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HomeMy WebLinkAboutA8870 - Hermann Design Group, Inc.Ad7QQmay- LJ CERTIFICATE OF LIABILITY INSURANCE1 DATE(MM/DD/YYYY) 06/14/21 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsements . PRODUCER STANCO INSURANCE SERVICES INC 78365 Hwy 111 #285 La Quinta, CA 92253 OH93970 CONTACT NA PHONE 760 262-9545 F^'� (760) 262-9059 E-MAIL r:ic@stancoinsuranceservices.com INSURERS AFFORDING COVERAGE NAIC# INSURERA. Casualty Ins. Co. 29424 INSURED Hermann Design Group, Inc. DBA: Hermann & Associates 78365 Highway 111 PM 332 La Quinta, CA 92234 7607771233 INSURERB: Employers Compensation Ins. 37885 INSURER D: COVERAGES CERTIFICATE NUMBER: REVI..qInN NIIMRFR- THIS IS TO CERTIFY THAT 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 CONDITIONSOF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BYPAID CLAIMS. LTR TYPE OF INSURANCE POLICY EFF POLICY EXP LIMITS GENERAL LIABILITY EACH OCCURRENCE s 2,000,000 300,000 COMMERCIAL GENERAL LIABILITY MEDEXP An one rson 10,000 CLAIMS -MADE OCCUR . --. N A Y Y 59SEAPI1876 06/15/2106/15/22 PERSONAL& ADV INJURY $ 2,000,000 GENERAL AGGREGATE $ 4,000,000 GEN'LAGGREGATE LIMITAPPLIES PER: PRODUCTS - COMP/OPAGG $ 4,000,000 R PRO- LOC POLICY AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT r A ANYAUTO ALL OWNED SCHEDULED X AUTOS AUTOS X HIRED AUTOS ][ NON -OWNED AUTOS 59SBAPI1876 06/15/2106/15/22 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE Per accident' $ $ A X UMBRELLA LIAB EXCESS LIAB N OCCUR CLAIMS -MADE 59SBAPI1876 06/15/2106/15/22 EACH OCCURRENCE $ 1,000,000 AGGREGATE $ 1,000,000 B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNERIEXECUTIVE OFFICER/MEMBER EXCLUDED? tj NIA Y EIG 1507865 08 06/11/2106/11/22 R I WC STATU- OTH- E.L. EACH ACCIDENT 1,000,000 E.L. DISEASE - EA EMPLOYEE $ r , (Mandatory In NH) If es, describe under 1,000,000 A BUSINESS PROPERTY 59SRAPI1876 06/15/2106/15/22BPP: $ 24,900 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101,Addi6onal Remarks Schedule, if more space is required) The City of Palm Springs, its officials, employees, and agents are named as an additional insured for any and all work performed with the City of Palm Springs per written contract. This insurance is primary and non-contributory over any insurance or self-insurance the City may have. ************30 DAY NOTICE OF CANCELLATION*************** City of Palm Springs Attn : Vonda Teed SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Engineering Division ACCORDANCE WITH THE POLICY PROVISIONS. 3200 E. Tahquitz Canyon Palm Springs, CA 92262 AUTHORIZED REPRESENTATIVE I�I • 1 ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD ACOOR " CERTIFICATE OF LIABILITY INSURANCE DATE 6/1M/202NYYY) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER AssuredPartners Design Professionals Insurance Services, LLC 3697 Mt. Diablo Blvd, Suite 230 Lafayette CA 94549 CONTACT NAME: The Certificate Team PHONE FAX 'C.No): ADDRIESS: CertsDesignPro@AssuredPartners.com INSURERS AFFORDING COVERAGE NAIC # INSURER A: XL Specialty Insurance Company 37885 License#: 6003745 INSURED HERMDES-01 INSURER B Hermann Design Group, Inc. 78365 Highway 111 PM 332 INSURERC: INSURERD: La Quinta CA 92253-1985 INSURER E INSURER F COVERAGES CERTIFICATE NUMBER: 1485904583 REVISION NUMBER - THIS IS TO CERTIFY THAT 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. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. TR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER MM DD/YYYY MMIDDIIYYYY LIMITS COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ CLAIMS-MADE1:1 OCCUR DAMAGEPREMISES Ea ocS( RENTED To cunence $ MED EXP (Any one person) $ PERSONAL 8 ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER: POLICY P" LOC GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ $ OTHER: AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident $ BODILY INJURY (Per person) $ ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) $ HIRED NON -OWNED AUTOS ONLY AUTOS ONLY PROPERTY DAMAGE Per accident $ UMBRELLA LIAB OCCUR EACH OCCURRENCE $ AGGREGATE $ EXCESS LIAB CLAIMS -MADE DED I I RETENTION $ $ WORKERS COMPENSATION PER OTH- AND EMPLOYERS' LIABILITY Y / N STATUTE I I ER E.L. EACH ACCIDENT $ ANYPROPRIETOR/PARTN ER/EXECUTIV E OFFICER/MEMBEREXCLUDED? N / A E.L. DISEASE -EA EMPLOYEE $ (Mandatory In NH) If yes, describe under E.L. DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS below A Professional Liability DPS9961544 6/15/2020 6/15/2022 Per Claim $2,000,000 Annual Aggregate $2,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Re: On -Call Landscape Architecture Services. CERTIFICATE HOLDER CANCFI I ATIr)N sn nav Nntica of cancauafinn SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Palm Springs ACCORDANCE WITH THE POLICY PROVISIONS. Attn: Vonda Teed, Engineering Division AUTHORIZED REPRESENTATIVE 3200 E. Tahquitz Canyon Way Palm Springs CA 92262 A 0 ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD QUICK REFERENCE BUSINESS LIABILITY COVERAGE FORM READ YOUR POLICY CAREFULLY BUSINESS LIABILITY COVERAGE FORM A. COVERAGES Business Liability Medical Expenses Coverage Extension - Supplementary Payments B. EXCLUSIONS Beginning on Page 1 1 2 2 3 C. WHO IS AN INSURED D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 1. Bankruptcy 2. Duties In The Event Of Occurrence, Offense, Claim Or Suit 3. Financial Responsibility Laws 4. Legal Action Against Us 5. Separation Of Insureds 6. Representations 7. Other Insurance 8. Transfer Of Rights Of Recovery Against Others To Us F. OPTIONAL ADDITIONAL INSURED COVERAGES Additional Insureds G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS 10 14 15 15 15 16 16 16 16 16 17 18 18 20 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations. The words "we", "us" and "our" refer to the stock insurance company member of The Hartford providing this insurance. The word "insured" means any person or organization qualifying as such under Section C. - Who Is An Insured. Other words and phrases that appear in quotation marks have special meaning. Refer to Section G. - Liability And Medical Expenses Definitions. A. COVERAGES (a) The "bodily injury" or "property 1. BUSINESS LIABILITY COVERAGE (BODILY damage" is caused by an INJURY, PROPERTY DAMAGE, PERSONAL "occurrence" that takes place in the AND ADVERTISING INJURY) "coverage territory' Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury", "property damage" or "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury", "property damage" or "personal and advertising injury" to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" or offense and settle any claim or "suit" that may result. But: (1) The amount we will pay for damages is limited as described in Section D. - Liability And Medical Expenses Limits Of Insurance; and (2) Our right and duty to defend ends when we have used up the applicable limit of insurance in the payment of judgments, settlements or medical expenses to which this insurance applies. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Coverage Extension - Supplementary Payments. b. This insurance applies: (1) To "bodily injury" and "property damage" only if: (b) The "bodily injury" or "property damage" occurs during the policy period; and (c) Prior to the policy period, no insured listed under Paragraph 1. of Section C. — Who Is An Insured and no "employee" authorized by you to give or receive notice of an "occurrence" or claim, knew that the "bodily injury" or "property damage" had occurred, in whole or in part. If such a listed insured or authorized "employee" knew, prior to the policy period, that the "bodily injury" or "property damage" occurred, then any continuation, change or resumption of such "bodily injury" or "property damage" during or after the policy period will be deemed to have been known prior to the policy period. (2) To "personal and advertising injury" caused by an offense arising out of your business, but only if the offense was committed in the "coverage territory" during the policy period. "Bodily injury" or "property damage" will be deemed to have been known to have occurred at the earliest time when any insured listed under Paragraph 1. of Section C. — Who Is An Insured or any "employee" authorized by you to give or receive notice of an "occurrence" or claim: (1) Reports all, or any part, of the "bodily injury" or "property damage" to us or any other insurer; Form SS 00 08 04 05 Page 1 of 24 © 2005, The Hartford BUSINESS LIABILITY COVERAGE FORM (2) Receives a written or verbal demand or claim for damages because of the "bodily injury" or "property damage"; or (3) Becomes aware by any other means that "bodily injury" or "property damage" has occurred or has begun to occur. d. Damages because of "bodily injury" include damages claimed by any person or organization for care, loss of services or death resulting at any time from the "bodily injury". e. Incidental Medical Malpractice (1) "Bodily injury" arising out of the rendering of or failure to render professional health care services as a physician, dentist, nurse, emergency medical technician or paramedic shall be deemed to be caused by an "occurrence", but only if: (a) The physician, dentist, nurse, emergency medical technician or paramedic is employed by you to provide such services; and (b) You are not engaged in the business or occupation of providing such services. (2) For the purpose of determining the limits of insurance for incidental medical malpractice, any act or omission together with all related acts or omissions in the furnishing of these services to any one person will be considered one "occurrence". 2. MEDICAL EXPENSES Insuring Agreement a. We will pay medical expenses as described below for "bodily injury" caused by an accident: (1) On premises you own or rent; (2) On ways next to premises you own or rent; or (3) Because of your operations; provided that: (1) The accident takes place in the "coverage territory" and during the policy period; (2) The expenses are incurred and reported to us within three years of the date of the accident; and (3) The injured person submits to examination, at our expense, by physicians of our choice as often as we reasonably require. b. We will make these payments regardless of fault. These payments will not exceed the applicable limit of insurance. We will pay reasonable expenses for: (1) First aid administered at the time of an accident; (2) Necessary medical, surgical, x-ray and dental services, including prosthetic devices; and (3) Necessary ambulance, hospital, professional nursing and funeral services. 3. COVERAGE EXTENSION - SUPPLEMENTARY PAYMENTS a. We will pay, with respect to any claim or "suit" we investigate or settle, or any "suit" against an insured we defend: (1) All expenses we incur. (2) Up to $1,000 for the cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which Business Liability Coverage for "bodily injury" applies. We do not have to furnish these bonds. (3) The cost of appeal bonds or bonds to release attachments, but only for bond amounts within the applicable limit of insurance. We do not have to furnish these bonds. (4) All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or "suit", including actual loss of earnings up to $500 a day because of time off from work. (5) All costs taxed against the insured in the "suit". (6) Prejudgment interest awarded against the insured on that part of the judgment we pay. If we make an offer to pay the applicable limit of insurance, we will not pay any prejudgment interest based on that period of time after the offer. (7) All interest on the full amount of any judgment that accrues after entry of the judgment and before we have paid, offered to pay, or deposited in court the part of the judgment that is within the applicable limit of insurance. Any amounts paid under (1) through (7) above will not reduce the limits of insurance. Page 2 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM b. If we defend an insured against a "suit" and an indemnitee of the insured is also named as a party to the "suit", we will defend that indemnitee if all of the following conditions are met: (1) The "suit" against the indemnitee seeks damages for which the insured has assumed the liability of the indemnitee in a contract or agreement that is an "insured contract"; (2) This insurance applies to such liability assumed by the insured; (3) The obligation to defend, or the cost of the defense of, that indemnitee, has also been assumed by the insured in the same "insured contract"; (4) The allegations in the "suit" and the information we know about the "occurrence" are such that no conflict appears to exist between the interests of the insured and the interest of the indemnitee; (5) The indemnitee and the insured ask us to conduct and control the defense B. of that indemnitee against such "suit" and agree that we can assign the same counsel to defend the insured and the indemnitee; and (6) The indemnitee: (a) Agrees in writing to: (i) Cooperate with us in the investigation, settlement or defense of the "suit"; (ii) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the "suit"; (iii) Notify any other insurer whose coverage is available to the indemnitee; and (iv) Cooperate with us with respect to coordinating other applicable insurance available to the indemnitee; and (b) Provides us with written authorization to: (i) Obtain records and other information related to the "suit"; and (ii) Conduct and control the defense of the indemnitee in such "suit". So long as the above conditions are met, attorneys' fees incurred by us in the defense of that indemnitee, necessary litigation expenses incurred by us and necessary litigation expenses incurred by the indemnitee at our request will be paid as Supplementary Payments. Notwithstanding the provisions of Paragraph 1.b.(b) of Section B. — Exclusions, such payments will not be deemed to be damages for "bodily injury" and "property damage" and will not reduce the Limits of Insurance. Our obligation to defend an insured's indemnitee and to pay for attorneys' fees and necessary litigation expenses as Supplementary Payments ends when: (1) We have used up the applicable limit of insurance in the payment of judgments or settlements; or (2) The conditions set forth above, or the terms of the agreement described in Paragraph (6) above, are no longer met. EXCLUSIONS 1. Applicable To Business Liability Coverage This insurance does not apply to: a. Expected Or Intended Injury (1) "Bodily injury" or "property damage" expected or intended from the standpoint of the insured. This exclusion does not apply to "bodily injury" or "property damage" resulting from the use of reasonable force to protect persons or property; or (2) "Personal and advertising injury" arising out of an offense committed by, at the direction of or with the consent or acquiescence of the insured with the expectation of inflicting "personal and advertising injury". b. Contractual Liability (1) "Bodily injury" or "property damage"; or (2) "Personal and advertising injury" for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages because of: (a) "Bodily injury", "property damage" or "personal and advertising injury" that the insured would have in the absence of the contract or agreement; or Form SS 00 08 04 05 Page 3 of 24 BUSINESS LIABILITY COVERAGE FORM (b) "Bodily injury" or "property damage" assumed in a contract or agreement that is an "insured contract", provided the "bodily injury' or "property damage" occurs subsequent to the execution of the contract or agreement. Solely for the purpose of liability assumed in an "insured contract", reasonable attorneys' fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages because of "bodily injury' or "property damage" provided: (i) Liability to such party for, or for the cost of, that party's defense has also been assumed in the same "insured contract", and (ii) Such attorneys' fees and litigation expenses are for defense of that party against a civil or alternative dispute resolution proceeding in which damages to which this insurance applies are alleged. c. Liquor Liability "Bodily injury" or "property damage" for which any insured may be held liable by reason of: (1) Causing or contributing to the intoxication of any person; (2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or (3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages. This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages. d. Workers' Compensation And Similar Laws Any obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law. e. Employer's Liability "Bodily injury" to: (1) An "employee" of the insured arising out of and in the course of: (a) Employment by the insured; or (b) Performing duties related to the conduct of the insured's business, or (2) The spouse, child, parent, brother or sister of that "employee" as a consequence of (1) above. This exclusion applies: (1) Whether the insured may be liable as an employer or in any other capacity; and (2) To any obligation to share damages with or repay someone else who must pay damages because of the injury. This exclusion does not apply to liability assumed by the insured under an "insured contract". f. Pollution (1) "Bodily injury", "property damage" or "personal and advertising injury" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants": (a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to any insured. However, this subparagraph does not apply to: (i) "Bodily injury" if sustained within a building and caused by smoke, fumes, vapor or soot produced by or originating from equipment that is used to heat, cool or dehumidify the building, or equipment that is used to heat water for personal use, by the building's occupants or their guests; (ii) "Bodily injury" or "property damage" for which you may be held liable, if you are a contractor and the owner or lessee of such premises, site or location has been added to your policy as an additional insured with respect to your ongoing operations performed for that additional insured at that premises, site or location and such premises, site or location is not and never was owned or occupied by, or rented or loaned to, any insured, other than that additional insured; or Page 4 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (iii) "Bodily injury" or "property released as part of the damage" arising out of heat, operations being performed smoke or fumes from a by such insured, contractor or "hostile fire"; subcontractor; (b) At or from any premises, site or (ii) "Bodily injury" or "property location which is or was at any damage" sustained within a time used by or for any insured or building and caused by the others for the handling, storage, release of gases, fumes or disposal, processing or treatment vapors from materials brought of waste; into that building in connection (c) Which are or were at any time with operations being performed transported, handled, stored, by you or on your behalf by a treated, disposed of, or processed contractor or subcontractor; or as waste by or for: (iii) "Bodily injury" or "property (i) Any insured; or damage" arising out of heat, (ii) Any person or organization for smoke or fumes from a "hostile whom you may be legally fire"; or responsible; (e) At or from any premises, site or (d) At or from any premises, site or location on which any insured or any location on which any insured or contractors or subcontractors any contractors or subcontractors working directly or indirectly on any working directly or indirectly on insured's behalf are performing any insured's behalf are operations if the operations are to performing operations if the test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, 'pollutants" are brought on or to or in any way respond to, or assess the premises, site or location in the effects of, "pollutants". connection with such operations by such insured, contractor or (2) Any loss, cost or expense arising out subcontractor. However, this of any: subparagraph does not apply to: (a) Request, demand, order or statutory (i) "Bodily injury" or "property or regulatory requirement that any damage" arising out of the insured or others test for, monitor, escape of fuels, lubricants or clean up, remove, contain, treat, other operating fluids which are detoxify or neutralize, or in any way needed to perform the normal respond to, or assess the effects of, electrical, hydraulic or "pollutants"; or mechanical functions (b) Claim or suit by or on behalf of a necessary for the operation of governmental authority for "mobile equipment" or its parts, damages because of testing for, if such fuels, lubricants or other monitoring, cleaning up, removing, operating fluids escape from a containing, treating, detoxifying or vehicle part designed to hold, neutralizing, or in any way store or receive them. This responding to, or assessing the exception does not apply if the effects of, "pollutants". "bodily injury" or "property However, this paragraph does not damage" arises out of the apply to liability for damages because intentional discharge, dispersal of "property damage" that the insured or release of the fuels, would have in the absence of such lubricants or other operating request, demand, order or statutory or fluids, or if such fuels, regulatory requirement, or such claim lubricants or other operating or "suit" by or on behalf of a fluids are brought on or to the governmental authority. premises, site or location with the intent that they be discharged, dispersed or Form SS 00 08 04 05 Page 5 of 24 BUSINESS LIABILITY COVERAGE FORM g. Aircraft, Auto Or Watercraft (2) The use of "mobile equipment" in, or "Bodily injury" or "property damage" arising while in practice or preparation for, a out of the ownership, maintenance, use or prearranged racing, speed or entrustment to others of any aircraft, "auto" demolition contest or in any stunting or watercraft owned or operated by or rented activity. or loaned to any insured. Use includes L War operation and "loading or unloading". "Bodily injury", "property damage" or This exclusion applies even if the claims "personal and advertising injury", however against any insured allege negligence or caused, arising, directly or indirectly, out of: other wrongdoing in the supervision, hiring, (1) War, including undeclared or civil war; employment, training or monitoring of others by that insured, if the "occurrence" which (2) Warlike action by a military force, caused the "bodily injury" or "property including action in hindering or damage" involved the ownership, defending against an actual or maintenance, use or entrustment to others of expected attack, by any government, any aircraft, "auto" or watercraft that is sovereign or other authority using owned or operated by or rented or loaned to military personnel or other agents; or any insured. (3) Insurrection, rebellion, revolution, This exclusion does not apply to: usurped power, or action taken by governmental authority in hindering or (1) A watercraft while ashore on premises defending against any of these. you own or rent; j. Professional Services (2) A watercraft you do not own that is: "Bodily injury", "property damage" or (a) Less than 51 feet long; and "personal and advertising injury" arising (b) Not being used to carry persons out of the rendering of or failure to render for a charge; any professional service. This includes (3) Parking an "auto" on, or on the ways but is not limited to: next to, premises you own or rent, (1) Legal, accounting or advertising provided the "auto" is not owned by or services; rented or loaned to you or the insured; (2) Preparing, approving, or failing to (4) Liability assumed under any "insured prepare or approve maps, shop contract" for the ownership, drawings, opinions, reports, surveys, maintenance or use of aircraft or field orders, change orders, designs or watercraft; drawings and specifications; (5) "Bodily injury" or "property damage" (3) Supervisory, inspection, architectural arising out of the operation of any of or engineering activities; the equipment listed in Paragraph f.(2) (4) Medical, surgical, dental, x-ray or or f.(3) of the definition of "mobile nursing services treatment, advice or equipment"; or instruction; (6) An aircraft that is not owned by any (5) Any health or therapeutic service insured and is hired, chartered or loaned treatment, advice or instruction; with a paid crew. However, this (6) Any service, treatment, advice or exception does not apply if the insured "bodily instruction for the purpose of has any other insurance for such "property appearance or skin enhancement, hair injury" or damage", whether removal or replacement or personal the other insurance is primary, excess, contingent or on any other basis. grooming; h. Mobile Equipment (7) Optical or hearing aid services including the prescribing, preparation, "Bodily injury" or "property damage" fitting, demonstration or distribution of arising out of: ophthalmic lenses and similar (1) The transportation of "mobile equipment' products or hearing aid devices; by an "auto" owned or operated by or rented or loaned to any insured; or Page 6 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (8) Optometry or optometric services including but not limited to examination of the eyes and the prescribing, preparation, fitting,demonstration or distribution of ophthalmic lenses and similar products; (9) Any: (a) Body piercing (not including ear piercing); (b) Tattooing, including but not limited to the insertion of pigments into or under the skin; and (c) Similar services; (10) Services in the practice of pharmacy; and (11) Computer consulting, design or programming services, including web site design. Paragraphs (4) and (5) of this exclusion do not apply to the Incidental Medical Malpractice coverage afforded under Paragraph 1.e. in Section A. - Coverages. k. Damage To Property "Property damage" to: (1) Property you own, rent or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property; (2) Premises you sell, give away or abandon, if the "property damage" arises out of any part of those premises; (3) Property loaned to you; (4) Personal property in the care, custody or control of the insured; (5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the "property damage" arises out of those operations; or (6) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it. Paragraphs (1), (3) and (4) of this exclusion do not apply to "property damage" (other than damage by fire) to premises, including the contents of such premises, rented to you for a period of 7 or fewer consecutive days. A separate Limit of Insurance applies to Damage To Premises Rented To You as described in Section D. - Limits Of Insurance. Paragraph (2) of this exclusion does not apply if the premises are "your work" and were never occupied, rented or held for rental by you. Paragraphs (3) and (4) of this exclusion do not apply to the use of elevators. Paragraphs (3), (4), (5) and (6) of this exclusion do not apply to liability assumed under a sidetrack agreement. Paragraphs (3) and (4) of this exclusion do not apply to "property damage" to borrowed equipment while not being used to perform operations at a job site. Paragraph (6) of this exclusion does not apply to "property damage" included in the "products -completed operations hazard". I. Damage To Your Product "Property damage" to "your product" arising out of it or any part of it. m. Damage To Your Work "Property damage" to "your work" arising out of it or any part of it and included in the "products -completed operations hazard". This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. n. Damage To Impaired Property Or Property Not Physically Injured "Property damage" to "impaired property" or property that has not been physically injured, arising out of: (1) A defect, deficiency, inadequacy or dangerous condition in "your product" or "your work"; or (2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms. This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to ,.your product" or "your work" after it has been put to its intended use. Form SS 00 08 04 05 Page 7 of 24 BUSINESS LIABILITY COVERAGE FORM o. Recall Of Products, Work Or Impaired (c) Title of any literary or artistic work; Property (8) Arising out of an offense committed by Damages claimed for any loss, cost or an insured whose business is: expense incurred by you or others for the (a) Advertising, broadcasting, loss of use, withdrawal, recall, inspection, publishing or telecasting; repair, replacement, adjustment, removal (b) Designing or determining content or disposal of: of web sites for others; or (1) "Your product"; (c) An Internet search, access, (2) "Your work"; or content or service provider. (3) "Impaired property"; However, this exclusion does not if such product, work or property is apply to Paragraphs a., b. and c. withdrawn or recalled from the market or under the definition of "personal and from use by any person or organization advertising injury" in Section G. — because of a known or suspected defect, Liability And Medical Expenses deficiency, inadequacy or dangerous Definitions. condition in it. For the purposes of this exclusion, p. Personal And Advertising Injury placing an "advertisement" for or "Personal and advertising injury": linking to others on your web site, by (1) Arising out of oral, written or electronic itself, is not considered the businessof publication of material, if done by or at advertising, broadcasting, the direction of the insured with publishing or telecasting; knowledge of its falsity; (9) Arising out of an electronic chat room (2) Arising out of oral, written or electronic or bulletin board the insured hosts, publication of material whose first owns, or over which the insured publication took place before the exercises control; beginning of the policy period; (10) Arising out of the unauthorized use of (3) Arising out of a criminal act committed another's name or product in your e-mailaddress, by or at the direction of the insured; domain name or metatags, or any other similar tactics to mislead (4) Arising out of any breach of contract, another's potential customers; except an implied contract to use "advertising (11) Arising out of the violation of a another's idea" in your "advertisement"; person's right of privacy created by any state or federal act. (5) Arising out of the failure of goods, However, this exclusion does not products or services to conform with apply to liability for damages that the any statement quality or insured would have in the absence of performance madee in your "advertisement"; such state or federal act; (6) Arising out of the wrong description of (12) Arising out of: the price of goods, products or services; (a) An "advertisement" for others on (7) Arising out of any violation of any your web site; intellectual property rights such as (b) Placing a link to a web site of copyright, patent, trademark, trade others on your web site; name, trade secret, service mark or (c) Content from a web site of others other designation of origin or displayed within a frame or border authenticity. on your web site. Content includes However, this exclusion does not information, code, sounds, text, apply to infringement, in your graphics or images; or "advertisement", of (d) Computer code, software or (a) Copyright; programming used to enable: (b) Slogan, unless the slogan is also (1) Your web site; or a trademark, trade name, service (ii) The presentation or functionality mark or other designation of origin of an "advertisement' or other or authenticity; or content on your web site; Page 8 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (13) Arising out of a violation of any anti- trust law; (14) Arising out of the fluctuation in price or value of any stocks, bonds or other securities; or (15) Arising out of discrimination or humiliation committed by or at the direction of any "executive officer", director, stockholder, partner or member of the insured. q. Electronic Data Damages arising out of the loss of, loss of use of, damage to, corruption of, inability to access, or inability to manipulate .'electronic data". r. Employment -Related Practices "Bodily injury" or "personal and advertising injury" to: (1) A person arising out of any: (a) Refusal to employ that person; (b) Termination of that person's employment; or (c) Employment -related practices, policies, acts or omissions, such as coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation or discrimination directed at that person; or (2) The spouse, child, parent, brother or sister of that person as a consequence of "bodily injury" or "personal and advertising injury" to the person at whom any of the employment -related practices described in Paragraphs (a), (b), or (c) above is directed. This exclusion applies: (1) Whether the insured may be liable as an employer or in any other capacity; and (2) To any obligation to share damages with or repay someone else who must pay damages because of the injury. s. Asbestos (1) "Bodily injury", "property damage" or "personal and advertising injury" arising out of the "asbestos hazard". (2) Any damages, judgments, settlements, loss, costs or expenses that: (a) May be awarded or incurred by reason of any claim or suit alleging actual or threatened injury or damage of any nature or kind to persons or property which would not have occurred in whole or in part but for the "asbestos hazard'; (b) Arise out of any request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, clean up, remove, encapsulate, contain, treat, detoxify or neutralize or in any way respond to or assess the effects of an "asbestos hazard'; or (c) Arise out of any claim or suit for damages because of testing for, monitoring, cleaning up, removing, encapsulating, containing, treating, detoxifying or neutralizing or in any way responding to or assessing the effects of an "asbestos hazard". Violation Of Statutes That Govern E- Mails, Fax, Phone Calls Or Other Methods Of Sending Material Or Information "Bodily injury", "property damage", or .'personal and advertising injury" arising directly or indirectly out of any action or omission that violates or is alleged to violate: (1) The Telephone Consumer Protection Act (TCPA), including any amendment of or addition to such law; (2) The CAN-SPAM Act of 2003, including any amendment of or addition to such law; or (3) Any statute, ordinance or regulation, other than the TCPA or CAN-SPAM Act of 2003, that prohibits or limits the sending, transmitting, communicating or distribution of material or information. Damage To Premises Rented To You — Exception For Damage By Fire, Lightning or Explosion Exclusions c. through h. and k. through o. do not apply to damage by fire, lightning or explosion to premises rented to you or temporarily occupied by you with permission of the owner. A separate Limit of Insurance applies to this coverage as described in Section D. - Liability And Medical Expenses Limits Of Insurance. Form SS 00 08 04 05 Page 9 of 24 BUSINESS LIABILITY COVERAGE FORM 2. Applicable To Medical Expenses Coverage We will not pay expenses for "bodily injury": a. Any Insured To any insured, except "volunteer workers". b. Hired Person To a person hired to do work for or on behalf of any insured or a tenant of any insured. c. Injury On Normally Occupied Premises To a person injured on that part of premises you own or rent that the person normally occupies. d. Workers' Compensation And Similar Laws To a person, whether or not an "employee" of any insured, if benefits for the "bodily injury" are payable or must be provided under a workers' compensation or disability benefits law or a similar law. e. Athletics Activities To a person injured while practicing, instructing or participating in any physical exercises or games, sports or athletic contests. f. Products -Completed Operations Hazard Included with the "products -completed operations hazard". g. Business Liability Exclusions Excluded under Business Liability Coverage. C. WHO IS AN INSURED 1. If you are designated in the Declarations as: a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner. b. A partnership or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct of your business. c. A limited liability company, you are an insured. Your members are also insureds, but only with respect to the conduct of your business. Your managers are insureds, but only with respect to their duties as your managers. d. An organization other than a partnership, joint venture or limited liability company, you are an insured. Your "executive officers" and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders. e. A trust, you are an insured. Your trustees are also insureds, but only with respect to their duties as trustees. 2. Each of the following is also an insured: a. Employees And Volunteer Workers Your "volunteer workers" only while performing duties related to the conduct of your business, or your "employees", other than either your "executive officers" (if you are an organization other than a partnership, joint venture or limited liability company) or your managers (if you are a limited liability company), but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, none of these "employees" or "volunteer workers" are insureds for: (1) "Bodily injury" or "personal and advertising injury": (a) To you, to your partners or members (if you are a partnership or joint venture), to your members (if you are a limited liability company), or to a co -"employee" while in the course of his or her employment or performing duties related to the conduct of your business, or to your other "volunteer workers" while performing duties related to the conduct of your business; (b) To the spouse, child, parent, brother or sister of that co - "employee" or that "volunteer worker" as a consequence of Paragraph (1)(a) above; (c) For which there is any obligation to share damages with or repay someone else who must pay damages because of the injury described in Paragraphs (1)(a) or (b) above; or (d) Arising out of his or her providing or failing to provide professional health care services. If you are not in the business of providing professional health care services, Paragraph (d) does not apply to any nurse, emergency medical technician or paramedic employed by you to provide such services. (2) "Property damage" to property: (a) Owned, occupied or used by, Page 10 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your "employees", "volunteer workers", any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). b. Real Estate Manager Any person (other than your "employee" or "volunteer worker"), or any organization while acting as your real estate manager. c. Temporary Custodians Of Your Property Any person or organization having proper temporary custody of your property if you die, but only: (1) With respect to liability arising out of the maintenance or use of that property; and (2) Until your legal representative has been appointed. d. Legal Representative If You Die Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this insurance. e. Unnamed Subsidiary Any subsidiary and subsidiary thereof, of yours which is a legally incorporated entity of which you own a financial interest of more than 50% of the voting stock on the effective date of this Coverage Part. The insurance afforded herein for any subsidiary not shown in the Declarations as a named insured does not apply to injury or damage with respect to which an insured under this insurance is also an insured under another policy or would be an insured under such policy but for its termination or upon the exhaustion of its limits of insurance. 3. Newly Acquired Or Formed Organization Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and over which you maintain financial interest of more than 50% of the voting stock, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier; and b. Coverage under this provision does not apply to: (1) "Bodily injury" or "property damage" that occurred; or (2) "Personal and advertising injury" arising out of an offense committed before you acquired or formed the organization. 4. Operator Of Mobile Equipment With respect to "mobile equipment' registered in your name under any motor vehicle registration law, any person is an insured while driving such equipment along a public highway with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the equipment, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. "Bodily injury" to a co -"employee" of the person driving the equipment; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 5. Operator of Nonowned Watercraft With respect to watercraft you do not own that is less than 51 feet long and is not being used to carry persons for a charge, any person is an insured while operating such watercraft with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the watercraft, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. "Bodily injury" to a co -"employee" of the person operating the watercraft; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. Additional Insureds When Required By Written Contract, Written Agreement Or Permit The person(s) or organization(s) identified in Paragraphs a. through f. below are additional insureds when you have agreed, in a written Form SS 00 08 04 05 Page 11 of 24 BUSINESS LIABILITY COVERAGE FORM contract, written agreement or because of a (e) Any failure to make such permit issued by a state or political inspections, adjustments, tests or subdivision, that such person or organization servicing as the vendor has be added as an additional insured on your agreed to make or normally policy, provided the injury or damage occurs undertakes to make in the usual subsequent to the execution of the contract or course of business, in connection agreement, or the issuance of the permit. with the distribution or sale of the A person or organization is an additional products; insured under this provision only for that (f) Demonstration, installation, period of time required by the contract, servicing or repair operations, agreement or permit. except such operations performed However, no such person or organization is an at the vendor's premises in connection with the sale of the additional insured under this provision if such product; person or organization is included as an additional insured by an endorsement issued (g) Products which, after distribution by us and made a part of this Coverage Part, or sale by you, have been labeled including all persons or organizations added or relabeled or used as a as additional insureds under the specific container, part or ingredient of any additional insured coverage grants in Section other thing or substance by or for F. — Optional Additional Insured Coverages. the vendor; or a. Vendors (h) "Bodily injury" or "property Any person(s) or organization(s) (referred to damage" arising out of the sole negligence of the vendor for its below as vendor), but only with respect to acts or omissions or those of "bodily injury" or "property damage" arisingown its employees or anyone elseacting out of "your products" which are distributedd on its behalf. However, this or sold in the regular course of the vendor's exclusion does not apply business and only if this Coverage Part provides coverage for "bodily injury" or (i) The exceptions contained in "property damage" included within the Subparagraphs (d) or (f); or "products -completed operations hazard". (ii) Such inspections, adjustments, (1) The insurance afforded to the vendor tests or servicing as the vendor is subject to the following additional has agreed to make or normally exclusions: undertakes to make in the usual This insurance does not apply to: course of business, in connection with the distribution (a) "Bodily injury" or "property or sale of the products. damage" for which the vendor is (2) This insurance does not apply to any obligated to pay damages by insured person or organization from reason of the assumption of whom you have acquired such products, liability in a contract or agreement. or any ingredient, part or container, This exclusion does not apply to entering into, accompanying or liability for damages that the containing such products. vendor would have in the absence of the contract or agreement; b. Lessors Of Equipment (b) Any express warranty (1) Any person or organization from unauthorized by you; whom you lease equipment; but only (c) Any physical or chemical change with respect to their liability for "bodily "property in the product made intentionally injury", damage" or "personal and advertising injury" by the vendor; caused, in whole or in part, by your (d) Repackaging, except when maintenance, operation or use of unpacked solely for the purpose of equipment leased to you by such inspection, demonstration, testing, person or organization. or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; Page 12 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (2) With respect to the insurance afforded e. Permits Issued By State Or Political to these additional insureds, this Subdivisions insurance does not apply to any (1) Any state or political subdivision, but "occurrence" which takes place after only with respect to operations you cease to lease that equipment. performed by you or on your behalf for c. Lessors Of Land Or Premises which the state or political subdivision (1) Any person or organization from has issued a permit. whom you lease land or premises, but (2) With respect to the insurance afforded only with respect to liability arising out to these additional insureds, this of the ownership, maintenance or use insurance does not apply to: of that part of the land or premises ou r (a) "Bodily injury", 1 rY"� "property damage" leased to you. or personal and advertising (2) With respect to the insurance afforded injury" arising out of operations to these additional insureds, this performed for the state or insurance does not apply to: municipality; or (a) Any "occurrence" which takes (b) "Bodily injury" or "property damage" place after you cease to lease that included within the "products - land or be a tenant in that completed operations hazard". premises; or f. Any Other Party (b) Structural alterations, new (1) Any other person or organization who construction or demolition is not an insured under Paragraphs a. operations performed by or on through e. above, but only with behalf of such person or respect to liability for "bodily injury", organization. "property damage" or "personal and d. Architects, Engineers Or Surveyors advertising injury" caused, in whole or (1) Any architect, engineer, or surveyor, but in part, by your acts or omissions or only with respect to liability for "bodily the acts or omissions of those acting injury", "property damage" or "personal on your behalf: and advertising injury" caused, in whole (a) In the performance of your or in part, by your acts or omissions or ongoing operations; the acts or omissions of those acting on (b) In connection with your premises your behalf: owned by or rented to you; or (a) In connection with your premises; (c) In connection with "your work" and or included within the "products- (b) In the performance of your completed operations hazard", but ongoing operations performed by only if you or on your behalf. (i) The written contract or written (2) With respect to the insurance afforded agreement requires you to to these additional insureds, the provide such coverage to following additional exclusion applies: such additional insured; and This insurance does not apply to (ii) This Coverage Part provides "bodily injury", "property damage" or coverage for "bodily injury" or "personal and advertising injury" "property damage" included arising out of the rendering of or the within the "products - failure to render any professional completed operations hazard". services by or for you, including: (2) With respect to the insurance afforded (a) The preparing, approving, or to these additional insureds, this failure to prepare or approve, insurance does not apply to: maps, shop drawings, opinions, "Bodily injury", "property damage" or reports, surveys, field orders, "personal and advertising injury" change orders, designs or arising out of the rendering of, or the drawings and specifications; or failure to render, any professional (b) Supervisory, inspection, architectural, engineering or surveying architectural or engineering services, including: activities. Form SS 00 08 04 05 Page 13 of 24 BUSINESS LIABILITY COVERAGE FORM (a) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Supervisory, inspection, architectural or engineering activities. The limits of insurance that apply to additional insureds are described in Section D. — Limits Of Insurance. How this insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E. — Liability And Medical Expenses General Conditions. No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. D. LIABILITY AND MEDICAL EXPENSES 1. The Most We Will Pay The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits". 2. Aggregate Limits The most we will pay for: a. Damages because of "bodily injury" and "property damage" included in the "products -completed operations hazard" is the Products -Completed Operations Aggregate Limit shown in the Declarations. b. Damages because of all other "bodily injury", "property damage" or "personal and advertising injury", including medical expenses, is the General Aggregate Limit shown in the Declarations. This General Aggregate Limit applies separately to each of your "locations" owned by or rented to you. "Location" means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway or right-of-way of a railroad. This General Aggregate limit does not apply to "property damage" to premises while rented to you or temporarily occupied by you with permission of the owner, arising out of fire, lightning or explosion. 3. Each Occurrence Limit Subject to 2.a. or 2.b above, whichever applies, the most we will pay for the sum of all damages because of all "bodily injury", "property damage" and medical expenses arising out of any one "occurrence" is the Liability and Medical Expenses Limit shown in the Declarations. The most we will pay for all medical expenses because of "bodily injury" sustained by any one person is the Medical Expenses Limit shown in the Declarations. 4. Personal And Advertising Injury Limit Subject to 2.b. above, the most we will pay for the sum of all damages because of all "personal and advertising injury" sustained by any one person or organization is the Personal and Advertising Injury Limit shown in the Declarations. 5. Damage To Premises Rented To You Limit The Damage To Premises Rented To You Limit is the most we will pay under Business Liability Coverage for damages because of '.property damage" to any one premises, while rented to you, or in the case of damage by fire, lightning or explosion, while rented to you or temporarily occupied by you with permission of the owner. In the case of damage by fire, lightning or explosion, the Damage to Premises Rented To You Limit applies to all damage proximately caused by the same event, whether such damage results from fire, lightning or explosion or any combination of these. 6. How Limits Apply To Additional Insureds The most we will pay on behalf of a person or organization who is an additional insured under this Coverage Part is the lesser of: a. The limits of insurance specified in a written contract, written agreement or permit issued by a state or political subdivision; or b. The Limits of Insurance shown in the Declarations. Such amount shall be a part of and not in addition to the Limits of Insurance shown in the Declarations and described in this Section. Page 14 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM If more than one limit of insurance under this policy and any endorsements attached thereto applies to any claim or "suit", the most we will pay under this policy and the endorsements is the single highest limit of liability of all coverages applicable to such claim or "suit". However, this paragraph does not apply to the Medical Expenses limit set forth in Paragraph 3. above. The Limits of Insurance of this Coverage Part apply separately to each consecutive annual period and to any remaining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations, unless the policy period is extended after issuance for an additional period of less than 12 months. In that case, the additional period will be deemed part of the last preceding period for purposes of determining the Limits of Insurance. E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 1. Bankruptcy Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our obligations under this Coverage Part. 2. Duties In The Event Of Occurrence, Offense, Claim Or Suit a. Notice Of Occurrence Or Offense You or any additional insured must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include: (1) How, when and where the "occurrence" or offense took place; (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any injury or damage arising out of the "occurrence" or offense. b. Notice Of Claim If a claim is made or "suit" is brought against any insured, you or any additional insured must: (1) Immediately record the specifics of the claim or "suit" and the date received; and (2) Notify us as soon as practicable. You or any additional insured must see to it that we receive a written notice of the claim or "suit" as soon as practicable. c. Assistance And Cooperation Of The Insured You and any other involved insured must: (1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or "suit"; (2) Authorize us to obtain records and other information; (3) Cooperate with us in the investigation, settlement of the claim or defense against the "suit'; and (4) Assist us, upon our request, in the enforcement of any right against any person or organization that may be liable to the insured because of injury or damage to which this insurance may also apply. d. Obligations At The Insured's Own Cost No insured will, except at that insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent. e. Additional Insured's Other Insurance If we cover a claim or "suit" under this Coverage Part that may also be covered by other insurance available to an additional insured, such additional insured must submit such claim or "suit" to the other insurer for defense and indemnity. However, this provision does not apply to the extent that you have agreed in a written contract, written agreement or permit that this insurance is primary and non-contributory with the additional insured's own insurance. f. Knowledge Of An Occurrence, Offense, Claim Or Suit Paragraphs a. and b. apply to you or to any additional insured only when such "occurrence", offense, claim or "suit" is known to: (1) You or any additional insured that is an individual; (2) Any partner, if you or an additional insured is a partnership; (3) Any manager, if you or an additional insured is a limited liability company; (4) Any "executive officer' or insurance manager, if you or an additional insured is a corporation; (5) Any trustee, if you or an additional insured is a trust; or (6) Any elected or appointed official, if you or an additional insured is a political subdivision or public entity. Form SS 00 08 04 05 Page 15 of 24 BUSINESS LIABILITY COVERAGE FORM This Paragraph f. applies separately to you and any additional insured. 3. Financial Responsibility Laws a. When this policy is certified as proof of financial responsibility for the future under the provisions of any motor vehicle financial responsibility law, the insurance provided by the policy for "bodily injury" liability and "property damage" liability will comply with the provisions of the law to the extent of the coverage and limits of insurance required by that law. b. With respect to "mobile equipment" to which this insurance applies, we will provide any liability, uninsured motorists, underinsured motorists, no-fault or other coverage required by any motor vehicle law. We will provide the required limits for those coverages. 4. Legal Action Against Us No person or organization has a right under this Coverage Form: a. To join us as a party or otherwise bring us into a "suit" asking for damages from an insured; or b. To sue us on this Coverage Form unless all of its terms have been fully complied with. A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured; but we will not be liable for damages that are not payable under the terms of this insurance or that are in excess of the applicable limit of insurance. An agreed settlement means a settlement and release of liability signed by us, the insured and the claimant or the claimant's legal representative. 5. Separation Of Insureds Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this policy to the first Named Insured, this insurance applies: a. As if each Named Insured were the only Named Insured; and b. Separately to each insured against whom a claim is made or "suit" is brought. 6. Representations a. When You Accept This Policy By accepting this policy, you agree: (1) The statements in the Declarations are accurate and complete; (2) Those statements are based upon representations you made to us; and (3) We have issued this policy in reliance upon your representations. b. Unintentional Failure To Disclose Hazards If unintentionally you should fail to disclose all hazards relating to the conduct of your business at the inception date of this Coverage Part, we shall not deny any coverage under this Coverage Part because of such failure. 7. Other Insurance If other valid and collectible insurance is available for a loss we cover under this Coverage Part, our obligations are limited as follows: a. Primary Insurance This insurance is primary except when b. below applies. If other insurance is also primary, we will share with all that other insurance by the method described in c. below. b. Excess Insurance This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other basis: (1) Your Work That is Fire, Extended Coverage, Builder's Risk, Installation Risk or similar coverage for "your work'; (2) Premises Rented To You That is fire, lightning or explosion insurance for premises rented to you or temporarily occupied by you with permission of the owner; (3) Tenant Liability That is insurance purchased by you to cover your liability as a tenant for "property damage" to premises rented to you or temporarily occupied by you with permission of the owner; (4) Aircraft, Auto Or Watercraft If the loss arises out of the maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g. of Section A. — Coverages. (5) Property Damage To Borrowed Equipment Or Use Of Elevators If the loss arises out of "property damage" to borrowed equipment or the use of elevators to the extent not subject to Exclusion k. of Section A. — Coverages. Page 16 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (6) When You Are Added As An Additional Insured To Other Insurance That is other insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations, for which you have been added as an additional insured by that insurance; or (7) When You Add Others As An Additional Insured To This Insurance That is other insurance available to an additional insured. However, the following provisions apply to other insurance available to any person or organization who is an additional insured under this Coverage Part: (a) Primary Insurance When Required By Contract This insurance is primary if you have agreed in a written contract, written agreement or permit that this insurance be primary. If other insurance is also primary, we will share with all that other insurance by the method described in c. below. (b) Primary And Non -Contributory To Other Insurance When Required By Contract If you have agreed in a written contract, written agreement or permit that this insurance is primary and non-contributory with the additional insured's own insurance, this insurance is primary and we will not seek contribution from that other insurance. Paragraphs (a) and (b) do not apply to other insurance to which the additional insured has been added as an additional insured. When this insurance is excess, we will have no duty under this Coverage Part to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (2) The total of all deductible and self - insured amounts under all that other insurance. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all the other insurance permits contribution by equal shares, we will follow this method also. Under this approach, each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 8. Transfer Of Rights Of Recovery Against Others To Us a. Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them. This condition does not apply to Medical Expenses Coverage. b. Waiver Of Rights Of Recovery (Waiver Of Subrogation) If the insured has waived any rights of recovery against any person or organization for all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, we also waive that right, provided the insured waived their rights of recovery against such person or organization in a contract, agreement or permit that was executed prior to the injury or damage. Form SS 00 08 04 05 Page 17 of 24 BUSINESS LIABILITY COVERAGE FORM F. OPTIONAL ADDITIONAL INSURED COVERAGES If listed or shown as applicable in the Declarations, one or more of the following Optional Additional Insured Coverages also apply. When any of these Optional Additional Insured Coverages apply, Paragraph 6. (Additional Insureds When Required by Written Contract, Written Agreement or Permit) of Section C., Who Is An Insured, does not apply to the person or organization shown in the Declarations. These coverages are subject to the terms and conditions applicable to Business Liability Coverage in this policy, except as provided below: 1. Additional Insured - Designated Person Or Organization WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: a. In the performance of your ongoing operations; or b. In connection with your premises owned by or rented to you. 2. Additional Insured - Managers Or Lessors Of Premises a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured - Designated Person Or Organization; but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Declarations. b. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: (1) Any 'occurrence" which takes place after you cease to be a tenant in that premises; or (2) Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. 3. Additional Insured - Grantor Of Franchise WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured - Grantor Of Franchise, but only with respect to their liability as grantor of franchise to you. 4. Additional Insured - Lessor Of Leased Equipment a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured — Lessor of Leased Equipment, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person(s) or organization(s). b. With respect to the insurance afforded to these additional insureds, this insurance does not apply to any 'occurrence" which takes place after you cease to lease that equipment. 5. Additional Insured - Owners Or Other Interests From Whom Land Has Been Leased a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured — Owners Or Other Interests From Whom Land Has Been Leased, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land leased to you and shown in the Declarations. b. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: (1) Any 'occurrence" that takes place after you cease to lease that land; or (2) Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. 6. Additional Insured - State Or Political Subdivision — Permits a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the state or political subdivision shown in the Declarations as an Additional Page 18 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM Insured — State Or Political Subdivision - (e) Any failure to make such Permits, but only with respect to inspections, adjustments, tests or operations performed by you or on your servicing as the vendor has agreed behalf for which the state or political to make or normally undertakes to subdivision has issued a permit. make in the usual course of b. With respect to the insurance afforded to business, in connection with the these additional insureds, the following distribution or sale of the products; additional exclusions apply: (f) Demonstration, installation, This insurance does not apply to: servicing or repair operations, except such operations performed (1) "Bodily injury", "property damage" or at the vendor's premises in "personal and advertising injury" connection with the sale of the arising out of operations performed for product; the state or municipality; or (g) Products which, after distribution (2) "Bodily injury" or "property damage" or sale by you, have been labeled included in the "product -completed or relabeled or used as a operations" hazard. container, part or ingredient of any 7. Additional Insured —Vendors other thing or substance by or for a. WHO IS AN INSURED under Section C. is the vendor; or amended to include as an additional (h) "Bodily injury" or "property insured the person(s) or organization(s) damage" arising out of the sole (referred to below as vendor) shown in the negligence of the vendor for its Declarations as an Additional Insured - own acts or omissions or those of Vendor, but only with respect to "bodily its employees or anyone else injury" or "property damage" arising out of acting on its behalf. However, this "your products" which are distributed or exclusion does not apply to: sold in the regular course of the vendor's (i) The exceptions contained in business and only if this Coverage Part Subparagraphs (d) or (f); or provides coverage for "bodily injury" or "property damage" included within the (ii) Such inspections, "products -completed operations hazard". adjustments, tests or servicing as the vendor has agreed to b. The insurance afforded to the vendor is make or normally undertakes subject to the following additional exclusions: to make in the usual course of (1) This insurance does not apply to: business, in connection with (a) "Bodily injury" or "property the distribution or sale of the damage" for which the vendor is products. obligated to pay damages by (2) This insurance does not apply to any reason of the assumption of insured person or organization from liability in a contract or agreement. whom you have acquired such This exclusion does not apply to products, or any ingredient, part or liability for damages that the container, entering into, vendor would have in the absence accompanying or containing such of the contract or agreement; products. (b) Any express warranty 8. Additional Insured — Controlling Interest unauthorized by you; WHO IS AN INSURED under Section C. is (c) Any physical or chemical change amended to include as an additional insured in the product made intentionally the person(s) or organization(s) shown in the by the vendor; Declarations as an Additional Insured — (d) Repackaging, unless unpacked Controlling Interest, but only with respect to solely for the purpose of inspection, their liability arising out of: demonstration, testing, or the a. Their financial control of you; or substitution of parts under b. Premises they own, maintain or control instructions from the manufacturer, while you lease or occupy these premises. and then repackaged in the original container; Form SS 00 08 04 05 Page 19 of 24 BUSINESS LIABILITY COVERAGE FORM This insurance does not apply to structural alterations, new construction and demolition operations performed by or for that person or organization. 9. Additional Insured — Owners, Lessees Or Contractors — Scheduled Person Or Organization a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured — Owner, Lessees Or Contractors, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (1) In the performance of your ongoing operations for the additional insured(s); or (2) In connection with "your work" performed for that additional insured and included within the "products - completed operations hazard", but only if this Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products -completed operations hazard". b. With respect to the insurance afforded to these additional insureds, this insurance does not apply to "bodily injury", "property damage" or "personal an advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services, including: (1) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (2) Supervisory, inspection, architectural or engineering activities. 10. Additional Insured — Co -Owner Of Insured Premises WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or Organization(s) shown in the Declarations as an Additional Insured — Co - Owner Of Insured Premises, but only with respect to their liability as co-owner of the premises shown in the Declarations. The limits of insurance that apply to additional insureds are described in Section D. — Limits Of Insurance. How this insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E. — Liability And Medical Expenses General Conditions. G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS I. "Advertisement' means the widespread public dissemination of information or images that has the purpose of inducing the sale of goods, products or services through: a. (1) Radio; (2) Television; (3) Billboard; (4) Magazine; (5) Newspaper; b. The Internet, but only that part of a web site that is about goods, products or services for the purposes of inducing the sale of goods, products or services; or c. Any other publication that is given widespread public distribution. However, "advertisement" does not include: a. The design, printed material, information or images contained in, on or upon the packaging or labeling of any goods or products; or b. An interactive conversation between or among persons through a computer network. 2. "Advertising idea" means any idea for an "advertisement". 3. "Asbestos hazard" means an exposure or threat of exposure to the actual or alleged properties of asbestos and includes the mere presence of asbestos in any form. 4. "Auto" means a land motor vehicle, trailer or semi -trailer designed for travel on public roads, including any attached machinery or equipment. But "auto" does not include "mobile equipment". 5. 'Bodily injury" means physical: a. Injury; b. Sickness; or c. Disease sustained by a person and, if arising out of the above, mental anguish or death at any time. 6. "Coverage territory" means: Page 20 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM a. The United States of America (including its territories and possessions), Puerto Rico and Canada; b. International waters or airspace, but only if the injury or damage occurs in the course of travel or transportation between any places included in a. above; c. All other parts of the world if the injury or damage arises out of: (1) Goods or products made or sold by you in the territory described in a. above; (2) The activities of a person whose home is in the territory described in a. above, but is away for a short time on your business; or (3) "Personal and advertising injury" offenses that take place through the Internet or similar electronic means of communication provided the insured's responsibility to pay damages is determined in the United States of America (including its territories and possessions), Puerto Rico or Canada, in a "suit" on the merits according to the substantive law in such territory, or in a settlement we agree to. 7. "Electronic data" means information, facts or programs: a. Stored as or on; b. Created or used on; or c. Transmitted to or from computer software, including systems and applications software, hard or floppy disks, CD-ROMS, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment. 8. "Employee" includes a "leased worker". "Employee" does not include a "temporary worker". 9. "Executive officer" means a person holding any of the officer positions created by your charter, constitution, by-laws or any other similar governing document. 10. "Hostile fire" means one which becomes uncontrollable or breaks out from where it was intended to be. 11. "Impaired property" means tangible property, other than "your product" or "your work", that cannot be used or is less useful because: a. It incorporates "your product' or "your work" that is known or thought to be defective, deficient, inadequate or dangerous; or b. You have failed to fulfill the terms of a contract or agreement; if such property can be restored to use by: a. The repair, replacement, adjustment or removal of "your product" or "your work'; or b. Your fulfilling the terms of the contract or agreement. 12. "Insured contract" means: a. A contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by fire, lightning or explosion to premises while rented to you or temporarily occupied by you with permission of the owner is subject to the Damage To Premises Rented To You limit described in Section D. — Liability and Medical Expenses Limits of Insurance. b. A sidetrack agreement; c. Any easement or license agreement, including an easement or license agreement in connection with construction or demolition operations on or within 50 feet of a railroad; d. Any obligation, as required by ordinance, to indemnify a municipality, except in connection with work for a municipality; e. An elevator maintenance agreement; or f. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury" or "property damage" to a third person or organization, provided the "bodily injury" or "property damage" is caused, in whole or in part, by you or by those acting on your behalf. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. Paragraph f. includes that part of any contract or agreement that indemnifies a railroad for "bodily injury" or "property damage" arising out of construction or demolition operations within 50 feet of any railroad property and affecting any railroad bridge or trestle, tracks, road -beds, tunnel, underpass or crossing. However, Paragraph f. does not include that part of any contract or agreement: Form SS 00 08 04 05 Page 21 of 24 BUSINESS LIABILITY COVERAGE FORM (1) That indemnifies an architect, engineer or surveyor for injury or damage arising out of: (a) Preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage; or (2) Under which the insured, if an architect, engineer or surveyor, assumes liability for an injury or damage arising out of the insured's rendering or failure to render professional services, including those listed in (1) above and supervisory, inspection, architectural or engineering activities. 13. "Leased worker' means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. "Leased worker" does not include a "temporary worker". 14. "Loading or unloading" means the handling of property: a. After it is moved from the place where it is accepted for movement into or onto an aircraft, watercraft or "auto'; b. While it is in or on an aircraft, watercraft or "auto'; or c. While it is being moved from an aircraft, watercraft or "auto" to the place where it is finally delivered; but "loading or unloading" does not include the movement of property by means of a mechanical device, other than a hand truck, that is not attached to the aircraft, watercraft or "auto". 15. "Mobile equipment" means any of the following types of land vehicles, including any attached machinery or equipment: a. Bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads; b. Vehicles maintained for use solely on or next to premises you own or rent; c. Vehicles that travel on crawler treads; d. Vehicles, whether self-propelled or not, on which are permanently mounted: (1) Power cranes, shovels, loaders, diggers or drills; or (2) Road construction or resurfacing equipment such as graders, scrapers or rollers; e. Vehicles not described in a., b., c., or d. above that are not self-propelled and are maintained primarily to provide mobility to permanently attached equipment of the following types: (1) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment; or (2) Cherry pickers and similar devices used to raise or lower workers; f. Vehicles not described in a., b., c., or d. above maintained primarily for purposes other than the transportation of persons or cargo. However, self-propelled vehicles with the following types of permanently attached equipment are not "mobile equipment" but will be considered "autos": (1) Equipment, of at least 1,000 pounds gross vehicle weight, designed primarily for: (a) Snow removal; (b) Road maintenance, but not construction or resurfacing; or (c) Street cleaning; (2) Cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers; and (3) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment. 16. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. 17. "Personal and advertising injury" means injury, including consequential "bodily injury", arising out of one or more of the following offenses: a. False arrest, detention or imprisonment; b. Malicious prosecution; Page 22 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that the person occupies, committed by or on behalf of its owner, landlord or lessor; d. Oral, written or electronic publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; e. Oral, written or electronic publication of material that violates a person's right of privacy; f. Copying, in your "advertisement", a person's or organization's "advertising idea" or style of "advertisement'; g. Infringement of copyright, slogan, or title of any literary or artistic work, in your "advertisement"; or h. Discrimination or humiliation that results in injury to the feelings or reputation of a natural person. 18. "Pollutants" means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed. 19. "Products -completed operations hazard"; a. Includes all "bodily injury" and "property damage" occurring away from premises you own or rent and arising out of "your product" or "your work" except: (1) Products that are still in your physical possession; or (2) Work that has not yet been completed or abandoned. However, "your work" will be deemed to be completed at the earliest of the following times: (a) When all of the work called for in your contract has been completed. (b) When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site. (c) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project. Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed. The "bodily injury" or "property damage" must occur away from premises you own or rent, unless your business includes the selling, handling or distribution of "your product" for consumption on premises you own or rent. b. Does not include "bodily injury" or "property damage" arising out of: (1) The transportation of property, unless the injury or damage arises out of a condition in or on a vehicle not owned or operated by you, and that condition was created by the "loading or unloading" of that vehicle by any insured; or (2) The existence of tools, uninstalled equipment or abandoned or unused materials. 20. "Property damage" means: a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of "occurrence" that caused it. As used in this definition, "electronic data" is not tangible property. 21. "Suit" means a civil proceeding in which damages because of "bodily injury", "property damage" or "personal and advertising injury" to which this insurance applies are alleged. "Suit" includes: a. An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent; or b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent. 22. "Temporary worker' means a person who is furnished to you to substitute for a permanent "employee" on leave or to meet seasonal or short-term workload conditions. 23. "Volunteer worker" means a person who: a. Is not your "employee"; Form SS 00 08 04 05 Page 23 of 24 BUSINESS LIABILITY COVERAGE FORM b. Donates his or her work; c. Acts at the direction of and within the scope of duties determined by you; and d. Is not paid a fee, salary or other compensation by you or anyone else for their work performed for you. 24. "Your product': a. Means: (1) Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by: (a) You; (b) Others trading under your name; or (c) A person or organization whose business or assets you have acquired; and (2) Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products. b. Includes: (1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your product; and (2) The providing of or failure to provide warnings or instructions. c. Does not include vending machines or other property rented to or located for the use of others but not sold. 25. "Your work": a. Means: (1) Work or operations performed by you or on your behalf; and (2) Materials, parts or equipment furnished in connection with such work or operations. b. Includes: (1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your work"; and (2) The providing of or failure to provide warnings or instructions. Page 24 of 24 Form SS 00 08 04 05 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 04 03 06 (Ed. 4-84) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT-CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 2 % of the California workers' compensation premium otherwise due on such remuneration. Schedule Person or Organization Job Description With respect to all employees subject to the workers' compensation laws of the state of California, any person or organization for whom the Named Insured has agreed by written contract to furnish this waiver. This policy is subject to a minimum charge of $250 for the issuance of waivers of subrogation This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) This endorsement, effective 06/11/2020 Policy No. EIG 1507865 08 Issued to HERMANN DESIGN GROUP INC Premium Countersigned at at 12:01 AM standard time, forms a part of Of the EMPLOYERS PREFERRED INS. CO. Carrier Code 00920 Endorsement No. on By: Authorized Representative WC 04 03 06 (Ed. 4-84) © 1998 by the Workers' Compensation Insurance Rating Bureau of California. All rights reserved. CITY OF PALM SPRINGS PROFESSIONAL SERVICES AGREEMENT ON -CALL LANDSCAPE ARCHITECTURAL SERVICES THIS PROFESSIONAL SERVICES AGREEMENT (hereinafter "Agreement") is made and entered into, to be effective this 1st day of July, 2021,by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation, (hereinafter referred to as "City") and HERMANN DESIGN GROUP, INC. (hereinafter referred to as "Consultant"). City and Consultant are sometimes hereinafter individually referred to as "Party" and are hereinafter collectively referred to as the "Parties." RECITALS A. City has determined that there is a need for As -Needed, "On -Call" Landscape Architectural Services for a variety of future capital improvement projects, (hereinafter the "Project"). B. Consultant has submitted to City a proposal to provide As -Needed, "On -Call" Landscape Architectural Services for a variety of future capital improvement projects to City pursuant to the terms of this Agreement. C. Consultant is qualified by virtue of its experience, training, education, reputation, and expertise to provide these services and has agreed to provide such services as provided herein. D. City desires to retain Consultant to provide such professional services. NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1.0 SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant agrees to perform the professional services set forth in the Scope of Services described in Exhibit "A," which is attached hereto and is incorporated herein by reference (hereinafter referred to as the "Services" or "Work"). The Services shall be more particularly described in the individual Task Order issued by the City. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that this Agreement requires specialized skills and abilities and is consistent with this understanding, Consultant is a provider of professional services and that Consultant is experienced in performing the Work contemplated herein and, in light of such status and experience, Consultant covenants that it shall perform the Work in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced, and well qualified members of the profession currently practicing under similar conditions. 1.2 Contract Documents. The Agreement between the Parties shall consist of the following: (1) this Agreement; (2) the Scope of Services; (3) the City's Request for Proposals; (4) the Consultant's signed, original proposal submitted to the City ("Consultant's Proposal"); and (5) the Task Order (as defined herein) (collectively referred to as the "Contract Documents"). The City's Request for Proposals and the Consultant's Proposal, which are both attached as Exhibits `B" and "C", respectively, are Page 1 of 19 Rev. 5/1/20 55575.18165\32900159.2 incorporated by reference and are made a part of this Agreement. The Scope of Services shall include the Consultant's Proposal. All provisions of the Scope of Services, Task Order, and the City's Request for Proposals and the Consultant's Proposal shall be binding on the Parties. Should any conflict or inconsistency exist in the Contract Documents, the conflict or inconsistency shall be resolved by applying the provisions in the highest priority document, which shall be determined in the following order of priority: (1st) the terms of this Agreement; (2"d) the provisions of the Task Order; (P) Scope of Services (Exhibit "A"), as may be amended from time to time; (4th) the provisions of the City's Request for Proposal (Exhibit `B"); and (5th) the provisions of the Consultant's Proposal (Exhibit "C"). 1.3 Compliance with Law. Consultant warrants that all Services rendered hereunder shall be performed in accordance with all applicable federal, state, and local laws, statutes, and ordinances and all lawful orders, rules, and regulations promulgated thereunder, including without limitation all applicable Cal/OSHA requirements. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. 1.4 Licenses, Permits, Fees and Assessments. Consultant represents to City that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession and perform the Work required by this Agreement. Consultant represents to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, qualification, or approval that is legally required for Consultant to perform the Work under this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant's performance of the Work required by this Agreement, and shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes penalties, or interest levied, assessed, or imposed against City hereunder. 1.5 Familiarity with Work. By executing this Agreement, Consultant represents that Consultant (a) has thoroughly investigated and considered the Scope of Services to be performed, (b) has carefully considered how the Services should be performed, and (c) fully understands the facilities, difficulties, and restrictions attending performance of the Services under this Agreement. If the Services involve work upon any site, Consultant represents that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of any Services hereunder. Should the Consultant discover any latent or unknown conditions that will materially affect the performance of the Services hereunder, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the City. 1.6 Care of Work. Consultant shall adopt reasonable methods during the term of the Agreement to furnish continuous protection to the Work and the equipment, materials, papers, documents, plans, studies, and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Work by the City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Page 2 of 19 Rev. 5/1/20 55575.18165\32900159.2 1.8 Performance of Services. City Manager, Director of Development Services, or City Engineer as provided in Section 2.1 of this Agreement, shall have the right at any time during the term of this Agreement to order the performance of services as generally described in the Scope of Services to perform extra or additional work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from such Work. No Work may be undertaken unless a written order is first given by the City Manager, Director of Development Services, or City Engineer to the Consultant, incorporating therein the identification and description of the Work to be performed, a maximum or not to exceed amount for such Work, and the time to perform the Work. 1.9 Unauthorized Aliens. Consultant hereby represents and warrants that it will comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of any Work under this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to reimburse City for any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, or penalties which arise out of or are related to such employment, together with any and all costs, including attorneys' fees, incurred by City. 2.0 COMPENSATION 2.1 Maximum Contract Amount. City and Consultant hereby acknowledge and agree that the Services required by this Agreement will vary dependent upon the number, type, and extent of the Services the Consultant shall provide; and no guarantee of the extent or the type of Services required of Consultant under the terms of this Agreement is made by the City. The annual level of services required by this Agreement is unknown and may significantly increase or decrease from year to year. In acknowledgement of the fact that the number and type of projects requiring the Consultant's Services has not been identified for this Agreement, City and Consultant hereby acknowledge and agree that a specific "Maximum Contract Amount" shall be imposed on each separate project that the City may assign Consultant as provided in Section 1.8 and in this Section 2.1. Each such separate project shall be identified as a Task Order authorized by the City Manager, Director of Development Services, or City Engineer as provided in this Section 2.1. The method of compensation for each separate City authorized Task Order may include: (i) a lump sum payment upon completion, (ii) payment for time and materials based upon the Consultant's Schedule of Hourly Billing Rates as shown on Exhibit "D", or (iii) such other methods as may be specified in the Schedule of Compensation. Compensation shall include reimbursement for actual and necessary expenditures for reproduction costs, telephone expense, transportation expense, and all other necessary expenditures required to perform the professional services under this Agreement. Compensation shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City; Consultant shall not be entitled to any additional compensation for attending said meetings. Consultant hereby acknowledges that it accepts the risk that the Services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates, and that Consultant shall not be entitled to additional compensation, therefore. It is expressly agreed that the maximum contract amount of this Agreement is undefined and is subject to the number and type of projects requiring the Consultant's Services throughout the duration of the term Page 3 of 19 Rev. 5/1/20 55575.18165\32900159.2 of this Agreement, if any. Consultant's compensation shall be limited to the Maximum Contract Amount identified on each separate, individually authorized Task Order corresponding to a project requiring the services of the Consultant. By approval of this Agreement, the City Council hereby authorizes the subsequent approval of individual Task Orders (Purchase Orders) in those amounts sufficient to cover the cost of required Services necessary for the projects. 2.2 Method of Payment. Unless some other method of payment is specified in the Schedule of Compensation (Exhibit "D"), in any month in which Consultant wishes to receive payment, no later than the tenth (10) working day of such month, Consultant shall submit to the City, in a form approved by the City's Finance Director, an invoice for Services rendered prior to the date of the invoice. Such requests shall be based upon the amount and value of the Services performed by Consultant and accompanied by such reporting data including an itemized breakdown of all costs incurred and tasks performed during the period covered by the invoice, as may be required by the City. City shall use reasonable efforts to make payments to Consultant within forty-five (45) days after receipt of the invoice or a soon thereafter as is reasonably practical. There shall be a maximum of one payment per month. 2.3 Changes in Scope. In the event any change or changes in the Scope of Services is requested by the City, the Parties shall execute a written amendment to this Agreement, setting forth with particularity all terms of such amendment, including, but not limited to, any additional professional fees. An amendment may be entered into: (a) to provide for revisions or modifications to documents or other work product or work when documents or other work product or work is required by the enactment or revision of law subsequent to the preparation of any documents, other work product, or work; and/or (b) to provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant's profession. 2.4 Appropriations. This Agreement is subject to and contingent upon funds being appropriated therefore by the Palm Springs City Council for each fiscal year covered by the Agreement. If such appropriations are not made, the City Manager may terminate this Agreement as provided in Section 8.3 of this Agreement; otherwise, there shall be no funding for any Services and Consultant shall not be entitled to payment for any Services that Consultant may provide. 3. SCHEDULE OF PERFORMANCE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. The time for completion of the Services to be performed by Consultant is an essential condition of this Agreement. Consultant shall prosecute regularly and diligently the Work of this Agreement according to the agreed upon Schedule of Performance for each Task Order. Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non -performing Party. Delays shall not entitle Consultant to any additional compensation regardless of the Party responsible for the delay. 3.2 Schedule of Performance. Consultant shall commence the Services pursuant to this Agreement upon receipt of a written Task Order and shall perform all Services within the time period(s) established in the Schedule of Performance. When requested by Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer, Page 4 of 19 Rev. 5/1/20 55575.18165\32900159.2 but such extensions shall not exceed one hundred eighty (180) days cumulatively; however, the City shall not be obligated to grant such an extension. 3.3 Force Majeure. The time for performance of Services to be rendered under each Task Order may be extended because of any delays due to a Force Majeure Event, if Consultant notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Consultant's performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, "orders of governmental authorities," includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Consultant notification, the Contract Officer shall investigate the facts and the extent of any necessary delay and extend the time for performing the Services for the period of the enforced delay when and if, in the Contract Officer's judgment, such delay is justified. The Contract Officer's determination shall be final and conclusive upon the Parties to this Agreement. The Consultant will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement. 3.4 Term. Unless earlier terminated under the terms of this Agreement, this Agreement shall commence on July 1, 2021 and continue in full force and effect for three (3) years. At the sole discretion of the City Manager, upon written notice to Consultant and mutual agreement, the term of this Agreement may be extended for two (2) additional one (1) year terms. 4. COORDINATION OF WORK 4.1 Representative of Consultant. The following principal of Consultant is hereby designated as being the principal and representative of Consultant authorized to act in its behalf with respect to the Services to be performed under this Agreement and make all decisions in connection therewith: Chris Hermann, President/CEO. It is expressly understood that the experience, knowledge, education, capability, expertise, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services performed hereunder. The foregoing principal may not be changed by Consultant without prior written approval of the Contract Officer. 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City and is subject to change by the City Manager. It shall be the Consultant's responsibility to ensure that the Contract Officer is kept fully informed of the progress of the performance of the Services, and the Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. Page 5 of 19 Rev. 5/1/20 55575.18165\32900159.2 4.3 Prohibition Against Subcontracting or Assignments. The experience, knowledge, education, capability, and reputation of Consultant, its principals and employees, were a substantial inducement for City to enter into this Agreement. Consultant shall not contract with any other individual or entity to perform any Services required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to City for the acts and omissions of its subconsultant(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subconsultant and City. All persons engaged in the Work will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written consent of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release Consultant or any surety of Consultant from any liability hereunder without the express written consent of City. 4.4 Independent Consultant. A. The legal relationship between the Parties is that of an independent Consultant, and nothing herein shall be deemed to make Consultant a City employee. During the performance of this Agreement, Consultant and its officers, employees, and agents shall act in an independent capacity and shall not act as City officers or employees. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of its officers, employees, or agents, except as set forth in this Agreement. Consultant, its officers, employees, or agents shall not maintain an office or any other type of fixed business location at City's offices. City shall have no voice in the selection, discharge, supervision, or control of Consultant's employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. Consultant shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, including but not limited to social security income tax withholding, unemployment compensation, workers' compensation, and other similar matters. City shall not in any way or for any purpose be deemed to be a partner of Consultant in its business or otherwise a joint venturer or a member of any joint enterprise with Consultant. B. Consultant shall not incur or have the power to incur any debt, obligation, or liability against City, or bind City in any manner. C. No City benefits shall be available to Consultant, its officers, employees, or agents in connection with any performance under this Agreement. Except for professional fees paid to Consultant as provided for in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant for the performance of Services under this Agreement. City shall not be liable for compensation or indemnification to Consultant, its officers, employees, or agents, for injury or sickness arising out of Page 6 of 19 Rev. 5/1/20 55575.18165\32900159.2 performing Services hereunder. If for any reason any court or governmental agency determines that the City has financial obligations, other than pursuant to Section 2 and Subsection 1.8 herein, of any nature relating to salary, taxes, or benefits of Consultant's officers, employees, servants, representatives, subconsultants, or agents, Consultant shall indemnify City for all such financial obligations. 4.5 California Labor Code Requirements. A. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects ("Prevailing Wage Laws"). If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). B. If the Services are being performed as part of an applicable "public works" or "maintenance" project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant's sole responsibility to comply with all applicable registration and labor compliance requirements. 5. INSURANCE 5.1 Types of Insurance. Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, the insurance described herein for the duration of this Agreement, including any extension thereof, or as otherwise specified herein, against claims which may arise from or in connection with the performance of the Work hereunder by Consultant, its agents, representatives, or employees. In the event the City Manager determines that the Work or Services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the City Manager or his designee. Consultant shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified herein. Except as otherwise authorized below for professional liability (errors and omissions) insurance, all insurance provided pursuant to this Agreement shall be on an occurrence basis. The minimum amount of insurance required hereunder shall be as follows: Page 7 of 19 Rev. 5/1/20 55575.18165\32900159.2 A. Errors and Omissions Insurance. Consultant shall obtain and maintain in full force and effect throughout the term of this Agreement, standard industry form professional liability (errors and omissions) insurance coverage in an amount of not less than one million dollars ($1,000,000.00) per occurrence and two -million dollars ($2,000,000.00) annual aggregate, in accordance with the provisions of this section. (1) Consultant shall either: (a) certify in writing to the City that Consultant is unaware of any professional liability claims made against Consultant and is unaware of any facts which may lead to such a claim against Consultant; or (b) if Consultant does not provide the certification pursuant to (a), Consultant shall procure from the professional liability insurer an endorsement providing that the required limits of the policy shall apply separately to claims arising from errors and omissions in the rendition of services pursuant to this Agreement. (2) If the policy of insurance is written on a "claims made" basis, the policy shall be continued in full force and effect at all times during the term of this Agreement, and for a period of three (3) years from the date of the completion of the Services provided hereunder. In the event of termination of the policy during this period, Consultant shall obtain continuing insurance coverage for the prior acts or omissions of Consultant during the course of performing Services under the terms of this Agreement. The coverage shall be evidenced by either a new policy evidencing no gap in coverage, or by obtaining separate extended "tail" coverage with the present or new carrier or other insurance arrangements providing for complete coverage, either of which shall be subject to the written approval by the City Manager. (3) In the event the policy of insurance is written on an "occurrence" basis, the policy shall be continued in full force and effect during the term of this Agreement, or until completion of the Services provided for in this Agreement, whichever is later. In the event of termination of the policy during this period, new coverage shall immediately be obtained to ensure coverage during the entire course of performing the Services under the terms of this Agreement. B. Workers' Compensation Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, workers' compensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of California. Consultant agrees to waive and obtain endorsements from its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City and to require each of its subconsultants, if any, to do likewise under their workers' compensation insurance policies. If Consultant has no employees, Consultant shall complete the City's Request for Waiver of Workers' Compensation Insurance Requirement form. C. Commercial General Liability Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least one million dollars ($1,000,000.00) and two million dollars ($2,000,000.00) general aggregate for bodily injury and property damage including coverages for contractual liability, personal injury, independent Consultants, broad form property damage, products and completed operations. D. Business Automobile Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of business automobile liability insurance Page 8 of 19 Rev. 5/1120 55575.18165\32900159.2 written on a per occurrence basis with a single limit liability in the amount of one million dollars ($1,000,000.00) bodily injury and property damage. The policy shall include coverage for owned, non - owned, leased, and hired cars. E. Employer Liability Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of employer liability insurance written on a per occurrence basis with a policy limit of at least one million dollars ($1,000,000.00) for bodily injury or disease. 5.2 Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City Manager prior to commencing any work or services under this Agreement. Consultant guarantees payment of all deductibles and self -insured retentions. City reserves the right to reject deductibles or self -insured retentions in excess of $10,000, and the City Manager may require evidence of pending claims and claims history as well as evidence of Consultant's ability to pay claims for all deductible amounts and self -insured retentions proposed in excess of $10,000. 5.3 Other Insurance Reguirements. The following provisions shall apply to the insurance policies required of Consultant pursuant to this Agreement: A. For any claims related to this Agreement, Consultant's coverage shall be primary insurance as respects City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of Consultant's insurance and shall not contribute with it. B. Any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and its officers, council members, officials, employees, agents, and volunteers. C. All insurance coverage and limits provided by Consultant and available or applicable to this Agreement are intended to apply to each insured, including additional insureds, against whom a claim is made, or suit is brought to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations shall limit the application of such insurance coverage. D. None of the insurance coverages required herein will be in compliance with these requirements if they include any limiting endorsement which substantially impairs the coverages set forth herein (e.g., elimination of contractual liability or reduction of discovery period), unless the endorsement has first been submitted to the City Manager and approved in writing. E. Consultant agrees to require its insurer to modify insurance endorsements to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the endorsements. Certificates of insurance will not be accepted in lieu of required endorsements, and submittal of certificates without required endorsements may delay commencement of the Project. It is Consultant's obligation to ensure timely compliance with all insurance submittal requirements as provided herein. Page 9 of 19 Rev. 5/1/20 55575.18165\32900159.2 F. Consultant agrees to ensure that subconsultants, and any other parties involved with the Project who are brought onto or involved in the Project by Consultant, provide the same minimum insurance coverage required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with subconsultants and others engaged in the Project will be submitted to the City for review. G. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any insurance requirement in no way imposes any additional obligations on the City nor does it waive any rights hereunder in this or any other regard. H. Consultant shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to City no later than ten (10) days prior to expiration of the lapsing coverage. I. Requirements of specific insurance coverage features, or limits contained in this section are not intended as limitations on coverage, limits, or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be limiting or all-inclusive. J. The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impairs the provisions of this section. K. Consultant agrees to provide immediate notice to City of any claim or loss against Consultant arising out of the Work performed under this Agreement and for any other claim or loss which may reduce the insurance available to pay claims arising out of this Agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City, or to reduce or dilute insurance available for payment of potential claims. L. Consultant agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages resulting from the Consultant's activities or the activities of any person or person for which the Consultant is otherwise responsible. 5.4 Sufficiency of Insurers. Insurance required herein shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best's Key Rating of B++, Class VII, or better, unless such requirements are waived in writing by the City Manager or his designee due to unique circumstances. Page 10 of 19 Rev. 5/1/20 55575.18165\32900159.2 5.5 Verification of Coverage. Consultant shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Consultant's insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers' Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured... " ("as respects City of Palm Springs Contract No. or 'for any and all work performed with the City" may be included in this statement). B. "This insurance is primary and non-contributory over any insurance or self-insurance the City may have..." ("as respects City of Palm Springs Contract No." or' for any and all work performed with the City" may be included in this statement)- C. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice (or ten days notice if due to non-payment ofpremium) to the Certificate Holder named." Language such as, "endeavor to" mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. D. Both the Workers' Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agentibroker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Consultant's obligation to provide them. 6. INDEMNIFICATION 6.1 To the fullest extent permitted by law, Consultant shall defend, indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims to the extent injuries to or death of persons (Consultant's employees included), for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner Page 11 of 19 Rev. 5/1/20 55575.18165\32900159.2 arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct to the extent committed by Consultant, its officers, employees, representatives, and agents, to the extent that arise out of or relate to Consultant's performance of Services or this Agreement. This indemnification clause excludes Claims arising from the negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Consultant's indemnification obligation or other liability under this Agreement. Consultant's indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. 6.2 If Consultant's obligation to defend, indemnify, and/or hold harmless arises out of Consultant's performance as a "design professional" (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant's indemnification obligation shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant in the performance of the Services or this Agreement, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant's liability for such claim, including the cost to defend, shall not exceed the Consultant's proportionate percentage of fault. 7. REPORTS AND RECORDS 7.1 Accounting Records. Consultant shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Consultant shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and to enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 7.2 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of the Work to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Work contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Contract Officer of such fact, circumstance, technique, or event and the estimated increased or decreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed. 7.3 Ownership of Documents. All drawings, specifications, reports, records, documents, memoranda, correspondence, computations, and other materials prepared by Consultant, its employees, subconsultants, and agents in the performance of this Agreement shall be the property of City and shall be promptly delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of incomplete documents without specific written authorization by the Consultant will be at the City's sole risk and without liability to Page 12 of 19 Rev. 5/1/20 55575.18165\32900159.2 Consultant, and the City shall indemnify the Consultant for all damages resulting therefrom. Consultant may retain copies of such documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. Consultant shall ensure that all its subconsultants shall provide for assignment to City of any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. 7.4 Release of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Consultant in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. All information gained by Consultant in the performance of this Agreement shall be considered confidential and shall not be released by Consultant without City's prior written authorization. 7.5 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, Consultant shall provide City, or other agents of City, such access to Consultant's books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Consultant's performance under this Agreement. Consultant shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder. 8. ENFORCEMENT OF AGREEMENT 8.1 California Law and Venue. This Agreement shall be construed and interpreted both as to validity and as to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such County, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs. 8.3 Termination. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant. Where termination is due to the fault of Consultant and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Consultant shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall Page 13 of 19 Rev. 5/1/20 55575.18165\32900159.2 not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of Work. Consultant may not terminate this Agreement except for cause, upon thirty (30) days written notice to City. 8.4 Default of Consultant. A. Consultant's failure to comply with any provision of this Agreement shall constitute a default. B. If the City Manager, or his designee, determines that Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify Consultant in writing of such default. Consultant shall have ten (10) days, or such longer period as City may designate, to cure the default by rendering satisfactory performance. In the event Consultant fails to cure its default within such period of time, City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice of any remedy to which City may be entitled at law, in equity, or under this Agreement. Consultant shall be liable for any and all reasonable costs incurred by City as a result of such default. Compliance with the provisions of this section shall not constitute a waiver of any City right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's right to terminate this Agreement without cause pursuant to Section 8.3. C. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 8.4.13, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the Maximum Contract Amount (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated. The withholding or failure to withhold payments to Consultant shall not limit Consultant's liability for completion of the Services as provided herein. 8.5 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. Any waiver by the Parties of any default or breach of any covenant, condition, or term contained in this Agreement, shall not be construed to be a waiver of any subsequent or other default or breach, nor shall failure by the Parties to require exact, full, and complete compliance with any of the covenants, conditions, or terms contained in this Agreement be construed as changing the terms of this Agreement in any manner or preventing the Parties from enforcing the full provisions hereof. 8.6 Rights and Remedies Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. 8.7 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to Page 14 of 19 Rev. 5/1/20 55575.18165\32900159.2 compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 8.8 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non -prevailing Party all reasonable costs and expenses, including but not limited to reasonable attorney fees, expert consultant fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding. 9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 9.1 Non -liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Consultant, or any successor -in -interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement. 9.2 Conflict of Interest. Consultant acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall Consultant enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. Consultant warrants that Consultant has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. 9.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Consultant shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Consultant certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Consultant activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Consultant is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. 10. MISCELLANEOUS PROVISIONS 10.1 Patent and Copyright Infringement. A. To the fullest extent permissible under law, and in lieu of any other warranty by City or Consultant against patent or copyright infringement, statutory or otherwise, it is agreed that Consultant shall defend at its expense any claim or suit against City on account of any allegation that any item furnished under this Agreement, or the normal use or sale thereof arising out of the performance of this Agreement, infringes upon any presently existing U.S. letters patent or copyright and Consultant shall Page 15 of 19 Rev. 511/20 55575.18165\32900159.2 pay all costs and damages finally awarded in any such suit or claim, provided that Consultant is promptly notified in writing of the suit or claim and given authority, information and assistance at Consultant's expense for the defense of same, and provided such suit or claim arises out of, pertains to, or is related to the negligence, recklessness or willful misconduct of Consultant. However, Consultant will not indemnify City if the suit or claim results from: (1) City's alteration of a deliverable, such that City's alteration of such deliverable created the infringement upon any presently existing U.S. letters patent or copyright; or (2) the use of a deliverable in combination with other material not provided by Consultant when it is such use in combination which infringes upon an existing U.S. letters patent or copyright. B. Consultant shall have sole control of the defense of any such claim or suit and all negotiations for settlement thereof, Consultant shall not be obligated to indemnify City under any settlement made without Consultant's consent or in the event City fails to cooperate in the defense of any suit or claim, provided, however, that such defense shall be at Consultant's expense. If the use or sale of such item is enjoined as a result of the suit or claim, Consultant, at no expense to City, shall obtain for City the right to use and sell the item, or shall substitute an equivalent item acceptable to City and extend this patent and copyright indemnity thereto. 10.2 Notices. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered, sent by pre -paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimile with attached evidence of completed transmission, and shall be deemed received upon the earlier of (i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) five (5) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by facsimile. Any notice, request, demand, direction, or other communication sent by facsimile must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such as e-mails, text messages, and instant messages are not acceptable manners of notice required hereunder. Notices or other communications shall be addressed as follows: To Ci : City of Palm Springs Attention: City Manager 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Telephone: (760) 323-8204 Facsimile: (760) 323-8332 To Consultant: Hermann Design Group, Inc. Attention: Chris Hermann 77899 Wolf Road, Suite 102 Palm Desert, CA 92211 Telephone: (760) 777-9131 Facsimile: (760) 777-9132 10.3 Entire Agreement. This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter hereof. No amendments or other modifications of this Agreement shall be binding unless executed in writing by both Parties hereto, or their respective successors, assigns, or grantees. Page 16 of 19 Rev. 5/1/20 55575.18165\32900159.2 10.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be determined to be invalid by a final judgment or decree of a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the reminder of that provision, or the remaining provisions of this Agreement unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless. 10.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties' successors and assignees. 10.6 Third Party Beneficiary. Except as may be expressly provided for herein, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third -party beneficiary or otherwise, upon any entity or person not a party hereto. 10.7 Recitals. The above -referenced Recitals are hereby incorporated into the Agreement as though fully set forth herein and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. 10.8. Corporate Authority. Each of the undersigned represents and warrants that (i) the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is signing, (iii) by so executing this Agreement, the Party for which he or she is signing is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which the Party for which he or she is signing is bound. 10.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. [SIGNATURES ON FOLLOWING PAGE] Page 17 of 19 Rev. 5/1/20 55575.18165\32900159.2 SIGNATURE PAGE TO ON -CALL PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND HERMANN DESIGN GROUP, INC. IN WITNESS WHEREOF, the City and the Consultant have caused this Agreement to be executed the day and year first above written. ATTEST: CITYJOF PALM SPRINGS, CA Mejia, Date: APPROVED AS TO FORM: By Jeffry S. al nger, Attorney Date: e CONSULTANT Name: Hermann Design Group, Inc. CONTENTS APPROVED: By krn,t,- Justin Cl on, City Uanager Date: APPROVED BY CITY COUNCIL: o Dat���?Egore�!`ment No. 7 Check one: _Individual _Partnership XCorporation Corporations require two notarized signatures: One signature must be from Chairman of Board, President, or any Vice President. The second signature must be from the Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer. Address: 77899 Wolf Rd., Suite 102 Palm DesertXA 92211 By: B Si ature (notarized) Signature (notarized) Name: E. Chris Hermann, PLA, ASLA Name: Kristin M. Hermann Title: President/CEO Title: CFO/Secretary Page 18 of 19 Rev. 5/1/20 55575.18 l 65\32900159.2 CALEFORIIOA ALL4PURPOSE ACKNIG IFLEDG ElrF MIL CODE § »89 A rwo publica atha d5mr oampI - tl is carffxM verifies an>p to Mm city of thw is5%AW who 6vtod do doaarm a to which this cwffK me b atmched. mid not the Mifffu was, a atracyC ar vd ty d that dnnanent • WIAHE _ #/ .,1 .. Z who proved to me an the I i of satisfactory oAndence to be the whose name(a)ea ire subacribed to the within iadrument and acknowledged to me Bud eked the awns in hittltherM— authorized cmpacy{ma). whd that by hieftwAftw eignuhne(a) an the instrument the person(a). or the entity upon bshslf of which the persona) acbmi executed the imftunant sE" ;°A r1 NAYAN P. GHELANI s ` " Notary Public - California = Riverside County �. Fos"� My Commission # 2342606 Comm. Expires Jan 20. 2025 Piece Notary Seal Above I certify under PENALTY OF PERJURY under the laws of the 8tds of CaGlornm that the foregoing paregrsph is true and correct WRNEW my hand and official wat. of Notary Pri)6c OPTIf NIfA Though Oda section is apbarmt corryA% V t%b bdbfnmbon can deter alteration of the dowment or hmrckzfant reaffnimkmard of fts form to an ur*dandad d=vnenf Oss=Wb n of Attedred Document Tithe or Type of Document Number of Pages Signer(e) Ofhe Than Named Above: CapsciW-s) Claimed by Signer(a) signers Noma ❑ Oorpords Office — Tito@* ❑ Parbw — ❑ L&dWd ❑ Gahaal ❑ Individuel ❑ Attorney in f-ad ❑ Tnmtse ❑ Guardian or Conservator n ocher Signer Is Representing signer's Name: ❑ corporate Officer — Tale(* ❑ Partner — ❑ L united ❑ General ❑ Individiml ❑Attorney in Fad ❑ Tnmfee ❑ Gu wdm or Conservator n Other Signer Is RepresenSnQ 4 2M14 NatiorW Notary Association • www Habordg* to y.erg -1-804US WrAFrY (1.8004PS-68 ) Forn tf5t107 Page 19 of 19 5 5575.18165 \32900159.2 5/1 /20 Rev. EXHIBIT "A" SCOPE OF SERVICES The selected firms shall provide first-rate landscape architectural services on an as -needed basis for various City projects as assigned. Responsibilities may include, but are not limited to, the following: 1. Leading a team to prepare site improvement plans including but not limited to landscaping, irrigation, grading, planting, lighting/electrical plans, including design details, cost estimates, working drawings, construction documents, specifications, and bid documents, as needed, for new infrastructure, upgrades to existing infrastructure, or general aesthetic improvements for the City. 2. Preparing conceptual drawings, plans and renderings as may be requested by the City for projects being contemplated or visioning sessions with the community. 3. Providing design for areas adjacent to designated historical buildings (such as a courtyard), including where alteration and renovation projects are on historic sites. This may include project design, research, evaluation, planning, incorporation of current handicapped accessibility regulations, and other services incidental to the project. 4. Preparing feasibility studies, preliminary documents, for new, renovation, and alteration projects, such as park playground areas, dog parks, tennis courts, pickleball courts, baseball fields, soccer fields, picnic areas and trailheads to name a few. Consider aesthetics, function, using native plant species, the desert environment, maintenance requirements, amenities, and providing shade. 5. Providing construction advisement and/or construction management services, value engineering and advice on projects that will be constructed in phases. 6. Prepare documentation, assist in warranty review, participate in project closeout, and provide as -built record drawings as needed. 7. Attending meetings and preparing presentations for staff reports to City advisory board, commissions, and the City Council as warranted or directed by the City Manager or his/her designee. 8. Cooperating, coordinating, and communicating with all internal City departments and divisions as necessary. Coordinate meetings with City staff, contractors and other stakeholders as the project may require. It is the responsibility of the successful firms to determine the necessary staffing level required to perform the scope of service of each project assigned. The City will not provide dedicated work space or office space, City staff, or City resources, printing or copying services, or clerical assistance for the performance of the services. All services shall be performed in compliance with the industry and professional standards and all applicable federal, state, and local laws, ordinances, and regulations including the Americans with Rev. 5/1 /20 55575.18165\32900 l 59.2 Disabilities Act (ADA), current California Building Code, and the rules and ordinances of the County of Riverside and the City of Palm Springs. The City further reserves the right, when applicable and in the best interests of the City, to require the landscape architect to engage sub -consultants with special expertise when the unique circumstances of a particular project warrants such additional services. The City may provide recommendations to the landscape architect for consideration and reserves the right of approval of any sub -consultant on any project. All proposals must be made on the basis of the requirements contained herein. Individual tasks may require supervision, sub -consultants, materials, equipment and supplies necessary to complete any services required. When the City has an available a project or task for our on -call landscape architecture firms, they will provide a general scope, details, and budget for that project. This will be sent to all selected on -call firms. Since all firms have already been screened for qualifications, the City will ask firms to respond with a short proposal containing a detailed list of services that will be provided for the project, identification of staff assigned to the project, and a cost proposal. If for any reason a firm is not able to submit a proposal, a response stating as such will be required. If no response and no proposals are received on multiple occasions, it may be grounds for the City to not execute the one-year extensions to an on -call landscape architectural firm. Rev. 5/1120 55575.18165\32900159.2 EXHIBIT "B" CITY'S REQUEST FOR PROPOSALS Rev 5l1/20 53575 18165,32900159 2 REQUEST FOR STATEMENT OF QUAMFICATION ON -GALL LANDSCAPE kRCHITECTUR SERVICES Date Issued: March 1, 2021 i Proposals Due: April 1, 2021 SOQ#09-21 PALM SA4 C44 IFoaN�P ON -CALL SOQ#09-21 LANDSCAPE ARCHITECTURE SERVICES CITY OF PALM SPRINGS, CALIFORNIA REQUEST FOR STATEMENT OF QUALIFICATIONS (SOQ) The City of Palm Springs ("City") is seeking qualified professionals ("Consultants") to provide "on -call" landscape architecture services for a variety of City projects, as may be assigned. The objective of this solicitation is to hire multiple Consultants to provide such services to the City. There is no promise or guarantee of work, made or implied, by the City and all work that may be assigned is subject to approval and funding of each project. BACKGROUND The City is a charter city located in eastern Riverside County, California, with a population of over 48,000. The City owns and operates Palm Springs International Airport (PSP), as well as many other public facilities within the community such as City Hall, Fire Stations, Police Headquarters, a Pavilion and Leisure Center, a Convention Center, a Visitors Center, an Animal Shelter and the Main Library, to name a few. The City is home to ten parks, with an eleventh currently under construction. The City has on -going requirements to maintain, improve or expand their public facilities over the next five (5) years. The types of projects that may be contemplated as part of this on - call landscape architecture services include, but are not limited to, the following: landscaping, planting and irrigation plans for parks, street medians, sports fields (softball, soccer), playground areas, sitting areas, courts (basketball, tennis, 2 pickleball), demonstration gardens, dog parks, trailheads, picnic areas, shade structures and general landscaping around existing buildings to name a few. The selected Consultants shall be required to demonstrate successful experience and capacity to provide landscape architecture services to a municipal government agency for the types of projects named above. Projects that are funded with Federal or State grant funds may be excluded from the contract resulting from this Request for SOQ pursuant to the applicable term and conditions of the grant requirements. In addition, large projects, as determined by City staff, may be solicited by a separate procurement, to obtain the best -qualified professionals to meet the needs of that project and to participate in community engagement that will likely be a part of the process. Under this Request for SOQ, the City intends to award one or more contracts for on -call landscape architecture services with an initial term of three (3) years, with two (2) one-year extensions upon approval of the City Manager and mutual consent of the selected firms, for a total maximum of five years, unless mutually extended by the parties for more than five (5) years. SCOPE OF WORK The selected Consultants shall provide first-rate professional landscape architecture services on an as -needed basis for various City projects as assigned. Responsibilities may include, but are not limited to, the following: 1. Leading a team to prepare site improvement plans including but not limited to landscaping, irrigation, grading, planting, lighting/electrical plans, including design details, cost estimates, working drawings, construction documents, specifications, and bid documents, as needed, for new infrastructure, upgrades to existing infrastructure, or general aesthetic improvements for the City. 2. Preparing conceptual drawings, plans and renderings as may be requested by the City for projects being contemplated or visioning sessions with the community. 3. Providing design for areas adjacent to designated historical buildings (such as a courtyard), including where alteration and renovation projects are on historic sites. This may include project design, research, evaluation, planning, incorporation of current handicapped accessibility regulations, and other services incidental to the project. 4. Preparing feasibility studies, preliminary documents, for new, renovation, and alteration projects, such as park playground areas, dog parks, tennis courts, pickleball courts, baseball fields, soccer fields, picnic areas and trailheads to name a few. Consider aesthetics, function, using native plant species, the desert environment, maintenance requirements, amenities, and providing shade. 5. Providing construction advisement and/or construction management services, value engineering and advice on projects that will be constructed in phases. 3 6. Prepare documentation, assist in warranty review, participate in project closeout, and provide as -built record drawings as needed. 7. Attending meetings and preparing presentations for staff reports to City advisory board, commissions, and the City Council as warranted or directed by the City Manager or his/her designee. 8. Cooperating, coordinating, and communicating with all internal City departments and divisions as necessary. Coordinate meetings with City staff, contractors and other stakeholders as the project may require. It will be the responsibility of selected Consultants to determine the necessary staffing level required to perform the scope of service of each project assigned. The City will not provide dedicated work space or office space, City staff, or City resources, printing or copying services, or clerical assistance for the performance of the services. All services shall be performed in compliance with the industry and professional standards and all applicable federal, state, and local laws, ordinances, and regulations including the Americans with Disabilities Act (ADA), current California Building Code, and the rules and ordinances of the County of Riverside and the City of Palm Springs. The City further reserves the right, when applicable and in the best interests of the City, to require the selected Consultant to engage sub -consultants with special expertise when the unique circumstances of a particular project warrants such additional services. The City may provide recommendations to the selected Consultant for consideration and reserves the right of approval of any sub -consultant on any project. All SOQs must be made on the basis of the requirements contained herein. Individual tasks may require supervision, sub -consultants, materials, equipment and supplies necessary to complete any services required. When the City makes available a project or task for a selected Consultant, the selected Consultant will provide a general scope, details, and budget for that project. This request will be sent to all selected Consultants. Since all selected Consultants will have already been screened for qualifications, the City will ask selected Consultants to respond with a short proposal containing a detailed list of services that will be provided for the project, identification of staff assigned to the project, and a cost proposal. If for any reason a selected Consultant is not able to submit a proposal, a response stating as such will be required. If no response and no proposals are received on multiple occasions, it may be grounds for the City to not execute the one-year extensions to the contract with the selected Consultant. 4 STATEMENT OF QUALIFICAITONS REQUIREMENTS Consultants must submit their SOQ in the order provided below. The SOQ must be in an 8'/z" x 11" format and not more than thirty (30) pages. In an effort to be sustainable, submissions will be electronic pdf format only. Consistent with the City's Municipal Code for the acquisition of professional landscape architecture services, price is NOT an evaluation criterion. Cost proposals shall be submitted as a separate pdf file, which will not be considered until after evaluation of the SOQ by the Evaluation Committee. Upon selection of the most qualified Consultants, the associated cost proposals will be used as a basis for contract negotiations. The City reserves the right to enter into agreements with more than one Consultant. 1. Cover letter. The SOQ shall include a cover letter that at minimum identifies the company, mailing address, main point of contact, email and phone number for contact, and reason for submitting the SOQ. 2. Firm and Staff Qualifications. This section shall describe the qualifications of the Consultant and its ability to provide on -call landscape architecture services to the City. You may include a list of other public agencies your firm is providing similar on -call landscape architecture services. Discuss your firm's experience in the various processes, approvals, and procedures associated with providing such services for a public agency. Discuss your firm's familiarity and any unique issues that come with providing landscape architecture services in the City and Coachella Valley. Identify any key or critical issues that you foresee may be encountered while providing on -call landscape architecture services. Describe your firm's method to ensure its projects are delivered to clients on time and within your clients budget. Provide examples of projects that highlight your ability to provide the scope of work. Reference projects, that are in addition to the example provided in section 4, should be included in this section. Identify staff assigned to provide these services. Include relevant and/or specific examples that demonstrate their experience, technical expertise, licenses, specialties and/or ability to provide the requested services. Include an organizational chart to show the team of staff and possibly sub -consultants your firm may use to provide the scope of services. (40 points) 3. Scope of Work. This section shall provide a detailed description on the Consultant's approach or methodology in providing each item in the scope of work. The descriptions provided shall demonstrate the Consultant's ability to provide on -call landscape architecture services to satisfactorily complete the requirements of each scope of work item. (40 points) 5 Please note: This Request for SOQ cannot identify each specific, individual task required to implement the on -call services requested. The City relies on the professionalism and competence of the selected Consultant(s) to be knowledgeable of the general areas identified in the scope of work and to include in its SOQ and cost proposal all required tasks and subtasks, personnel commitments, man-hours, direct and indirect costs, etc., needed to provide the on -call services. The City will not approve amendments to the selected Consultant's agreement which do not involve a substantial change from the general scope of work identified in this Request for SOQ. 4. Reference Project. Identify one example project for which your firm and staff provided landscape architecture services. (15 points) If you would like to include additional reference projects please include them under Firm and Staff Qualifications. • Provide a short description of the project and the location of the project. • Provide the approximate cost of your services on that project • Provide the date range your firm provided those services • Provide contact information for someone who can verify your work on the project. • Include any pictures that demonstrates your firm's work on the project. Also, describe how your firm applied its skills and abilities in the following areas: (any that may apply) • Responsiveness and attentiveness to client needs • Knowledge and understanding of the latest landscape architecture and construction trends • Creative design • Sensitivity to funding constraints • Working with a Tribe or the indigenous peoples of the United States • Analysis of a complex situation, or a challenging problem encountered and how you solved it • Oral and written communication skills, including reports to City Council • Preparation of presentations to meetings, neighborhoods, stakeholders • Interaction with the client's organization, (i.e. other divisions or departments, Boards, Commissions, Councils) 5. Local Business Preference Program. (up to 5 points) Pursuant to Palm Springs Municipal Code Section 7.09.030 Local Business Preference Program, the Local Preference in Services does apply. In order for a local business to be eligible to claim the local preference, the local business must request the consideration of the local preference program (see Attachment A) in this section of the SOQ and provide a copy of its current business license from a jurisdiction in the Coachella Valley showing the address of the business is located in the Coachella Valley. 0 "Local business" means a vendor, contractor, or consultant who has a valid physical business address located within the Coachella Valley, at least six months prior to bid or proposal opening date, from which the vendor, contractor, or consultant operates or performs business on a day-to-day basis, and holds a valid business license by a jurisdiction located in the Coachella Valley. Post office boxes are not verifiable and shall not be used for the purpose of establishing such physical address. "Coachella Valley" means the area between the Salton Sea on the south, the San Jacinto and Santa Rosa Mountains on the west, and the Little San Bernardino Mountains on the east and north. For the purposes of this definition, "Coachella Valley" includes the cities of Beaumont and Banning and the unincorporated areas between Banning and the City of Palm Springs. Consultants that request the local preference and qualify as a local business will be awarded the full five (5) points. A Consultant that qualifies as a local business but does not request the local preference or a Consultant that does not qualify as a local business will earn zero (0) points for the Local Business Preference Program. 6. Forms. The following attachments must be included in the SOQ. These attachments do not count towards the thirty (30) page limit. • Attachment A — Signature and Addenda Acknowledgement Form • Attachment B — Non -Collusion Declaration Form • Attachment C — Conflict of Interest and Non -Discrimination Certification • Attachment D — Public Integrity Disclosure Form (do not include instructions) • Attachment E — Sample Professional Services Agreement for On -Call Services (Please see instructions for submitting in Attachment E) 7. Cost Proposal (separate file). Provide a cost proposal that identifies a schedule of hourly rates for each person and/or position assigned to perform the requested services and include any other rates or direct costs that may apply to this Request for SOQ. Cost increases to the schedule of hourly rates shall be allowed once per calendar year. Updated rates must be submitted in writing and received by January 31 of each calendar year. If no updated rate schedule is received by the end of January, the previously approved rate schedule shall continue. If any overhead rate is applied to sub -consultant work, the terms must clearly be identified in the cost proposal. 7 QUESTIONS OR CLARIFICATIONS It shall be the Consultant's responsibility to ask questions, request clarifications, or otherwise advise the City of any language, specification, or requirements of the Request for SOQ that is ambiguous or contradictory. Questions and requests for clarification regarding this Request for SOQ shall be submitted in writing to: Leigh Gileno, Acting Procurement & Contracting Manager at: Leigh.Gileno(d-)palmspringsca.gov by 3:00 PM, on March 25, 2021. Questions and requests for clarification received after that date and time will not be answered. Requests for time extensions will not be approved. Interpretations or clarifications considered necessary in response to such questions and request for clarification will be resolved by the issuance of formal Addenda to the Request for SOQ. Only questions and request for clarification that have been resolved by formal written Addenda via the Department of Procurement and Contracting will be binding. Oral and other interpretations or clarifications will be without legal or contractual effect. Consultants, their representatives, agents or anyone else acting on their behalf are specifically directed NOT to contact any City employee, commission member, committee member, council member, or other agency employee or associate for any purpose related to this Request for SOQ other than as directed above. Contact with anyone other than as directed above may be cause for rejection of a submittal. W SUBMITTAL OF SOQ Consultants must upload two (2) separate files. The first file shall be the SOQ. The second file shall be the cost proposal. Each file must be labeled with the SOQ number, firm name, and either the words "SOQ" or "Cost Proposal". Consultants must label their files this way or files may be lost or rejected. Firms may not use any special characters (*;&@#) in the name of the files, only dashes may be used. Example: SOQ 09-21 -You rCompanyl nc-SOQ SOQ 09-21 -You rCompanyl nc-Cost Proposal Electronic submittals shall be uploaded to the following site via the link below. All submissions will be time and date stamped upon submittal. Submittals shall be received by the deadline of 3:00 PM, April 1, 2021. Late submissions will be rejected. https://spaces.hightail.com/uplink/Procurement INFORMATION REGARDING STATEMENT OF QUALIFICATIONS PRIOR CITY WORK: If your firm has prior experience working with the City, DO NOT assume all members of the evaluation committee know about said prior work done by your firm. All Consultants are evaluated on the information contained in their SOQ, information obtained from references (including the City and past performance if applicable), and presentation, if requested. SOQs should be prepared as if the evaluation committee members have no knowledge of the Consultant, their qualifications or past projects. COST RELATED TO SOQ PREPARATION: The City will NOT be responsible for any costs incurred by any Consultant responding to this Request for SOQ in the preparation of their SOQ or participation in any presentation if requested, or any other aspects of the entire Request for SOQ process. RESPONSIBILITY OF CONSULTANTS: All Consultants responding to this Request for SOQ shall be responsible. If it is found that a Consultant is not responsible (e.g., has not paid taxes, is not a legal entity, submitted an SOQ without an authorized signature, falsified any information in the SOQ, etc.), the SOQ may be rejected. NONCOLLUSION: All Consultants must execute the Non -Collusion Declaration Form provided as Attachment "B" in this Request for SOQ and include it with their SOQ. COMPLIANCE WITH LAW: Consultant warrants that all services rendered shall be performed in accordance with all applicable federal, state, and local laws, statutes, ordinances lawful orders, rules, and regulations. PUBLIC RECORD: All documents submitted in response to this solicitation will become the property of the City and are subject to the California Code Section 6250 et seq., commonly known as the California Public Records Act ("CPRA"). Information contained in the documents, or any other materials associated with the solicitation, pursuant to CA Government Code 6255 during the negotiation process, may be made public after the City's negotiations are completed, and staff has agendized the recommendation to the City Council for the award of a contract to a specific Consultant, but before final action is taken by the City Council to award the contract. Although the CPRA recognizes that certain confidential trade secret information may be protected from disclosure, the City may not be in a position to establish that the information submitted in a proposal is a trade secret. If a request is made for information marked "Confidential," "Trade Secret," Proprietary," or any other similar designation, the City will provide the Consultant submitting such information with reasonable notice to allow the Consultant to seek protection from disclosure by a court of competent jurisdiction. If a submitting Consultant contends that a portion of the submittal is confidential even under the CPRA, the firm: 1) must clearly label each document and/or page deemed a confidential document 2) the legal rationale supporting such contention including specific references to applicable provisions of the CPRA 3) must actively defend against any request for disclosure of information which the Consultant has determined should not be released, and 4) must indemnify and hold harmless the City from any loss, claim or suit, including attorneys' fees, brought by a person challenging the City's refusal to release the documents. The City will not, under any circumstances, incur any expenses, or be responsible for any damages or losses incurred by a Consultant submitting a submittal or any other person or entity, because of the release of such information. The City will not return the original or any copies of the submittal or other information or documents submitted to the City as part of this Request for SOQ process. Note that the City may NOT recognize submittals where all of the information, via a blanket statement, is submitted as proprietary information or a trade secret. Such submittals may be found non -responsive. INVESTIGATIONS: The City reserves the right to make such investigations as it deems necessary to determine the ability of the Consultant responding to this Request for SOQ to perform the services and the Firm shall furnish to the City all such information and data for this purpose as the 10 City may request. The City reserves the right to reject any SOQ if the evidence submitted by or investigation of such Firm fails to satisfy the City that such Firm is properly qualified to carry out the obligations of the Agreement and to complete the services contemplated therein. LICENSES, PERMITS, FEES, AND ASSESSMENTS: Consultant represents and warrants to City that it will obtain all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession and perform the services requested in this Request for SOQ. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of the Agreement, if so awarded, any license, permit, qualification, or approval that is legally required for Consultant to perform the services under the Agreement, if so awarded. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant's performance of the services required under the Agreement, if so awarded. Consultants shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes penalties, or interest levied, assessed, or imposed against City to the fullest extent permitted by law. SOQ TO REMAIN OPEN: Consultants shall guarantee that all contents of their SOQ and cost proposal shall be valid for a period of 120 calendar days from the due date in this Request for SOQ. SIGNED SOQ AND EXCEPTIONS: Submission of a signed SOQ will be interpreted to mean that the Consultant responding to this SOQ has hereby agreed to all the terms and conditions set forth in all of the sheets which make up this Request for SOQ, and the Agreement (as defined herein) in Attachment E Exceptions to any of the language in either the Request for SOQ or the Agreement, including the insurance requirements, must be included in the SOQ and clearly defined. Exceptions to this Request for SOQ or the Agreement may be considered in the evaluation process; however, the City makes no guarantee that any exceptions will be approved. RIGHT TO ACCEPT OR REJECT PROPOSALS: The City reserves the right to waive any informality or technical defect in an SOQ and to accept or reject, in whole or in part, any or all SOQ and to cancel all or part of this Request for SOQ and issue a new Request for SOQ, as best serves the interests of the City. The City furthermore reserves the right to contract separately with others certain tasks if deemed in the best interest of the City. Issuance of this Request for SOQ and receipt of SOQ does not commit the City to award a contract. BUSINESS LICENSE: The selected Consultant will be required to be licensed in accordance with the City of Palm Springs Business License Ordinance, Municipal Code Chapter 3.40 through 3.96, entitled "Business Tax". INSURANCE: Insurance provisions are contained in the Agreement included in this Request for SOQ. Successful Consultants will be required to comply with these provisions. It is recommended 11 that Consultants have their insurance provider review the insurance provisions BEFORE they submit their proposal. FORM OF AGREEMENT: The selected Consultant will be required to enter into a contractual agreement, inclusive of insurance requirements, with the City in accordance with the standard Professional Services Agreement for On -Call Services ("Agreement"). Please note that the exhibits in the Agreement are intentionally not complete. These exhibits will be negotiated with the selected Consultant, and will appear in the final Agreement executed between the parties. We specifically draw your attention to the language in sections of the Agreement entitled "Conflict of Interest" and "Covenants Against Discrimination" and recommend all Consultants carefully consider these contractual requirements prior to submitting an SOQ. Firms that submit an SOQ shall certify the following by submitting Attachment "C" as part of its SOQ: a. Conflict of Interest. Consultant acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in the Agreement nor shall Consultant enter into any agreement of any kind with any such officer or employee during the term of the Agreement and for one year thereafter. Consultant warrants that Consultant has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining the Agreement. b. Covenant Against Discrimination. In connection with its performance under the Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter the Agreement, and in executing the Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non- discrimination in city contracting. Failure or refusal to enter into an Agreement as herein provided or to conform to any of the stipulated requirements in connection therewith shall be just cause for an annulment of the award. If the highest ranked Consultant refuses or fails to execute the Agreement, or negotiations are not 12 successful, or the Agreement is terminated, the City may, at its sole discretion, enter negotiations with and award the Contract to the second highest ranked Proposer, and so on. AWARD OF CONTRACT: It is the City's intent to award a contract to Consultants that can provide all of the scope of work, equipment and services identified in this Request for SOQ. However, the City reserves the right to award a contract, or to make no award, whichever is in the best interest of the City. It is anticipated that award of the contract will occur at the next regularly scheduled City Council meeting after the evaluation committee has made its final selection of Consultants to be recommended for award and a contract has been negotiated and put on the agenda for consideration. The decision of the City Council will be final. OTHER PUBLIC AGENCY "PIGGYBACK" CLAUSE: It is intended that any other public agency, at the mutual consent of both parties and consistent with the public agency's policies and procedures, be permitted to purchase under the terms submitted in the response to this procurement. Any participating agency shall take sole responsibility for the placing of orders, arranging for delivery and or services, and making payments to the vendor, contractor, or consultant. The City will not be liable or responsible for any obligations, including but not limited to financial responsibility, in connection with the participation by other public agencies. 13 ATTACHMENT "A" SIGNATURE AND ADDENDA ACKNOWLEDGEMENT FORM 1. Name of Company: Address: Telephone Number: ( Contact Person: E-Mail: Tax Identification Number: 2. Type of Firm: ❑ Individual ❑ Partnership ❑ Limited Liability Company ❑ Corporation (State ) ❑ Other (specify) 3. Addenda Acknowledgement: Acknowledgment of receipt of any addenda issued by the City for this Request for SOQ is required to be submitted with your SOQ. Failure to acknowledge issued addenda may result in your SOQ being deemed non -responsive. (If no addenda were issued, write N/A.) I hereby acknowledge receipt ofAddendum(s) Numbers 4. Please check below if you are requesting consideration of the Local Business Preference Program according to the Palm Springs Municipal Code Section 7.09.030. 1 hereby request consideration of the Local Business Preference Program and a copy of current business license for the firm or sub -consultant is/are included. 5. 1 hereby certify that I have the authority to submit this SOQ to the City of Palm Springs for the above listed individual or company. I certify that I have the authority to bind myself/this company in a contract should I be successful in my SOQ. PRINTED NAME AND TITLE SIGNATURE AND DATE 14 ATTACHMENT "B" NON -COLLUSION DECLARATION FORM The undersigned, deposes and says that he, she or they is/are an authorized representative of , the party making the foregoing SOQ. (name of company) • That the SOQ is not made in the interests of, or on the behalf of, any undisclosed person, partnership, company, association, organization, or corporation • That the SOQ is genuine and not collusive or sham • That the proposer has not directly or indirectly induced or solicited any other proposer to put in a false or sham SOQ, and has not directly or indirectly colluded, conspired, connived, or agreed with any proposer or anyone else to put in a sham SOQ, or that anyone shall refrain from proposing • That the proposer has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the SOQ price of the proposer or any other proposer, or to fix any overhead, profit, or cost element of the SOQ price, or of that of any other proposer, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract • That all statements contained in the SOQ are true • That the proposer has not, directly or indirectly, submitted his or her SOQ price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereof, or paid, and will not pay, any fee to any corporation, partnership, company, association, organization, proposal depository, or any other member or agent thereof to effectuate a collusive or sham SOQ. • Any person executing this declaration on behalf of a bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of the bidder. NAME and TITLE of Authorized Representative: (Print) Signature and Date of Authorized Representative: (Sign) 15 (Date) ATTACHMENT "C" CONFLICT OF INTEREST AND NON-DISCRIMINATION CERTIFICATION Conflict of Interest. Consultant acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in the Agreement nor shall Consultant enter into any agreement of any kind with any such officer or employee during the term of the Agreement and for one year thereafter. Consultant warrants that Consultant has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining the Agreement. Covenant Against Discrimination. In connection with its performance under the Agreement, Consultant shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Consultant shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter the Agreement, and in executing the Agreement, Consultant certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Consultant activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Consultant is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. NAME OF COMPANY: NAME and TITLE of Authorized Representative: (Print) Signature and Date of Authorized Representative: (Sign) 16 (Date) ATTACHMENT "D" PUBLIC INTEGRITY DISCLOSURE APPLICANT DISCLOSURE FORM 1. Name of Entity 2. Address of Entity (Principle Place of Business) 3. Local or California Address (if different than #2) 4. State where Entity is Registered with Secretary of State If other than California, is the Entity also registered in California? n Yes R No 5. Type of Entity ❑ Corporation ❑ Limited Liability Company ❑ Partnership ❑ Trust ❑ Other (please specify) 6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: if any response is not a natural person, please identify al/ officers, directors, members, managers and other fiduciaries for the member, manager, trust or other entity ❑ Officer ❑ Director ❑ Member ❑ Manager [name] ❑ General Partner ❑ Limited Partner ❑ Other ❑ Officer ❑ Director ❑ Member ❑ Manager [name] ❑ General Partner ❑ Limited Partner ❑ Other ❑ Officer ❑ Director ❑ Member ❑ Manager [name] ❑ General Partner ❑ Limited Partner ❑ Other 17 7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity EXAMPLE JANEDOE 50016, ABC COMPANY, Inc. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] A. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] B. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] C. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] D. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] E. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT. Signature of Disclosing Party, Printed Date Name, Title iiB PUBLIC INTEGRITY DISCLOSURE FORM INSTRUCTIONS FOR APPLICANTS (DO NOT INCLUDE INSTRUCTIONS IN YOUR WORK PROPOSAL) Who Must File? Applicants that are NOT a natural person or group of natural people that will be identified on the application, and seek a City approval determined by a vote of City officials. Examples include corporations, limited liability companies, trusts, etc. that seek a City Council approval, or an approval by one of the City's board or commissions. Why Must I File? The City of Palm Springs Public Integrity Ordinance advances transparency in municipal government and assists public officials in avoiding conflicts of interest. The City's Public Integrity Ordinance, codified in Chapter 2.60 of the municipal code, reflects the City's interest in ensuring that companies (and other legal entities that are not natural people) doing business in the community are transparent and make disclosure as to their ownership and management, and further that those companies disclose the identity of any person, with an ownership interest worth two thousand dollars ($2,000) or more, who has a material financial relationship with any elected or appointed voting City official, or with the City Manager or City Attorney. Note: A material financial relationship is a relationship between someone who is an owner/investor in the applicant entity and a voting official (or the City Manager or City Attorney), which relationship includes any of the following- (1) the owner/investor and the official have done business together during the year prior to the application; (2) the official has earned income from the owner/investor during the year prior to the filing of the application; (3) the owner/investor has given the official gifts worth fifty dollars ($50) or more during the year prior to the filing of the application; or (4) the official might reasonably be anticipated to gain or lose money or a thing of value, based upon the owner/investor's interest in the applicant entity, in relation to the application's outcome. When Must I File? You must file this form at the same time when you file your application for a City approval determined by a vote of City officials, whether elected or appointed. What Must I Disclose? A. The names of all natural persons who are officers, directors, members, managers, trustees, and other fiduciaries serving trusts or other types of organizations (attorneys, accountants, etc.). 19 Note: (1) only trusts or other organizations that are not the fiduciaries, (2) if a second entity that is not a natural person serves the applicant entity (e.g., as a member of an applicant LLC), then all officers, directors, members, managers, trustees, etc., of the second entity must be disclosed). B. The names of persons owning an interest with a value of two thousand dollars ($2,000) or more who have a material financial relationship with an elected or appointed City official who will vote on the applicant's application, or with the City Manager or City Attorney. PENALTIES Falsification of information or failure to report information required to be reported may subject you to administrative action by the City. 20 PUBLIC INTEGRITY DISCLOSURE FORM SUPPLEMENTAL INSTRUCTIONS AND EXAMPLE (DO NOT INCLUDE INSTRUCTIONS IN YOUR WORK PROPOSAL) In an effort to ensure we capture the required business entity information in accordance with the attached instructions, we provide you these supplementary instructions to clearly identify the required information, and the format the information should be provided. If you, as the applicant, are a business entity (i.e. a corporation or limited liability company), and it is also comprised of other business entities as its members or having a financial interest, all other such business entities must also be disclosed, including those entities other business entities, if any. Ultimately, the City's disclosure document requires a listing identifying all natural persons having any financial interest over 5% of the business entities (and any other business entities comprising your business entity). As an example, Applicant is: Acme Brothers, Inc., a California corporation, whose officers are: John Doe, Jill Doe, and Jay Doe, which is owned 50% by Acme Brothers, LLC, a California limited liability company, and John Doe (25% interest) and Jill Doe (25% interest). Acme Brothers, LLC, is managed by Acme Brothers 2, Inc., a California corporation, whose officers are: George Doe, Bill Doe, and Jane Doe, which is owned 100% by Acme Brothers 2, LLC, a California limited liability company, which is managed by George Doe, with George Doe and Jane Doe having 50% interest each. The full business entity disclosure in this example would resemble four copies of the form as follows: 1. Acme Brothers, Inc., a California corporation a. Officers: John Doe, Jill Doe, and Jay Doe (page 1) b. Ownership: (page 2) i. 50% Acme Brothers, LLC, a California limited liability company (since this is not a natural person fill out another form for this company) ii. 25% John Doe iii. 25% Jill Doe 2. Acme Brothers, LLC, a California limited liability company a. Managers: Acme Brothers 2, Inc., a California corporation (page 1) b. Ownership: 100% Acme Brothers 2, Inc., a California corporation (page 2) (since this is not a natural person fill out another form for this company) 3. Acme Brothers 2, Inc., a California corporation a. Officers: George Doe, Bill Doe, and Jane Doe (page 1) b. Ownership: 100% Acme Brothers 2, LLC, a California limited liability company (page 2) (since this is not a natural person fill out another form for this company) 4. Acme Brothers 2, LLC, a California limited liability company a. Managers: George Doe (page 1) b. Ownership: (page 2) i. 50% George Doe ii. 50% Jane Doe (since these are all natural persons stop) If ownership is an Employee Stock Ownership Plan (ESOP) you can stop there. 21 ATTACHMENT "E" SAMPLE PROFESSIONAL SERVICES AGREEMENT FOR ON -CALL SERVICES Please review the Request for SOQ and Agreement. If your company would like to request any modifications to the Agreement or take exception to language in the Request for SOQ, identify all requested changes or exceptions as Attachment "E" in your SOQ. If you have no requested changes or exceptions, then identify that in Attachment "E" of your SOQ. Please note that the exhibits in the attached Agreement are intentionally not complete. These exhibits will be negotiated with the selected Consultant(s) and will appear in the final Agreement executed between the parties. A Sample of the City's Professional Services Agreement for On -Call Services are on the pages that follow 22 PROFESSIONAL SERVICES AGREEMENT (PROJECT NAME AND/OR CONSULTANTS NAME) THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement") is entered into, and effective on , 20_, between the CITY OF PALM SPRINGS, a California charter city and municipal corporation, ("City") and , a , ("Consultant"). City and Consultant are individually referred to as "Party" and are collectively referred to as the "Parties". A. RECITALS City requires the services of a ("Project"). B. Consultant has submitted to City a proposal to provide to City under the terms of this Agreement. for C. Consultant is qualified by virtue of its experience, training, education, reputation, and expertise to provide these services and has agreed to provide such services as provided in this Agreement. D. City desires to retain Consultant to provide such professional services. NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: AGREEMENT 1. SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant agrees to perform the professional services set forth in the Scope of Services described in Exhibit "A" (the "Services" or "Work"), which is attached and incorporated herein by this reference. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that Consultant is a provider of first class work and professional services and that Consultant is experienced in performing the Work contemplated and, in light of such status and experience, Consultant covenants that it shall perform the Work in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced and well qualified members of the profession currently practicing under similar conditions. 1.2 Contract Documents. The Agreement between the Parties shall consist of the following: (1) this Agreement; (2) the Scope of Services; (3) the City's Request for Proposals; and, (4) the Consultant's signed, original proposal submitted to the City ("Consultant's Proposal"), (collectively referred to as the "Contract Documents"). The City's Request for 1 Revised: 5/1/20 55575.18165\32900157.2 Proposals and the Consultant's Proposal, which are both attached as Exhibits "B" and "C", respectively, are incorporated herein by this reference and are made a part of this Agreement. The Scope of Services shall include the Consultant's Proposal. All provisions of the Scope of Services, the City's Request for Proposals and the Consultant's Proposal shall be binding on the Parties. Should any conflict or inconsistency exist in the Contract Documents, the conflict or inconsistency shall be resolved by applying the provisions in the highest priority document, which shall be determined in the following order of priority: (lst) the provisions of the Scope of Services (Exhibit "A"); (2"d) the provisions of the City's Request for Proposal (Exhibit `B"); (3rd) the terms of this Agreement; and, (4th) the provisions of the Consultant's Proposal (Exhibit «C,3). 1.3 Compliance with Law. Consultant warrants that all Services rendered shall be performed in accordance with all applicable federal, state, and local laws, statutes, ordinances lawful orders, rules, and regulations. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. 1.4 Licenses, Permits, Fees, and Assessments. Consultant represents and warrants to City that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession and perform the Work required by this Agreement. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, qualification, or approval that is legally required for Consultant to perform the Work and under this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant's performance of the Work required by this Agreement. Consultant shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes penalties, or interest levied, assessed, or imposed against City to the fullest extent permitted by law. 1.5 Familiarity with Work. By executing this Agreement, Consultant warrants that Consultant (a) has thoroughly investigated and considered the Scope of Services to be performed, (b) has carefully considered how the Services should be performed, and (c) fully understands the facilities, difficulties, and restrictions attending performance of the Services under this Agreement. If the Services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of any Services. Should the Consultant discover any latent or unknown conditions that will materially affect the performance of the Services, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the City. 1.6 Care of Work. Consultant shall adopt reasonable methods during the term of the Agreement to furnish continuous protection to the Work and the equipment, materials, papers, documents, plans, studies, and/or other components to prevent losses or damages. Consultant shall be responsible for all such damages, to persons or property, until acceptance of the Work by the City, except such losses or damages as may be caused by City's own negligence. 2 Revised: 511 /20 55575.18165\32900157.2 1.7 Further Responsibilities of Parties. Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. 1.8 Additional Services. City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from such Work. No such extra work may be undertaken unless a written order is first given by the City to the Consultant, incorporating any adjustment in (i) the Maximum Contract Amount, as defined below, and/or (ii) the time to perform this Agreement. Any adjustments must also be approved in writing by the Consultant. Any increase in compensation of up to twenty-five percent (25%) of the Maximum Contract Amount or $25,000, whichever is less, or in the time to perform of up to thirty (30) days, may be approved by the City Manager, or his designee, as may be needed to perform any extra work. Any greater increases, occurring either separately or cumulatively, must be approved by the Palm Springs City Council. It is expressly understood by Consultant that the provisions of this section shall not apply to the services specifically set forth or reasonably contemplated within the Scope of Services. 2. COMPENSATION 2.1 Maximum Contract Amount. For the Services rendered under this Agreement, Consultant shall be compensated by City in accordance with the Schedule of Compensation, which is attached as Exhibit "D" and incorporated herein by this reference. Compensation shall not exceed the maximum contract amount of [INSERT NOT TO EXCEED CONTRACT AMOUNT] Dollars, ($ ("Maximum Contract Amount"), except as may be provided under Section 1.8. The method of compensation shall be as set forth in Exhibit "D." Compensation for necessary expenditures for reproduction costs, telephone expenses, and transportation expenses must be approved in advance by the Contract Officer designated under Section 4.2 and will only be approved if such expenses are also specified in the Schedule of Compensation. The Maximum Contract Amount shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City. Consultant shall not be entitled to any increase in the Maximum Contract Amount for attending these meetings. Consultant accepts the risk that the services identified in the Scope of Services may be more costly and/or time- consuming than Consultant anticipates, that Consultant shall not be entitled to additional compensation, and that the provisions of Section 1.8 shall not be applicable to the services identified in the Scope of Services. If the City's Maximum Contract Amount is reached before the Consultant's Services under this Agreement are completed, Consultant shall complete the Work and City shall not be liable for payment beyond the Maximum Contract Amount. 2.2. Method of Payment. Unless another method of payment is specified in the Schedule of Compensation (Exhibit "D"), in any month in which Consultant wishes to receive payment, Consultant shall submit to the City an invoice for Services rendered prior to the date of the invoice. The invoice shall be in a form approved by the City's Finance Director and must be submitted no later than the tenth (10) working day of such month. Such requests shall be based upon the amount and value of the Services performed by Consultant and accompanied by such 3 Revised: 5/1/20 55575.18165\32900157.2 reporting data including an itemized breakdown of all costs incurred and tasks performed during the period covered by the invoice, as may be required by the City. City shall use reasonable efforts to make payments to Consultant within forty-five (45) days after receipt of the invoice or as soon as is reasonably practical. There shall be a maximum of one payment per month. 2.3 Changes in Scope. In the event any change or changes in the Scope of Services is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into: A. To provide for revisions or modifications to documents, work product, or work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant's profession. 2.4 Appropriations. This Agreement is subject to and contingent upon funds being appropriated by the City Council for each fiscal year covered by the Agreement. If such appropriations are not made, this Agreement shall automatically terminate without penalty to the City. 3. SCHEDULE OF PERFORMANCE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. The time for completion of the services to be performed by Consultant is an essential condition of this Agreement. Consultant shall prosecute regularly and diligently the Work of this Agreement according to the agreed upon attached Schedule of Performance (Exhibit "E"), incorporated herein by this reference. Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non -performing Party. Delays shall not entitle Consultant to any additional compensation regardless of the Party responsible for the delay. 3.2 Schedule of Performance. Consultant shall commence the Services under this Agreement upon receipt of a written notice to proceed and shall perform all Services within the time period(s) established in the Schedule of Performance. When requested by Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer, but such extensions shall not exceed one hundred eighty (180) days cumulatively; however, the City shall not be obligated to grant such an extension. 3.3 Force Maieure. The time for performance of Services to be rendered under this Agreement may be extended because of any delays due to a Force Majeure Event, if Consultant notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Consultant's performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); 4 Revised: 5/1/20 55575.18165\32900157.2 and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, "orders of governmental authorities," includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Consultant notification, the Contract Officer shall investigate the facts and the extent of any necessary delay, and extend the time for performing the Services for the period of the enforced delay when and if, in the Contract Officer's judgment, such delay is justified. The Contract Officer's determination shall be final and conclusive upon the Parties to this Agreement. The Consultant will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement. 3.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement shall continue in full force and effect for a period of (weeks/months), commencing on , 201_, and ending on , 202_, unless extended by mutual written agreement of the Parties. However, the term shall not exceed three (3) years from the commencement date, except as otherwise provided in the Schedule of Performance described in Section 3.2 above. 3.5 Termination Prior to Expiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant. Where termination is due to the fault of Consultant and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Consultant shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed Services, and shall not be entitled to damages or compensation for termination of Work. Consultant may not terminate this Agreement except for cause, upon thirty (30) days written notice to City. 4. COORDINATION OF WORK 4.1 Representative of Consultant. The following principal of Consultant is designated as being the principal and representative of Consultant authorized to act in its behalf and make all decisions with respect to the Services to be performed under this Agreement: [INSERT NAME], [INSERT TITLE]. It is expressly understood that the experience, knowledge, education, capability, expertise, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the Services performed hereunder. The foregoing principal may not be changed by Consultant without prior written approval of the Contract Officer. 4.2 Contract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). Consultant shall be responsible for keeping the Contract Officer 5 Revised: 5/1/20 55575.18165\32900157.2 fully informed of the progress of the performance of the Services. Consultant shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer. 4.3 Prohibition Against Subcontracting or Assignments. The experience, knowledge, education, capability, and reputation of Consultant, its principals and employees, were a substantial inducement for City to enter into this Agreement. Consultant shall not contract with any other individual or entity to perform any Services required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provisions making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to City for the acts and omissions of its subConsultant(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subConsultant and City. All persons engaged in the Work will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. In addition, neither this Agreement nor any interest in this Agreement may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written consent of City. Transfers restricted in this Agreement shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release Consultant or any surety of Consultant from any liability under this Agreement without the express written consent of City. 4.4 Independent Consultant. The legal relationship between the Parties is that of an independent Consultant, and nothing shall be deemed to make Consultant a City employee. A. During the performance of this Agreement, Consultant and its officers, employees, and agents shall act in an independent capacity and shall not act or represent themselves as City officers or employees. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of its officers, employees, or agents, except as set forth in this Agreement. Consultant, its officers, employees, or agents shall not maintain an office or any other type of fixed business location at City's offices. City shall have no voice in the selection, discharge, supervision, or control of Consultant's employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. Consultant shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, including but not limited to social security income tax withholding, unemployment compensation, workers' compensation, and other similar matters. City shall not in any way or for any purpose be deemed to be a partner of Consultant in its business or otherwise a joint venturer or a member of any joint enterprise with Consultant. 6 Revised: 5/1/20 55575.18165\32900157.2 B. Consultant shall not have any authority to bind City in any manner. This includes the power to incur any debt, obligation, or liability against City. C. No City benefits shall be available to Consultant, its officers, employees, or agents in connection with any performance under this Agreement. Except for professional fees paid to Consultant as provided for in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant for the performance of Services under this Agreement. City shall not be liable for compensation or indemnification to Consultant, its officers, employees, or agents, for injury or sickness arising out of performing Services. If for any reason any court or governmental agency determines that the City has financial obligations, other than under Section 2 and Subsection 1.8 in this Agreement, of any nature relating to salary, taxes, or benefits of Consultant's officers, employees, servants, representatives, subConsultants, or agents, Consultant shall indemnify City for all such financial obligations. 4.5 California Labor Code Requirements. A. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects ("Prevailing Wage Laws"). If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). B. If the Services are being performed as part of an applicable "public works" or "maintenance" project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant's sole responsibility to comply with all applicable registration and labor compliance requirements. 5. INSURANCE 5.1 Types of Insurance. Consultant shall procure and maintain, at its sole cost and 7 Revised: 5/1/20 55575.18165\32900157.2 expense, the insurance described herein. The insurance shall be for the duration of this Agreement and includes any extensions, unless otherwise specified in this Agreement. The insurance shall be procured in a form and content satisfactory to City. The insurance shall apply against claims which may arise from the Consultant's performance of Work under this Agreement, including Consultant's agents, representatives, or employees. In the event the City Manager determines that the Work or Services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the City Manager or his designee. Consultant shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. Except as otherwise authorized below for professional liability (errors and omissions) insurance, all insurance provided under this Agreement shall be on an occurrence basis. The minimum amount of insurance required shall be as follows: A. Errors and Omissions Insurance. Consultant shall obtain and maintain in full force and effect throughout the term of this Agreement, standard industry form professional liability (errors and omissions) insurance coverage in an amount of not less than one million dollars ($1,000,000.00) per occurrence and two -million dollars ($2,000,000.00) annual aggregate, in accordance with the provisions of this section. (1) Consultant shall either: (a) certify in writing to the City that Consultant is unaware of any professional liability claims made against Consultant and is unaware of any facts which may lead to such a claim against Consultant; or (b) if Consultant does not provide the certification under (a), Consultant shall procure from the professional liability insurer an endorsement providing that the required limits of the policy shall apply separately to claims arising from errors and omissions in the rendition of services under this Agreement. (2) If the policy of insurance is written on a "claims made" basis, the policy shall be continued in full force and effect at all times during the term of this Agreement, and for a period of three (3) years from the date of the completion of the Services provided hereunder. In the event of termination of the policy during this period, Consultant shall obtain continuing insurance coverage for the prior acts or omissions of Consultant during the course of performing Services under the terms of this Agreement. The coverage shall be evidenced by either a new policy evidencing no gap in coverage, or by obtaining separate extended "tail" coverage with the present or new carrier or other insurance arrangements providing for complete coverage, either of which shall be subject to the written approval by the City Manager. (3) In the event the policy of insurance is written on an "occurrence" basis, the policy shall be continued in full force and effect during the term of this Agreement, or until completion of the Services provided for in this Agreement, whichever is later. In the event of termination of the policy during this period, new coverage shall immediately be obtained to ensure coverage during the entire course of performing the Services under the terms of this Agreement. B. Workers' Compensation Insurance. Consultant shall obtain and maintain, 8 Revised: 5/1/20 55575.18165\32900157.2 in full force and effect throughout the term of this Agreement, workers' compensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of California. Consultant agrees to waive and obtain endorsements from its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City and to require each of its subConsultants, if any, to do likewise under their workers' compensation insurance policies. If Consultant has no employees, Consultant shall complete the City's Request for Waiver of Workers' Compensation Insurance Requirement form. C. Commercial General Liability Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least one million dollars ($1,000,000.00) and two million dollars ($2,000,000.00) general aggregate for bodily injury and property damage including coverages for contractual liability, personal injury, independent Consultants, broad form property damage, products and completed operations. D. Business Automobile Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of one million dollars ($1,000,000.00) bodily injury and property damage. The policy shall include coverage for owned, non -owned, leased, and hired cars. E. Employer Liability Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of employer liability insurance written on a per occurrence basis with a policy limit of at least one million dollars ($1,000,000.00) for bodily injury or disease. 5.2 Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City Manager or his/her designee prior to commencing any work or services under this Agreement. Consultant guarantees payment of all deductibles and self -insured retentions. City reserves the right to reject deductibles or self - insured retentions in excess of $10,000, and the City Manager or his/her designee may require evidence of pending claims and claims history as well as evidence of Consultant's ability to pay claims for all deductible amounts and self -insured retentions proposed in excess of $10,000. 5.3 Other Insurance Requirements. The following provisions shall apply to the insurance policies required of Consultant under this Agreement: A. For any claims related to this Agreement, Consultant's coverage shall be primary insurance with respect to the City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of Consultant's insurance and shall not contribute with it. B. Any failure to comply with reporting or other provisions of the policies, 9 Revised: 5/1/20 55575.18165\32900157.2 including breaches of warranties, shall not affect coverage provided to City and its officers, council members, officials, employees, agents, and volunteers. C. All insurance coverage and limits provided by Consultant and available or applicable to this Agreement are intended to apply to each insured, including additional insureds, against whom a claim is made or suit is brought to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations shall limit the application of such insurance coverage. D. No required insurance coverages may include any limiting endorsement which substantially impairs the coverages set forth in this Agreement (e.g., elimination of contractual liability or reduction of discovery period), unless the endorsement has first been submitted to the City Manager and approved in writing. E. Consultant agrees to require its insurer to modify insurance endorsements to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the endorsements. Certificates of insurance will not be accepted in lieu of required endorsements, and submittal of certificates without required endorsements may delay commencement of the Project. It is Consultant's obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement. F. Consultant agrees to ensure that subConsultants, and any other parties involved with the Project who are brought onto or involved in the Project by Consultant, provide the same minimum insurance coverage required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with subConsultants and others engaged in the Project will be submitted to the City for review. G. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any insurance requirement in no way imposes any additional obligations on the City nor does it waive any rights in this or any other regard. H. Consultant shall provide proof that policies of insurance required in this Agreement, expiring during the term of this Agreement, have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to City no later than ten (10) days prior to expiration of the lapsing coverage. I. Requirements of specific insurance coverage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements, or as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not 10 Revised: 5/1/20 55575.18165\32900157.2 intended by any party or insured to be limiting or all-inclusive. J. The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impair the provisions of this section. K. Consultant agrees to provide immediate notice to City of any claim or loss against Consultant arising out of the Work performed under this Agreement and for any other claim or loss which may reduce the insurance available to pay claims arising out of this Agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City, or to reduce or dilute insurance available for payment of potential claims. L. Consultant agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages resulting from the Consultant's activities or the activities of any person or person for which the Consultant is otherwise responsible. 5.4 Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best's Key Rating of B++, Class VII, or better, unless such requirements are waived in writing by the City Manager or his designee due to unique circumstances. 5.5 Verification of Coverage. Consultant shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Consultant's insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers' Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured... " ("as respects City of Palm Springs Contract No. or 'for any and all work performed with the City" may be included in this statement). B. "This insurance is primary and non-contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No. or 'for any and all work performed with the City" may be included in this statement). 1 1 Revised: 5/1 /20 55575.18165\32900157.2 C. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, "endeavor to" mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. D. Both the Workers' Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Consultant's obligation to provide them. 6. INDEMNIFICATION 6.1 Indemnification and Reimbursement. To the fullest extent permitted by law, Consultant shall defend (at Consultant's sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of persons (Consultant's employees included), for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct committed by Consultant, its officers, employees, representatives, and agents, that arise out of or relate to Consultant's performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Consultant's indemnification obligation or other liability under this Agreement. Consultant's indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. 6.2 Desi2n Professional Services Indemnification and Reimbursement. If Consultant's obligation to defend, indemnify, and/or hold harmless arises out of Consultant's performance as a "design professional" (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant's indemnification obligation shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant in the performance of the Services or this Agreement, and, upon Consultant obtaining 12 Revised: 5/1/20 55575.18165\32900157.2 a final adjudication by a court of competent jurisdiction, Consultant's liability for such claim, including the cost to defend, shall not exceed the Consultant's proportionate percentage of fault. 7. REPORTS AND RECORDS 7.1 Accounting Records. Consultant shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Consultant shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and to enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 7.2 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement, or as the Contract Officer shall require. Consultant acknowledges that the City is greatly concerned about the cost of the Work to be performed under this Agreement. For this reason, Consultant agrees that Consultant shall promptly notify the Contract Officer the estimated increased or decreased cost if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services. If Consultant is providing design services, Consultant shall promptly notify the Contract Officer the estimated increased or decreased cost for the project being designed if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the design services. 7.3 Ownership of Documents. All drawings, specifications, reports, records, documents, memoranda, correspondence, computations, and other materials prepared by Consultant, its employees, subConsultants, and agents in the performance of this Agreement shall be the property of City and shall be promptly delivered to City upon request of the Contract Officer or upon the termination of this Agreement. Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials. Any use of such completed documents for other projects and/or use of incomplete documents without specific written authorization by the Consultant will be at the City's sole risk and without liability to Consultant, and the City shall indemnify the Consultant for all resulting damages. Consultant may retain copies of such documents for their own use. Consultant shall have an unrestricted right to use the concepts embodied tin this Agreement. Consultant shall ensure that all its subConsultants shall provide for assignment to City of any documents or materials prepared by them. In the event Consultant fails to secure such assignment, Consultant shall indemnify City for all resulting damages. 7.4 Release of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Consultant in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. All information gained by Consultant in the performance of this Agreement shall be considered confidential and shall not be released by Consultant without City's prior written authorization. 13 Revised: 5/1/20 55575.18165\32900157.2 7.5 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, Consultant shall provide City, or other agents of City, such access to Consultant's books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Consultant's performance under this Agreement. Consultant shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder. 8. ENFORCEMENT OF AGREEMENT 8.1 California Law and Venue. This Agreement shall be construed and interpreted both as to validity and as to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such County, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs. 8.3 Default of Consultant. Consultant's failure to comply with any provision of this Agreement shall constitute a default. A. If the City Manager, or his designee, determines that Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify Consultant in writing of such default. Consultant shall have ten (10) days, or such longer period as City may designate, to cure the default by rendering satisfactory performance. In the event Consultant fails to cure its default within such period of time, City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice of any remedy to which City may be entitled at law, in equity, or under this Agreement. Consultant shall be liable for all reasonable costs incurred by City as a result of such default. Compliance with the provisions of this section shall not constitute a waiver of any City right to take legal action in the event that the dispute is not cured, provided that nothing shall limit City's right to terminate this Agreement without cause under Section 3.5. B. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 14 Revised: 5/1/20 55575,18165\32900157.2 8.3A, take over the work and prosecute the same to completion by contract or otherwise. The Consultant shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the Maximum Contract Amount (provided that the City shall use reasonable efforts to mitigate such damages). The City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated. The withholding or failure to withhold payments to Consultant shall not limit Consultant's liability for completion of the Services as provided in this Agreement. 8.4 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. Any waiver by the Parties of any default or breach of any covenant, condition, or term contained in this Agreement, shall not be construed to be a waiver of any subsequent or other default or breach, nor shall failure by the Parties to require exact, full, and complete compliance with any of the covenants, conditions, or terms contained in this Agreement be construed as changing the terms of this Agreement in any manner or preventing the Parties from enforcing the full provisions. 8.5 Rights and Remedies Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. 8.6 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, remedy or recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 8.7 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non -prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert consultant fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding. To the extent authorized by law, in the event of a dismissal by the plaintiff or petitioner of the litigation or non judicial proceeding within thirty (30) days of the date set for trial or hearing, the other Party shall be deemed to be the prevailing Party in such litigation or proceeding. 9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 9.1 Non -liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Consultant, or any successor -in -interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement. 9.2 Conflict of Interest. Consultant acknowledges that no officer or employee of the 15 Revised: 511/20 55575.18165\32900157.2 City has or shall have any direct or indirect financial interest in this Agreement nor shall Consultant enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Consultant warrants that Consultant has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. 9.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Consultant shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Consultant certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Consultant activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Consultant is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non- discrimination in city contracting. 10. MISCELLANEOUS PROVISIONS 10.1 Patent and Copyright Infringement. To the fullest extent permissible under law, and in lieu of any other warranty by City or Consultant against patent or copyright infringement, statutory or otherwise: A. It is agreed that Consultant shall defend at its expense any claim or suit against City on account of any allegation that any item furnished under this Agreement, or the normal use or sale arising out of the performance of this Agreement, infringes upon any presently existing U.S. letters patent or copyright and Consultant shall pay all costs and damages finally awarded in any such suit or claim, provided that Consultant is promptly notified in writing of the suit or claim and given authority, information and assistance at Consultant's expense for the defense of same, and provided such suit or claim arises out of, pertains to, or is related to the negligence, recklessness or willful misconduct of Consultant. However, Consultant will not indemnify City if the suit or claim results from: (1) City's alteration of a deliverable, such that City's alteration of such deliverable created the infringement upon any presently existing U.S. letters patent or copyright; or (2) the use of a deliverable in combination with other material not provided by Consultant when it is such use in combination which infringes upon an existing U.S. letters patent or copyright. B. Consultant shall have sole control of the defense of any such claim or suit and all negotiations for settlement in the event City fails to cooperate in the defense of any suit or claim, provided, however, that such defense shall be at Consultant's expense. Consultant shall 16 Revised: 5/1/20 55575.18165\32900157.2 not be obligated to indemnify City under any settlement that is made without Consultant's consent, which shall not be unreasonably withheld. If the use or sale of such item is enjoined as a result of the suit or claim, Consultant, at no expense to City, shall obtain for City the right to use and sell the item, or shall substitute an equivalent item acceptable to City and extend this patent and copyright indemnity thereto. 10.2 Notice. Any notice, demand, request, consent, approval, or communication that either party desires, or is required to give to the other party or any other person shall be in writing. All notices shall be personally delivered, sent by pre -paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimile with attached evidence of completed transmission. All notices shall be deemed received upon the earlier of (i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) five (5) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by facsimile. Any notice, request, demand, direction, or other communication sent by facsimile must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such as e-mails, text messages, and instant messages are not acceptable manners of notice required hereunder. Notices or other communications shall be addressed as follows: To City: City of Palm Springs Attention: City Manager & City Clerk 3200 E. Tahquitz Canyon Way Palm springs, California 92262 Telephone: (760) 323-8204 Facsimile: (760) 323-8332 To Consultant: Attention: Telephone: Facsimile: 10.3 Integrated Agreement. This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement. 10.4 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement signed by all Parties. 10.5 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement shall be determined to be invalid by a final judgment or decree of a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the reminder of that provision, or the remaining provisions of 17 Revised: 5/1/20 55575.18165\32900157.2 this Agreement unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless. 10.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties' successors and assignees. 10.6 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third -party beneficiary or otherwise, upon any entity or person not a party to this Agreement. 10.7 Recitals. The above -referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. 10.8. Corporate Authority. Each of the undersigned represents and warrants that (i) the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is signing, (iii) by so executing this Agreement, the Party for which he or she is signing is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which the Party for which he or she is signing is bound. 10.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. [SIGNATURES ON NEXT PAGE] 18 Revised: 511/20 55575,18165\32900157.2 SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND [***INSERT NAME***] IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. Date: APPROVED AS TO FORM: By: Jeffrey S. Ballinger, City Attorney APPROVED BY CITY COUNCIL: Date: Agreement No. "CITY" City of Palm Springs By: David H. Ready, PhD City Manager ATTEST Anthony Mejia, City Clerk Corporations require two notarized signatures. One signature must be from Chairman of Board, President, or any Vice President. The second signature must be from the Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer. CONSULTANT NAME: Address By Signature (Notarized) Check one — Individual _ Partnership _ Corporation By Signature (Notarized) 19 Revised: 5/1/20 55575.18165\32900157.2 C/LLJPOMM ALL: PURPOSE ACRNOMI LEDfdt1EW CIVIL CODE § 1189 9C<sfM r2i NSP 91h g<Qf<�<R�<A..R:<.%id'a�Cr SkSL S»MM/.�>NY���<#�ffi�OC<0[<R[<R�<.C...C.iC aCa i..1YSLSLMN/.X. Y.SbY����fHI #k Arum pry or ad w dkw otanpimig this r>aoT» veiHem ady the identity of dis irefvidrml who migaed the document to whidr the aa1Eca* i3 attached ed not Vw Uuthh&em$ amura y, cr vdit of Owdomment Stale, of Ciforr" CGMtY of On before me. Dab poly rpp--d Nate kwwt Name and Tdfe of Nara Officer f1ofSoJ who proved to me an the bsa a of asbafaclwy evidence to be the pe a] whose narre(a) tafare subsenbed to the VRUM irabnmaerd arad ackwMedged to me Bud hsWv0hey wamuled the sane in hmfiwwAheff euftw®d cspeody@w� and tlrst by t>isfherAtm sigcreLue(a) on the ffadnanerd the pecson(a), or the entity upon b~ of which the person(a) acted, emanated the it obu nant t certify under PENALTY OF PERJURY under the taws at the state of Ca5fomia that the foregoing parsgaph is true ed correct MWESS my hand and official aeaL Skpotu a ofAbiwyPrdaGc Pbw Notary Seel Above OPTIMAL Though Ow sw6bn Is aptkwm [ compkft Ow adbonafton can deter afferaffan of the document or baud ilard nwHachment of Ow form to an unintended document Description of Attached Doannent Tiffs or Type of Document Nurnber of Pages Sigrha(a) Offm Then Named Above: C ainred by Sig —IN signer's Nana: ❑ Ocrparate Officer — TMe(a): ❑ Partner — ❑ Lirftd ❑ Ginneral ❑ Irdhvidrmt ❑ Atomsy m Fact ❑ Tnu toe ❑ Ormrdm or Oonsavator n Other Signer Is Rspraaurrting: Signer's Name: ❑ Oorponde Officer — THte(s}: ❑ Partner — ❑ Untied ❑ Oanaal ❑ IndividuEl ❑ Attorney ah Fad ❑ Tnmtee ❑ Ouardea or ConBervator ri Ofha: Signer is RepreserdirW CM4 Naficnd Nulwy Asaociahw - wwwAdnWHah" cr8. 1-M0-U8 NOTARY Imrc #51W 20 Revised: 5/l/20 55575.18165\329001572 EXHIBIT "A" SCOPE OF SERVICES 21 Revised: 5/l/20 55575.18165\32900157.2 EXHIBIT "B" CITY'S REQUEST FOR PROPOSALS 22 Revised: 5/l/20 55575.18165\32900157.2 EXHIBIT "C" CONSULTANT'S PROPOSAL 23 Revised: 5/1/20 55575.18165\32900157.2 EXHIBIT "D" SCHEDULE OF COMPENSATION 24 Revised: 5/1/20 55575.18165\32900157.2 EXHIBIT "E" SCHEDULE OF PERFORMANCE 25 Revised: 5/l/20 55575.18165\32900157.2 BALM s 10 SOQ #09-21 ON -CALL LANDSCAPE ARCHITECTURAL SERVICES ADDENDUM NO. 1 cq�fFOR�`� This Addendum is being issued for the following changes and informational items: THE FOLLOWING REVISIONS AND/OR ADDITIONS TO THE SPECIFICATIONS AND INSTRUCTIONS ARE TO BE INCLUDED IN THE ORIGINAL DRAWINGS AND SPECIFICATIONS. THIS ADDENDUM SHALL TAKE PRECEDENCE OVER ANYTHING CONTRARY ON THE PREVIOUSLY ISSUED SPECIFICATIONS AND INSTRUCTIONS AND SHALL BE REFERRED TO HEREINAFTER AS PART OF THE CONTRACT DOCUMENTS. The City has received the following questions and is hereby providing answers thereto: Q 1: We received the email below regarding SOQ 09-21 but do not see Golf Course Design in the scope. Could you please confirm whether there is a need for golf course design services in this particular SOQ? A 1: There is no need for golf course design services in this SOQ. BY ORDER OF THE CITY OF PALM SPRINGS, CALIFORNIA ry • ew Procurement & Contracting Manager, Acting DATE: March 18, 2021 ADDENDUM ACKNOWLEDGMENT: Proposer Firm Name: Authorized Signature: Date: Acknowledgment of Receipt of Addendum 1 is required by signing and returning a copy of this addendum with your response. Failure to acknowledge this Addendum may result in your SOQ being deemed non -responsive. 4ALM S SOQ #09-21 U N ON -CALL LANDSCAPE ARCHITECTURAL SERVICES ADDENDUM NO. 2 FORN" This Addendum is being issued for the following changes and informational items: THE FOLLOWING REVISIONS AND/OR ADDITIONS TO THE SPECIFICATIONS AND INSTRUCTIONS ARE TO BE INCLUDED IN THE ORIGINAL DRAWINGS AND SPECIFICATIONS. THIS ADDENDUM SHALL TAKE PRECEDENCE OVER ANYTHING CONTRARY ON THE PREVIOUSLY ISSUED SPECIFICATIONS AND INSTRUCTIONS AND SHALL BE REFERRED TO HEREINAFTER AS PART OF THE CONTRACT DOCUMENTS. The City has received the following questions and is hereby providing answers thereto: Q 1: May a front cover and table of contents be included? If so, may it be excluded from the page count? A 1: Front cover and table of contents (not required) are included towards the 30 page count. Q 2: Is the Cost Proposal included in the page count? A 2: No Q 3: Can the local business preference apply if we have included a certified local business as a sub consultant on our team? A 3: Per the language in the SOQ, five (5) points will be awarded to a consultant that requests consideration of the local business preference and qualifies as a local business. A consultant that does not meet the definition of "local business" in the SOQ will not be awarded any points. For example, a consultant that does not operate or perform business on a day to day basis within the Coachella Valley would not be eligible for consideration of the local business preference, even if they employ a sub -consultant that meets the definition of a local business. BY ORDER OF THE CITY OF PALM SPRINGS, CALIFORNIA Procurement & Contracting Manager, Acting DATE: March 22, 2021 ADDENDUM ACKNOWLEDGMENT: Proposer Firm Name: Authorized Signature: Date: Acknowledgment of Receipt of Addendum 2 is required by signing and returning a copy of this addendum with your response. Failure to acknowledge this Addendum may result in your SOQ being deemed non -responsive. PALM s SOQ #09-21 ON -CALL LANDSCAPE ARCHITECTURAL SERVICES •� 1,� y� ADDENDUM NO. 3 1��FORN� This Addendum is being issued for the following changes and informational items: THE FOLLOWING REVISIONS AND/OR ADDITIONS TO THE SPECIFICATIONS AND INSTRUCTIONS ARE TO BE INCLUDED IN THE ORIGINAL DRAWINGS AND SPECIFICATIONS. THIS ADDENDUM SHALL TAKE PRECEDENCE OVER ANYTHING CONTRARY ON THE PREVIOUSLY ISSUED SPECIFICATIONS AND INSTRUCTIONS AND SHALL BE REFERRED TO HEREINAFTER AS PART OF THE CONTRACT DOCUMENTS. The City has received the following questions and is hereby providing answers thereto: 01 Is the 30 page limit for double sided or single sided printing A 1: Double sided. BY ORDER OF THE CITY OF PALM SPRINGS, CALIFORNIA Procurement & Contracting Manager, Acting DATE: March 25, 2021 ADDENDUM ACKNOWLEDGMENT: Proposer Firm Name: Authorized Signature: Date: Acknowledgment of Receipt of Addendum 3 is required by signing and returning a copy of this addendum with your response. Failure to acknowledge this Addendum may result in your SOQ being deemed non -responsive. EXHIBIT "C" CONSULTANT'S PROPOSAL Rev. 5/1 f20 55575 18165132900159 2 • � F�Gt , ' • -A O�S��� v102 • • QQ�'r�o�E�°op.9"LZ e �1$99oe5e�t,31Qho� eavl\16 0�11913zFa"` OFF�Gt 16 ��t �u' S e FRS Pie �28 RAJ 0.��d�acP925 pore 6R\Je�s� $Z 5P oO��a�aCP92�2o e S61g.A15 0� TABLE OF CONTENTS Cover Letter Firm and Staff Qualifications......................................................... 01 a Scope of Work .................. ReferenceProject......................................................................... 20 Local Business Preference Program ............................................... 25 Forms Attachment A - Signature and Addenda Acknowledgement i Attachment B - Non -Collusion Declaration Form Attachment C - Conflict of Interest and Non -Discrimination Certification Attachment D - Public Integrity Disclosure Form Attachment E - Sample Professional Agreement for On -Call Services COVER APRIL 1, 2021 ATTN: DEPARTMENT OF PROCUREMENT & CONTRACTING Dear Department of Procurement & Contracting, Hermann Design Group (HDG) is pleased to have an opportunity to work with the City of Palm Springs to provide on -call landscape architectural services. After reviewing the Request for Statement of Qualifications, we understand the City's needs and will provide the services requested in the SOQ. Our team specializes in on -call services and is currently working on -call for the Cities of Indio, La Quinta, Rancho Mirage, Palm Desert, and Moreno Valley. We are excited at the prospect of working directly with the City of Palm Springs. Hermann Design Group is recognized as a leading landscape architecture firm in the Inland Empire and Coachella Valley with offices in Palm Desert, Riverside, and San Diego. We have extensive experience designing sustainably with drought -tolerant plants, irrigation techniques, turf removal, water assessments, master planning, and construction observation services. Our principals have worked on projects throughout the Coachella Valley for over 30 years and recently completed the parking garage at Spa Resort and Casino in Palm Springs for the Agua Caliente Band of Cahuilla Indians, and we are currently working on new home developments in the city with Gallery Builders and Corman Leigh. With over 39 years of designing streetscapes, parks, institutional, commercial, and residential projects throughout the Coachella Valley, Inland Empire, and San Diego, the principals at Hermann Design Group bring knowledge and experience that is unparalleled. Our firm's philosophy is to assemble award -winning design teams that collaborate with our clients to arrive at truly unique solutions that future generations will enjoy. We are a local firm with our Palm Desert office located approximately 25 minutes from the City offices - our service and responsiveness will be unmatched. Best regards, E. CHRIS HERMANN, ASLA 77899 WOLF ROAD, SUITE 102 CLARB CERTIFIED LANDSCAPE ARCHITECT PALM DESERT CA 9211 PRESIDENT/CEO (760) 777-9131 PHONE / (760) 777-9132 FAX PALM DESERT OFFICE 760,777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 14111111111 M D Z Z U m Z 0 C FIRM AND STAFF QUALIFICATIONS HERMANN DESIGN GROUP INCORPORATED: 2009 (California S-Corporation) OFFICES: Palm Desert, San Diego & Riverside STAFF: Seven Full -Time Employees COMPANY: Formerly Hermann & Associates (Sole Proprietorship 1995-2009) PRESIDENT/CEO: Chris Hermann � pAf.IM dp IV N I. -c4NFoxN�q Hermann Design Group Inc, was founded in 1995 in Palm Desert as Hermann & Associates. Our philosophy has always been to create a firm by which we are able to work on unique projects and allow Mr. Hermann to lead the design process and build relationships with clients that will last for a lifetime. We evaluate the distinct needs and desires of our clients through creative thinking, and we provide the right solutions for individual projects. Our designs solutions always consider the sustainability of our valuable desert environment. We have extensive experience assisting public agencies guide the community input process and building consensus. In addition, our work experience includes presenting project vision, budget, and value to a large variety of commissions or committees including finance, planning, public works, design review, and City Council. The public agencies that we have worked for include CVAG, CVEP, the counties of Riverside, San Diego, San Bernardino, and most of the Cities of Coachella Valley. Our firm specializes in on -call services and is currently working on -call for the Cities of Indio, La Quinta, Rancho Mirage, Palm Desert, and Moreno Valley. We have also been an on -call firm for the County of San Bernardino Special Districts. Both Chris and Kristin Hermann are property owners in the city and at one time owned a retail garden center on North Palm Canyon called, "Aunt Effie's Gardens' where they worked directly with staff to develop the land. Mr. Hermann provided landscape design services to over 200 homeowners as well as the Palm Springs Airport and CVEP. Other project experience in the City includes: CVLink, Demuth Park master plan, Cerritos Park turf replacement, Cole Hotel, Vibrante, and the Spa Resort and Casino parking garage addition for the Agua Caliente Band of Cahuilla Indians. We are also in the submittal phase of a new development for Gallery Builders at Miralon. M Z>J D Z Z C) M Cn Z 0 70 O C 01 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 QUALIFICATIONS Hermann Design Group provides a wide range of landscape architecture and planning services to assist public agencies and private developers in the design of public spaces and facilities, including: • Playgrounds • Sports Facilities • Golf Courses • Natural and Historic Sites • Hospitals • Commercial/Retail/Industrial • Hotels • Interpretative Landscape Design • Parks - Regional, Neighborhood, Community, Memorial Trails & Interpretative Sites • Master -Planned Communities • Creative Signage & Way Finding • Placemaking Experiences Our firm continually evaluates projects for value throughout the course of the design and engineering. Our team's collective experience and understanding of the City's desire to maximize value guides our materials selections, functional and operational recommendations. We have found that projects are best served when value decisions are revisited during the course of development. Our focus on value is established in a detailed review meeting at the beginning of the project. Value is measured in multiple ways, and it is vital that the design respond to these priorities as determined by the City — cost/benefit, life -cycle, durability, capital/operational value and similar. It is critical to the success of any project to have project priorities, scope, and budget aligned before significant design and engineering work commences. This firmly establishes the target in advance and provides a clear baseline against which the project design and decisions can be evaluated over the course of the project's development. Hermann Design Group is a healthy firm financially with no issues that would affect our ability to complete our obligations to our clients. We are profitable and strategic about our growth so that we will remain a successful enterprise. Additionally, Hermann Design Group certifies that the firm and its principals are in good standing with all licensing boards and is eligible to contract with any federal, state or local public agency. UNIQUE COACHELLA VALLEY AND CITY ISSUES Understanding the Coachella Valley as a landscape architect takes an understanding of the large variety of soil characteristics, wind patterns, sun patterns and irrigation requirements. Mr. Hermann's experience owning a retail garden center owner provides a unique combination of "real time" plant material experience and how to select the correct material for the design vision of a project. The wonderful thing about the desert is that you can plant just about any time, but you have to be selective about what you are trying to grow and where it will be planted. The best time to plant is from October through May before temperatures are continuously above 100 degrees. However, the summer time is also a good time to plant or transplant cacti and palms, and larger projects can be undertaken and planted as long as you are willing to be consistent in after -planting care. 0 M cn Z 0 70 0 C 02 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 QUALIFICATIONS The Coachella Valley is classified as a tropical desert, as it is an environment of extremes. We can see frost in the winter and temperatures that may reach 120 in the summer, and temperatures can fluctuate 50 degrees in a single day. Evergreen plants grow nearly year round with short dormancy periods with exceptional rates of growth for our arid climate if adequate watering is provided. Keep in mind that the heat and sun affect plants and that there are some plants that simply do not do well here even if put in the shade. The sun causes leaf scorch or blotching and crisping of leaf edges. For this reason, in considering plants for a particular space, we take into consideration the Sunset zone for the plant material, not just the USDA or American Horticultural Society zone. The Sunset zone takes a broad range of factors into account, including the extreme heat we experience here in the Coachella Valley. It is important when you plant to group plants by sun exposure, as well as water needs. A western exposure with the intense afternoon sun is the toughest planting location, and a south location is also a challenge as it receives sunshine year round. Aside for the climatic and horticultural challenges, there are many political challenges to be ready to address on a project including overlapping agency and jurisdictional control from any of the following: • Desert Water Agency requires a landscape and irrigation design review for drought tolerant use of native plants and conservation. • Palm Springs Disposal Services may require review of the serviceability of the trash enclosure design, truck access and capacity of the receptacles utilized. • CALTRANS will require review and approval on any street or driveway modification on the Highway 111 corridor. • Agua Caliente Band of Cahuilla Indians have review of any development within their Tribal Jurisdiction. Although a Land Use Agreement is in place, the Tribe has both appeal and over- ruling authorities • Coachella Valley Multiple Species Habitat Conservation Plan (CVMSHCPI has the abilityto place conditions on approval on a project, including a mitigation fee. • Sunline Transit Authority may become involved if any new or requested modifications to an existing bus stop is made by the City. • Palm Springs Neighborhood Involvement Committee (PSNIC) may request a review of certain projects during the design phase. • Palm Springs Architectural Design Committee will have reviewing authority over projects in Palm Springs. • Palm Springs Park and Recreation Commission will have reviewing authority for park -related projects. M Z Z 03 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 QUALIFICATIONS fP►M Jp O N ' Cg41FORN�P• CHRIS HERMANN - PRESIDENT / CEO PRINCIPAL LANDSCAPE ARCHITECT CLARB Certified Landscape Architect #40888 = Professional Landscape Architecture Licenses - California/Nevada/Arizona/Texas/Idaho M Certified Playground Safety Inspector No. 41236-0421 ;;u Chris is a graduate of the Pennsylvania State University and has over 40 years of experience resolving the challenges of designing in the Inland Empire and desert environment, and he D is a CLARB Certified Landscape Architect. Before moving to the Coachella Valley in 1994, z he was a principal at RHA Landscape Architects -Planners in Riverside, a firm he had been with for nearly ten years. Chris is the lead designer on all projects and client relationship 0 manager. M JOSE ESTRADA - VICE PRESIDENT 0 PROJECT MANAGER z Jose is a graduate of Cal Poly Pomona with a degree in landscape architecture and has focused his career on irrigation design. He has been an integral part of Hermann Design Group since 1999. His extensive experience in the preparation of construction documents 0 and field work experience allows for a complete design process from the schematic level C to final design. Jose is bilingual, speaking both English and Spanish, making him invaluable g 8 g g P g -� in the field, as well as translating during public input workshops or community meetings. KRISTIN HERMANN - CFO / MANAGING DIRECTOR QUALITY CONTROL / SPECIFICATIONS Kristin heads up our quality assurance program and coordinates the diverse facets of each project. She served as the construction administrator on the Rancho Mirage Community Park Expansion, acting as a liaison between the City and the contractor from bid opening through final walk through. Kristin will provide plan checking, specification writing, and bid document preparation. ARMANDO "OPUS" GARZA - ASSOCIATE SENIOR DESIGNER / CAD OPERATIONS Opus has been with HDG since 2012, and is an associate of our firm and one of our senior designers. He has been designing for over 15 years, and has been the lead designer on an extensive list of projects including on -call work for multiple cities, the Rancho Mirage Community Park Expansion, as well as the award -winning CVLink alternative transportation project spanning the Coachella Valley cities. Opus is a graduate of Cal Poly San Luis Obispo with a degree in landscape architecture. He is responsible for CAD operations, design support, working drawings, irrigation and field observation services. IVAN ORTIZ - DESIGNER IRRIGATION DESIGNER Ivan joined the Hermann Design team in 2018, and he attended Cal Poly Pomona, majoring in landscape architecture. His passion for irrigation design and graphics provides our clients with excellent visual communication of design concepts. He is working to become a licensed landscape architect. Ivan is bilingual and has landscape contracting experience creating a unique niche for his place on the team. While employed by another firm, Ivan worked on The Rowan Kimpton Hotel in Palm Springs. 04 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 CERTIFICATIONS/LICENSES CLARB Certified Landscape Architect #40888 California Lic. #2754 Arizona Lic. #54352 Idaho Lic. #16916 Nevada Lic. #1058 Texas Lic. #3588 Certified Playground Safety Inspector #41236-0421 REPRESENTATIVE PROJECTS City of La Quinta On Call Services 2015- Present City of Rancho Mirage On Call Services 2016- Present City of Palm Desert On Call Services 2019-Present City of Indio On Call Services 2019-Present City of Moreno Valley On -Call Services 2020-Present Rancho Mirage Community Park Expansion & Amphitheater City of Rancho Mirage SilverRock Venue Site Master Plan City of La Quinta Miles Avenue Park Master Plan City of Indio CVLink Landscape Design CVAG / Alta Coachella Valley, CA HRPP Grant Parks City of Indio Cerritos Park City of Palm Springs Demuth Park Master Plan City of Palm Springs Spa Resort & Casino Parking Garage Palm Springs, CA Cole Hotel Palm Springs, CA Vibrante Palm Springs Palm Springs, CA Gallery at Miralon P I S - CA FIRM AND STAFF QUALIFICATIONS CHRIS HERMANN PRESIDENT / CEO PLA/ASLA, PRINCIPAL IN CHARGE �pAL SM fV NI .f � �4UFOnN�P Chris, a graduate of the Pennsylvania State University, is the founder of Hermann Design Group. He has designed and overseen the construction of public and private development projects throughout his career. He has over 40 years of experience working in the Coachella Valley and has been a resident for over 25 years. In 1983 he started the landscape architecture department for CUH2A, one of the nation's largest multi -disciplinary architecture and engineering firms. He gained valuable experience working hand -in -hand with the civil engineering and architectural departments, solving a variety of design challenges. Before moving to the Coachella Valley, he was a principal at RHA Landscape Architects -Planners in Riverside, a firm he had been with for nearly ten years. At RHA, Chris was principal - in -charge of parks, recreation centers, schools, master - planned communities, and other public sector work as well. Chris serves on the architectural design review committees for The Madison Club and Hideaway, and currently sits on the board of the Salton Sea Action Committee. In the past, Chris served on the Architectural Design Review Committee for the City of Moreno Valley, assisting in the growth and development of that community; he also served as a member of the Moreno Valley Economic Development Commission. Hermann Design Group was founded in Palm Desert in 1995. During the span of more than two decades, Chris has worked with the majority of the Cities in the Coachella Valley, as well as the many of the large and small private developers who have operated in our valley. As one of founders of Aunt Effie's Gardens in Palm Springs in 2009, Chris had a unique opportunity to expand his design and horticultural knowledge by "living" with the plant material specified in his projects until the business was sold in the summer of 2013. AWARDS 2012APWA CV Link 2016 APWA CV Ave 52 Sustainability. La Quinta La Quinta Library Improvements Rancho Mirage Community Park 2017 APA IES Award of Merit Virada City of Indio 0 M Cn Z 0 70 0 C a m pangs, 05 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 PROFESSIONAL HIGHLIGHTS Hermann Design Group 1999- present Landmark Golf Company RHA Landscape Architects California Polytechnic Institute Bachelor of Science Landscape Architecture 1994 REPRESENTATIVE PROJECTS City of La Quinta On -Call Services 2015- Present City of Indio On -Call Services 2019-Present City of Moreno Valley On -Call Services 2020-Present Seeley Drive Median City of La Quinta Acacia Parkway and Median City of La Quinta Oakhurst Mission Hills Median Rancho Mirage, CA Rancho Mirage Community Park Expansion & Amphitheater City of Rancho Mirage, CA Pioneer Park La Quinta, CA Coachella Valley Housing Coalition Paseo de Heroes II & III Mecca, CA Coachella Valley Housing Coalition Tierra Bonita Housing Coachella, CA City of Coachella Tierra Bonita Parkway Coachella, CA Olive Crest Foundation Coachella, CA FIRM AND STAFF QUALIFICATIONS JOSE ESTRADA VICE PRESIDENT PROJECT MANAGER / IRRIGATION DESIGNER O� ?ALM SpI Y N� L'. 4l/FOAN1P Mr. Estrada has steadily assumed greater positions of responsibility and leadership. Starting out as a project designer with RHA Landscape Architects - Planners, Inc. in 1994, he is now principal and vice president of Hermann Design Group, Inc. Jose joined Hermann Design Group, Inc. in 1999 to eventually become principal and vice president. He heads up our production office in Riverside as an established expert in irrigation and landscape design, directing projects at every stage of development. His extensive experience in the preparation of construction documents and field work experience allows for a complete design process from the schematic level to final design. Jose is bilingual, speaking both English and Spanish, making him invaluable in the field. This ability to communicate in the field aids in explaining the design thought process, resulting in a more successful installation. Mr. Estrada's ability to work independently and his attention to follow- through make him a valuable asset to any project team. Jose has a wide diversity of experience in projects including: public works projects, commercial, urban development, golf course development and institutional projects. He is an experienced designer of LEED certified projects. He has provided design services for the Cities of La Quinta, Palm Desert, Rancho Mirage and Coachella. 0 M c^^n 0 Z 0 70 O C 06 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 FIRM AND STAFF QUALIFICATIONS ARMANDO "OPUS" GARZA ASSOCIATE / SENIOR DESIGNER t PAL S O 00 V N' In his tenure at Hermann Design Group, Opus has quickly become a key designer and indispensable leader with project management skills. Opus combines his understanding of plant material, maintenance, horticulture experience, and natural artistic talent with invaluable technical skill. He has extensive experience designing streetscapes, parks, trailheads, and residential/commercial landscapes. In addition to project management, he is responsible for HDG CAD operations and systems management. Prior to HDG Opus worked for another local firm for over eight years EDUCATION REPRESENTATIVE PROJECTS Cal Poly San Luis Obispo 2006 City of Indio On -Call CVLink B.S., Landscape Architecture Services 2019-Present Coachella Valley, CA Rancho Mirage Community Park and City of La Quinta On -Call Services Amphitheater 2015-Present Rancho Mirage, CA IVAN ORTIZ IRRIGATION DESIGNER Ivan joined the Hermann Design team in 2018, and he attended Cal Poly Pomona, majoring in landscape architecture. His passion for irrigation design and graphics provides our clients with excellent visual communication of design concepts. He is working to become a licensed landscape architect. Ivan is bilingual and has landscape contracting experience creating a unique niche for his place on the team. EDUCATION REPRESENTATIVE PROJECTS Cal Poly Pomona Kimpton Rowan Hotel San Diego Housing Commission Landscape Architecture Palm Springs, CA San Diego, CA Indio Sports Park Coachllin' Indio, CA Desert Hot Springs, CA The Madison Club - Various Residences Indio, CA ON H v I► i 0 M Cn c� Z 0 Z7 O 07 PALM DEJE,4i OXFICE 760.777.9131 RIVERSIDI, UFFCL 951.782.9335 :,AN DIEGO OFFICE 619.415.0095 QUALIFICATIONS Hermann Design Group will provide on an as -needed and as requested basis, typical landscape architectural services to accomplish all necessary work that could include, but is not limited to the following: 2 1. Consult with authorized personnel, agents, and representatives having jurisdiction rn � relative to the design and construction of the project or requested work. 2. Make field trips as required to examine and review existing site conditions and D to properly prepare conceptual design and/or construction documents or make z recommendations. z 3. Attend design meetings as scheduled; prepare and distribute minutes of meetings. 0 4. Proficiency in the use of computer aided/assisted digital drafting to produce plans M in a digital format. 5. Prepare demolition, landscape, and irrigation plans with specifications in such 0 form as to comply with the latest applicable laws, building codes, and ordinances. Z All applicable requirements shall be met, including all required and necessary 0 calculations performed concerning structural elements and requirements. 70 6. Prepare preliminary design documents, schematics, sketches, conceptual plans, Q renderings, construction documents, and/or other required drawings along with C technical specifications and product recommendations describing size, quantity, character, theme, and quality of the overall project. 7. Prepare and submit an itemized opinion of probable cost at the design development stage and an updated opinion of probable cost at the construction document phase. 8. Prepare addenda, interpret the construction documents, and prepare clarification documents when necessary. 9. Attend construction meetings asscheduled; prepare and distribute meeting minutes. PROJECT MANAGEMENT Our quality control measures are a critical part of project management. We plan for resource allocation early and customize each team to pairwith the skill -sets each project requires. Throughout each project, hours are monitored regularly to ensure each budget is effectively managed and the results fall within our strict QC program. As unforeseen challenges arise, the client will be alerted to any changes or potential resource allocation. BUDGET / SCHEDULE HDG has a proven track record of meeting proposed budgets and delivering projects on time. Our success has been based on the practice and discipline of open communication that is timely. Cost control procedures begin from project kick-off by clearly defining expectations and programming for each project. Our pro -active management practices establish clear scopes of service and regularly monitor time and expenses to ensure success. HDG maintains an ongoing database of construction bids for public and private projects. Additional contractor resources will be tapped when needed for current costs of construction when bidding Public Works projects. 08 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.783.9335 SAKI DIEGO OFFICE 619,415.0095 Iqu FIRM AND STAFF QUALIFICATIONS QUALITY CONTROL PROGRAM Quality control is a significant part of HDG's long history of successful projects. HDG works with all stakeholders early on to ensure budgets, schedules, and expectations are agreed upon and clearly communicated. Designs are created and continuously measured against these definitions of success to ensure a proper outcome and follow through is achieved with minimal surprises. We recognize that though each design phase is evaluated differently, it's important to revisit the initial goals and objectives. Regular communication will be maintained with all parties to assess the current project trajectory and plan for effective counter measures as challenges or changes arise. Define Success Goals & Objectives Budgets Schedule Challenge Areas Due Diligence Expectations Design Methods Metrics of Success Evaluate Design Usefulness Convenience Added Value Quality Engineering Cost Effectiveness Reliability Assess Design Goal Fulfilment Constructability Reliability Engineering Cost Effectiveness Client Satisfaction INTERNAL REVIEW CITY REVIEW Verify Design Bidding Issues Constructability Engineering Cost Effectiveness Metrics of Success 01� a Ensure Delivery of Files Final Corrections Z 0 M c_n Z 70 O 09 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 FIRM AND STAFF QUALIFICATIONS CITY OF LA QUINTA ON -CALL CLIENT: CLIENT ADDRESS: CONTACT'S NAME: CONTACT'S TITLE: CONTACT'S TELEPHONE & FAX CONTACT'S EMAIL: City of La Quinta 74-495 Calle Tampico Bryan McKinney Public Works Director/City Engineer 760-777-7045 (t) 760-777-7155 (f) bmckinney@la-quinta.org � fpALMS4y, iy MI M D Z Z SCOPE OF SERVICES PROVIDED: o On -Call Services for Landscape Architecture Services cn After receiving community feedback during an extensive ad hoc committee process, HDG 0 prepared a five-year plan for turf removal and landscape improvements in the North La Quinta Z Landscape and Lighting District. Approximately ten acres of turf will be removed saving over 0 25,373,049 gallons of water per year for median and parkway areas surrounding 11 communities. 70 The total project budget inclusive of all soft costs is $10,000,000. The funds for the project are O derived from the use of Measure G funds. C -v Existing trees that were healthy have been preserved using an irrigation technique that has proven very successful in the desert heat where trees were accustomed to surface water from turf and converted to deep watering. All shrubs were placed on individual drip emitters and flow sensors, master valves, and the Rainbird IQ system for controller programming. Both cellular and radio service are used to daisy -chain the controllers together for control by the City. The landscape design utilizes a "desert oasis" palette and plant spacing is grouped for easier maintenance. The creative use of three rock sizes and colors with boulder accents creates interest, contrast and movement in the ground plane. For every three trees removed, a new tree was installed. Median design included the use of date palms to enhance neighborhood entries and create a cohesive connection to surrounding streets. The project required research of all existing utility providers, applications for turf removal rebates from the water district, and surveying existing conditions in the field to establish demolition and removal plans. In addition to design and working drawings, the City required HDG to prepare all City bid documents, bid schedules and provide field observation services. 10 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFF CE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 0 PROJECT COMPLETION DATE & VALUE: ACACIA Project Value Completion Date LA QUINTA DEL ORO Project Value Completion Date QUINTERRA Project Value Completion Date HIGHLANDS Project Value Completion Date SILVERROCK VENUE SITE Project Value Completion Date $489,000 2018 $175,000 2016 FIRM AND STAFF QUALIFICATIONS Projects Completed to Date: • Acacia Parkway Median and Retention Basins ■ La Quinta Del Oro Entry • Quinterra Parkway and Retention Basin ■ Avenue 52 Parkway Demonstration Area • La Quinta Highlands Parkways and Medians • Cove Trailhead and Restroom • Rancho Ocotillo Parkways and Retention Basins $615,000 Projects in Plan Check: 2019 • Marbella/Del Rey Parkways/Retention Basins • Desert Pride Parkways/Retention Basins $722,000 . X-Park Streetscape, Parking Lot, and Basin 2019 Projects Under Construction: $6,000,000 SilverRock Venue Park Site 2021 rn �[7 D Z Z 11 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 CITY OF INDIO ON -CALL CLIENT: CLIENT ADDRESS: CONTACT'S NAME: CONTACT'S TITLE: CONTACT'S TELEPHONE & FAX: CONTACT'S EMAIL: FIRM AND STAFF QUALIFICATIONS City of Indio 100 Civic Center Mall Tim Wassil Public Works Director 760-391-4018 (t) 760-391-6437 (f) twassil@indio.org SCOPE OF SERVICES PROVIDED: On -Call Services for Landscape Architecture Services MILES AVENUE PARK MASTER PLAN 2016 • Site Analysis, Community Outreach, Workshops, Master Planning, Cost Estimating MILES AVENUE PARK - PHASE 1 2016-2017 • Design Development, Cost Estimating, Construction and Bidding Documents • Field Observation HRPP GRANT PARK RENOVATIONS 2015-2016 BURR PARK................................................................ Parking Lot and Landscape Improvements DR. CARREON PARK ......................... Exercise Course, Play Area and Landscape Improvements HJORTH PARK....................................................................................... Play Area Improvements STATION 87 DOG PARK........................................................................ New Park Improvements • Site Analysis, Surveying, Design, Cost Estimating, Construction and Bidding Documents • Field Observation DOMINGUEZ PARK 2018 Park Improvements — New Play Area, Basketball Court and Landscape Improvements • Site Analysis, Surveying, Design, Construction, Cost Estimating, and Bidding Documents • Field Observation PK 1707 PARK RENOVATIONS 2019 • Six Park Renovation Projects • Water Play Restoration • Playground Surfacing Enhancements • Play Area Replacement ■ Shade Structure Replacement • Site Analysis, Surveying, Design, Cost Estimating, Construction and Bidding Documents DR. CARREON PARK IMPROVEMENTS: PHASE TWO - 2019 to PRESENT INDIO SPORTS PARK MASTER PLAN - 2020 to PRESENT INDIO PARKS CITY-WIDE MASTER PLAN IMPROVEMENTS - 2020 to PRESENT PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.781-.9335 SAN DIEGO OFFICE 619.415.0095 PALM 8• U M 0 Z 0 70 O C 12 PROJECT COMPLETION DATE & VALUE: MILES AVENUE PARK PHASE I Value Completion Date HRPP PARKS Value Burr Park Dr. Carreon Park Hjorth Park Station 87 Dog Park Completion Date DOMINGUEZ PARK Value Completion Date PK 1707 PARK RENOVATIONS Value Completion Date DR CARREON DR CARREON $1.5 Million 2017 $200,000 $315, 000 $150,000 $1,150,000 2016 $225,000 2018 $542,000 2019 FIRM AND STAFF QUALIFICATIONS WORTH PARK STATION 87 DOG PARK M z Z 0 Z 0 13 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 FIRM AND STAFF QUALIFICATIONS SPA RESORT AND CASINO PARKING GARAGE CLIENT J Agua Caliente Band of Cahuilla Indians CONTACT I Rob Donnels (760) 699-6800 The Agua Caliente Band of Cahuilla Indians asked our design team to create the feeling of Andreas Canyon and by using mature Washingtonia filiferas that were relocated and stored for over a year offsite. Many of the relocated palm trees weighed over 25,000 pounds and were carefully examined by an arborist and maintenance company during the transplanting process. The final landscape installation includes a number of the species in the Indian Canyons including creosote bush, cacti, and brittle bush. Boulder and decomposed granite selections emulate the Indian Canyons and are carefully placed in a natural formation. Firerocks are new attraction from both inside Starlight Lounge and as one enters the valet parking area. r't pAVM Sp PY 1),& �tIFORN P� M D z z 0 M cn Z O C 14 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 FIRM AND STAFF QUALIFICATIONS CORPORATE YARD PARK CLIENT: City of Desert Hot Springs = M CLIENT ADDRESS: 65950 Pierson Blvd., Desert Hot Springs, CA 92240 ;;a CONTACT'S NAME: Daniel Porras K CONTACT'S TITLE: Public Works Director CONTACT'S TELEPHONE: 760-329-641 1 Z Z CONTACT'S EMAIL: dporras@cityofdhs.org SCOPE OF SERVICES PROVIDED: M • Master Planning for Football and Baseball Sports Complex • Cost Estimating • Environmental Services z • Preliminary Engineering ■ Cost Estimating • Color Renderings of Final Master Plan 0 C CURRENTLY PROVIDING: -° • Construction Documents PROJECT COMPLETION DATE & VALUE: Value $1,500,000 Completion Date TBD .�4 I 15 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 IV FIRM AND STAFF QUALIFICATIONS CITY OF RANCHO MIRAGE ON CALL SERVICES 2016 — PRESENT DINAH SHORE MEDIAN to �PUM sae_ Q 'GjN ' r4�/FOAN�P Design services for the median improvements for Dinah Shore drive from Plumley Road to Da Vall Drive. The improvement area was approximately 348,480 square feet of landscape and hardscape. These medians were designed without planting and use cobble, crushed rock and pavers in a creative pattern to cover the median area that varied in width from 3' to 15'. DESIGN AND CONSTRUCTION RANCHO MIRAGE COMMUNITY PARK EXPANSION AND AMPHITHEATER PROJECT COMPLETION DATE & VALUE:F CONTACT: DINAH SHORE MEDIANS Value Completion Date RANCHO MIRAGE COMMUNITY PARK EXPANSION AND AMPHITHEATER Value Completion Date $175,000 2017 $6,800,000 2015 0 M cn Z City of Rancho Mirage 69-825 Highway 1 11, Rancho Mirage, CA 92270 Jesse Eckenroth Director of Public Works 0 760-770-3224 jessee@ranchomirageca.gov 16 PALM DESERT OFFICE 760.777.913) RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 FIRM AND STAFF QUALIFICATIONS SUBCONSULTANTS Should a particular project require civil engineering or survey work, Hermann Design Group will team with The Altum Group, a multi -disciplinary firm located locally in Rancho Mirage. Should a = particular project require electrical engineering services, Hermann Design Group will team with M RTM Engineering Consultants, a firm located locally in Palm Desert. The Altum Group is a multi -disciplinary consulting firm headquartered D A�'tU111 in California with offices in Rancho Mirage, Agoura Hills, San Diego, z El as well as Round Rock, Texas. Formed in 2009, Altum consists of a z Group core group of professionals with experience in providing services 10 to public and private clients, that are now supported by over 30 � staff composed of environmental planners, engineers, surveyors, and urban planners. We offer 0 comprehensive consulting expertise to public and private clients by providing civil engineering, z planning, environmental, and land survey services. Altum handles multiple contracts and task orders simultaneously, with a reputation for providing 70 high -quality work products on time and within budget. Our staff members have developed O refined skills providing public and private clients with consulting services including services for C public infrastructure and private development (including residential, commercial, and industrial,), -,a institutional design, energy projects, (wind, solar, etc.), parks and recreational planning, subdivision design and infrastructure management. k1irt m engineering consultants RTM was founded in 1981 starting out as a 3-person firm providing mechanical Our commitment to becoming a partner to engineering services to clients in the Midwest. Building on those initial our clients has been a leading factor in our foundational relationships, today RTM has grown into a national MEP and Civil success. We go beyond the typical consulting engineering firm, licensed in all 50 states and with office locations coast to role, striving to align with the goals, processes, coast. While our resources allow for a wider reach, we pride ourselves on and people involved in each project. By fully keeping our local relationships strong. understanding our clients, we can provide the best solutions for any project type. We pride ourselves on creating an environment that shares knowledge, whether that's client facing or within our own walls. We encourage and empower our teams to develop expertise in multiple markets and across disciplines. RTM is known for hands-on experience, continuing education, and career advancement. OUR SERVICES OUR MARKETS • Mechanical • Sustainability • Commercial Office • Multi -Family • Electrical • Commissioning • Education • Restaurant • Plumbing • Lighting Design • Government • Retail & Mixed Use • Fire Protection Arc Flash Healthcare • Science & Technology • Construction Admin Refrigeration • Senior Living • Aviation & Aerospace • Civil Process Engineering Hospitality • Breweries & Distilleries • Technology • Industrial OFFICES COAST TO COAST & LICENSED IN ALL 50 STATES Visit us online at www.rtmec.com 17 PALM DESERT OFFICE 760,777.9131 RIVERSIDE OFFICE 951.78"'.9335 SAN DIEGO OFFICE 619.415.0095 SCOPE TYPICAL SCOPE OF WORK �. PROJECT FAMILIARIZATION = a. We will conduct a thorough physical inspection of the project site, collect all data regarding M existing or proposed improvements and facilities within the project area. We will compile an ;;u extensive photo gallery of the project illustrating all related aspects and viewpoints. K b. We will collect needed materials regarding existing conditions from the various agencies z necessary to complete the design of the project. We will review and analyze each project with a "walk" to carefully analyze each relevant aspect with the team. We understand that Z some as -built plans may be available and will be provided by the City. U c. We will review and identify all utilities and easements serving each site and those that might M be affected by the project site improvements. — ��. PRELIMINARY PLANNING Z a. Once we have completed the project familiarization phase, our design team will meet 0 with the City and review the various options and recommendations. From this meeting, a ,U conceptual plan will be prepared. O b. The conceptual plans for the project will be presented to the City for review and discussion. C c. We will work with City to refine the design of the improvements and facilities by selecting items from the various plan concepts to be incorporated into the final plan. d. The direction given by the City will be incorporated into the final preliminary plan. III. PROJECT BUDGETING a. Our design team will prepare an opinion of probable cost which will be incorporated all elements of the project. b. Opinion of probable cost will be presented to the City for their use in establishing project budgets IV. CONSTRUCTION DOCUMENTS Upon receipt of approval of the preliminary planning portion, we will commence preparation of the construction documents. The plans will continue the concepts of low maintenance, vandal resistance, and attractive and practical design solutions. a. DEMOLITION PLAN: We will prepare a demolition plan that illustrates existing plant material to be removed or to remain. b. CONSTRUCTION PLAN: Cobble, rock, and boulder locations and layout will be dimensioned and keyed to a construction schedule. Other construction details will be prepared based on project elements (e.g., hardscape and site amenities),. c. IRRIGATION PLANS: We will prepare complete irrigation plans. All elements of the system will be designed to carry optimum amounts of water to irrigate the site. Full detailing of all equipment will be included. Vandal resistance, durability, serviceability, reliability, water conservation, efficiency, and - most importantly - consistency with Desert Water Agency and City of Palm Springs standards will be our primary concerns. All systems will be designed to accommodate reclaimed water, as requested. d. PLANTING PLANS: Complete planting plans with all necessary details will be provided. Plant suitability, maintainability, drought resistance, and reliability will be primary concerns. 18 :OFFICE 760.777.9131 RIVERS -DE OFFICE 951.782.9335 ;O OFFICE 619.415,0095 I � �PLM dp_��QQ11 VO �NY SCOPE OF WORK �q�IFORNf� SPECIFICATIONS: Specifications detailing materials and workmanship for all of the above items will be provided as required. COST ESTIMATES: Final opinions of probable costs will be prepared with regular value engineering recommendations. t; DOCUMENT PROCESSING: We will submit the documents for City and various agency approvals. We will review documents and make all necessary corrections. h MEETINGS: We will attend all meetings as required during this phase of the project. i FINAL DOCUMENTS: After final approval, 24" x 36" plans shall be submitted to the City along with an electronic copy of the plans and specifications for bidding purposes. V. BIDDING When the project goes out for competitive bidding, we will assist the City in the bid process, distributing bid packages, noting direction given to contractors, questions asked and follow-up clarifications or addendum items. b. We will attend and chair the pre -bid meeting and provide written minutes and follow up information as required. c. We will assist the City in evaluating bids as required. VI. CONSTRUCTION PHASE SERVICES a. We will coordinate with the City as required throughout the life of the project. b. This phase will commence with the notice to proceed to the contractor and terminate when final payment is issued by the City. c. We will attend and chair the pre -construction meeting. d. We will provide weekly observations during construction for the purpose of establishing acceptability and provide written documentation of official job meetings to those present. Based on our observations at the site and on the contractor's application for payment, we will assist in determining the amount owed to the contractor, if requested. We will review job drawings, as-builts, RFls, submittals, samples, and other submissions of the contractor for conformance with the design of the project and for compliance with the information given in the conformance contract documents. f. We will review change orders and submittals for approval and issuance by the City. We will respond to requests for information from the contractor, issue field bulletins and requests for quotations. g. We will review as-builts and assist in the reproduction of the as -built information on flash drive or other requested format. VII. MEETINGS AND PROJECT ADMINISTRATION MEETINGS - We will attend City meetings, agency review meetings, and related project presentations as required. We will attend and/or conduct development team meetings and conference calls as necessary to perform the scope of work. The following meetings are anticipated during the project: • Kick off Meeting (1) • Staff Review of 60% Design Development Plans (1) C) M Z 0 C 19 PALM DESERT UFFI -E 760.777.9131 RIVERSIDE OFF:CE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 � va►n� sw SCOPE OF WORK N C _ . , :': _ •. C'O</PORN • Staff Review of 90% Working Drawings (1) • Staff Review of 100% Working Drawings/Specifications (1) • City Council approval of plans and final construction cost estimate (1) _ • Bi-Monthly progress meetings/emails/phone calls are anticipated to be completed M during the course of the project (4) PROJECT ADMINISTRATION —We will perform general project management services as z necessary to support to the work of this project. z VIII. AGENCY APPROVAL U M We will submit to City all plans, specifications, estimates, and/or other necessary documents required to obtain approval. The following plan check submittals are included: 0 1ST REVIEW — Design Development Plan Review Z 2ND REVIEW — 60% Check Plans and Specifications 3RD REVIEW — 90% Check Plans, Specifications 0 4TH REVIEW —100% Final Plans C We will make revisions as required by the City and resubmit plans for approval. 20 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 REFERENCE PROJECT SILVERROCK VENUE SITE - LA QUINTA CLIENT: CLIENT ADDRESS: CONTACT'S NAME: CONTACT'S TITLE: CONTACT'S TELEPHONE: CONTACT'S EMAIL: City of La Quinta 78-495 Calle Tampico, La Quinta, CA 92253 Bryan McKinney Public Works Director 760-777-7045 bmckinney@laquintaca.gov PROJECT COMPLETION DATE & VALUE: Project Value Date of Services Completion Date Size $6, 500,000 2018 to Present Under Construction; completion in 2021 14 Acres (Not Including Retention Basin) The City of La Quinta City Council established an Ad -Hoc SilverRock Event Site Committee consisting of a council member, a community services commissioner, a planning commissioner, an arts festival representative, a representative from The Robert Green Company (developer of the hotel sites), and the City Manager. Four meetings were held with multiple follow up meetings between members and stakeholders to identify programming options and translate them into design concepts for the 14 acre site. HDG led the team of stakeholders through the master planning process, set priorities, reviewed design concepts from bubble diagrams through final design, and adoption of the master plan. Presentations to the Financial Advisory Committee included review of budgeting, options, and strategies for financing prior to the final presentation to City Council. pA►M S.► *'s r. OM • �<�FORN��• 0 M cn Z 0 ;;u O C 21 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFF,CE 951.782.9335 SAKI DIEGO OFFICE 619.415.0095 REFERENCE PROJECT APPLICATION OF SKILLS AND ABILITIES Responsiveness and attentiveness to clients' needs Q VALM,14 O },� V NI • Attended community workshops to establish priorities for the use of Measure G Funding, a sales tax increase that helped fund this project. • Led Ad Hoc Committee, staff, and team meetings during master planning phase. • Provided timely turnaround on project changes. • Met within hours of a call for urgent issues during construction. • Immediately responded to schedule changes necessary to meet changes in project scope. • Email responses in less than 24 hours. Creative Design • A venue platform and terraced seating area for performances was located for prime visibility and future phases of construction. • Created water features that reflect existing water feature character and created the perception of the one continuous water feature and stream to a small pond with lighted floating fountain. • A grand arrival at the entry drop off area is framed with date palms that have color changing LED low voltage lighting. • Coordinated with CVWD engineering department for use of canal water and designed system with air gap between canal water line and irrigation system by using existing lakes. Green Building • Used locally sourced materials whenever possible. • Irrigation systems designed to meet AB 1881 and included drip, flow meters, weather based control systems with flow sensing. • Drought tolerant planting. • LED lighting throughout the park. • Pre-engineered restroom building minimized waste during construction. • Project design uses canal water for irrigation system. • Decomposed and stabilized DIG parking area minimizes heat island affect. Historic Preservation • Coordinated planting design to reflect nearby mountains and existing SilverRock golf course. Sensitivity to Funding Constraints • Maintained project budget by providing Bid Alternates and awarding project to low bidder with alternates under the projected budget. S M D Z Z 0 M cn 0 Z 0 70 0 C -v 22 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFIK-t 619.415.0095 5 V N' REFERENCE PROJECT Public Private Partnerships • The SilverRock development project is a public private partnership between the City = and The Robert Green Company. rn Working with a Tribe • Not applicable on this project. There was an existing specific plan and EIR which D covered cultural resources requirements prior to master planning. Z Analysis of a complex situation, or a challenging problem encountered, and you solved it Z • The City purchased a pop-up retail building that had never been permanently installed U and did not meet California Building code. Our task was to design a permanent C/) foundation and attachment method for the modular metal structure. Working with 0 our structural engineer and the Alongi company, we created a pad and attachment Z method. In addition, the structure had to have a secondary ADA access door and ramp that we designed. The building was added to the project after construction was over 75% complete. The new plans for the building and site improvements had to be O developed in a compressed schedule in order to keep the project moving ahead. This C building will serve the City as an event space for special occasions and can house all office related functions during the Arts Festival and Celebration. • Fire Access - Coordinated with Riverside County Fire Department to establish use of GrassPave and GravelPave. Oral and Written communication skills • Agenda preparation for each meeting. • Presentations to City Council for approval using PowerPoint. • Written meeting minutes followed all meetings within 48 hours. Preparation of presentations to meetings, neighborhoods , stakeholders • Meeting preparation was always coordinated ahead of actual meeting for date, time, and purpose with agendas. Agendas were prepared and circulated to all team members. • Attended initial Measure G funding meetings with the community to prioritize use of funds. Interaction with client's organization (i.e., other divisions or departments, Boards, Commissions, Councils.). • The project required interaction with planning, public works, maintenance, and finance departments of the City. • Led Ad -Hoc committee meetings including a community services commissioner, the arts festival representative, the developer of the hotel project, finance, planning, public works, and the City Manager. 23 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEUU OFFICE 619.415.0095 Z m D z z U m z 0 70 0 C !.T 1.1 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 LOCAL BUSINESS PREFERENCE PROGRAM —#ALM sw La • c4<a'FoltN�P Hermann Design Group, Inc. was originally founded in 1995 in Palm Desert as Hermann & Associates. Incorporated as Hermann Design Group, Inc. in 2009, our firm and our majority stakeholders have been an active part of the Coachella Valley community for over 25 years. See Attachment A for additional information. CITY OF PALM SPRINGS BUSINESS LICENSE 3200 E TAHQUITZ CANYON WAY, PALM SPRINGS, CA 92262 (760) 323-8289 PLEASE NOTE THAT IT IS YOUR RESPONSIBILITY TO RENEW AND UPDATE THIS LICENSE ANNUALLY. BUSINESS NUMBER: 20018110 EXPIRATION TAX/ADMIN. FEE CERT NO BUSINESS TYPE: LANDSCAPE ARCHITECTURE 10/31/2021 21.00 69604 OWNER NAME: CHRIS HERMANN 10/31/2021 200.00 69606 KRISTIN HERMANN 10/31/2021 4.00 69607 BUSINESS NAME: HERMANN DESIGN GROUP INC BUSINESS ADDRESS: 77-899 WOLF ROAD SUITE 102 PALM DESERT, CA 92211 HERMANN DESIGN GROUP INC ISSUANCE OF THIS LICENSE DOES NOT ENTITLE 78365 HWY I I I THE LICENSEE TO OPERATE OR MAINTAIN A PMB 332 BUSINESS IN VIOLATION OF ANY OTHER LAW LA QUINTA CA 92253 OR ORDINANCE. THIS IS NOT AN ENDORSEMENT OF THE ACTIVITY NOR OF THE APPLICANT'S QUALIFICATIONS. MUST BE POSTED IN A CONSPICUOUS PLACE M D z z 25 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 FORMS ATTACHMENT 1 A i pia' ATTACHMENT "A" SIGNATURE AND ADDENDA ACKNOWLEDGEMENT FORM Name of Company: Hermann Design Group, Inc. _ M Address: 77899 Wolf Road Suite 102 Palm Desert. CA 92211 Z Telephone Number: ( 760 ) 777-9131 Z Contact Person: Chris Hermann, PLA/ASLA 0 M E-Mail: chris(aD_hdg-inc.com Tax Identification Number: 26-4809029 Z 'n Type of Firm: ElIndividual El Partnership ❑Liability Company Z7Limited 0 ❑x Corporation (State CA ) ❑ Other (specify) C Addenda Acknowledgement: Acknowledgment of receipt of any addenda issued by the City for this Request for SOO is required to be submitted with your SOO. Failure to acknowledge issued addenda may result in your SOO being deemed non -responsive. (If no addenda were issued, write N/A.) I hereby acknowledge receipt ofAddendum(s) Numbers 1, 2 and 3 Please check below if you are requesting consideration of the Local Business Preference Program according to the Palm Springs Municipal Code Section 7.09.030. X I hereby request consideration of the Local Business Preference Program and a copy of current business license for the firm or sub -consultant is/are included. 5. 1 hereby certify that I have the authority to submit this SOO to the City of Palm Springs for the above listed individual or company. I certify that I have the authority to bind myself/this company in a contract should I be successful in my SOO. r E. Chri errrnn, E /President PRI D ME D TITLE April 1, 2021 A- MNATUREAD DATE PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 146 ADDENDUM f ?AIM S SOQ #09-21 ON -CALL LANDSCAPE ARCHITECTURAL SERVICES ' ADDENDUM NO. 1 This Addendum is being issued for the following changes and informational items: THE FOLLOWING REVISIONS AND/OR ADDITIONS TO THE SPECIFICATIONS AND INSTRUCTIONS ARE TO BE INCLUDED IN THE ORIGINAL DRAWINGS AND SPECIFICATIONS. THIS ADDENDUM SHALL TAKE PRECEDENCE OVER ANYTHING CONTRARY ON THE PREVIOUSLY ISSUED SPECIFICATIONS AND INSTRUCTIONS AND SHALL BE REFERRED TO HEREINAFTER AS PART OF THE CONTRACT DOCUMENTS. The City has received the following questions and is hereby providing answers thereto: Q 1: We received the email below regarding SOQ 09-21 but do not see Golf Course Design in the scope. Could you please confirm whether there is a need for golf course design services in this particular SOQ? A !: There is no need for golf course design services in this SOQ. BY ORDER OF THE CITY OF PALM SPRINGS, CALIFORNIA Lziak Procurement & Contracting Manager, Acting DATE: March 18, 2021 ADDENDUM ACKNOWLEDGMENT: Proposer Firm Name: He a n De4n Gr Inc. Authorized Signature: ' Date: March 29, 2021 Acknowledgment of Receipt of Addendum 1 is required by signing and returning a copy of this addendum with your response. Failure to acknowledge this Addendum may result in your SOQ being deemed non -responsive. PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 f pAM18w !� N 1• \`C'aOropN / M Z Z F PALM 6 O C41iFORCL�P ADDENDUM SOQ #09-21 ON -CALL LANDSCAPE ARCHITECTURAL SERVICES ADDENDUM NO. 2 This Addendum is being issued for the following changes and informational items: THE FOLLOWING REVISIONS AND/OR ADDITIONS TO THE SPECIFICATIONS AND INSTRUCTIONS ARE TO BE INCLUDED IN THE ORIGINAL DRAWINGS AND SPECIFICATIONS. THIS ADDENDUM SHALL TAKE PRECEDENCE OVER ANYTHING CONTRARY ON THE PREVIOUSLY ISSUED SPECIFICATIONS AND INSTRUCTIONS AND SHALL BE REFERRED TO HEREINAFTER AS PART OF THE CONTRACT DOCUMENTS. The City has received the following questions and is hereby providing answers thereto: Q 1: May a front cover and table of contents be included? If so, may it be excluded from the page count? A 1: Front cover and table of contents (not required) are included towards the 30 page count. Q 2: Is the Cost Proposal included in the page count? A 2: No Q 3: Can the local business preference apply if we have included a certified local business as a sub consultant on our team? A 3: Per the language in the SOQ, five (5) points will be awarded to a consultant that requests consideration of the local business preference and qualifies as a local business. A consultant that does not meet the definition of "local business" in the SOQ will not be awarded any points. For example, a consultant that does not operate or perform business on a day to day basis within the Coachella Valley would not be eligible for consideration of the local business preference, even if they employ a sub -consultant that meets the definition of a local business. BY ORDER OF THE CITY OF PALM SPRINGS, CALIFORNIA Procurement & Contracting Manager, Acting DATE: March 22, 2021 ADDENDUM ACKNOWLEDGMENT: Proposer Firm Name: Hermann D i ($rou ,Inc. Authorized Signature: —yen Date: March 29, 2021 Acknowledgment of Receipt of Addendum 2 is required by signing and returning a copy of this addendum with your response. Failure to acknowledge this Addendum may result in your SOO being deemed non -responsive. PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 I pA�M Sp O 4� 4u Ni • �<noaN�P• ADDENDUM F PALM S SOQ #09-21 ON -CALL LANDSCAPE ARCHITECTURAL SERVICES ADDENDUM NO. 3 cq� Foa�`P This Addendum is being issued for the following changes and informational items: THE FOLLOWING REVISIONS AND/OR ADDITIONS TO THE SPECIFICATIONS AND INSTRUCTIONS ARE TO BE INCLUDED IN THE ORIGINAL DRAWINGS AND SPECIFICATIONS. THIS ADDENDUM SHALL TAKE PRECEDENCE OVER ANYTHING CONTRARY ON THE PREVIOUSLY ISSUED SPECIFICATIONS AND INSTRUCTIONS AND SHALL BE REFERRED TO HEREINAFTER AS PART OF THE CONTRACT DOCUMENTS. The City has received the following questions and is hereby providing answers thereto: Q 1 Is the 30 page limit for double sided or single sided printing A 1: Double sided. BY ORDER OF THE CITY OF PALM SPRINGS, CALIFORNIA Procurement & Contracting Manager, Acting DATE: March 25, 2021 ADDENDUM ACKNOWLEDGMENT: Proposer Firm Name: Hermana Design 0-4p, Inc. Authorized Signature: Date: March 29, 2021 Acknowledgment of Receipt of Addendum 3 is required by signing and returning a copy of this addendum with your response. Failure to acknowledge this Addendum may result in your SOQ being deemed non -responsive. PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 OFfPIM de �. lY N1 y. • Cq<!iY pRM�P• ATTACHMENT ATTACHMENT "B" NON -COLLUSION DECLARATION FORM � YPLM SO O O V N The undersigned, deposes and says that he, she or they is/are an authorized representative of M �;7 Hermann Design Group, Inc. the party making the foregoing SOQ. (name of company) D Z • That the SOQ is not made in the interests of, or on the behalf of, any undisclosed person, Z partnership, company, association, organization, or corporation 0 • That the SOQ is genuine and not collusive or sham M • That the proposer has not directly or indirectly induced or solicited any other proposer to put Cn in a false or sham SOQ, and has not directly or indirectly colluded, conspired, connived, or agreed with any proposer or anyone else to put in a sham SOQ, or that anyone shall refrain Z from proposing • That the proposer has not in any manner, directly or indirectly, sought by agreement, 'U communication, or conference with anyone to fix the SOQ price of the proposer or any other C proposer, or to fix any overhead, profit, or cost element of the SOQ price, or of that of any other proposer, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract • That all statements contained in the SOQ are true • That the proposer has not, directly or indirectly, submitted his or her SOQ price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereof, or paid, and will not pay, any fee to any corporation, partnership, company, association, organization, proposal depository, or any other member or agent thereof to effectuate a collusive or sham SOQ. • Any person executing this declaration on behalf of a bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of the bidder. NAME and TITLE of Authorized Representative: (Print) E. Chris Hermann, CEO/President Signature and Da t o At rize epresentative: (Sign) (Date) March 29, 2021 PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 ATTACHMENT ATTACHMENT "C" CONFLICT OF INTEREST AND NON-DISCRIMINATION CERTIFICATION Conflict of Interest. Consultant acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in the Agreement nor shall Consultant enter into any agreement of any kind with any such officer or employee during the term of the Agreement and for one year thereafter. Consultant warrants that Consultant has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining the Agreement. Covenant Against Discrimination. In connection with its performance under the Agreement, Consultant shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Consultant shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter the Agreement, and in executing the Agreement, Consultant certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Consultant activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Consultant is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. NAME OF COMPANY: Hermann Design Group, Inc. NAME and TITLE of Authorized Representative: (Print) E. Chris Hermann Signature and Da Au4ig (Sign) resident presentative: (Date) March 29, 2021 PALM DESERT OFFICE 760.777.9131 Rl VERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415,0095 U rn Z Z7 O C OE PALM S, �Z u � uQi . cq`��N`P .. ATTACHMENT D ATTACHMENT "D" PUBLIC INTEGRITY DISCLOSURE APPLICANT DISCLOSURE FORM 1. Name of Entity Hermann Design Group, Inc. 2. Address of Entity (Principle Place of Business) 77899 Wolf Road, Suite 102, Palm Desert, CA 92211 3. Local or California Address (if different than #2) 4. State where Entity is Registered with Secretary of State California If other than California, is the Entity also registered in California? Yes No 5. Type of Entity ❑x Corporation ❑ Limited Liability Company ❑ Partnership [:]Trust ❑ Other (please specify) 6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: if any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust or other entity E. Chris Hermann E Officer ❑Director ❑Member ❑Manager [name] ❑ General Partner ❑ Limited Partner ❑ Other Kristin M. Hermann ] Officer ❑ Director ❑ Member ❑ Manager [name] ❑ General Partner ❑ Limited Partner ❑ Other Jose A. Estrada ® Officer ❑ Director ❑ Member ❑ Manager [name] ❑ General Partner ❑ Limited Partner ❑ Other PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.781-9335 SAN DIEGO OFFICE 619.415.0095 M D z Z 0 M cn 0 Z 7J O C ATTACHMENT D 00. 7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity EXAMPLE ✓ANE DOE 5016, ABC COMPANY, Inc. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] A. E. Chris Hermann 45%, Hermann Design Group, Inc. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] B. Kristin M. Hermann 45%, Hermann Design Group, Inc. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] C. Jose A. Estrada 10%, Hermann Design Group, Inc. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] D. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] E. [name of owner/investor] [percentage of beneficial interest in entity and name of entity) I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT. Signature of Disclo ing Party, Printed Date Name itle March 29, 2021 E. is ann, EO/President PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFCE 951.7K.9335 SAN DIEGO OFFICE 619.415.0095 2 1-n D z Z U M V) 0 Z 0 70 O C VALM sA� ATTACHMENT E 6 I - \4roaN�P SAMPLE PROFESSIONAL SERVICES AGREEMENT FOR ON -CALL SERVICES Hermann Design Group has reviewed the sample Professional Services Agreement included in the request for SOQ for on -call landscape architecture services. We have identified items that may not conform to the terms of our insurance coverage and/orto California Civil Code Section 2782.8. Upon selection to provide on -call services for the City of Palm Springs, we would like to discuss the following requested changes to the Professional Services Agreement. Suggested deletions are in f-ed and additions are in blue. 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant agrees to perform the professional services set forth in the Scope of Services described in Exhibit "A" (the "Services" or "Work"), which is attached and incorporated herein by this reference. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that Consultant is a provider of professional services and that Consultant is experienced in performing the Work contemplated and, in light of such status and experience, Consultant covenants that it shall perform the Work in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced and well qualified members of the profession currently practicing under similar conditions. 1.4 Licenses, Permits, Fees, and Assessments. Consultant represents to City that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession and perform the Work required by this Agreement. Consultant represents and waffa+540 City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, qualification, or approval that is legally required for Consultant to perform the Work and under this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant's performance of the Work required by this Agreement. Consultant shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes penalties, or interest levied, assessed, or imposed against City to the fullest extent permitted by law. 1.5 Familiarity with Work. By executing this Agreement, Consultant Waffants represents that Consultant (a) has thoroughly investigated and considered the Scope of Services to be performed, (b) has carefully considered how the Services should be performed, and (c) fully understands the facilities, difficulties, and restrictions attending performance of the Services under this Agreement. If the Services involve work upon any site, Consultant Waffants represents that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of any Services. Should the Consultant discover any latent or unknown conditions that will materially affect the performance of the Services, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the City. 5.5 Verification of Coverage. C. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice (or ten days notice if due to non-payment of premium) to the Certificate Holder named." Language such as, "endeavor to" mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 _ rn Z7 D Z Z 0 M c_n Z C 6.1 Indemnification and Reimbursement. To the fullest extent permitted by law, Consultant shall defend ;,+ (;=~SH'taRt's aAd exp Ase), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, _ judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses rn �7 including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims aFiSiAg keng to the extent injuries to or death of persons (Consultant's employees included), for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct to the extent committed by Consultant, its officers, employees, 0 representatives, and agents, to the extent that arise out of or relate to Consultant's performance rn of Services or this Agreement. This indemnification clause excludes Claims arising from the seie negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Consultant's z indemnification obligation or other liability under this Agreement. Consultant's indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the 0 applicable statute of limitations or, if an action is timely filed, until such action is final. C PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 EXHIBIT "D" SCHEDULE OF COMPENSATION Rev 511/20 55515 18165132900159 2 COST PROPOSAL HERMANN DESIGN GROUP NORMAL HOURLY RATES Principal Landscape Architect/Principal Planner Project Manager Irrigation Designer Associate/Senior Designer Specification Writer Designer Professional Staff OUTSIDE CONSULTANTS $175.00 per hour 130.00 per hour 125.00 per hour 105.00 per hour 95.00 per hour 90.00 per hour 75.00 per hour Services of outside consultants not listed in this proposal, at our direct cost, plus 15% of the actual cost of their services for coordination. REIMBURSABLES Reimbursable items, such as the cost of reprographics, soil samples, and travel required outside the Coachella Valley will be charged at our cost plus 15% within the allowances provided in the fee breakdowns. RATEINCREASES Due to increases in wages/benefits, fees and hourly rates are subject to an annual increase based on the Consumer Price Index (CPI-U) published by the Bureau of Labor Statistics. PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 0 M Z 0 70 O C PROPOSAL CIVIL ENGINEERING/SURVEY SUBCONSULTANT 72140 Magnesia Falls Drive, Suite 1 Rancho Mirage, CA 92270 (760) 346-4750 Tel (760) 340-0089 Fax TheAltumGroup Strive Higher 2021 SCHEDULE OF HOURLY RATES Staff Member Hourly Rate Principal $184.00 Director $163.00 Senior Project Manager $158.00 Project Manager $152.00 Assistant Project Manager $142.00 Senior Associate $131.00 Associate $116.00 Assistant $90.00 Project Coord/Technician $79.00 Administrative Assistant/Clerical $58.00 Intern $37.00 Utility Location, GIS and Drone Services: Mobilization - 1st Hour $150.00 1-Man Crew - Non Prevailing $90.00 2-Man Crew - Non Prevailing $169.00 1-Man Crew - Prevailing $125.00 2-Man Crew - Prevailing $250.00 Survey Services: Survey Crew - Non Prevailing $225.00 Survey Crew - Prevailing $275.00 Survey Crew Rates: Hourly rates include standard 2-man crew, 1-man robotic crew and 1-man GPS crew. A two-hour minimum applies for all field services. Reimbursables Expenses: Mileage is billed at IRS business rate plus 15% Printing, reproduction, etc. are billed at direct cost plus 15% Altum's Schedule of Hourly Rates is subject to change based on an annual review of the cost of living and employee wage increases. In the event Altum's Schedule of Hourly Rates changes, a corresponding percentage increase shall be applied to all remaining Agreement budgets and such Schedule of Hourly Rates shall apply to subsequent Extra Work. If Consultant works in excess of 8.0 hours in a day or 40.0 hours in a week at Client direction, overtime rates will apply. F:kate schedule12021 Schedule of Hourly Rates - RM + OT.xlsx PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.782.9335 SAN DIEGO OFFICE 619.415.0095 _ rn z z 0 M c_n 0 ^^Z V' ZJ O C COST PROPOSAL ELECTRICAL ENGINEERING SUBCONSULTANT k1irtm engineering consultants HOURLY RATE SCHEDULE Time and material expenses shall be billed at the rates shown below. CATEGORY Principal Associate Senior Design Engineer Design Engineer CAD Technician Clerical Travel & Lodging Expenses: Printing & Cad plots: HOURLY RATES $265.00/Hr. $175.00/ H r. $160.00/ H r. $145.00/ H r. $95.00/Hr. $70.00/Hr. Actual expense Actual expense PALM DESERT OFFICE 760.777.9131 RIVERSIDE OFFICE 951.783.9335 SAN DIEGO OFFICE 619.415.0095 144 EXHIBIT "E" SCHEDULE OF PERFORMANCE The services provided hereunder this Agreement shall occur on an as -needed "on -call" basis, pursuant to separate individual Task Orders or Purchase Orders. The City and Consultant shall agree on a schedule of performance for scopes of work on assigned projects. END OF EXHIBIT "E" Rev. 511120 55575 18165\32900159 2