2017/08/08 City Council Resolution 2017-102RESOLUTION NO. 2017-102
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH
OPTICOS DESIGN INC. FOR A FORM BASED CODE APPLICABLE TO
THE CITY'S DOWNTOWN DISTRICT AMENITY ZONE
WHEREAS, on March 22, 2016, the City Council adopted Resolution No. 2016-028
adopting the Central Rohnert Park Priority Development Area Plan; and
WHEREAS, the Central Rohnert Park Priority Development Area Plan includes a
Downtown District Amenity Zone generally centered on State Farm Drive between Enterprise
Drive and Hinebaugh Creek which is intended to foster and encourage the ongoing development
of "downtown" Rohnert Park; and
WHEREAS, the Central Rohnert Park Priority Development Area Plan includes design
guidelines to support the development of a cohesive downtown zone including the design of
public and private spaces and buildings; and
WHEREAS, supplementing the design guidelines with a form based code specific to the
Downtown District Amenity Zone will provide the regulatory overlay necessary to fully
implement the City's vision for its downtown area; and
WHEREAS, the City's contracting practices are governed by its Purchasing Policy; and
WHEREAS, in accordance with the Purchasing Policy, staff has solicited proposals from
qualified planning and urban design firms to prepare a form based code for the Downtown
District Amenity Zone; and
WHEREAS, Opticos Design Inc. provided the most responsive proposal and best
demonstrated its qualifications to prepare the form based code for the Downtown District
Amenity Zone; and
WHEREAS, staff has negotiated with Opticos Design Inc. to arrive at a scope of services
and professional fee that meets the City's budget goals.
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 Opticos Design Inc.
a California Corporation, and the City of Rohnert Park, a municipal corporation, for the
development of a form based code for the City's Downtown District Amenity Zone.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed
to take all actions to effectuate this agreement for and on behalf of the City of Rohnert Park,
including execution, the agreement attached hereto as Exhibit "A," subject to minor
modifications by the City Manager or City Attorney.
DULY AND REGULARLY ADOPTED this 8"' day of August, 2017.
CITY OF ROHNERT PARK
Jake ekeivie, Mayor
ATTEST:
J Anne M. Buergler, City Clerk
Attachment: Exhibit A
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2017-102
Exhibit A
City of Rohnert Park
130 Avram Ave.
Rohnert Park, CA 94928
PROFESSIONAL SERVICES AGREEMENT
Form Based Code for the Central Rohnert Park Downtown District Amenity Zone
THIS AGREEMENT is entered into as of the 8t" day of August, 2017, by and between the CITY
OF ROHNERT PARK ("City"), a California municipal corporation, and Opticos Design Inc., a
California Corporation.
Recitals
WHEREAS, City desires to obtain planning and urban design services in connection with
the development of a form based code for the Central Rohnert Park Downtown District Amenity
Zone; and
WHEREAS, Design Professional hereby represents to the City that Design Professional
is skilled and able to provide such services described in Section 1 of this Agreement; and
WHEREAS, City desires to retain Design Professional pursuant to this Agreement to
provide the services described in Section 1 of this Agreement.
Agreement
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Scope of Services. Subject to such policy direction and approvals as the City may
determine from time to time, Design Professional shall perform the services set out in the "Scope
of Work and Schedule of Performance" attached hereto as Exhibit A.
2. Time of Performance. 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 from City and obtaining and delivering the required insurance coverage, and
satisfactory evidence thereof, to City. The services of Design Professional are to be completed
not later than March 1, 2018. Design Professional shall perform its services in accordance with
the schedule set out in the "Scope of Work and Schedule of Performance" attached hereto as
Exhibit A. Any changes to the dates in this Section or Exhibit A must be approved in writing by
the City.
3. 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. However, in no event shall the amount City pays
Design Professional exceed One Hundred Seventy -Eight Thousand Two Hundred Ten Dollars
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($178,210). Payment by City under this Agreement shall not be deemed a waiver of
unsatisfactory work, even if such defects were known to the City at the time of payment.
B. Timing of Payment.
(1) Design Professional shall submit itemized monthly invoices for
work performed. City shall make payment, in full, within thirty
(30) days after approval of the invoice by City.
(2) Payments due and payable to Design Professional for current
services must be within the current budget and within an available,
unexhausted and unencumbered appropriation of the City. In the
event the City has not appropriated sufficient funds for payment of
Design Professional services beyond the current fiscal year, this
Agreement shall cover only those costs incurred up to the
conclusion of the current fiscal year; payment for additional work
is conditional upon future City appropriation.
C. Changes in Compensation. Design Professional will not undertake any
work that will incur costs in excess of the amount set forth in Section 3(A) without prior written
amendment to this Agreement.
D. Standard of Qwihty. City relies upon the professional ability of Design
Professional as a material inducement to entering into this Agreement. All work performed by
Design Professional under this Agreement shall be in accordance with all applicable legal
requirements and shall meet the standard of quality ordinarily to be expected of competent
professionals in Design Professional's field of expertise.
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
by City in writing. Design Professional shall not receive a prernium 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.
G. Litigation Suppi;l. Design Professional agrees to testify at City's request
if litigation is brought against City in connection with Design Professional's report. Unless the
action is brought by Design Professional or is based upon Design Professional's negligence, City
will compensate Design Professional for the preparation and the testimony at Design
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Professional's standard hourly rates, if requested by City and not part of the litigation brought by
City against Design Professional.
4. Amendment to Scope ol- Work. City shall have the right to amend the Scope of
Work 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 provide all information requested by Design
Professional that is reasonably necessary to performing the Scope of Work. City retains all
rights of approval and discretion with respect to the projects and undertakings contemplated by
this Agreement.
Ownership of Documents.
A. The plans, specifications, estimates, programs, reports, models, and other
material prepared by or on behalf of Design Professional under this Agreement including all
drafts and working documents, and including electronic and paper forms (collectively the
"Documents"), shall be and remain the property of the City, whether the Services are completed
or not. Design Professional shall deliver all Documents to City, upon request at (1) the
completion of the Services, (2) the date of termination of this Agreement for any reason, or (3)
request by City in writing, or (4) payment of all monies due to Design Professional.
B. The Documents may be used by City and its officers, elected officials,
employees, agents, and volunteers, and assigns, in whole or in part, or in modified form, for all
purposes City may deem advisable without further employment of or payment of any
compensation to Design Professional. If City desires to modify Documents before using them,
City shall obtain written consent from Design Professional for any such modification, and such
consent shall not unreasonably be withheld. If City modifies Documents without obtaining
written consent from Design Professional, Design Professional shall not be liable to City for any
damages resulting from use of such modified Documents, provided that the Design Professional
was not a proximate cause of such 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
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.
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D. Design Professional shall include in all subcontracts and agreements with
respect to the Services that Design Professional negotiates, language which is consistent with this
Section 6.
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 the City to the public, and the Design Professional
shall not make any of these documents or information available to any individual or organization
not employed by the Design Professional or the City without the written consent of the City
before any such release. This provision shall not apply to information that (1) is already in the
public domain, (2) was previously known by Design Professional, (3) Design Professional is
required to provide by law, or (4) reasonably required by Design Professional to conduct its
defense in a legal or similar proceeding, so long as Design Professional notifies City in writing
before use of such information.
7. 1 mploynient of Other Design Professionals, Specialists or l :xperts.
A. Design Professional will not employ or otherwise incur an obligation to
pay other consultants, specialists or experts for services in connection with this Agreement
without the prior written approval of the City. Any consultants, specialists or experts approved
by City are listed in Exhibit D.
B. Design Professional represents that it has, or will secure at its own
expense, all personnel required in performing the Services. All of the Services required
hereunder will be performed by the Design Professional or under Design Professional's
supervision, and all personnel engaged in the work shall be qualified to perform such services.
C. Design Professional shall make every reasonable effort to maintain
stability and continuity of Design Professional's Key Personnel assigned to perform the Services.
Key Personnel for this 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 notice, and shall not replace any Key Personnel with anyone to whom
the City has a reasonable objection.
E. Design Professional plans to retain the subconsultants listed in Exhibit D,
who will provide services as indicated in Exhibit D.
F. Design Professional will not utilize subconsultants other than those listed
in Exhibit D without advance written notice to the City. Design Professional will not utilize a
subconsultant to whom the City has a reasonable objection. Subconsultants providing
professional services will provide professional liability insurance as required in Exhibit C unless
the City waives this requirement, in writing.
Conflict of Interest.
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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 the City and take such action as the City may direct to remedy the conflict.
B. Design Professional (including principals, associates and professional
employees) covenants and represents that it does not now have any investment or interest in real
property and shall not acquire any interest, direct or indirect, in the area covered by this contract
or any other source of income, interest in real property or investment which would be affected in
any manner or degree by the performance of Design Professional's Services hereunder. Design
Professional further covenants and represents that in the performance of its duties hereunder no
person having any such interest shall perform any services under this Agreement.
C. Design Professional is not a designated employee within the meaning of
the Political Reform Act because Design Professional:
(1) Will conduct research and arrive at conclusions with respect to
his/her rendition of information, advice, recommendation or counsel independent of the control
and direction of the City or of any City official other than normal contract monitoring; and
(2) Possesses no authority with respect to any City decision beyond
the rendition of information, advice, recommendation or counsel (FPPC Reg. 18700(a)(2)).
9. Interest of Members and Employees of City. No member of the City and no other
officer, elected official, employee, agent or volunteer of the City who exercises any functions or
responsibilities in connection with the carrying out of any project to which this Agreement
pertains, shall have any personal interest, direct or indirect, in this Agreement, nor shall any such
person participate in any decision relating to this Agreement wh ich affects its personal interests
or the interest of any corporation, partnership or association in which he/she is directly or
indirectly interested.
10. Liability of Members and Employees of City. No member of the City and no
other officer, elected official, employee, agent or volunteer of the City shall be personally liable
to Design Professional or otherwise in the event of any default or breach of the 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.
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
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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, incidental and
consequential damages, reasonable court costs and reasonable attorneys' fees, litigation expenses
and fees of expert consultants or expert witnesses incurred in connection therewith, and costs of
investigation), that arise out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of Design Professional, any subconsultant, anyone directly or indirectly employed by
them, or anyone that they control (collectively "Liabilities"). Such negligence, recklessness, or
willful misconduct includes without limitation the failure of Design Professional to disclose
information known by Design Professional to be material to performing the Services. Such
obligations to defend, hold harmless and indemnify any Indemnitee shall not apply to the extent
that such Liabilities are caused by the negligence, active negligence, or willful misconduct of
such Indemnitee. Notwithstanding any provision of this Agreement to the contrary, the extent of
Design Professional's obligation to defend, indemnify, and hold harmless shall be governed by
the provisions of California Civil Code Section 2782.8.
B. Neither termination of this Agreement nor completion of the Services shall
release Design Professional from its obligations under this Section 11, as long as the event giving
rise to the claim, loss, cost, damage, injury, expense or liability occurred prior to the effective
date of any such termination or completion.
C. Design Professional agrees to obtain executed indemnity agreements with
provisions identical to those set forth in this section from each and every subconsultant or any
other person or entity involved by, for, with or on behalf of Design Professional in the
performance of this Agreement. If Design Professional fails to obtain such indemnity
obligations from others as required, Design Professional shall be fully responsible for all
obligations under this Section. City'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 indemnify and defend City as set forth herein is binding on the
successors, assigns or heirs 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. Design Professional Not an Agent of City_. Design Professional, its officers,
employees and agents shall not have any power to bind or commit the City to any decision.
13. Independent Conti -actor. 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
hereby expressly waives any claim it may have to any such rights.
14. Compliance with Laws.
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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. Except as otherwise allowed by City in its sole discretion, Design
Professional and all subconsultants shall have acquired, at their expense, a business license from
City in accordance with Chapter 5.04 of the Rohnert Park Municipal Code prior to City's
issuance of an authorization to proceed with the Services. Such license(s) must be kept valid
throughout 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 for notifying City of such change in
requirements. Design Professional will bring the Documents into conformance with the newly
issued requirements at the written direction of City. Design Professional's costs for providing
services pursuant to this paragraph shall be submitted to City as Additional Services.
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 in which Design Professional is engaged. All products of
whatsoever nature which Design Professional delivers to City pursuant to this Agreement shall
conform to the standards of quality normally observed by a person practicing in Design
Professional's profession. Permits and/or licenses shall be obtained and maintained by Design
Professional without additional compensation throughout the term of this Agreement.
D. Documents Stamped. Design Professional shall have documents created
as part of the Services to be performed under this Agreement stamped by registered professionals
for the disciplines covered by Design Professional's Documents as required by Section 6735 of
the Business and Professionals Code or any other applicable law or regulation. Design
Professional shall not be required to stamp any documents not prepared under its direct
supervision. The City will not be 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
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 3.E.
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G. Injury and Illness Prevention Progrannl. 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 responsible or liable for Design
Professional's failure to comply with any and all of the requirements set forth in this Agreement.
15. NOnexpiusive Agreement. Design Professional understands that this is not an
exclusive Agreement and that City shall have the right to negotiate with and enter into contracts
with others providing the same or similar services as those provided by Design Professional as
the City desires.
16. Confidential Information. All data, documents, discussions or other information
developed or received by or for Design Professional in performance of this Agreement are
confidential and not to be disclosed to any person except as authorized by City, as required by
law, or as otherwise allowed by this Agreement.
17. Insurance. Design Professional shall provide insurance in accordance with the
requirements of Exhibit C.
18. Assignment Prohibited. Design Professional shall not assign any of its rights nor
transfer any of its obligations under this Agreement without the prior written consent of City and
any attempt to so assign or so transfer without such consent shall be void and without legal effect
and shall constitute grounds for termination.
19. Termination.
A. If Design Professional at any time refuses or neglects to prosecute its
Services in a timely fashion or in accordance with the schedule, or is adjudicated a bankrupt, or
commits any act of insolvency, or makes an assignment for the benefit of creditors without City's
consent, or fails to make prompt payment to persons furnishing labor, equipment, materials or
services, or fails in any respect to properly and diligently prosecute its Services, or otherwise
fails to perform fully any and all 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) provide
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.
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
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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. In the event of termination without cause, Design Professional shall be
entitled to payment in an amount not to exceed the Not -To -Exceed Amount which shall be
calculated as follows: (1) Payment for Services then satisfactorily completed and accepted by
City, plus (2) Payment for Additional Services satisfactorily completed and accepted by City,
plus (3) Reimbursable Expenses actually incurred by Design 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 in (1), (2) and (3) above. Design
Professional shall not be entitled to any claim or lien against City for any additional
compensation or damages in the event of such termination and payment. In addition, the City's
right to withhold funds under Section 19.C. shall be applicable in the event of a termination for
convenience.
E. If this Agreement is terminated by City for default and it is later
determined that the default termination was wrongful, such termination automatically shall be
converted to and treated as a Termination for Convenience under this Section 19 and Design
Professional shall be entitled to receive only the amounts payable under Section 19.D.
20. Suspension. The City shall have the authority to suspend this Agreement and the
services contemplated herein, wholly or in part, for 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
provision of this Agreement. Design Professional will be paid for satisfactory Services
performed through the date of temporary suspension. In the event that Design Professional's
services hereunder are delayed for a period in excess of six (6) months due to causes beyond
Design Professional's reasonable control, Design Professional's compensation shall be subject to
renegotiation.
21. Entire Agreement and Amendment. This Agreement constitutes the complete and
exclusive statement of the agreement between City and Design Professional and supersedes any
previous agreements, whether verbal 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.
22. 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.
23. Litigation Casts. 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.
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24. Time of the Essence. Time is of the essence of this Agreement.
25. Written Notification. Any notice, demand, request, consent, approval or
communication that either party desires or is required to give to the other party shall be in
writing and either served personally or sent by prepaid, first class mail. Any such notice,
demand, etc. shall be addressed to the other party at the address set forth hereinbelow. Either
party may change its address by notifying the other party of the change of address. Notice shall
be deemed communicated within 48 hours from the time of mailing if mailed as provided in this
section.
If to City: City Manager
City of Rohnert Park -City Hall
130 Avram Avenue
Rohnert Park, CA 94928
If to Design Professional: 2100 Milvia Street Suite 125
Berkeley CA, 94704
Stefan Pellegrini, Principal and Vice President
26. Design Professional's Books and Records.
A. Design Professional 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 expenditures 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.
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
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 party
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
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of the State of California for a period of three (3) years after final payment under the Agreement.
The examination and audit shall be confined to those matters connected with the performance of
this Agreement including, but not limited to, the cost of administering the Agreement.
27. Equal Employment Opportunity. Design Professional is an equal opportunity
employer and agrees to comply with all applicable state and federal regulations governing equal
employment opportunity. Design Professional will not discriminate against any employee or
applicant for employment because of race, age, sex, creed, color, sexual orientation, marital
status or national origin. Design Professional will take affirmative action to ensure that
applicants are treated during such employment without regard to race, age, sex, creed, color,
sexual orientation, marital status or national origin. Such action shall include, but shall not be
limited to, the following: employment, upgrading, demotion or transfer; recruitment or
recruitment advertising; lay-offs or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship. Design Professional further agrees to post in
conspicuous places, available to employees and applicants for employment, notices setting forth
the provisions of this nondiscrimination clause.
28. Unauthorized Aliens. Design Professional hereby promises and agrees to comply
with all the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. § 1101, et
seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined
therein. Should Design Professional so employ such unauthorized aliens for performance of
work and/or services covered by this Agreement, and should any liability or sanctions be
imposed against City for such use of unauthorized aliens, Design Professional hereby agrees to
and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with
any and all costs, including attorneys' fees, incurred by City.
29. Section Head iuigss. 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 co 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
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 shall impair any such right or power or
shall be construed to be a waiver of any such default of an acquiescence therein; and every
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1126651x3 80078/0012 v2012-09
power and remedy given by this Agreement to City shall be exercised from time to time and as
often as may be deemed expedient in the sole discretion of City.
34. Successors and Assigns. All representations, covenants and warranties set forth
in this Agreement, by or on behalf of, or for the benefit of any or all of the parties hereto, shall be
binding upon and inure to the benefit of such party, its successors and assigns.
35. Exhibits. The following exhibits are attached to this Agreement and incorporated
herein by this reference:
A. Exhibit A: Scope of Work and Schedule of Performance
B. Exhibit B: Compensation
C. Exhibit C: Insurance Requirements to Design Professional Services
Agreement
In the event of a conflict between any provision in Paragraphs 1 through 39 of this Agreement
and a provision of an exhibit to this agreement, the provisions in Paragraphs 1 through 39 of this
Agreement shall prevail.
36. Execution. This Agreement may be executed in several counterparts, each of
which shall constitute one and the same instrument and shall become binding upon the parties
when at least one copy hereof shall have been signed by both parties hereto. In approving this
Agreement, it shall not be necessary to produce or account for more than one such counterpart.
37. News Releases/Interviews. All Design Professional and subconsultant news
releases, media interviews, testimony at hearings and public comment shall be prohibited unless
expressly authorized by the City.
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. Authority. 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
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.
CITY OF ROHNERT PARK
-12-
1126651v3 80078/0012 v2012-09
DESIGN PROFESSIONAL
By: By:
City Manager, Date Title:
Date:
Per Resolution No. 2017 -_adopted by the Rohnert Park
City Council at its meeting of August 8, 2017.
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
IN WITNESS WHEREOF, the City and Design Professional have executed this
Agreement as of the date first above written.
-13-
1126651x3 80078/0012 v2012-09
Contract Exhibit A-1
Scope of Work
Central Rohnert Park Form -Based Code
Scope of Work: Revised 5/26/17
Revised 6/2/17
Task A: Project Management
1. Bi -Monthly Phone Meetings: The Opticos Team will meet via GoToMeeting with City Staff to discuss project strategy
and progress, key action items and responsibilities, and project schedule typically twice per month. Opticos will prepare
an agenda and a checklist with action items, responsibilities and due dates for appropriate team members, and will
schedule and notify attendees of the meetings via calendar invitations and e-mail.
2. Project Management: The Opticos Team will provide project management and coordination of the Opticos Team
throughout the process to provide the expertise necessary for each task. The Opticos Team will provide a coordinated
effort on the part of the Opticos Team when interacting with City Staff. To do this effectively and within the agreed
upon scope of work and budget, the Opticos Team is relying upon clear communication from City Staff.
Deliverables from Opticos Team:
Brief meeting agenda/ checklist with key discussion items noted and action items for Bi -Monthly Phone Meetings
Provide City Staff with phone meeting call-in information
Deliverables from City:
• Organization and scheduling of meetings with City Staff
• Timely responses to questions, memos and/or other materials submitted to City Staff for review and comment or
direction
• Preparation and distribution of monthly project status reports to various interested parties and the project websites
Task B: Project Kick -Off and Review of Background Data (Month 2)
1. Visit 1 (1 -day): Project Initiation Meeting & Site Tour with City Staff: Three members of the Opticos Team will attend
this visit.
a. Kick -Off Meeting. The Opticos Team will facilitate the kick-off meeting for the purpose of reviewing the
City's objectives for the Central Rohnert Park FBC.
b. Site Tour. The Opticos Team will tour the Downtown Study Area with City Staff. The actual sites and timing
of the tour will be established by the City.
C. The Opticos Team will work with City Staff during this visit to establish a strategy to refine and detail the
project scope and schedule.
d. The Opticos Team and City Staff will discuss the issues and challenges associated with the Downtown Study
Area, including present City plans, policies and regulations, known development projects, extent of project
area boundary, as well as physical opportunities and constraints. Within 10 days of meeting with the Opticos
Team, City Staff will provide a memo that presents a summary of these issues and challenges.
e. Community/Stakeholder Involvement and Charrette Strategy. The Opticos Team and City Staff will
discuss the community/stakeholder involvement and charrette strategy to be developed for the Central
Rohnert Park FBC. The City will prepare a list of potential primary stakeholders and rank them by
importance, and strategize with the Opticos Team to form stakeholder focus groups where applicable, based
on the project objectives identified by the City and on the Opticos Team's experience. The Opticos Team will
discuss charrette needs and strategize with City Staff regarding outreach methods, responsibilities and key
milestones. Given the short timeline, the charrette should be advertised in early July to enable a well -attended
charrette in early August.
Background Data Request: The Opticos Team will prepare and submit a background information and GIS request
memo. The information identified in the memo will be supplied to the Opticos Team by the City within 10 working
days of the City receiving the memo. Upon receipt of the information from the City, the Opticos Team will prepare base
maps (Task C,2.d.1).
Deliverables from Opticos Team:
0 Facilitate project initiation meeting with City Staff and participate in Site Tour
• Background hnfo and GIS Request Memo in digital format
• Summary meeting notes from project initiation meeting with City Staff in digital format
Deliverables from City:
• Organization of Site/City Tour
• Requested, relevant background information, maps and GIS/Assessor's Parcel Data
• Issues and Opportunities Memo to Opticos Team
• Stakeholder list, including select stakeholders and stakeholder groups
Task C: Pre-Charrette Analysis and Preparation (Month 2)
1. Prepare FBC Outline: Based on direction from City Staff and the needs of the project as identified in the Project
Initiation Meeting (Task B), The Opticos Team will utilize the SmartCode v9.2 template to determine relevant sections
to be included in the draft code. The FBC Annotated Outline will be delivered one (1) week prior to the Pre-Charrette
Conference Call. City Staff will be responsible for providing comments during the Pre-Charrette Conference Call.
2. Charrette Preparation: In order to prepare for the charrette, the Opticos Team will conduct the following tasks:
Review the Background Documents: The Opticos Team will review relevant documents and current
conditions in the Downtown Study Area deemed applicable by the City. Those documents include but are
not limited to: Central Rohnert Park Priority Development Area (PDA) Plan and FIR, Rohnert Crossings
initial planned development application, Zoning Code, Zoning District Boundaries, and other relevant
background information. City Staff will ensure that the Opticos Team has all necessary relevant City
documents.
b. Preparatory Conference Calls with City Staff and Key Stakeholders: The Opticos Team will facilitate up to
two (2) conference calls with City Staff and/or key project area stakeholders/property owners/representatives
in preparation for the charrette. The purpose of these calls will be to engage key property owners and obtain
initial feedback regarding the process, and discuss the potential for the FBC as an implementation tool.
Additionally, the Opticos Team will facilitate charrette preparations (meeting with City Staff to review the
base maps) as well as discuss the City's comments regarding the FBC Outline.
C. Initial open house and City Council Worksession: Prior to the charrette the Opticos Team will facilitate a
community open house and City Council (or joint Council/PC) study session to summarize and identify
goals, priorities, and aspirations for the DDAZ.
d. Charrette Materials Preparation:
1. Base Map Preparation: The Opticos Team will prepare base maps using GIS/Assessor's Parcel Data
resources maintained by the City and other relevant mapping information received during Task B.
2. Existing Conditions Model: The Opticos Team will construct a large-scale model (1"-20`or similar) of
the Downtown Study Area using the Central Rohnert Park PDA Plan as a starting point. If the State
Farm site and/or other sites within the DDAZ have a new owner and/or shareable conceptual plans,
Opticos will incorporate this information into the model. The model will be used as a centerpiece on
charrette to demonstrate tweaks and refinements to the plan and communicate them to the public.
3. Preparation of FBC Testing Posters: Based on direction from City Staff and the needs of the project as
identified in the FBC Annotated Outline and FBC Style Sheet, the Opticos Team will prepare FBC
Testing Posters to be used on charrette showing draft standards including, but not limited to, building
form, building type, frontage type, civic spaces, site development, and thoroughfares.
Deliverables from Opticos Team:
• Project Area Base Maps
• FBC Outline
• Existing Conditions Model (to be used on charrette)
• FBC Testing Boards (to be used on charrette)
Deliverables from City:
0 Organization and scheduling of meetings with City Staff and interviews with stakeholders
Timely responses to questions, memos and/or other materials submitted to City staff for review and comment or
direction
Task D: FBC Testing - 4 -Day Design Charrette (Months 2-3)
A 4 -day, multi -disciplinary charrette will be facilitated by the Opticos Team to enable the City to engage the diverse community
and stakeholders in the project area and understand the physical attributes of the Downtown Project Area that should be reflected
in the Form -Based Code. The work will focus on the creation of form -based zone districts and private and public realm standards
for the project area and a series of regulating plans.
1. Pre-Charrette Logistics:
a. Coordinate Pre-Charrette Logistics: The Opticos Team will refine the charrette schedule with City staff and
assist with preparation and logistics.
b. In-house Working Session: The Opticos Team will complete one in-house testing of the project area prior to
the charrette in order to brainstorm alternatives for FBC refinement and to inform a detailed to -do -list for
the charrette team to enable efficiency on charrette.
Visit 2: 4 -day Community Design Charrette: The Opticos Team will provide four (4) people to attend the charrette for
the entire four (4) days in a studio set up on site in Downtown Rohnert Park. The sub -team will participate in the
charrette throughout the four (4) days at designated milestones, key meetings, and key presentations. The Opticos
Team is prepared to work with willing property owners' representatives during the charrette. Charrette activities are
likely to include:
a. Stakeholder/Focus Group Interviews: The Opticos Team will facilitate a series of interviews for identified
property owners, stakeholders and key members of the development community (]enders, developers,
property owners, brokers, etc.) to help inform the FBC parameters determine perceptions of the Downtown
Study Area and market position. We anticipate that these interviews will be focus groups with common
interests to gain an understanding of the issues facing the Downtown Study Area. These meetings will be
conducted primarily during the first half of day one, but as needed throughout.
b. Working Sessions: The Opticos Team can work with property owners' representatives to refine conceptual
design proposals during the charrette.
C. Existing Conditions Model: The Opticos Team will set up the large-scale model of the Downtown Study
Area during the second half of day one to serve as a starting point for the charrette.
d. Market Background Brown Bag: Presentation on local economics to help establish realistic near-term goals
for retail in the Downtown Project Area and strategies for retail placemaking and development that is likely to
be feasible in the near-, medium- and long-term.
C. Open House: The Opticos Team will facilitate one (1) opening presentation to engage stakeholders and the
public (the meeting will include boards and commissions, as needed) in an informal, open house format. The
presentation will likely summarize issues, opportunities, building upon the Central Rohnert Park PDA Plan,
key "must haves" for the City and participating developer(s) to generate the best possible projects for the
community. The session will include a designing -in -public activity tailored to the public's current
understanding as deemed by the City.
f. Open Studio: The open studio is time scheduled at key points throughout the charrette for the public to view
and comment on the work produced during the charrette. The Opticos Team will be available to answer
questions at designated open studio times throughout the charrette. A minimum of two (2) City Staff
members will be available throughout the open studio times to direct participants, sign people in, and to
observe the process and progress.
g. Study FBC Alternatives: The Opticos Team will create, illustrate, and test several alternatives for the
Downtown Study Area to depict how the plan might be refined and how the resulting FBC standards might
change accordingly. Alternatives will consider how development under the FBC will look and function
including the scale and character of buildings, civic spaces, and thoroughfares in the project area.
h. Final Presentation: The Opticos Team will present at the charrette's closing presentation to highlight the
work done and conclusions made at the charrette by the Opticos Team (the meeting can include boards and
commissions, if desired). The final presentation will include refinements to the FBC Testing Posters and draft
Regulating Plan(s) based on feedback for public review and comment. This presentation summary memo will
serve as the first draft presentation requested in the RFP under 3a.
The Opticos Team will participate in up to one (1) phone meeting to discuss or further clarify the charrette
results with City Staff before providing the final presentation to the City for distribution.
Deliverables:
• Charrette Outreach Materials (Flyer/Poster)
• Charrette Open House Materials (Boards/Presentation)
• Charrette Mid -Point Pin-Up/Open House
• Charrette Closing Presentation (First Draft FBC - RFP 3a)
• Facilitate up to one (1) phone meeting with City Staff to discuss the Charrette Closing Presentation
City Deliverables:
• Select Staff to participate in the charrette. The Opticos Team will work with City Staff to identify roles and
responsibilities for city staff during the charrette. Typical responsibilities include staff presence at key meetings and
public sessions, assistance with sign -ins and participant guidance, and logistical support.
Task E: Form -Based Code (FBC) Assistance and Regulating Plan Draft Preparation (Month 4-5)
1. Assist Staff with preparation of FBC and Regulating Plan Administrative Draft: Using the Final Code Outline from
sub -task C.1, and the FBC posters prepared during the charrette, Opticos will prepare draft Regulating Plans, and
advise City Staff to translate the development standards from the charrette Code posters to the applicable sections of the
SmartCode. Advising is anticipated with regards to the following sections:
a. Building Form Standards
b, Frontage Type Standards
C. Civic Space Standards
d. Supplemental Standards (e.g., Parking)
e. Walkable Community Plan (Site Layout) Standards
f. Thoroughfare Standards
g. Procedures
2. Meetings to Review Administrative Draft Form -Based Code and Regulating Plans: The Opticos Team will attend
meetings with City Staff.
a. Meet with City staff to discuss Form -Based Code and Regulating Plans Administrative Draft: The City
shall organize the meeting(s) to discuss the Form -Based Code and Zoning Map Administrative Draft with
Opticos.
b. Conference Calls: The Opticos Team and the City shall have up to four (4) conference calls to advise on the
development of the Form -Based Code and Regulating Plan Administrative (Each conference call up to
maximum 4 hours).
Deliverables:
• Administrative Draft Regulating Plans (RFP 3b.)
Deliverables from City:
• Organization and scheduling of meetings with City Staff
• Administrative Draft Form -Based Code
Task F: FBC Public Hearing Draft Preparation (Months 5-6)
1. Assist Staff with preparation of Form -Based Code Public Hearing Draft: The Opticos Team will advise City staff to
prepare the Public Hearing Draft of the Form -Based Code and Regulating Plans.
2. Planning Commission and City Council Public Hearings: The Opticos Team shall attend up to two (2) additional
public meetings with boards, commissions, or the City Council. Additional meetings beyond these two will be attended
as needed on a time and expense basis.
3. Assist Staff with preparation of Form -Based Code Final Draft: The Opticos Team will advise City staff to prepare the
Final Draft of the Form -Based Code and Regulating Plans based on input received during the Public Hearings.
Deliverables: None
Deliverables from City:
• Public Hearing Draft Form -Based Code
• Final Draft Form -Based Code
• Organization and scheduling of public workshops, meetings with City Staff, Planning Commission and City Council
• Timely responses to questions, memos and materials submitted for review by City Staff
Other Terms
• This project scope and the associated fee and timeline assume that City staff will utilize the SmartCode v9.2 or other
mutually -agreed-upon public domain code template to create the Form -Based Code. Any requests for major deviations
from the template (e.g., changes to the use table organization or approach, significant customized content, or
reformatting with different fonts or to a different page design layout) are not included in this scope and may need to be
considered as part of a contract amendment for an additional fee.
• The City is responsible for providing all necessary base information regarding the site and any project requirements
before design commences. Opticos is not responsible for any errors, omissions, or changes required due to late,
incorrect, or missing base information.
• All deliverables by the Opticos Team shall be provided in pdf format, unless otherwise stated above. Final draft
regulating plans can be provided in .ai, .dwg, or other agreed-upon vector -based format.
• Opportunities for the City to review and comment on the Opticos Team's deliverables are provided in the above scope
of work, Therefore, each submission to the City of a deliverable shall be considered the final version of that deliverable,
and the Opticos Team shall provide no further revisions to that deliverable.
• Additional meetings, conference calls, and visits beyond those listed above will only be attended, as needed, for an
additional fee.
• The City recognizes that adoption of the From -Based Code and Zoning Map into law is a public process that the
Opticos Team cannot control. Therefore, the Opticos Team cannot guarantee that the Form -Based Code and Zoning
Map will be adopted into law.
• The final dates for all visits must be set at least 4 weeks in advance in order for the Opticos Team to guarantee
attendance.
• Opticos Design, Inc. reserves the right to negotiate the City's Professional Service Agreement terms and conditions.
Contract Exhibit A-2
Schedule
JWY August September October• Novennber December
2017 2017 2017 2017 2017 2017
TaskA 1!
Task B l3
Task C C
Task D D
Task E E.
Task F F G
Schedule
Milestones
A Task A: Bi -Monthly Check -In Calls (Kick -Off Call)
B Task B: Project Kick -Off and Site Tour
C Task C: Pre-Charrette Conference Call /Coordination with Stakeholders
D Task D: 4 -Day FBC Testing Charrette (Final Charrette Presentation Draft FBC Standards for Public Review and Comment - RFP 3a)
E Task E: Administrative Draft FBC (RFP 3b)
F Task F: Public Hearing Draft FBC (RFP 4b)
G Task G: Final Draft FBC (RFP 4b.)
Opticos Design, Inc A
Contract Exhibit B
E. Fees
A Project Management
A I Bi -Monthly Phone Meetings
A.2 Projecl Management
B Project Kick -Off and Initial Review of Background
Data
B.1 Visit I: Projecl Initiation Meering & Site Tour
B 2 Background Data Request
B.3 Community Invo!ovement & Charrette Strategy
B.1 R.evie,,v Background Documents
C Pre-Charrette Preparation
C.I Prepare Outline of FBC
C,2 01<anrtle 14r•para;inn
D Visit 2: 4 -Day FBC Testing Charrette & Post
Activities
D.1 Pre-Charrette 1_ogistics
D.2 1 Day FBC Testing Charrette (first draft - RFP 3a)
D.3 Charrette Summary Package
E Prepare Admin Draft FBC
P.I AssisL with Admin Draft FBC (second draft - RFP 3b)
I J Visit 3: Fleeting to ?resent Admin Draft FBC w/ Staff
F Prepare Public Hearing Draft & Final Draft FBC
r ! AssisL'•rgh tiblic I leannZBC Jrafl ('reline-;
F r lend RFI' L:,)
F Mcettng w/ City. Staff to Discus Public Hearing Draft
`3 Visit -1: Planning Commission Hearing (1)
F4 Visit 5: City Council Hearing (1)
FS Add!, onal Revisions to Finalize FBC (refinments - RFP 4a)
G Project Closeout
G.i Project Closeout
TOTAL FEES
1-otal Hours
$9,006
$1,560
$10,566
$4,044
$1560
-'
$:4,04
$4+96-2 -
-
:'4,962
$15,710
$3,255
$1,900
$20,865
$G.060
$1,695
1L(Y-0
$8,755
$1,251
$1,251
$1,9)3
$300
$2,7.7.3
$6,476
$I,S60
$600
bYr>3h
$18,776
$2,730
$10,000
$31,506
$2,B70
$780
53.650
$15.906
$1,950
%10,000
$7.7,856
$44,644
$5,501
$34,744
$4,396
$15,402
i), 369
'h`rX*l
$19;459
$.I.,l l
$2,.544
$).,544
$2,394
1;r ' 70
$304
[_ C&l
$119,000
597
$81550 $7,650
$600
$8,550 $7,050
x7;345 $1,100
$'03')(7 E,1,717t7
$1,695
$3,120
S2.3 10
$Ao
$26,760 $10,750
137 64'
$10,500 $1,200 i $72,544
$10,500
$10,500
$6,104
$1,200 $62,044
$4,396
$24,347
$18,078
- -- $2,544
$7,191
$304
$_301
$11,200 $178,210
Additional Terms:
I Budget does not include rental or purchasing fees for space or equipment for workshops, charre.thns and ot'h'er moorings (Consultant Lo bring computers
and drafting supplies.) Consultant will not be! esponsible for any such planning or expenses,
2 Budget does not include fond for participants other than the design team forworkshops, char etLe and vvor k!ng s, scions.
3 'Budget does not include postage associated with public outreach and marketing;
1 Budget does not include installation of any and all public outreacft media including but riot IirniLed In banners and signage.
5 In the interest of r_,�nvironnlenLal considerations, the consultant will provid : a PDF Ile of each del vrarable unloss Mier wise sl,ecrfieai,
6 Client shall be paid on a fee basis for performance of services under this agreement in accordance will, the table above
7 Any additional tars pet torrned outside of those specified above, such: as attending additional meeirngs tit completing addarcdial revisro:s aey,�nd the
hours or number of rrvisio is sp: ofied above, will be coripenated at the dourly rate,, listed in t.hv table above (sulacr l t.; me rcasc by r , pc t rnt (.�7,) on
January I of each calendar year occuring during the Lerm of this agreement.)
EXHIBIT C
Insurance Requirements to Agreement for Design Professional Services
Form Based Code for the Central Rohnert Park Downtown District Amenity Zone
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.
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1126651 v3 80078/0012 v2012-09
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 $2,000,000 (Two 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 insurance 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 include as additional insureds the City, its officers,
elected officials, employees, agents, and volunteers, using standard ISO endorsement No. CG
2010 with an edition prior to 1992, or an equivalent. Design Professional also agrees to require
all contractors, and subcontractors to do likewise.
B. No liability insurance coverage provided to comply with this Agreement,
except the Business Auto Coverage policy, shall prohibit Design Professional, or Design
Professional's employees, or agents, from waiving the right of subrogation prior to a loss.
Design Professional agrees to waive subrogation rights against City regardless of the
applicability of any insurance proceeds, and to require all contractors and subcontractors to do
likewise.
C. All insurance coverage and limits provided by Design Professional and
available or applicable to this Agreement are intended to apply to the full extent of the policies.
Nothing contained in this Agreement or any other agreement relating to the City or its operations
limits the application of such insurance coverage.
D. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to City and approved of in writing.
E. No liability policy shall contain any provision or definition that would
serve to eliminate so-called "third party action over" claims, including any exclusion for bodily
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 the 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.
-17-
1126651 v3 80078/0012 v2012-09
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 19 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 of the certificate.
I. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Design Professional or any subcontractor, is intended to
apply first and on a primary, noncontributing basis in relation to any other insurance or self
insurance available to City.
J. Design Professional agrees to ensure that subconsultants, and any other
party involved with the Services who is brought onto or involved in the Services by Design
Professional, provide the same minimum insurance coverage required of Design Professional;
provided, however that only subconsultants performing professional services will be required to
provide professional liability insurance. Design Professional agrees to monitor and review all
such coverage and assumes all responsibility for ensuring that such coverage is provided in
conformity with the requirements of this section. Design Professional agrees that upon request,
all agreements with subcontractors and others engaged in the Services will be submitted to City
for review.
K. Design Professional agrees not to self -insure or to use any self-insured
retentions or deductibles on any portion of the insurance required herein and further agrees that it
will not allow any contractor, subcontractor, architect, consultant or other entity or person in any
way involved in the performance of work on the Services contemplated by this agreement to
self -insure its obligations to City. If Design Professional's existing coverage includes a
deductible or self-insured retention, the deductible or self-insured retention must be declared to
the City. At that time the City shall review options with the Design Professional, which may
include reduction or elimination of the deductible or self-insured retention, substitution of other
coverage, or other solutions.
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 the City requires Design Professional to obtain the additional coverage,
the City will pay Design Professional the additional cost of the insurance.
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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 renew the required coverages for a
minimum of three years following completion of the Services or termination of this agreement
and, if Design Professional in unable to do so, Design Professional will notify City at least thirty
days prior to the cancellation or expiration of the policy or policies.
P. Design Professional shall provide proof that policies of insurance required
herein expiring during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has been ordered shall be
submitted prior to expiration. A coverage binder or letter from Design Professional's insurance
agent to this effect is acceptable. A certificate of insurance and/or additional insured
endorsement as required in these specifications applicable to the renewing or new coverage must
be provided to City within five days of the expiration of the coverages.
Q. The provisions of any workers' compensation or similar act will not limit
the obligations of Design Professional under this agreement. Design Professional expressly
agrees that any statutory immunity defenses under such laws do not apply with respect to City,
its officers, elected officials, employees, agents, and volunteers.
R. Requirements of specific coverage features or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor as a waiver
of any coverage normally provided by any given policy. Specific reference to a given coverage
feature is for purposes of clarification only as it pertains to a given issue, and is not intended by
any party or insured to be limiting or all-inclusive.
S. These insurance requirements are intended to be separate and distinct from
any other provision in this agreement and are intended by the parties here to be interpreted as
such.
T. The requirements in this Section supersede all other sections and
provisions of this Agreement 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
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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.
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