HomeMy WebLinkAboutStaff Report 107-08TO:
City of Palo Alto
City Manager’s Report
HONORABLE CITY COUNCIL 13
FROM:CITY MANAGER DEPARTMENT: COMMUNITY SERVICES
DATE:
SUBJECT:
MARCH 10, 2008 CMR: 107:08
APPROVAL OF THE EXPENDITURE OF $290,000 IN CAPITAL
IMPROVEMENT PROGRAM FUNDS THROUGH A CONTRACT WITH
THE PALO ALTO ART CENTER FOUNDATION TO DEVELOP AND
COMPLETE THE PLANNING AND DESIGN PHASE FOR THE
RENOVATION AND CAPITAL IMPROVEMENTS TO THE PALO ALTO
ART CENTER CAPITAL IMPROVEMENT PROJECT PF-07000 (ART
CENTER ELECTRICAL AND MECHANICAL UPGRADES)
RECOMMENDATION
Staff recommends that Council approve the attached agreement between the City of Palo Alto
and the Palo Alto Art Center Foundation expending $290,000 from CIP Project PF-0-7000 to
develop and complete the planning, design development phase for the proposed renovation and
capital improvements to the Palo Alto Art Center.
BACKGROUND
The 28,000 square foot Art Center building and its facility systems exist essentially as they were
built and installed in 1951. Since its conversion from a City Hall more than thirty-seven years
ago, the only significant repairs to the Art Center have been seismic improvements made in
1987. In early 1999, the Palo Alto Art Center Foundation (Foundation) began to work
proactively toward the needed expansion and renovation of the Art Center facility, focusing on
two identified issues: 1) mechanical and electrical upgrades to the exhibition spaces that had
already been identified in the City’s Infrastructure Management Plan; and 2) the need for
additional children’s art classrooms and activity space. In March 1999, the Palo Alto City
Council approved a proposal from the Foundation to explore the development of a public/private
partnership that would make possible a capital project to expand and renovate the Art Center.
In March 2000, the Foundation received a $50,000 grant from the David and Lucile Packard
Foundation to conduct a facility master planning process, matched by $50,000 from the City.
The Palo Alto Art Center Programming Report, completed in 2001 (CMR 438:01), laid out an
improvement plan that addressed the Center’s immediate needs.
In August 2001, a Joint Site Planning Committee was convened with the goal of seeking a site
design that would allow the Main Library and the Art Center to expand while addressing the
limitations and opportunities offered by the site, neighborhood concerns, and the desires of the
CMR: 107:08 Page 1 of 4
community and other stakeholders. In September 2001, the Foundation received a second
$50,000 grant from the David and Lucile Packard Foundation. This grant was also matched by
the City (CMR: 226:02). The Site Planning Study for the Palo Alto Library and Art Center was
completed in February 2002. A draft EIR for the project was completed for the City on April 17,
2002.
The master plan and conceptual design for the Palo Alto Art Center and site was approved by
Council on July 14, 2002, along with a Memorandum of Understanding (CMR: 340:02)
describing the City’s commitment to contribute $5 million to a fund set up through a
public/private partnership over five years. The MOU was intended to go into effect upon
successful passage of a library bond measure in November 2002. That bond measure was
unsuccessful.
In 2005, the Foundation again contracted with Mark Cavagnero Associates to develop a phased
approach to complete the master plan. A first phase of building renovations with cost estimates
included creation of a children’s wing, improvements to the existing gallery space, and
replacement of mechanical and electrical systems, which the City has already identified for
renovation. Based on the preliminary cost estimates, the Infrastructure Management Plan capita!
funding allocation for the Art Center Electrical & Mechanical Upgrade (Capital Implement
Program Project- PF-07000) was readjusted from $800,000 to $1.74 million.
In June 2006, the Foundation contracted with Netzel Associates to conduct a capital development
feasibility study within the community, and in December 2006, based on the contractor’s
recommendation from the study, the Foundation approved a $6.5 million project, the first phase
of the master plan.
On April 10, 2006, a colleague’s memo was approved by the City Council directing staff to work
with the Foundation in drafting a Memorandum of Understanding to expand and renovate the Art
Center as a public/private partnership.
On July 9, 2007, the Council approved a Letter of Intent (Attachment B) outlining mutually
acceptable terms and conditions for the collaboration between the City and the Foundation for
Phase I (building electrical, mechanical and children’s wing renovation) construction of
improvements and alterations to the Palo Alto Art Center (CMR 288:07).
On September 24, 2007, the Foundation entered into an agreement with Mark Cavagnero
Associates, to: 1) design the project through schematic design and design development phase; 2)
submit preliminary estimates of construction costs based on schematic design and adjustments to
preliminary estimate of construction costs based on the design development; 3) prepare
construction documents setting forth in detail the requirements for the construction of the project,
based on the design reviewed and approved by the Foundation and City; and 4) assist in the
awarding and preparing contracts for construction and administration of the construction
contract.
DISCUSSION
The Phase I project improvements and alterations to the Palo Alto Art Center consist of the full
renovation of approximately 7,600 square feet of existing area (creating a new children’s wing),
CMR: 107:08 Page 2 of 4
partial renovation of 12,000 square feet of existing area (mechanical and electrical, existing
gallery, and bathrooms). Additional improvements include enclosing and landscaping the central
garden, children’s sculpture garden, and children’s entry court; covering a portion of the
children’s sculpture garden; and adding a new parking/drop off area at the west end of the site.
The estimated cost of the proposed project is $6,500,000, of which $5,710,000, which includes
construction, furnishings and equipment, design, engineering and fees and an additional
$790,000 in fund development costs (pledge financing, annual support replacement, etc., to be
paid by the Palo Alto Art Center Foundation in support of the fundraising efforts).
The terms of the attached agreement with the Palo Alto Art Center Foundation for the transfer of
$290,000 to develop and complete the planning and design development phase for the capital
improvements and renovation to the Palo Alto Art Center are consistent with the Council-
approved Letter of Intent. The agreement transfers to the Foundation $290,000 to provide for
the City’s share of planning and design of the plans, specifications and working drawings for the
project. Should the project not proceed after the design phase is complete, the City can use the
plans to perform needed infrastructure repairs as specified in the Adamson study.
The City’s financial responsibility, as specified in Capital Improvement Project PF-07000 (Art
Center Electrical and Mechanical Upgrades) is to replace original mechanical and electrical
equipment and systems to meet current occupant need, provide code compliance, and optimize
operation and energy efficiency.
Although the ultimate goal is to reach an agreement under which the renovation work for the
Project shall be completed, this Agreement pertains only to the design development phase of the
Project. The planning and design development phase, of the project will require evaluation of
various issues, including compliance with LEED, ADA, seismic upgrades, hazardous materials
removal and electrical service upgrades. The costs of addressing these issues cannot be
accurately determined until the design development process has proceeded further. If the City
and Foundation reach agreement on the costs identified for each and mutually acceptable terms
and conditions for the continuation of the Project through the construction phase, then they will
negotiate and execute a separate written agreement and return to Council for approval.
TIMELINE
The agreement will begin upon the execution by the City. The Foundation’s estimated timeline
for the project is to have design development and City review completed by June 2008;
Foundation campaign planning and fundraising to be completed by December 2008; construction
documentation, permit approval and bidding to be completed by February 2009; and construction
to begin spring of 2009, with a ten-month anticipated construction period.
RESOURCE IMPACT
The Letter of Intent noted that the City had earmarked funding in the amount of $1.74 million as
part of its Infrastructure Management Plan for the Art Center, to be applied to the costs of the
project. This funding is shown in the adopted budget as Capital Improvement Program Project
(CIP)-PF-07000 (Art Center Electrical and Mechanical Upgrades). When design development is
completed, all requirements will have been identified, including LEED, seismic upgrade, ADA,
hazardous material removal and electrical service upgrade. Based on the cost estimates by Mack
CMR: 107:08 Page 3 of 4
5 (cost estimator for the project), it is possible that the City’s and Foundation’s share will need to
increase.
The adopted budget for Capital Improvement Project PF-07000 (Art Center Electrical and
Mechanical Upgrades) which covers for the design fee is $290,000. The 2008-09 Proposed
Budget includes $1,450,000 for the construction costs.
POLICY IMPLICATIONS
The proposed project is consistent with the City’s recently updated Policy and Procedures 1-25,
Public/Private Partnerships, which defines this project as an alliance partnership.
ENVIRONMENTAL REVIEW
The Foundation will be required to fully comply with all provisions of CEQA as may apply to
the specific development plans submitted during the term of the Agreement.
PREPARED BY:
APPROVED BY:
LIND CRAIGHEAD
Division Manager, Arts & Sciences
CITY MANAGER APPROVAL:
2s Director
HA-RR~S(~N
Assistant City Manager
ATTACHMENTS
Attachment A:
Attachment B:
Attachment C:
Attachment D:
Agreement with the Palo Alto Art Center Foundation
Letter of Intent
CIP Project PF-07000 (CIP Page)
Proposed Project Timeline
cc: Palo Alto Art Center Foundation
CMR: 107:08 Page 4 of 4
Contract No.
AGREEMENT BETWEEN THE CITY OF PALO ALTO AND THE
PALO ALTO ART CENTER FOUNDATION FOR THE DESIGN OF
CAPITAL IMPROVEMENTS RELATING TO THE RENOVATION
OF THE PALO ALTO ART CENTER
Dated as March __, 2008
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Section
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
Exhibit "A"
Exhibit "B"
Exhibit "C"
Exhibit "D"
Exhibit "E"
Exhibit "F"
TABLE OF CONTENTS
Description
Purposes
Term
Use; Access to the Facility; Plan Approval
Consideration
Insurance
Indemnity
Waiver
Assignment
Nondiscrimination
Force Majeure
Audit; Inspection of Records
Independent Contractor
Representations and Warranties
Notices
Event of Default; Remedies for Default
Dispute Resolution
Miscellaneous
Description and Map of the Facility
Schematic Drawings
Payment Procedures
Insurance Certificate
Certification of Nondiscrimination
Attachment B to AIA Agreement, as amended
Page
5
6
6
7
9
9
10
10
10
11
11
11
12
12
13
14
14
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Contract No.
AGREEMENT BETWEEN THE CITY OF PALO ALTO AND THE PALO ALTO
ART CENTER FOUNDATION FOR THE DESIGN OF CAPITAL
IMPROVEMENTS RELATING TO THE RENOVATION OF THE PALO ALTO
ART CENTER
This DESIGN OF CAPITAL IMPROVEMENTS RELATING TO THE
RENOVATION OF THE PALO ALTO ART CENTER AGREEMENT (the "Design
Agreement"), dated, for convenience, March __, 2008 (the "Effective Date"), is entered
into by and between the CITY OF PALO ALTO, a California chartered municipal
corporation (the "City") and the PALO ALTO ART CENTER FOUNDATION, a
corporation organized under the Nonprofit Public Benefit Corporation Law of the State of
California (the "Foundation") (individually, a "Party" and, collectively, the "Parties"), in
reference to the following facts and circumstances:
RECITALS:
1. The City owns and operates the Palo Alto Art Center (the "Center"), an
approximately 28,000-square foot building and surrounding premises, located at 1313
Newell Road, Palo Alto, California (the "Facility"). A description and map of the
Facility is attached to this Design Agreement as Exhibit "A."
2. In furtherance of the Foundation’s mission, the Foundation has retained
Mark Cavagnero Associates (the "Architect") to design certain improvements to the
Facility, including, but not limited to, the creation of a new children’s wing, the addition
of classrooms and activity spaces, the construction of improvements to existing gallery
space, and the replacement of mechanical and electrical systems serving the Facility (the
"Project"). The Project is more specifically described in the schematic drawings, attached
to this Design Agreement as Exhibit "B." The Parties acknowledge that the renovation
and other construction work necessary to carry out the Project has not commenced as of
the Effective Date.
3. The Architect has begun the preparation of plans and drawings for the
Project through the schematic design and design planning and development phase. In
connection with these planning and design activities, the Parties acknowledge that (a) the
successful completion of the Project will require the Parties’ evaluation of various issues,
including, but not limited to, compliance with City and other applicable law requirements
regarding LEED, accessibility upgrades, seismic upgrades, hazardous materials removal
and electrical service upgrades that have not yet been completed, (b) the costs of
addressing the issues referred to in (a) cannot be accurately determined until the design
process has proceeded further, (c) the Parties have not yet resolved a number of policy
issues relative to, among other things, cost sharing and risk allocation of the renovation
work required to complete construction of the Project, and (d) the completion of the
renovation work may be infeasible if the Parties cannot resolve these policy issues and
execute and deliver a mutually acceptable contract pertaining to this work. Pending the
full resolution of these issues, the Parties nonetheless desire to establish the terms and
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conditions upon which the Foundation will cause the Architect to continue the
preparation of consmlction plans, drawings and specifications for the Project.
4. The City intends to reimburse the Foundation for a portion of these
design and design-related costs by this Design Agreement, notwithstanding that a portion
of these costs (approximately 25% of such costs) are attributable to bid and construction
administration work that will be completed later during the renovation and construction
phase of the Project. The Foundation acknowledges that the City will not be obligated to
pay for any additional amount for design costs and design, bid or construction
administration work under this Design Agreement or the Renovation Agreement;
provided, however, as to any additional design costs that are attributable to necessary
additional design services relating to the Project and arising after the Effective Date, the
Parties may agree to share in such additional design costs that will be addressed in the
Renovation Agreement. Although the Parties wish to reach an agreement on the
completion of the renovation and construction phase work for the Project, this Design
Agreement pertains only to the schematic design and design development and
construction documents phase of the Project. If the Parties agree to mutually acceptable
terms and conditions for the continuation of the Project through the renovation and
construction phase, then the Parties will execute a separate written agreement, setting
forth such terms and conditions (the "Renovation Agreement").
5. Based on the foregoing, this Design Agreement establishes the terms and
conditions under which the City will reimburse the Foundation an amount of funds for
the design and consultant services not to exceed two hundred ninety thousand dollars
($290,000.00). The City has appropriated these funds and will draw these funds (the
"Design Funds") from its General Fund’s Capital Improvement Program Project-
PF07000 (Art Center Electrical & Mechanical Upgrades), to reimburse the Foundation
for the Project costs as noted in Recitals 4 and 5. Disbursement of the Design Funds to
the Foundation will be made in accordance with the Palo Alto Municipa! Code
("PAMC"), applicable generally accepted accounting principles, and the covenants,
terms, conditions and provisions of this Design Agreement and the Exhibits, in particular,
the payment procedures, as described in and attached to this Design Agreement as
Exhibit "C."
NOW, THEREFORE, in consideration of the foregoing recitals and the following
covenants, terms, conditions and provisions, the Parties agree:
AGREEMENT:
SECTION 1. PURPOSES
1.1 The purposes of this Design Agreement are to: (A) grant the Foundation
temporary access to the Facility, as needed, during the Term in order that the Foundation
may cause the preparation of design documents for the Project; (B) provide for the
preparation by the Foundation’s architect, and the review and approval by the City, of
such plans, drawings and specifications for the Project; and (C) permit the Foundation to
accomplish through its architect al! related work that is required in order to complete the
design phase of the Project, including, without limitation, to comply with the City’s site
and design approval process, or as established by any City department, including the
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City’s Department of Planning and Community Environment (the "Planning
Department"), exercising the duty to review and!or approve the design of the Project, in
whole or in part.
SECTION 2. TERM
2.1 The term of this Design Agreement is one (1) year (the "Term"),
commencing on the Effective Date; provided, however, the Term will not extend after
March 31, 2009, unless and until the City’s City Council approves of the renewal of this
Design Agreement. If the completion of the design and plan development phase of the
Project is delayed for any reason beyond the reasonable control of the Foundation, then
subject to the preceding sentence, the Parties may agree, in writing, to extend the Term
on a month-to-month basis, in order to permit the Foundation to complete the design
phase of the Project.
2.2 This Design Agreement is subject to the fiscal provisions of the Charter of
the City of Palo Alto (the "Charter") and the PA~C. Subject to the Foundation’s rights
and remedies as may be available under this Design Agreement and applicable laws, this
Design Agreement will terminate without penalty: (A) at the end of any fiscal year in the
event that funds are not appropriated for the following fiscal year; or (B) at any time
within a fiscal year in the event that funds are appropriated for a portion of the fiscal year
and funds for this Design Agreement are no longer available. This Section 2.2 wil! take
precedence in the event of a conflict with any other covenant, term, condition or
provision of this Design Agreement and the Exhibits. Nothing in this Section 2.2 is
intended to affect the Foundation’s rights and remedies as may be ava~able under
applicable taws.
2.3 Notwithstanding anything in this Design Agreement to the contrary, if the
Parties fail to agree upon and execute and deliver the Renovation Agreement on or before
March 31, 2008, then either Party will have the right to terminate this Design Agreement
by delivering thirty (30) days’ prior written notice to the other Party. In the event of
termination, the City will reimburse the Foundation for design services in the amount as
contemplated in Section 4.2.
SECTION 3. USE; ACCESS TO THE FACILITY; PLAN APPROVAL
3.! Subject to the covenants, terms, conditions and provisions of this Design
Agreement, the City hereby grants to the Foundation, its directors, officers, employees,
contractors, agents and representatives the nonexclusive right to enter upon the Facility at
reasonable times during the Term for the purposes of conducting, at the Foundation’s own
cost and expense, in connection with the design and plan development phase of the
Project, soil, geologic, and engineering or other investigations, as may be required to
enable the Foundation and to prepare schematic plans, development plans, construction
drawings and other similar design-related documents, take measurements, and inspect the
Facility. No other rights, title or interests, including, but not limited to, any estate, fee,
leasehold, easement or other real property interest, in the Facility is granted or intended to
be granted to the Foundation by this Design Agreement. The Foundation will use the
Facility without unnecessary and undue interference or interruption of the public’s use
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and enjoyment of the Facility, while the Foundation has the nonexclusive possession of
the Facility and the Facility is not yet closed to the public.
3.2 Nothing in this Design Agreement will be construed to limit the City’s
right to temporarily suspend or revoke the Foundation’s access to the Facility in the event
of default and a breach of this Design Agreement by the Foundation or in the interest of
the public health, safety and welfare.
3.3 The City acknowledges that it has received and approved the schematic
plans (the "Schematic Plans"). The Parties acknowledge that the Architect is currently
preparing design development plans (the "Design Development Plans") and, following
completion of the Design Development Plans, so long as this Design Agreement remains
in effect, the Architect will prepare construction drawings and specifications
(collectively, the "Construction Documents"). The Foundation acknowledges that the
City has the right (as a part of its site and design review process) to review and approve
the Design Development Plans and the Construction Documents (and any applicable
iterations thereof). The City will approve or disapprove the Design Development Plans
and the Construction Documents within the customary period of time for such review and
approval arising during the site and design review process, and, if disapproved, the City
will return the applicable plans to the Foundation with specific comments regarding
changes that are required to obtain the City’s approval. The Foundation will then instruct
the Architect to make all necessary revisions within ten (10) days after the Foundation’s
receipt of such requested revisions. The City hereby appoints Karen Smith as its
representative to review and approve the Design Development Plans and the Construction
Documents.
SECTION 4. CONSIDERATION
4.1 In consideration of the funding (or reimbursement of funds to be provided)
by the City, as described in Section 4.2, subject to the terms of this Design Agreement the
Foundation will: (A) solicit and otherwise use good faith efforts to obtain financial
contributions from the PaloAlto community and other sources to defray substantially all
of the costs and expenses of the design and planning phase of the Project; and (B) use
good faith efforts to undertake a community outreach program in regard to the Project,
and, if requested, provide reasonable information to the Facility’s surrounding
neighborhood residents and use good faith efforts to address any reasonable questions
arising concerning the Project for the purpose of soliciting their input and support for the
design and planning (and subsequent construction) of the Project.
4.2 As set forth in Recitals 4 and 5, the City will contribute to the Project’s
design consultant’s (Architect’s) costs from a part of the City’s General Fund that is
allocated to the Capital Improvement Program Project PF-07000 (Art Center Electrical &
Mechanical Upgrades) in an amount not to exceed two hundred ninety thousand dollars
($290,000.00). The City will provide City staff support and other assistance, as
practicable, to the Foundation, upon request and at no cost or expense to the Foundation,
in connection with the commencement and completion of the design and planning phase
of the Project.
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(A) The City represents that the Design Funds referred to in Recitals 4 and 5
and Section 4.2 have been budgeted and appropriated in fiscal year 2007-08, and such
funds will be disbursed to the Foundation in accordance with Section 4.3 and Exhibit
4.3 The City will administer and coordinate the receipt and disbursement of
the funds referred to in Section 4.2, as follows:
(A) The City will disburse the City’s share of the full Architect’s costs and
expenses, including the bid and construction administration costs and expenses, not to
exceed two hundred ninety thousand dollars ($290,000.00) in the aggregate, as follows:
(1) within ten (10) days after the execution and delivery of this Design Agreement, the
first installment of forty-three thousand five hundred dollars ($43,500.00) for schematic
design costs and expenses, previously incurred by the Foundation for the design of the
Project; (2) the second installment of fifty-eight thousand dollars ($58,000.00) will be
paid upon the City’s determination that the Project has attained the thirty-five percent
(35%) schematic design phase and design development phase completion milestone; (3)
the third installment of ninety-four thousand two hundred fifty dollars ($94,250.00) will
be paid upon the City’s determination that the Project has attained the fifty percent (50%)
Construction Documents phase completion milestone; and (4) the fourth installment of
ninety-four thousand two hundred fifty dollars ($94,250.00) will be paid upon the City’s
determination that the Project has attained the one hundred percent (100%) Construction
Documents phase completion milestone. The City will make payment in accordance with
the payment procedures, as described in Exhibit "C." The City’s City Manager (the "City
Manager"), or designee, will make the determination regarding the percentage
completion milestones referred to in the preceding sentence.
(B) The City will waive its right to collect from the Foundation any and all
permit- and permit-related fees and charges (including plan check fees, inspection fees,
and building permit fees) that otherwise would be due and payable by the Foundation to
the City with respect to its design and plan development of the Project at the Facility and
any other related work costs in connection therewith; provided, however, the City cannot
waive its right to collect from the Foundation any and all rates, fees and charges that are
due and payable by the Foundation in consideration of the receipt of utility services to the
extent such services are provided and billed directly to the Foundation at the Facility.
SECTION 5. INSURANCE
5.1 The Foundation will cause the Architect to carry insurance of the types
and with limits in the amounts set forth in the insurance certificate attached to this Design
Agreement as Exhibit "D." The Foundation wil! ensure that the Architect will name the
City as an additional insured under the Architect’s commercial general liability policy.
The limits will not be less than one million dollars ($1,000,000.00) each for commercial
general liability and professional liability. The additional insurance coverage provisions
of the Indemnity and Insurance paragraph of the amended Attachment B to the AIA
Agreement, referred to in Section 6.2 below, are hereby made a part of this Design
Agreement. The Foundation will ensure that the City receives the certificate of insurance
from the Architect on or before the Effective Date and any updated certificate, within
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thirty (30) days after any materia! change in coverage is made; provided, however, the
Foundation will cause the Architect to send the most current insurance certificate to the
City’s insurance risk manager or other designated City employee not more than once a
year during the Term.
SECTION 6. INDEMNITY
6.1 Subject to Section 6.2, the Foundation will protect, defend, indemnify and
hold harmless the City, its officials, officers, employees and representatives, from any
and all demands, claims, damage, loss or liability for death of or injury to persons,
property damage caused by or arising out of its negligence or willful misconduct~ in
connection with the performance of its obligations under this Design Agreement.
6.2 The Parties acknowledge that (a) the Foundation has retained the Architect
in its capacity as a professional licensed architect to provide the architectural (design)
services contemplated by this Design Agreement and (b) the City desires to be
indemnified from any and all demands, claims, damage, loss or liability arising from the
Architect’s provision of design services and, in particular, its negligence in designing the
Project, referred to in recital number 3 of this Design Agreement. Accordingly, in lieu of
an indemnity, similar in form as set forth in Section 6.1 hereof, that the City otherwise
would require the Foundation to give to the City with respect to the Architect’s
negligence in its provision of design services, on or before the Effective Date, the
Foundation will secure an amendment to Attachment B to its AIA Document B15! -
1997 Abbreviated Standard Form of Agreement between Owner and Architect, dated as
of September 24, 2007, between the Foundation, as Owner, and Mark Cavagnero
Associates, as Architect (the "AIA Agreement"), whereby the Architect will indemnify
the City for its negligence in rendering the design services to the Foundation and, with
respect to such indemnity, the City will be declared or deemed an express third party
beneficiary of the AIA Agreement, Attachment B. The executed amendment to
Attachment B will be attached to this Design Agreement as Exhibit "F." Notwithstanding
the foregoing or anything else in this Design Agreement to the contrary, provided the
Foundation and the Architect enter into an amendment to the AIA Agreement as provided
in this Section 6.2, the Foundation will not be liable to the City for and it will not be
required to protect, indemnify, defend and hold harmless the City, its officials, officers,
employees and representatives in connection with (c) any acts or omissions of the
Architect or its officers, emp!oyees, agents, contractors or representatives (collectively,
the "Architect’s Parties"). in connection with the design and other related services
provided by the Architect or the Architect’s Parties in connection with the Project,
including, without limitation, any defective or negligent design or the negligent hiring or
supervision of the Architect or the Architect’s Parties.
SECTION 7. WAIVER
7.1 The waiver by either Party of any breach or violation of any covenant,
term, or condition of this Design Agreement or of the provisions of the PAMC or other
City law, rule or regulation, will not be deemed to be a waiver of any such covenant,
term, condition, or provision or of any subsequent breach or violation of the same or any
other covenant, term, condition, or provision. The subsequent acceptance by either Party
of any consideration which may become due or payable hereunder will not be deemed to
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be a waiver of any preceding breach or violation by the other Party of any other covenant,
term, condition or provision.
SECTION 8. ASSIGNMENT
8.1 The Foundation will not assign, transfer, or convey this Design Agreement
and the Exhibits without the express written approval of the City, and any such
assignment, transfer or conveyance without the approval of the City will be void and, in
such event, at the City’s option, this Design Agreement may be terminated upon
reasonable notice to the Foundation. Notwithstanding the foregoing, the Foundation may
delegate to the Architect or other design professional, if any, the responsibility for
compliance with the Foundation’s obligations, covenants, terms and conditions of this
Design Agreement, provided such delegation will not relieve the Foundation of its
obligations under this Design Agreement.
SECTION 9. NONDISCRIMINATION
9.1 The PAMC prohibits discrimination in the employment of any individual
under this Design Agreement because of race, skin color, gender, age, religion, disability,
national origin, ancestry, sexual orientation, housing status, marital status, familial status,
weight or height of that person. The Foundation acknowledges that it has read and
understands the provisions of PAMC Chapter 2.30 relating to nondiscrimination in
employment and the penalties for violations thereof, and it agrees to comply with all
requirements of PAMC Chapter 2.30 pertaining to nondiscrimination in employment,
including the completion, execution and submission to the City of the Certification of
Nondiscrimination, as described in and attached to this Design Agreement as Exhibit "E."
SECTION 10. FORCE MAJEURE
10.1 A Party will be temporarily excused from the performance or further
performance of any of its covenants or agreements or any terms or conditions that it is
obligated to fulfill hereunder and such Party’s nonperformance shall not be deemed an
event of default under this Design Agreement for any period to the extent that such Party
is prevented, hindered or delayed for any period of time from performing any of its
covenants or agreements, in whole or in part, or any term or condition it is required to
perform or satisfy as a result of an act of God, war, civil disturbance, court order, or other
cause beyond that Party’s reasonable control. The Parties hereby agree to use reasonable
efforts to remedy the effects caused by the occurrence of the event giving rise to a Party’s
temporary nonperformance of its covenants or agreements or any terms or conditions that
it is obligated to fulfill hereunder. A Party will provide notice promptly to the other Party
to the extent that such Party relies on the provisions of this Section to temporarily excuse
its failure to perform any of its covenants or agreements or any terms or conditions
hereunder.
SECTION 11. AUDITS; INSPECTION OF RECORDS
11.1 The Foundation will maintain, or caused to be maintained by its Architect
or other design professional, if any, books and records relating to the design and plan
development of the Project during the Term and for three (3) years thereafter. It will
080201jb 0072986 9
permit the City to inspect, audit and copy, upon thirty (30) days’ prior written notice from
the City at any reasonable ’time during the Term and for three (3) years after the
expiration or earlier termination of the Design Agreement, the Foundation’s books and
records pertaining to its obligations imposed by this Design Agreement. The Foundation
will retain such books and records at accessible locations and for at least thee (3) years
after the expiration or earlier termination of this Design Agreement, whichever occurs
later. This provision will survive the expiration or earlier termination of this Design
Agreement.
SECTION 12. INDEPENDENT CONTRACTOR
12.1 In the design and plan development of the Project and the performance of
other duties imposed upon it by this Design Agreement, the Foundation acts at all times
as an independent contractor and not as an employee of the City. Nothing in this Design
Agreement will be construed to establish a partnership, joint venture, group, pool,
syndicate or agency between the Parties. No provision contained herein will be construed
as authorizing or empowering either Party to assume or create any obligation or
responsibility whatsoever, express or implied, on behalf, or in the name of, the other
Party in any manner, or to make any representation, warranty or commitment on behalf of
the other Party. In no event will either Party be liable for (a) any loss incurred by the
other Party in the course of its performance hereunder, or (b) any debts, obligations or
liabilities of the other Party, whether due or to become due.
SECTION 13. REPRESENTATIONS AND WARRANTIES
13.1 On the Effective Date, each Party rePresents and warrants to the other
Party that: (A) it is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its formation; (B) the execution, delivery and performance of this
Design Agreement and the Exhibits are within its powers, have been duly authorized by
all necessary action and do not violate any of its governing documents, any contracts to
which it is a party or any law, rule, regulation, or order; (C) this Design Agreement and
the Exhibits and any other document executed and!or delivered in accordance with this
Design Agreement constitutes its legally valid and binding obligation enforceable against
it in accordance with its covenants, terms, conditions and provisions, subject to any laws
relating to bankruptcy, insolvency, and reorganization; (D) it has not filed and it is not
now contemplating the filing for bankruptcy protection and, to its knowledge, there is not
an involuntary proceeding threatened against it which would result in it being or
becoming a debtor under any bankruptcy law; (E) there is not pending or, to its
knowledge, threatened against it or any of its affiliates any legal proceedings that could
materially adversely affect its ability to perform its obligations under this Design
Agreement and the Exhibits; and (F) no event of default or potential event of default with
respect to it has occurred and is continuing under this Design Agreement and no such
event or circumstance would occur as a result of its entering into or performing its
obligations under this Design Agreement and the Exhibits.
080201jb 0072986 l0
SECTION 14. NOTICES
14.1 All notices, requests and approvals by a Party will be given, in writing,
and delivered by personal service, the United States Postal Service, express delivery
service, or facsimile transmission, as follows:
TO CITY:City of Palo Alto
City Clerk
P.O. Box 10250
250 Hamilton Avenue
Palo Alto, CA 94303
With a copy to
each of:
City of Palo Alto
P. O. Box ! 0250
250 Hamilton Avenue
Palo Alto, CA 94303
ATTN: Real Property Manager;
and the Facilities Manager
TO FOUNDATION:Palo Alto Art Center Foundation
1313 Newell Road
Palo Alto, CA 94303
ATTN: Louise Carroll, Chief Operating
Officer
SECTION 15. EVENT OF DEFAULT; REMEDIES FOR DEFAULT
15.1 This Design Agreement may be terminated upon the occurrence of an
"event of default" by a Party (the "Defaulting Party"). An "event of default," which will
constitute a material breach of this Design Agreement if it is not cured in a timely
manner, means the occurrence of any of the following: (A) a representation or warranty
made by a Party is false or misleading in any material respect when made or deemed
made or repeated; (B) the failure to perform any material covenant, or obligation set forth
in this Design Agreement or any Exhibit if such failure is not remedied within thirty (30)
days after written notice of default is given; (C) a Party files a petition or otherwise
commences or acquiesces in the commencement of a proceeding under any bankruptcy,
insolvency, reorganization or similar law, makes an assignment for the benefit of its
creditors, has an administrator, receiver, trustee, conservator or similar official appointed
with respect to it or any substantial portion of its property or assets, or is generally unable
to pay its debts as they fal! due; (D) a Party consolidates with, merges with or into, or
transfers all or substantially all of its assets to, another entity and, at the time of such
consolidation, merger or transfer, the surviving entity fails to assume all of the
obligations of the Party under this Design Agreement and the Exhibits to which it was a
party by operation of law or pursuant to an agreement reasonably satisfactory to the other
Party; (E) the transfer of this Design Agreement and the Exhibits or any material
obligation arising under this Design Agreement and the Exhibits, whether voluntarily or
by operation of law, without the consent of the other Party; and (F) the failure to make,
when due, any payment required by this Design Agreement if such failure is not
remedied within five (5) business days after written notice of default is given.
080201jb 0072986 11
15.2 If an event of default occurs and is continuing with respect to the
Defaulting Party, the other Party (the "Non-Defaulting Party") will have an election of
rights and remedies, in addition to all other rights and remedies afforded or provided by
law or in equity or as otherwise provided in this Design Agreement, to which the non-
defaulting Party may resort cumulatively, or in the alternative: (A) the right to terminate
this Design Agreement by giving thirty (30) days’ prior notice of termination, in which
event this Design Agreement will terminate on the date set forth in the notice of
termination; (B) the right to demand performance of an act which otherwise cure the
violation or any breach; and (C) the right to suspend performance of any of its material
obligations, including, without limitation, the right to withhold any payments due to the
Defaulting Party under this Design Agreement.
15.3 In the event of default which cannot reasonably be cured within sixty (60)
days, the Foundation may, at the City’s sole and exclusive option, have an additional
period of time specified by the City to cure the default. The remedies given to the City
hereunder, or by any law now or hereafter enacted, are cumulative and the exercise of
one right or remedy will not impair the right of the City to exercise any or all other
remedies. In case any suit, action or proceeding to enforce any right or exercise any
remedy shall be brought or taken and then discontinued or abandoned, then, and in every
such case, the Parties will be restored to their former positions, rights and remedies as if
no such suit, action or proceedings had been brought or taken.
SECTION 16. DISPUTE RESOLUTION
16.1 If a dispute arises from or in connection with this Design Agreement,
generally, or any Exhibit, in particular (a "Dispute"), the following procedure will govern
the resolution of any such Dispute: (A) the Parties will nominate their respective
representatives to be responsible for and exercise the appropriate authority to resolve all
Disputes hereunder for the respective fourteen-day resolution period of time; and (B) if
the Dispute remains unresolved within such fourteen-day period, before either Party may
resort to the process described in Section 16.3, either Party may refer the Dispute, in
writing, for final settlement to the Foundation’s President and the City Manager, or
designee, who will jointly convene within ten (10) days of receipt of a referral request
and use reasonable efforts to consider and resolve the Dispute. The Parties will ensure
that their respective representatives confer for a period of fourteen (14) days from the
date of referral by either Party. If final resolution cannot be achieved, the Parties may
resort to the procedures described in Section 16.3 hereunder.
16.2 Nothing contained in this Design Agreement will prevent or otherwise
restrict either Party from pursuing its equitable rights, including injunctive relief and
specific performance, in the event of a material breach by the other Party.
16.3 In the event of a Dispute between the Parties with respect to this Design
Agreement or the enforcement of rights hereunder, either Party may, by notice to the
other Party (the "Mediation Notice"), require such dispute to be submitted to non-binding
mediation in Palo Alto, California, with a mediator acceptable to the Parties. If such
mediation does not result in a settlement of the Dispute within one hundred eighty (180)
days from the date of the Mediation Notice, either Party may require such matter to be
08020lib 0072986 12
submitted to non-binding arbitration in Palo Alto, California, under the rules of the
American Arbitration Association. Action of any kind by either Party arising out of this
Design Agreement must be commenced within one (1) year from the date the right,
claim, demand or cause of action first arises.
SECTION 17. MISCELLANEOUS
17.1 This Design Agreement will be governed by and construed in accordance
with the laws of California and, as appropriate, the Charter, and the PAMC. The Parties
will comply with applicable taws in the exercise of their rights and the performance of
their obligations under this Design Agreement.
17.2 All covenants, terms, conditions and provisions of this Design Agreement,
whether covenants or conditions, will be deemed to be both covenants and conditions.
!7.3 This Design Agreement represents the entire agreement between the
Parties and supersedes all prior negotiations, representations and contracts, written or
oral, relating to the subject matter of this Design Agreement. This Design Agreement
may be amended by an instrument, in writing, signed by the Parties. This Design
Agreement may be executed in any number of counterparts, each of which will be an
original, but all of which together will constitute one and the same instrument.
!7.4 All exhibits referred to in this Design Agreement are by such references
incorporated in this Agreement and made a part hereof. A reference to this Design
Agreement will include a reference to the applicable exhibit or exhibits hereto. The
following exhibits are made a part of this Agreement:
Exhibit "A"
Exhibit "B"
Exhibit "C"
Exhibit "D"
-Description and Map of the Facility
-Schematic Drawings
-Payment Procedures
-Insurance Certificate
Exhibit "E" - Certification of Nondiscrimination.
Exhibit "F" - Attachment B to AIA Agreement, as amended
17.5 At the request of the City, the Foundation will furnish to the City Attorney
for review its articles of incorporation.
17.6 The Parties agree that the normal rule of construction to the effect that any
ambiguity is to be resolved against the drafting party will not be employed in the
interpretation of this Design Agreement and the Exhibits or any amendment thereto.
17.7 In the event that an action is brought, the Parties agree that trial of such
action will be vested exclusively in the state courts of California or in the United States
District Court for the Northern District of California in the County of Santa Clara, State
of California.
17.8 The prevailing Party in any action brought to enforce the provisions of this
Design Agreement and the Exhibits may recover its reasonable costs and attorneys’ fees
expended in connection with that action.
080201jb 0072986 t3
! 7.9 If a court of competent jurisdiction finds or rules that any provision of this
Design Agreement, the Exhibits, or any amendment thereto, is void or unenforceable, the
unaffected provisions of this Design Agreement, the Exhibits, or any amendment thereto,
will remain in full force and effect.
17.10 The term °"day" means a calendar day, unless a ~"business day" is
specified; for the purposes of this Design Agreement, ~business day" means a calendar
day but it excludes any "Regular Holiday" or "Other Special Day" referred to in PAMC
Section 2.08.100 or any Friday that is considered a ~9/80’ day, when the City does not
require employees, electing to work nine (9) business days in a ten-business-days
biweekly period, to work on such days.
17.11 Any director, officer or employee of the Foundation will not be liable for
the performance of the Foundation’s obligations under this Design Agreement.
IN WITNESS WHEREOF, the Parties by their duly authorized representatives
have executed this Design Agreement on the Effective Date.
APPROVED AS TO FORM:CITY OF PALO ALTO
Senior Asst. City Attorney
APPROVED:
Mayor
PALO ALTO ART CENTER
FOUNDATION
City Manager
Director of Administrative Services
Director of Community Services Chief Operating Officer
Director of Public Works
08020lib 0072986 14
EXHIBIT "A"
DESCRIPTION AND MAP OF THE FACILITY
[to be attachedl
080201jb 0072986 15
EXH1BIT "B"
SCHEMATIC DRAWINGS
[to be attached}
080201jb 0072986 16
EXHIBIT "C"
PAYMENT PROCEDURES
A.General Procedures:
1.The Foundation will be wholly responsible for paying the Architect in a
timely manner in accordance with its contract with that party.
2.The Foundation will deliver to the City all required documentation, specified
below, for the design services work payments to:
City of Palo Alto
Public Works Division
Attention: Karen Smith, Facilities Manager
250 Hamilton Avenue
P. O. Box 10250
Palo Alto, CA 94303.
o The individual referred to in the preceding paragraph (the "PW Manager")
will review and approve the submittals and initiate the process of making
payments to the Foundation in a timely manner in accordance with the City’s
usual accounts payable procedures. The PW Manager may refer her approval
of the Foundation’s invoices to the City’s Real Property Manager, who will
forward the approved invoices the City’s accounts payable personnel for
reimbursement, directly, to the Foundation. The City will not assure the
Foundation that reimbursement will occur within any specified time frame
after submittal; provided, however, the City will endeavor to pay the
Foundation in a timely manner.
Payments for Design Services:
The City will contribute the maximum sum of $290,000 for the design
consultant services costs of the Project, which sum will be paid to the
Foundation in the installments, as outlined in Section 4.3(A) of this Design
Agreement, following the receipt of the Foundation’s documentation in
support of each installment payment request.
o The required documentation will consist of copies of the Architect’s contract
with the Foundation, the Architect’s invoices, as submitted to the Foundation
for payment, with documentation of all design and plan development services
rendered to that point in time, together with the Foundation’s proof of
payment of such invoices.
3.Following its receipt of the documentation submitted by the Foundation, the
City will process each of the installment payments to the Foundation, based
080201jb 0072986 17
upon the Architect’s determination that the design has achieved the
completion percentage stages specified in Section 4.3(A) of this Design
Agreement.
Notwithstanding any other provision in this Section B of Exhibit "C" to the
contrary, the City will not be required to make payment of any amount unless
and until Exhibit "F" is executed by the Foundation and the Architect and
submitted to the City Attorney, who will review it for compliance with the
requirements of Section 6.2 of this Design Agreement.
08020lib 0072986 18
ACORO.
PRODUCER LIC #OE67768
IOA Insurance Services
CERTIFICATE OF LIABILITY INSURANCE
3875 Hopyard Road, Ste. 240
Pleasanton, CA 94588
Reno Caldwell
INSURED
Mark Cavagnero Associates
A California Corporation
1045 Sansome Street Ste. 200
San Francisco, CA 94111
COVERAGES
1-925-416-7862
1 0
DATE (M M/DD/YY)
03/05/08
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
INSURERS AFFORDING COVERAGE
INSURERA:Travelers Indemnity Company of Connecticut
INSURERS:Travelers Property Casualty Company of America
INSURERC:Endurance RE
INSURER D:Ace American Insurance Company
INSURER E:
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR {POLICY NUMBER i, POLICYI2AT~ {MM/OD/yy)EFFECTIVE POLICYDATE fMMfO~Iyy)EXPIRATION,LTR TYPE OF INSURANCE ,,LIMITS
A GENERAL LIABILITY 680-0525M3!A 02/15/08 02/15/09
X~ COM MERCIAL GEN ERAL LIABILITY
~ CLAIMS MADE ~ OCCUR
GEN’L AGGREGATE LIMIT APPLIES PER:
POLICY [--~ PRO-,IECT
. A~OMOBILE LIABILITY~__~ ANY AUTO
HIRED AUTOS~NON-OWNED AUTOS
~L~ DEDUCTIBLERETENTION S
WORKERS COMPENSATION AND
EMPLOYERS’ LIABILITY
~ LOC I
680-0525M31A o2/15/o8 02/15/09
EACH OCCURRENCE { S 1 , 000 , 000
FIRE DAMAGE (Any one f~re)! S 500,000
MED EXP (Any one person)I S 5,000
PERSONAL & ADV INJURY IS 1,000,000
GENERALAGGREGATE j S 2,000,000
PRODUCTS - COMP/OP AGG S 2,000,000
CUP-8853Y728
W-iN0028690-01
o2/15/o8
09/01/07
COMBINED SINGLE LIMIT(Ea accident)S 1, 0 0 0,0 0 0
BODILY INJURY(Per person)S
02/15/09 1,000,000
BODILY INJURY(Per accident)S
PROPERTY DAMAGE(Per accident)
AUTO ONLY- EAACCIDENT ! S
OTHER THAN EA ACC
AUTO ONLY:AGG
EACH OCCURRENCE $
o9/ol/o8
OTHERDProfessional Liability N00917965 10/30/07 10/30/08
DES~RIPT~~N~F~~ERATI~N~~~~~AT~~NSNE~~CLE~~E~~~~S~~NSADDEDB~~ND~RSEMENT~S~~~~A~~R~~~S~~NS
All operations of the Namted Insured, including the agreement between the Palo Alto Art Center Foundation and
Mark Cavagnero Associates for the renovation project of the Palo Alto Art Center.
General Liability: See Additional Insured endorsement attached.
General Liability Additional Insured: The City of Palo Alto, its Council members, officers, employees, and
authorized agents and The Palo Alto Art Center Foundation and its officers, directors and employees.
AGGREGATE S i,000,000
is
!s
X WC STATU- OTH-TORY L ~ T$! ER I
E.L. EACH ACCIDENT I S l, 000,000
E.L. DISEASE ~ EA EMPLOYE~ S l, 000,000
E.L DISEASE- POLICY LIMIT i S 1,000,000
Per Claim S 1,000,000
Annual Aggregate
sS !, 000,000
CERTIFICATE HOLDER I t ADDITIONAL INSURED; INSURER LETTER:
Director, Palo Alto Art Center
Attn: Linda Craighead
Director, Division of Arts & Sciences
1313 Newell Road
Palo Alto, CA 94303
ACORD25-S (7197) 102445
8269693
USA
CANCELLATION *!0 DAYS NOTICE FOR NON-PAYMENT OF PREMIEM
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
DATE THEREOF, THE ISSUING INSURER WILL E~k~Or,~RK~MAIL 30 DAYS WRITTEN
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, 5~%L~E:~).~Xl
~M~Y~M ~.XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
AUTHORIZED REPRESENTATIVE ~~~2
@ ACORD CORPORATION 1988
POLICY NUMBER: ~.o-o~=~.~lA COMMERCIAL GENERAL LIABILITY
NAMED INSURED:DATE ISSUED: o3/o5/o8
Mark Cavagnero Associates
A California Corporation
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED
(ARCHITECTS, ENGINEERS AND SURVEYORS)
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE FORM
SCHEDULE
NAME OF PERSON(S) OR ORGANIZATION(S):
The City of Palo Alto, its Council members, officers, employees, and authorized
agents and the Pa!o Alto Art Center Foundation and its officers, directors, and
employees.
PROJECT/LOCATION OF COVERED OPERATIONS:
The agreement between the Palo Alto Art Center Foundation and Mark Cavagnero Associates
for the renovation project of the Palo Alto Art Center
WHO IS AN INSURED (Section II) is
amended to include the person or
organization shown in the Schedule
above as an additional insured on this
Coverage Part, but:
a. Only with respect to liability for "bodily
injury", "property damage" or "personal
injury"; and
If the injury or damage arises out of
the performance, by you or your
subcontractor, of "your work" on or for
the project, or at the location, shown
in the Schedule above. Such person
or organization does not qualify as an
additional insured with respect to their
independent acts or for "bodily injury",
"property damage" or "personal injury"
for which that person or organization
has assumed liability in a contract or
agreement.
2.The insurance provided to the additional
insured by this endorsement is limited as
follows:
a. This insurance does not apply to the
rendering of or failure to render any
"professional services".
b. The limits of insurance afforded to the
additional insured shall be the limits
which you agreed to provide in a
"contract or agreement requiring
insurance" for that additional insured,
or the limits shown in the Declarations
for this Coverage Part, whichever are
tess. This endorsement does not
increase the limits of insurance stated
in the LIMITS OF INSURANCE
(Section III) for this Coverage Part.
3.The following is added to Paragraph a. of
4. Other Insurance in COMMERCIAL
CG D3 82 09 06 Includes copyrighted material of Insurance Services Office, Inc., with its permission.
Copyright, Insurance Services Office, Inc., 2001
Page I of 2
GENERAL LIABILITY
(Section IV):
CONDITIONS
However, if you specifically agree in a
"contract or agreement requiring
insurance" that, for the additional
insured shown in the Schedule, the
insurance provided to that additional
insured under this Coverage Part must
apply on a primary basis, or a primary
and non-contributory basis, this
insurance is primary to other
insurance that is available to such
additional insured which covers such
additional insured as a named
insured, and we will not share with the
other insurance, provided that:
(1)The "bodily injury" or "property
damage" for which coverage is
sought occurs; and
(2)The "personal injury" for which
coverage is sought arises out of
an offense committed;
after you have entered into that
"contract or agreement requiring
insurance" for such additional insured.
But this insurance still is excess over
valid and collectible other insurance,
whether primary, excess, contingent
or on any other basis, that is available
to the additional insured when the
additional insured is also an additional
insured under any other insurance.
The following is added to Paragraph 8.
Transfer Of Rights Of Recovery Against
Others To Us in COMMERCIAL
GENERAL LIABILITY CONDITIONS
(Section IV):
We waive any rights of recovery we may
have against the additional insured shown
in the Schedule above because of
payments we make for "bodily injury",
"property damage" or "personal injury"
arising out of "your work" on or for the
project, or at the location, shown in the
Schedule above, performed by you, or on
your behalf, under a "contract or
agreement requiring insurance" with that
additional insured. We waive these rights
only where you have agreed to do so as
part of the "contract or agreement
requiring insurance" with that additional
insured entered into by you before, and in
effect when, the "bodily injury" or "property
damage" occurs, or the "personal injury"
offense is committed.
As respects the insurance provided to the
additional insured by this endorsement,
the following definition is added to
DEFINITIONS (Section V):
"contract or agreement requiring
insurance" means that part of any
contract or agreement under which you
are required to include the person or
organization shown in the Schedule as an
additional insured on this Coverage Part,
provided that the "bodily injury" and
"property damage" occurs, and the
"personal injury" is caused by an offense
committed:
After you have entered into that
contract or agreement;
While that part of the contract or
agreement is in effect; and
Before the end of the policy
period.
All other terms of your policy remain the
same.
CG D3 82 09 06 Includes copyrighted material of Insurance Services Office, Inc., with its permission.
Copyright, Insurance Services Office, Inc., 1988
Page 2 of 3_
EXHIBIT "E"
CERTIFICATION OF NONDISCRIMINATION
As suppliers of goods or services to the City of Palo Alto, the firm and individuals listed below
certify that they do not discriminate in employment of any person because of race, skin color,
gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status,
marital status, familial status, weight or height of such person; that they are in compliance with all
Federal, State and local directives and executive orders regarding nondiscrimination in
employment.
1.If Proposer is INDIVIDUAL, sign here:
Date:
Proposer’s Signature
Proposer’s typed name and title
If Proposer is PARTNERSHIP or JOINT VENTURE, at least (2) Partners or each of
the Joint Venturers shall sign here:
Partnership or Joint Venture Name (type or print)
Date:
Date:
Member of the Partnership or Joint Venture signature
The undersigned certify that they are respectively:
and
Title
Member of the Partnership or Joint Venture signature
If Proposer is a CORPORATION, the duly authorized officer(s) shall sign as follows:
Title
Of the corporation named below; that they are designated to sign the Proposal Cost Form by
resolution (attach a certified copy, with corporate seal, if applicable, notarized as to its
authenticity or Secretary’s certificate of authorization) for and on behalf of the below named
CORPORATION, and that they are authorized to execute same for and on behalf of said
CORPORATION
Corporation Name (type or print)
By:.
Title:
By:.
Title:
Date:
Date:
EXHIBIT "F" - ATTACHMENT B TO AIA AGREEMENT, AS AMENDED
AMENDMENT
This Amendment is entered into this ~ day of ,2008, between Palo Alto
Art Center Foundation (the "Owner"), and Mark Cavagnero Associates, a California corporation (the
"Architect").
RECITALS
The Owner and the Architect are parties to an "Abbreviated Standard Form of Agreement
Between Owner and Architect" dated effective as of September 24, 2007 (the "Agreement"), concerning
certain property located at 1313 Newell Road, Palo Alto, California (the "Property"). Owner and Architect
desire to amend the Agreement as provided below.
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree to amend the Agreement as follows:
hereto.
above.
AGREEMENT
Attachment B to the Agreement is hereby deleted in its entirety and is replaced with Attachment B
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written
"Owner"
Palo Alto Art Center Foundation,
a California non-profit corporation
By:
Its:
"Architect"
Mark Cavagnero Associates,
a California corporation
By:
Its:
PA\10537926.3
ATTACHMENT B AIA DOCUMENT B151-1997
Verification of Existing Conditions
Inasmuch as the remodeling and/or rehabilitation of an existing building requires that certain assumptions
be made regarding existing conditions, and because some of these assumptions may not be verifiable
without expending additional sums of money, or destroying otherwise adequate or serviceable portions of
the building, the Owner agrees that except for negligence on the part of the Architect or its consultants,
the Architect will have no liability arising out of the reasonable assumptions made regarding existing
conditions. This agreement does not include services relative to detailed investigation, surveys,
evaluations, inventories or appraisals of existing conditions, facilities, equipment or furnishings, or to make
measured drawings thereof, or to verify the accuracy of drawings or other information furnished by others.
INDEMNITY AND INSURANCE
Architect agrees to protect, indemnify, defend, and hold harmless the City of Palo Alto ("City"), its Council
member, officers, employees and agents, and the Owner and its directors, officers and employees from
any and all demands, claims, or liability of any nature, including death or injury to any person, property
damage or any other loss, to the extent caused by Architect’s, its officers’, agents’, or employees’
negligent acts, errors, or omissions, or willful misconduct, or conduct for which applicable law may impose
liability on Architect in the negligent performance of its obligations under this Agreement. The Owner and
the Architect agree that the City shall be an express third party beneficiary of the indemnity of the Architect
under this paragraph.
Architect, at its sole cost and expense, will obtain and maintain, in full force and effect during the term of
this Agreement, the insurance coverage described in Article 12.5 insuring not only Architect and its
consultants, if any, but also, with the exception of the worker’ compensation, employer’s liability and
professional liability insurance, naming each of the Owner and City as an additional insured concerning
Architect’s performance under this Agreement.
All the insurance coverage required hereunder will be provided through carriers with Best’s Key Ratin.q
Guide ratings of A: VII or higher which are admitted to transact insurance business in the State of
California.
Certificates of such insurance, preferably on the forms provided by City, will be delivered to Owner and
City concurrently with the execution of this Agreement. The certificates will be subject to the approval of
City’s risk manager and will contain an endorsement stating the insurance is primary coverage and will not
be canceled by the insurer except after filing with the Owner and the City’s city clerk thirty (30) days’ prior
written notice of such cancellation, (10) days’ prior written notice for non-payment of premium and that the
Owner and the City are each named as an additional insured except in policies of workers’ compensation,
employer’s liability, and professional liability insurance. Current certificates of such insurance will be kept
on file at all times during this Agreement with the city clerk.
The procuring of such required policy or policies of insurance will not be construed to limit Architect’s
liability hereunder nor to fulfill the indemnification provisions of this Agreement. Notwithstanding the policy
or policies of insurance, Architect will be obligated for the full and the total amount of any damage, injury,
or loss caused by or directly arising as a result of the negligent Services performed under this Agreement,
including such damage, injury, or loss arising after the Agreement is terminated or the term has expired.
Assignment.
Notwithstanding anything in the Agreement to the contrary, Owner and Architect acknowledge that the
land and buildings comprising the Art Center that is the subject of this Agreement are owned by the City
and not by Owner. Accordingly, Owner shall have the right to assign this Agreement to the City without
the consent of the Architect.
PA\10537926.3
City of Palo Alto
Office of the City Manager
June 28, 2007
Jeannie Duisenberg, President
Palo Alto Art Center Foundation
c/o Palo Alto Art Center
1313 Newell Road
Palo Alto, CA 94303
RE: Palo Alto Art Center Improvements
Dear Ms. Duisenberg:
The City of Pa!o Alto (the "City") ahd the Palo Alto
Art Center Foundation (the "Foundation") wish to collaborate in
the Phase I construction of new improvements and alterations to
the existing improvements (the ~Project") at the Palo Alto Art
Center (the "Art Center"). The City is interested in providing.
to the Foundation for a period, of time land and facilities which
comprise the Art Center (the "Premises") to Permit the
alteration of the Art Center. The City understands that the
Foundation has an interest in signing a contract with the City
in regard to the City’s and the Foundation’s commitment to
complete the Project,on mutually acceptable terms and
conditions, as follows:
The term of any option agreement, lease, license
or other contract shal! be the construction
period, or as otherwise may be agreed to by the
parties.
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o The Foundation Will contribute significant funds
(currently estimated at approximately $4.8
million) over and above the amount to be
contributed by the City, as described in paragraph
9 below, to be used to cover the Foundation’s
administrative expenses in relation to the Project
and acquire the services of an architect, a
general contractor, a project manager, capital
campaign consultants and/.or other professional(s)
with respect to the fund~raising, design and
RO.~x10~0
P~o~ CA 94303650.329.2563650.3~.~ f~
Prinied with soy-based inks on 100% recycled paper proce&sed without chlorine
Palo Alto Art Center Foundation
June 28, 2007
Page 2
construction of the Project and defray Project-
related costs and expenses. The services of
contractors shall be procured in accordance with
informal competitive selection processes as
determined by the Foundation.
The Foundation will submit the final plans,
specifications and working drawings for the design
and construction of the Project to the City’s
Departments of Community Services, Planning and
Community Environment, and Public Works for review
and approval of, as appropriate, the City’s boards
and commissions and the Council.
o The Foundation will obtain and maintain all
required City permits and other authorizations and
furnish any financial and non-financia! security,
during the construction, as appropriate and upon
request, to the City.
o The Foundation will furnish a copy of its articles
of organization and other information relating to
its corporate status to the City for its review
and approval.
°The Foundation will continue and otherwise
undertake a community outreach and capital fund-
raising campaign to garner the community’s input
and support for the Project.
o The Foundation will surrender possession of the
Premises and transfer title to the Project, upon
completion thereof, to the City.
o The City will provide staff support and other
assistance~ upon request, to the Foundation in
connection with the execution of the Project.
°The City has currently earmarked Capital
Improvement Program funds in the budget in the
amount of $1.75 million as part of its
Infrastructure.Management Plan for the Art Center,
to be applied to the costs referred to in
paragraph 2 above.
!0.The City will waive the Foundation’s obligation to
pay Project-related fees and charges that are due
070614 gk 0072902
Pa!o Alto Art Center Foundation
June 28, 2007
Page 3
and payable to the City’s General Fund. However,
the Foundation will be obligated to pay al!
utility services rates, fees and charges that are
due and payable to the City’s Enterprise Fund in
connection with the Project.
ii. Any contract between the parties will be subject
to the approval of the Council and the approval as
to form by the City Attorney.
This letter is. not intended to be a contract between
the parties with respect to the Project. It is intended to
facilitate discussion of the Project and is only an expression
of the basis on which the parties would enter into a contract
regarding the Project and the rights and obligations of the
parties. The City requests the Foundation’s acknowledgement of
this letter of intent below in order that the City. may proceed
to develop with the Foundation, a draft contract concerning the
Project.
The City does not undertake any obligation or other
commitment to a realtor or real estate professionalin
connection~with any services rendered concerning this matter.
Sincerely,
CITY OF PALO ALTO
EMI L~HARRI SON
Assistant City Manager
The Pa!o Alto Art Center Foundation hereby
acknowledges receipt of the foregoing proposed general terms and
conditions of a contract between the parties pertaining to the
Project and agrees that a next step is the drafting of a
contract agreeable between the parties providing for the
development of the Project.
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CityWorks
ATTACHMENT C
ART CENTER ELECTRICAL & MECHANICAL
UPGRADES (PF-07000)
Description: This project will replace original mechanical and electrical
equipment and systems to meet current occupant need, provide code
compliance, and optimize operation and energy efficiency. This project is
proposed to be completed in coordination with a building addition funded
by the Art Center Foundation.
Justification: Many components of the mechanical and electrical
systems are original and have reached the end of their useful lives.
Consultant Services Scope: See Supplemental Information.
Supplemental Information: Consultant services may include
conceptual design, design development, construction documents, and
construction administration. Consultant will analyze existing systems and
design renovations to meet current code and user need. Consultant services
may also include structural engineering, architectural design, mechanical
and electrical engineering. Should the Art Foundation funding become
available prior to July t, 2008 this project will be moved forward.
ClP FACTS:
¯ Continuing
¯ Project Status: Design
¯ Timeline: 2008-2009
¯ Overall Project Completion: 0%
¯ Percent Spent: 0.00%
¯ Managing Department: Public Works
¯ Comprehensive Plan: Policy C-24
¯ Board/Commission Review: PTC
IMPACT ANALYSIS:
° Environmental: This project is categorically
exempt under CEQA Sec 15301.
¯ Design Elements: Will require ARB review for
exterior elements.
PY Budget
PY Actuals as of 12/31/07
$290,000
$o
Pre-Design Costs
Design Costs
Construction Costs
Other
Revenues:
Source of Funds:
$1,450,000
$:! 45
Infrastructure Reserve
$1,450,000
Project requires significant diversion of staffing and/or City funds due to outside fundingCouncil Policy Direction:opportunity.
/ Cirv of Palo Alto 2007-09 Budget