HomeMy WebLinkAbout2025-0132 - - Theater Park Design Consultant Agreement - Berger Partnership Docusign Envelope ID:4D8F50E9-B6F0-4E7A-9A4B-05097AE1A38A
AGREEMENT FOR PROFESSIONAL SERVICES
THEATER PARK DESIGN
THIS AGREEMENT made and entered into by and between the CITY OF
AUBURN, a Washington Municipal Corporation ("CITY") and BERGER
PARTNERSHIP, PS whose address is 1927 Post Alley, Ste. 2, Seattle, WA 98101,
("CONSULTANT.")
In consideration of the covenants and conditions of this Agreement, the parties
agree as follows:
1. SCOPE OF WORK.
The CONSULTANT agrees to perform the tasks described on Exhibit "A".
2. TIME FOR PERFORMANCE, TERM AND TERMINATION OF AGREEMENT.
The CONSULTANT will not begin any work under this Agreement until
authorized in writing by the CITY. The term of this Agreement commences on the later
date of the Parties execution of this Agreement, as reflected on the signature page. The
CONSULTANT will perform the services in accordance with the direction and
scheduling provided on Exhibit "A", unless otherwise agreed to in writing by the parties.
All work performed under this Agreement will be completed by May 7, 2025.
Termination for cause. Either party may terminate this Agreement and/or any task
assignments upon written notice to the other party if the other party fails substantially to
perform in accordance with the terms of this Agreement through no fault of the party
terminating the Agreement. The notice will identify the reason(s) for termination, and
specify the effective date of termination. In the event of a default by CONSULTANT,
CITY may suspend all payments otherwise due to CONSULTANT and the CITY will
have no further obligations to CONSULTANT.
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Termination for Convenience. The CITY may terminate this Agreement and/or any
task assignments upon not less than seven (7) days written notice, which shall contain
the effective date of termination, to the CONSULTANT. If this Agreement is terminated
through no fault of the CONSULTANT, the CONSULTANT will be compensated for
services performed prior to. This payment shall fully satisfy and discharge the CITY of
all obligations and liabilities owed the CONSULTANT, who shall not be liable for any
anticipated profits or other consequential damages resulting from the termination.
Upon receipt of a termination notice, the CONSULTANT will promptly discontinue all
services affected and deliver to the CITY all data, drawings, specifications, reports,
summaries, and such other information and materials as the CONSULTANT may have
accumulated, prepared, or obtained in performing this Agreement, whether fully or
partially completed.
All rights and remedies provided in this Section are not exclusive of any other rights or
remedies that may be available to the CITY, whether provided by Law, equity, in any
other agreement between the parties or otherwise.
3. COMPENSATION.
The total compensation for this Agreement shall not exceed $19,300.00. If
services are required beyond those specified in the Scope of Work, and not included in
the compensation listed in this Agreement, a contract modification must be negotiated
and approved by the CITY prior to any effort being expended on those services.
4. SUBCONTRACTING.
The CONSULTANT shall not subcontract for the performance of any work under
this AGREEMENT without prior written permission of the CITY. No permission for
subcontracting shall create, between the CITY and subcontractor, any contract or any
other relationship.
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Compensation for any SUBCONSULTANT work is included in Section 3 of this
Agreement and all reimbursable direct labor, overhead, direct non-salary costs and
fixed fee costs for the SUBCONSULTANT shall be substantiated in the same manner
as outlined in Section 3. All subcontracts shall contain all applicable provisions of this
AGREEMENT.
5. RESPONSIBILITY OF CONSULTANT.
The CONSULTANT is responsible for the professional quality, technical
accuracy, timely completion and the coordination of all studies, analysis, designs,
drawings, specifications, reports and other services performed by the CONSULTANT
under this Agreement. The CONSULTANT shall, without additional compensation,
correct or revise any negligent errors, omissions or other deficiencies in its plans,
designs, drawings, specifications, reports and other services required. The
CONSULTANT shall perform its services to conform to generally-accepted professional
planning, architectural or engineering standards and the requirements of the CITY.
Any approval by the CITY under this Agreement shall not in any way relieve the
CONSULTANT of responsibility for the technical accuracy and adequacy of its services.
Except as otherwise provided in this Agreement, neither the CITY'S review, approval, or
acceptance of, nor payment for, any of the services shall be construed to operate as a
waiver of any rights under this Agreement or of any cause of action arising out of the
performance of this Agreement to the full extent of the law.
6. INDEMNIFICATION/HOLD HARMLESS.
Except for injuries and damages caused by the sole negligence of the CITY, the
CONSULTANT will defend, indemnify and hold the CITY and its officers, officials,
employees, and volunteers harmless from any and all claims, injuries, damages, losses,
or suits, including attorney fees and litigation expenses, arising out of or resulting from
the acts, errors, or omissions of the CONSULTANT, its employees, agents,
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representatives, or subcontractors, including employees, agents, or representatives of
its subcontractors, made in the performance of this Agreement, or arising out of
worker's compensation, unemployment compensation, or unemployment disability
compensation claims.
However, should a court of competent jurisdiction determine that this Agreement
is subject to RCW 4.24.115, then, in the event of liability for damages arising out of
bodily injury to persons or damages to property caused by or resulting from the
concurrent negligence of the CONSULTANT and the Public Entity, its officers, officials,
employees, and volunteers, the CONSULTANT's liability, including the duty and cost to
defend, hereunder shall be only to the extent of the CONSULTANT's negligence.
It is further specifically and expressly understood that this indemnification
constitutes the CONSULTANT's waiver of immunity under Industrial Insurance, Title 51
RCW, solely for the purposes of this indemnification. This waiver has been mutually
negotiated by the parties. The provisions of this section will survive the expiration or
termination of this Agreement.
7. INDEPENDENT CONTRACTOR/ASSIGNMENT.
The CONSULTANT will perform the services as an independent contractor and
will not be deemed, by virtue of this Agreement and performance of its provisions, to
have entered into any partnership, joint venture, employment or other relationship with
the CITY. Nothing in this Agreement creates any contractual relationship between the
CONSULTANT's employee, agent, or subcontractor and the CITY.
8. INSURANCE.
The CONSULTANT will, at its sole expense, procure and maintain for the
duration of this Agreement and 30 days thereafter insurance against claims for injuries
to persons or damage to property which may arise from or in connection with the
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performance of this Agreement by the CONSULTANT, its agents, representatives, or
employees.
CONSULTANT's maintenance of insurance as required by the Agreement will
not be construed to limit the liability of the CONSULTANT to the coverage provided by
such insurance, or otherwise limit the CITY's recourse to any remedy available at law or
in equity.
The Service CONSULTANT will obtain insurance of the types described below:
a. Automobile Liability insurance covering all owned, non-owned, hired and
leased vehicles. Coverage will be at least as broad as Insurance Services Office (ISO)
form CA 00 01 (CONSULTANT may use a substitute form providing equivalent liability
coverage). CONSULTANT will maintain automobile insurance with minimum combined
single limit for bodily injury and property damage of$1,000,000 per accident.
b. Commercial General Liability insurance will be at least as broad as ISO
occurrence form CG 00 01 and will cover liability arising from premises, operations,
stop-gap independent contractors, products-completed operations, personal injury and
advertising injury, and liability assumed under an insured contract. The CITY will be
named as an additional insured under the CONSULTANT's Commercial General
Liability insurance policy with respect to the work performed for the CITY using an
additional insured endorsement at least as broad as ISO Additional Insured
endorsement CG 20 26. Commercial General Liability insurance will be written with
limits no less than $2,000,000 each occurrence, $2,000,000 general aggregate
c. Worker's Compensation coverage as required by the Industrial Insurance
laws of the State of Washington.
d. Professional Liability insurance appropriate to the CONSULTANT's profession
with limits no less than $2,000,000 per claim and $2,000,000 policy aggregate limit.
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For Automobile Liability and Commercial General Liability insurance, the policies
are to contain, or be endorsed to contain that CONSULTANT's insurance coverage will
be primary insurance as respects the CITY. Any insurance, self-insurance, or self-
insurance pool coverage maintained by the CITY will be excess of the CONSULTANT's
insurance and will not contribute with it.
Insurance is to be placed with an authorized insurer in Washington State. The
insurer must have a current A.M. Best rating of not less than A:VII.
The CONSULTANT will furnish the CITY with original certificates of insurance
and a copy of the amendatory endorsements, including but not necessarily limited to the
additional insured endorsement, evidencing the insurance requirements of this
Agreement before commencement of the work.
The CITY reserves the right to require that complete, certified copies of all
required insurance policies, with any confidential information redacted, and/or evidence
of all subcontractors' coverage be submitted to the CITY at any time. The CITY may
withhold payment if the CONSULTANT does not fully comply with this request.
If the CONSULTANT maintains higher insurance limits than the minimums shown
above, the CITY will be insured for the full available limits of Commercial General and
Excess or Umbrella liability maintained by the CONSULTANT, irrespective of whether
such limits maintained by the CONSULTANT are greater than those required by this
Agreement or whether any certificate of insurance furnished to the CITY evidences
limits of liability lower than those maintained by the CONSULTANT.
Failure on the part of the CONSULTANT to maintain the insurance as required
will constitute a material breach of contract, upon which the CITY may, after giving five
business days' notice to the CONSULTANT to correct the breach, immediately
terminate the Agreement or, at its discretion, procure or renew such insurance and pay
any and all premiums in connection therewith, with any sums so expended to be repaid
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to the CITY on demand, or at the sole discretion of the CITY, offset against funds due
the CONSULTANT from the CITY.
The CONSULTANT will provide the CITY with written notice of any policy
cancellation within two business days of their receipt of such notice. Failure by the
CONSULTANT to maintain the insurance as required will constitute a material breach of
this agreement, upon which the CITY may, after giving five (5) business days' notice to
the CONSULTANT to correct the breach, immediately terminate the agreement or, at its
discretion, procure or renew such insurance and pay any and all premiums in
connection therewith, with any sums so expended to be repaid to the CITY on demand,
or at the CITY's sole discretion, offset against funds due the CONSULTANT from the
CITY.
9. NONDISCRIMINATION.
The CONSULTANT will not discriminate regarding any services or activities to
which this Agreement may apply directly or through contractual, hiring, or other
arrangements on the grounds of race, color, creed, religion, national origin, sex, sexual
orientation, age, or where there is the presence of any sensory, mental or physical
handicap.
10. OWNERSHIP AND USE OF DOCUMENTS
All documents, reports, memoranda, diagrams, sketches, plans, surveys, design
calculations, working drawings and any other materials created or otherwise prepared
by the CONSULTANT as part of his performance of this Agreement (the "Work
Products") will be owned by and become the property of the CITY, may be used by the
CITY for any purpose beneficial to the CITY, and are subject to the requirement of the
Public Records Act, 42.56 RCW. The CONSULTANT acknowledges that the
Agreement, and documents provided in connection with this Agreement, become a
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public record and may be subject to inspection and copying, unless the information is
declared by law to be confidential or is otherwise exempted from public records
disclosure requirements. The CONSULTANT agrees to give its fullest assistance to the
CITY in identifying, locating, and copying any records in the CONSULTANT's
possession that are responsive, as determined by the CITY in its sole discretion, to a
Public Records Act request received by the CITY.
11. RECORDS INSPECTION AND AUDIT
All compensation payments will be subject to the adjustments for any amounts
found upon audit or otherwise to have been improperly invoiced, and all records and
books of accounts pertaining to any work performed under this Agreement will be
subject to inspection and audit by the CITY for a period of up to three (3) years from the
final payment for work performed under this Agreement. If any litigation, claim, dispute,
or audit is initiated before the expiration of the three (3) pear period, all records and
books of account pertaining to any work performed under this Agreement will be
retained until all litigation, claims, disputes, or audit are finally resolved.
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12. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER
RESPONSIBILITY MATTERS-PRIMARY COVERED TRANSACTIONS.
The CONSULTANT certifies to the best of its knowledge and belief, that it and its
principals:
(a) Are not presently debarred, suspended, proposed for debarment, declared
ineligible, or voluntarily excluded from covered transactions by any federal
department or agency;
(b) Have not within a three-year period preceding the effective date of this
Agreement been convicted of or had a civil judgment rendered against them
for commission or fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (federal, state, or local)
transaction or contract under a public transaction; violation of federal or state
antitrust statues or commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or receiving
stolen property;
(c) Are not presently indicted for or otherwise criminally or civilly charged by a
governmental entity (federal, state, or local) with commission of any of the
offenses enumerated in paragraph "(b)" of this certification; and
(d) Have not within a three-year period preceding the effective date of this
Agreement had one or more public transactions (federal, state, or local)
terminated for cause or default.
13. GENERAL PROVISIONS.
13.1. This Agreement shall be governed by the laws, regulations and ordinances
of the CITY of Auburn, the State of Washington, King County, and where applicable,
Federal laws.
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13.2. All claims, disputes and other matters in question arising out of, or relating
to, this Agreement, except with respect to claims which have been waived, will be
decided by a court of competent jurisdiction in King County, Washington.
13.3. If any dispute or conflict arises between the parties while this Agreement is
in effect, the CONSULTANT agrees that, notwithstanding such dispute or conflict, the
CONSULTANT shall continue to make a good faith effort to cooperate and continue
work toward successful completion of assigned duties and responsibilities.
13.4. The CITY and the CONSULTANT respectively bind themselves, their
partners, successors, assigns, and legal representatives to the other party to this
Agreement with respect to all covenants to this Agreement.
13.5. This Agreement represents the entire and integrated Agreement between
the CITY and the CONSULTANT and supersedes all prior negotiations, representations
or agreements either oral or written. This Agreement may be amended only by written
instrument signed by both the CITY and the CONSULTANT.
13.6. All costs of enforcement, including reasonable attorney's fees, expenses
and court costs shall be paid to the substantially prevailing party.
13.7. The CONSULTANT agrees to comply with all local, state and federal laws
applicable to its performance as of the date of this Agreement.
13.8. If any provision of this Agreement is invalid or unenforceable, the
remaining provisions shall remain in force and effect.
13.9. This Agreement shall be administered by Guy Michaelson on behalf of the
CONSULTANT, and by the Mayor of the CITY, or designee, on behalf of the CITY. Any
written notices required by the terms of this Agreement shall be served on or mailed to
the following addresses:
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City of Auburn Berger Partnership
Attn: Thaniel Gouk Attn: Guy Michaelson
25 W Main Street 1927 Post Alley, Ste. 2
Auburn WA 98001 Seattle, WA 98101
Phone: 253-931-4011 Phone: 206-325-6877
E-mail: tgouk(c�auburnwa.gov E-mail: quvm(c�bergerpartnership.com
13.10. All notices or communications permitted or required to be given under this
Agreement shall be in writing and shall be delivered in person or sent by regular United
States mail, postage prepaid.
Any party may change their address by giving notice in writing to any other party.
13.11. This Agreement may be executed in multiple counterparts, each of which
shall be one and the same Agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other party.
CITY OF AUBURN
�DocuSigned by:
rtL ui/t 4/l,
Nancy
` ac us, Mayor
Date 4/8/2025
APPROVED AS TO FORM:
PSigned by:
at, 15tiwt t, For jasotn, (�11A,a1,t v�,
au u ra4[u
Jason a en, City Attorney
Berger Partnership
DocuSigned by:
BY: I t 1 ki Sbla,
-r4l,k,w-k 1.1 bJ/14al.
Title: Principal
Federal Tax ID # 91-1122916
Date: 3/17/2025
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EXHIBIT A
SCOPE OF WORK
o A.
2.28.25 berger
Thaniel Gouk
Director of Parks,Arts and Recreation
City of Auburn
Proposal for Landscape Architectural Services:Auburn Theater Plaza
Dear Thaniel:
We are excited for the opportunity of the Theater Plaza and a chance to create an Arts Hub that
can unify the Postmark Center for the Arts and the theater,as well as forge a new destination and
connection for downtown Auburn.We are providing this scope for pre-design services to further
the project and identify ways to'claim'the site in the near term upon demolition of site/buildings.
Detailed herein is our scope of work and fee for the project for your review.
Pre-Design Services(anticipated 2-month process)
Anticipated scope is as follows:
• Confirm the project timeline and identify any critical deadlines/milestones.We welcome a
shorter over longer schedule,allowing us to provide maximum efficiency to the project.
• Attend kick-off meeting(site walk)with key city staff followed by an in-person work
session.
• Develop 1-2 concept(s)(hand-drawn or computer generated,as determined by Berger).
• Design review with key city staff.
• Develop a preferred plan that conveys form,materials,and character of site elements
(hand-drawn or computer generated,as determined by Berger).
o May include sketches and character photos of plaza elements.
o Will include conceptual grading(slopes,low points/high points,not specific
elevations).
• Provide a cost estimate. (This estimate will largely based on allowances and cost ranges,
as there will not be a high level of material detail to estimate.)
• Document preferred plan geometries in CAD/Revit(as determined by Berger).
Assumptions
• A survey of the site will be provided by the city(not included in this scope of work).
• The process will include engagement of city staff.This proposal does not anticipate or
include process for community input.It can be incorporated at your request.
• We do not anticipate any subconsultants at this predesign phase;however,we welcome
the opportunity to collaborate with the theater team if you deem appropriate to
coordinate our work and leverage their Institutional knowledge.
Landscape Architecture Berger Partnership e5 2063256677
Urban Desi n 192700stA6epSte2 bergerparnershipcom
g Seattle.WA 5131 D1
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2.28.25
P Gouk b e rge r
Parks,Arts and Recreation,City of Auburn
Proposal for landscape Architectural Services:Auburn Theater Plaza
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Fees
Based on the scope of services identified at this time,we have established a fee for
landscape architectural services as follows:
Pre-Design $19,000.00
Reimbursable Expenses S300.00
Total $19,300.00
Fees will be billed monthly based upon the percentage of work completed.Services beyond those
noted in this proposal will be billed as additional services on an hourly basis as follows,or lump
sum fees can be negotiated:
Principal $245.00 per hour
Associate $200.00 per hour
Project Manager $170.00 per hour
Landscape Architectural Staff $140.00 per hour
Administrative Staff $125.00 per hour
Printing,reprographic expenses,CAD plots,travel costs,and other reimbursable expenses will be
billed at cost plus a 10%administrative mark-up and are included in the proposed fee.
If you have questions,would like more information,or wish to make any modifications,please do
not hesitate to contact us.We are excited to help bring the Theater Plaza to lifel
Sincerely,
Berger Partnership PS
YfV4
Guy Michaelsen,PLA Greg Brower,PLA
Principal Principal
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