- hours' written notice to Design Professional ( "Termination for Convenience "). In the event of a Termination for Convenience, Design Professional shall be entitled to payment 1n an amount that shall be calculated as follows: (1) payment for Services then satisfactorily completed and accepted by City, plus (2) reimbursable expenses actually incurred lay Desi "gn,Professional, as approved by City. The amount of any payment made to Design Professional prior to the date of termination of this Agreement shall be deducted from the amounts described m above. Design Professional shall not be entitled to any claimW-66fii against City for`' y ?;additional compensation or damages in the event of such teination and payment'`Yn addition, City's right to withhold funds under Section B.C. shall be app,, ale m the event of a ter urination for F k \ convenience. E. If this Agreement�is` terminated by Ci y�for default and it is later determined that the default termination wqs wro[gful, such � i nitration automatically shall be converted to and treated as a Terminatlonfor Co" "fence -under ihxs Section 18 and Design Professional shall be entitled to receive only the amounCS payable under Section 18.D. 19. Suspe� The C1ty shall have the authority fo= suspend this Agreement and the services contemplated }ieresn, wholy or in part, such period as he /she deems necessary due to unfavorable conditions or to the failure on<the part of,the Design Professional to perform any s� provision ofthts'Ag0 ement Dos7gn Professional wrlI -be paid for satisfactory Services performedtfirough thdte of temporary suspsenso In the event that Design Professional's Servlceh�ereunder are delayed iod in excess of six (6) months due to causes beyond z Design PrMs�ional's reasonable control, Design Professional's compensation shall be subject to 20. Entire A reement atld Amendment. This Agreement constitutes the complete and exclusive statement aftheragreerarent between City and Design Professional and supersedes any previous agreements, whether herbal or written, concerning the same subject matter. This Agreement may only be amended or extended from time to time by written agreement of the parties hereto. 21. Interpretation. This Agreement shall be interpreted as though it was a product of a joint drafting effort and no provisions shall be interpreted against a party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted. 22. Litigation Support. Design Professional agrees to testify at City's request if litigation is brought against City in connection with Design Professional's Services. Unless the action is brought by Design Professional or is based upon Design Professional's negligence, City -9- 1257804v1A 80078/0012 OAK #4844 - 8147 -5591 v4 OAK #4844 - 8147 -5591 v105 will compensate Design Professional for the preparation and the testimony at Design Professional's standard hourly rates, if requested by City and not part of the litigation brought by City against Design Professional. 23. Litigation Costs. If either party becomes involved in litigation arising out of this Agreement or the performance thereof, the court in such litigation shall award reasonable costs and expenses, including attorneys' fees, to the prevailing party. In awarding attorneys' fees, the court will not be bound by any court fee schedule, but shall, if it is in the interest of justice to do so, award the full amount of costs, expenses, and attorneys' fees paid or incurred in good faith. 24. Time of the Essence. Time is of the essence of, ths Agreement. 25. Written Notification. Any notice, communication that either party desires or is regi writing and either served personally or sent by pr demand, etc. shall be addressed to the other paw party may change its. address by notifying they ©tk be deemed communicated within 48 hours from section. If to City: If to Design ma�nd, regiiest, consent, approval or d `'',give to the. other party shall be in W4, first class rnai °l Any such notice, the address set forth herein below. Either party of the change of address. Notice shall time of mailing if mailed vas provided in this Park, Park A. Design - 'rofessiona7�shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditttres and disbursements charged to City for a minimum period of three (3) years, or for °any longer period required by law, from the date of final payment to Design Professional.° fi Y r4� B. Design Professional shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement. C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Attorney, City Auditor, City Manager, or a designated representative of any of these officers. Copies of such documents shall be provided to City for inspection when it is practical to do so. Otherwise, unless an alternative is mutually agreed -10- 1257804v1A 80078/0012 OAK #4844 -8147 -5591 v4 OAK #4844 -8147 -5591 v105 upon, the records shall be available at Design Professional's address indicated for receipt of notices in this Agreement. D. City may, by written request by any of the above -named officers, require that custody of the records be given to City and that the records and documents be maintained in the City Manager's office. Access to such records and documents shall be granted to any parry authorized by Design Professional, Design Professional's representatives, or Design Professional's successor -in- interest. E. Pursuant to California Government Code;Section 10527, the parties to this Agreement shall be subject to the examination and audit of representative of the Auditor General of the State of California for a period of three (3) years after fi al payment under the Agreement. The examination and audit shall be confined to those matters c6nnected with the performance of this Agreement including, but not limited to, the cost of administering the Agreement. 27. Equal Employment Opportun fi sign Professional 2 an equal opportunity employer and agrees to comply with all applic'W state and federal regulations governing equal employment opportunity. Design Professional v UL,' not discriminate agamst'ai1y employee or applicant for employment because of race, age, sex, creed, colof sexual orientaQpli, marital status or national origin. Design Professional will take?afirtri'ative action to ensue that applicants are treated during such emjplayirlent without regard to race, age, sex, creed, color, sexual orientation, marital status or national origin Such actlan shall include, but shall not be limited to, the following employment, upgrading, dernotlon or transfer; recruitment or recruitment advertising ;, offs or termlriation; rates o €pay or other - ;forms of compensation; and selection for training;Ji"U"Iu" ngnapprenticeshlp Design Professional further agrees to post in conspicuous places, le to employees and applicants fore °riployment, notices setting forth the provisions of this rimi n clause 28 LTn4,uthorized'A�len ' D6§1g't ,Professzonal hereby promises and agrees to comply with all e rovlslor a�b the Fed�raiImmigr'd d i apd Nationality Act, 8 U.S.C.A. § 1101, et seq., aNifiended, and m co .ecti&aherewith, sh�all not employ unauthorized aliens as defined therein. S61iould Design loy such unauthorized aliens for performance of work and /or services covered�by this Agreirrlent, and should any liability or sanctions be imposed againgMuy for such Q. of unauthorized aliens, Design Professional hereby agrees to and shall reimburse City for the c t of all such liabilities or sanctions imposed, together with any and all costs, mclding attorneys' fees, incurred by City. 29. Section Heafts. The headings of the several sections, and any table of contents appended hereto, shall be solely for convenience of reference and shall not affect the meaning, construction or effect hereof. 30. City Not Obligated to Third Parties. City shall not be obligated or liable for payment hereunder to any party other than the Design Professional. 31. Remedies Not Exclusive. No remedy herein conferred upon or reserved to City is intended to be exclusive of any other remedy or remedies, and each and every such remedy, to -11- 1257804v1A 80078/0012 OAK #4844 -8147 -5591 v4 OAK #4844 -8147 -5591 v105 the extent permitted by law, shall be cumulative and in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or otherwise. 32. Severability. If any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions hereof, and such invalidity, illegality or unenforceability shall not affect any other. provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. 33. No Waiver Of Default. No delay or omission of -City to exercise any right or power arising upon the occurrence of any event of default sha11 alnpair any such right or power or shall be construed to be a waiver of any such default of an acquiescence therein; and every power and remedy given by this Agreement to City shall be�eercised from time to time and as often as may be deemed expedient in the sole discretion ,of City 34. Successors And Assigns. All repeseiitations, covenart and warranties set forth in this Agreement, by or on behalf of, or for the Uenefit of any or all of the parties hereto, shall be binding upon and inure to the benefit of such pa%ty, ;its successors and assigns 35. Exhibits. The herein by this reference: A. Exhibit A: B. Exhibit $ C. "Ex=hibit C: 36 Execution: which shall constitute one when at least o `6>copy hei Agreement, it shall apt be 37. News " releases, media interviews expressly authorized by C are attached Io this Agreement `and incorporated Other Consultants, Specialists or by Design Professional Bement may be executed in several counterparts, each of ame instrument and shall become binding upon the parties have teen signed by both parties hereto. In approving this to produce or account for more than one such counterpart. ;ws. All Design Professional and subconsultant news at hearings and public comment shall be prohibited unless 38. Venue. In the event that suit shall be brought by either party hereunder, the parties agree that trial of such action shall be held exclusively in a state court in the County of Sonoma, California. 39. Authoriiy. All parties to this Agreement warrant and represent that they have the power and authority to enter into this Agreement in the names, titles, and capacities herein stated and on behalf of any entities, persons, or firms represented or purported to be represented by such entity(ies), person(s), or firm(s) and that all formal requirements necessary or required by -12- 1257804v 1 A 80078/0012 OAK #4844 -8147 -5591 v4 OAK #4844 - 8147 -5591 v105 any state and /or federal law in order to enter into this Agreement have been fully complied with. Furthermore, by entering into this Agreement, Design Professional hereby warrants that it shall not have breached the terms or conditions of any other contract or agreement to which Design Professional is obligated, which breach would have a material effect hereon. IN WITNESS WHEREOF, City and Design Professional have executed this Agreement as of the date first above written. CITY OF ROHNERT PARK By: Gabriel Gonzalez, City Manager Date: Per Resolution No. 2011 -06 adopted by the Rohnert Park City Council at its meeting of January 25, 2011_ APPROVED AS TO FORM: By: City Attorney ATTEST: By: City Clerk 1257804v1A 80078/0012 OAK #4844 -8147 -5591 v4 OAK #4844 -8147 -5591 v105 DESIGN PROFESSIONAL -13- EXHIBIT A Scope of Services As specifically authorized by separate Task Order, Design Professional may perform the following services: Exhibit A 1257804v1A 80078/0012 OAK #4844 -8147 -5591 v103 OAK #48448147 -5591 v105 EXHIBIT "A" SCOPE OF WORK January 2011 A. General Municipal Engineering Services It is acknowledged that there is Engineering Department personnel that will perform as much of the general municipal engineering services as possible and that the work Consultant will perform is work that cannot be performed by existing personnel due to staffing limitations and available resources. Service covered under this section excludes work covered under Paragraph C of this Exhibit and is for service not reimbursed by private development and applicants under the City's cost recovery program. Tasks to be performed may include: 1. When directed, attend City Council, Planning. Commission, and other formal public meetings. 2. When directed, attend staff level meetings with the City staff, other public agency staff, public officials, community leaders and the general public. 3. When directed, recommend regulations and ordinances pertaining to Public Works and Engineering Department matters. 4. When directed, assist in the oversight and coordination with other public agencies such as: Caltrans for federal and state transportation funded projects from the standpoint of meeting State requirements; or Sonoma County for CDBO funding for meeting State and Federal requirements. 5. When directed, provide technical consultation to City personnel for general engineering questions. 6. Upon City's request, provide consultation to the City on engineering and construction grants available from other- governmental agencies and when so directed prepare and initiate application fur such funding. 7. Other work, as directed. B. General City Planning Services It is acknowledged that there is Planning Department personnel that will perform as much of the general city planning services as possible and that the work Consultant will perform is work that cannot be performed by existing personnel due to staffing limitations and available resources. Service covered under this section excludes work covered under Paragraph C of this Exhibit and is for service not reimbursed by private development and applicants under the City's cost recovery program. Tasks to be performed may include: 1. When directed, attend City Council, Planning Commission, and other formal public meetings. 2. When directed, attend staff level meetings with the City staff, other public agency staff, public officials, community leaders and the general public. 3. When directed, recommend regulations and ordinances pertaining to Planning Department matters. 4. When directed, provide consultation to City personnel for general city planning questions. 5. Other work, as directed. EXHIBIT "A" cont. C. Development Review Service covered under this section is for service that is reimbursed by private development and applicants under the City's cost recovery program. Tasks to be performed shall be specifically requested by City before any work is initiated and may include: 1. Perform plan review and checking of land divisions and site development, including providing the appropriate certification of the Map by a pre -1982 registered Civil Engineer or; post -1982 registered Civil Engineer and registered Land Surveyor. 2. Review tentative maps and other submittals for land divisions for proposed development and make recommendations as to engineering and /or planning and environmental matters. 3. Review Specific Plans and, when directed, provide technical assistance in the processing of all documents pertaining to the Specific Plan Areas, as well as the subsequent implementation of the Specific Plans (e.g. Environmental Impact Reports, Development Area Plans, Tentative and Subdivision Maps). 4. Provide assistance in the processing of annexations. 5. When directed, prepare staff reports and other documentation for development projects being reviewed. 6. Other work: as directed. D. Capital Projects and Studies As specifically authorized by separate Task Order, Consultant may perform the following services: 1. Engineering studies for City's facilities. 2. Technical support and project management pertaining to City's programs such as Storm Water NPDES Phase II, Capital Improvement Program and the Public Facilities Finance Plan Program. 3. Prepare plans and specifications for City projects. 4. Provide design survey, construction survey; real property engineering; and construction management and observation for City projects. . 5. Environmental review and permitting. 6. Other work, as directed. 2 EXHIBIT B Compensation Rates and Schedules Exhibit B 1257804v1A 80078/0012 OAK #4844 -8147 -5591 v103 OAK #48448147 -5591 v105 Exhibit "B" W Z 4Six_ LLY FEE SCHEDULE - NORTHWEST (Effective February 2010) Hourly Rates M Principal $ 180 -260 Senior Project Engineer 130 -190 Project Engineer 105 -135 Staff Engineer 95 -105 Senior Project Scientist 135 -160 Project Scientist 90 -125 Staff Scientist 70 -100 Senior Planner 115 -160 Staff Planner 90 -100 3- Person Survey Crew 255 -390 2- Person Survey Crew 170 -270 1- Person Survey Crew 85 -175 Construction Manager 100 -170 Construction Inspector 85 -125 Professional Land Surveyor 145 -160 Staff Surveyor /LSIT 95 -115 Technician 60 -100 Designer 80 -120 CADD 45 -90 Project Administrator 65 -125 Word Processor & Clerical Support 45 -90 Employee time will be billed in accordance with the fees listed above. These rates are subject to change on a semi - annual basis. For other than professional employees, time spent over 8 hours per day, time spent on swing shifts, and time spent on Saturdays will be charged at 1.5 times the hourly billing rate. Work on Sundays will be charged at 2.0 times the hourly billing rate and holiday work will be charged at 2.5 times the hourly billing rate. All field personnel charges are portal to portal. Professional employees will not be charged out at premium charge rates for overtime work. Expenses and other similar project related costs are billed out at cost plus 15 %. The cost of using equipment and specialized supplies is billed on the basis of employee hours dedicated to projects. Our rates are: A. Office consumables $6.00 /hr B. Environmental Dept/Construction Inspector consumables $11.00 /hr C. Survey Field consumables $14.00 /hr D. Various Environmental, Construction and Land Surveying Equipment At market Payment for work and expenses is due and payable upon receipt of our invoice. Amounts unpaid thirty (30) days after the issue date of our invoice shall be assessed a service charge of one and one half (1.5) percent per month. t *� These rates do not apply to forensic - related services, or to work for which Prevailing Wage obligations exist. It is the responsibility of the client to notify Winzler & Kelly in writing if Prevailing Wage obligations are applicable, in which case the fees will be adjusted proportionate to the increase in labor cost. NW Fee Schedule Feb 2010 EXHIBIT C Insurance Requirements to Agreement For Design Professional Services Re: MASTER AGREEMENT WITH WINZLER & KELLY Design Professional shall, at all times it is performing services under this Agreement, provide and maintain insurance in the following types and with limits in conformance with the requirements set forth below. Design Professional will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth here, Design Professional agrees to amend, supplement or endorse the existing coverage to do so. Design Professional acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to Design Professional in excess of the limits and coverage required in this agreement and that is applicable to a given loss will be available to City. 1. Commercial General Liability Insurance, occurrence form, using Insurance Services Office ( "ISO ") "Commercial General Liability" policy form CG 00 01 or an approved equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits are subject to review, but in no event shall be less than $2,000,000 (Two Million Dollars) each occurrence; 2. Business Auto Coverage on ISO Business Automobile Coverage form CA 00 01 including symbol 1 (Any Auto) or an approved equivalent. Limits are subject to review, but in no event shall' be less than $2,000,000 (Two Million Dollars) each occurrence. If Design Professional or its employees will use personal autos in any way in connection with performance of the Services, Design Professional shall provide evidence of personal auto liability coverage for each such person. 3. Workers Compensation on a state - approved policy form providing statutory benefits as required by law with employers liability insurance, with minimum limits of $1,000,000 (One Million Dollars) per occurrence. 4. Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements shall provide coverage at least as broad as specified for the underlying coverages. Any such coverage provided under an umbrella liability policy shall include a drop down provision providing primary coverage above a maximum self - insured retention for liability not covered by primary but covered by the umbrella. Coverage shall be provided on a "pay on behalf of basis, with defense costs payable in addition to policy limits. Policy shall contain a provision obligating insurer at the time insured's liability is determined, not requiring actual payment by insured first. There shall be no cross - liability exclusion precluding coverage for claims or suits by one insured against another. Coverage shall be applicable to City for injury to employees of Design Professional, subconsultants or others involved in performance of the Services. The scope of coverage provided is subject to approval of City following receipt of proof of insurance as required herein. Limits are subject to review but in no event less than $2,000,000 (Two Million Dollars) per occurrence. Exhibit C 1257804v1A 80078/0012 OAK #4844 -8147 -5591 v103 OAK #4844 - 8147 -5591 v105 5. Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Design Professional and "Covered Professional Services" as designated in the policy must include the type of work performed under this Agreement. The policy limit shall be no less than $1,000,000 (One Million Dollars) per claim and in the aggregate. 6. Insurance procured pursuant to these requirements shall be written by insurers that are authorized to transact the relevant type of insurance business in the State of California and with an A.M. Bests rating of A- or better and a minimum financial size VII. 7. General conditions pertaining to provision of lnsurance coverage by Design Professional. Design Professional and City agree to the following with respect to insurance provided by Design Professional: ` A. Design Professional agrees,to Have its insurer endorse the third party general liability coverage required herein to 1nq1�ll dews additional ins'd "' s the City, its officers, elected officials, employees, agents, and voluhf &s, using standard ISO endorsement No. CG 2010 with an edition prior to 1992, or an equival"l Design Professional also agrees to require all contractors, and subcontractors to do likewise�as B. No liability it except the Business Auto Coverage Professional's employees, or agents, Design Professional agrees to waive applicability of any insurance proce; likewise. to comply with this Agreement, I Professional, or Design 4brpgation prior to a loss. rty regardless of the actors and subcontractors to do L All 1nsttrance coverage and llmrts provided by Design Professional and available or applicable to thls k�eement arb n mdid;to apply to the full extent of the policies. Nothing iro stained rn thzs Qgreem,,bp or any other agreement relating to City or its operations limits the.- abnlication of such msura[rrbe coverage" '�' D None of, the cove Vies required herein will be in compliance with these requirements 13?they include any smiting endorsement of any kind that has. not been first submitted to City a dFapproved o, n writing. E. No l abit :'policy shall contain any provision or definition that would serve to eliminate so- call6l'. d party action over" claims, including any exclusion for bodily � y, injury to an employee of the insured or of any contractor or subcontractor. F. All coverage types and limits required are subject to approval, modification and additional requirements by City, as the need arises, and City shall be responsible for the cost of any additional insurance required. Design Professional shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect City's protection without City's prior written consent. Exhibit C 1257804v1A 80078/0012 OAK #4844 -8147 -5591 v103 OAK #4844 -8147 -5591 v105 G. Proof of compliance with these insurance requirements, consisting of certificates of insurance evidencing all of the coverages required and an additional insured endorsement to Design Professional's general liability policy, shall be delivered to City at or. prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled at any time and no replacement coverage is provided, City may terminate this agreement in accordance with Section 18 of the Agreement. H. Certificate(s) are to reflect that the insurer will provide 30 days notice to City of any cancellation of coverage. Design Professional agrees to require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any% party will "endeavor" (as opposed to being required) to comply with the requirements o the certificate. I. It is acknowledged by the parties of this agedeffient that all insurance coverage required to be provided by Design Professional or any sub& ctor, is intended to apply first and on a primary, noncontributing bads in relation to any otherr insurance or self insurance available to City. y J. Design Pr party involved with the Services Professional, provide the same n provided, however that only sub, provide professional liability ms such coverage and assumes all iii A, conformity with the requirement all agreements with subcontractc for review. K. will not A16-W, any contracto way involved Whe perfom self - insure its o`blxgtions to deductible or se re City. At that time City steal. reduction or elimination ofsl coverage, or other solutions nal agrees to ensure that subconsultants, acid any other bought onto or mvolyed in the Services by Design n insurance coverage required of Design Professional; amts performing Professional services will be required to Design Profes °oral agrees monitor and review all bility.f0r ensuiig thatsuch coverage is provided in s section` ; Design Professional°agrees that upon request, others engaged in the Services will be submitted to City >sional agrees xnot'to self - insure or to use any self - insured txon of the insurance required herein and further agrees that it ntractor, architect, consultant or other entity or person in any work,',,, ,oh the Services contemplated by this agreement to 'Design Professional's existing coverage includes a the deductible or self - insured retention must be declared to options with the Design Professional, which may include ctible or self - insured retention, substitution of other L. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Design Professional ninety (90) days advance written notice of such change. If such change results in additional cost to the Design Professional, and City requires Design Professional to obtain the additional coverage, City will pay Design Professional the additional cost of the insurance. 1257804v1A 80078/0012 OAK #4844 - 8147 -5591 v103 OAK #4844 - 8147 -5591 v105 Exhibit C M. For purposes of applying insurance coverage only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement. N. Design Professional acknowledges and agrees that any actual or alleged failure on the part of City to inform Design Professional of non - compliance with any insurance requirement in no way imposes any additional obligations on City nor does it waive any rights hereunder in this or any other regard. O. Design Professional will endeavor to minimum of three years following completion of the Servic and, if Design Professional in unable to do so, Design Pro days prior to the cancellation or expiration of the polic,} orxj P. Design Professional shall provi=de proof herein expiring during the term of this Agreelrle ave been re policies providing at least the same coverage. I S' of that such submitted prior to expiration. A coverage bindeWetter from agent to this effect is acceptable. A certificate of insurance,, n endorsement as required in these specifiea�tions applicable t1 tF be provided to City within five days ofh eration of the:co Q. the obligations of I agrees that any stat its officers, elected section of any,,., The provisions o as reaturess ror purposes or any party or insured to be any the required coverages for a rmination of this agreement will notify City at least thirty of insurance required )laced with other ,been ordered shall be es'sional's insurance renewing or new coverage must or similar act will not limit (Professional expressly apply with respect to City, 3ific coverage features or limits contained in this >verage, limits or other requirements nor as a waiver given "ohcy. Specific reference to a given coverage as it pertains to a given issue, and is not intended by These in'§ nce re(idirements are intended to be separate and distinct from any other provision ih,,this agreement and are intended by the parties here to be interpreted as such. T. The 7'egtrements in this Section supersede all other sections and provisions of this Agreemen f to the, extent that any other section or provision conflicts with or impairs the provisions of this Section. U. Design Professional agrees to be responsible for ensuring that no contract entered into by Design Professional in connection with the Services authorizes, or purports to authorize, any third party to charge City an amount in excess of the fee set forth in the agreement on account of insurance coverage required by this agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost Exhibit C 1257804v1A 80078/0012 OAK #4844 -8147 -5591 v103 OAK #4844 -8147 -5591 v105 of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto. V. Design Professional agrees to provide immediate notice to City of any claim or loss against Design Professional arising out of the work performed under this agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Exhibit C 1257804v1A 80078/0012 OAK #4844 -8147 -5591 v103 OAK #48448147 -5591 v105 EXHIBIT D Key Personnel and Other Consultants, Specialists or Experts Employed by Design Professional Alex Culick, P.E. Mary Grace Pawson, P.E. Matt Kennedy, P.E. Matt Winkelman, P.E. Adrian Clarke, P.E. Terrie Zwillinger Exhibit D 1257804v1A 80078/0012 OAK #4844 - 8147 ,5591 v103 OAK #4844 -8147 -5591 v105