HomeMy WebLinkAboutA8657 - URBAN ENVIRONMENTAL HABITAT LANDSCAPINGTERMINATION AGREEMENT AND MUTUAL GENERAL RELEASE
This Termination Agreement and Mutual General Release (the "Agreement") is entered into and is
effective as of its Effective Hate as defined below, by and between the City of Palm Springs, a charter city,
organized and existing In the County of Riverside, under and by virtue of the laws of the State of California (the
'City') and Urban Habitat ("UH" or "Contractor"). City and Contractor are collectively referred to as the
"Parries" or individually as a "Party."
RECITALS
This Agreement is made with reference to the following recitals of fact:
A. After a bid process, the City and Contractor entered into a contract entitled' Contract Services
Agreement Assessment Districts, Parkways & Medians Landscape And Grounds Maintenance Servioes" with an
effective data of July 1, 2018 (the 'Contract'), for the provision of the landscaping, maintenance and construction
services described in the Contract (the "Services'). All capitalized or highlighted temrs used in this Agreement
and not otherwise defined shall have the meanings ascribed to such terms In the Contract unless otherwise
provided in this Agreement. The Services include primarily maintenance services, but also include some repair or
construction services, including as to irrigation equipment and systems, as to which Contractor is required to
provide a warranty (the "Construction Services`).
B. As a result of the Covid-19 pandemic, the City required changes to the Contract to reduce its
expenses, and the Parties entered into an Amendment to the Contract effective May 1, 2020 (the "Amendment').
C. Contractor has had difficulty performing the Services, inter afia, due to the pandemic and the
changes in scope of the Contract as a result of the Amendment, and the City has expressed dissatisfaction with
aspects of the Services.
D. On October 22, 2020, the City issued a Notice of Intent to Default and Demand to Cure for
without limitation, abandoning the work by failing to report to the work site and diligently prosecuting the work,
disregarding or violating the provisions of the Contract or the City's instructions, and falling to prosecute the work
according to the approved schedule without excusable delays (the'Notlre"). Contractor disputes the substance of
the Notice and that ft has breached the Contract or the Amendment.
E. The City and Contractor have negotiated and agreed to resolve their disputes and confirm
termination of the Contract as provided in this Agreement and as set forth in the specific terms and conditions
below.
TERMS AND CONDITIONS
NOW THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement,
the Parties to this Agreement agree as follows:
1. END OF SERVICE DATE & PAYMENT: Contractor shall provide the Services through the Termination
Date, In the manner provided in the Contract. The City shall pay for all Services that have been performed in
accordance with the Contract and invoiced from the start date of the Contract through the date of this
Agreement as provided In the Contract (the "Invoiced Servlces'). The City will not make any quality of service
deductions or impose any penalties, whether proposed in the Notice or otherwise, for any of the Invoiced
Services after August 2020. The City shall timely pay for all Services provided but not yet invoiced between the
date of this Agreement and the Termination Date (the 'Remaining Services'), as provided in the Contract,
subject W any rights in the Contract the City has regarding the sufficiency of Contractor's performance of the
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Remaining Services.
2. TERMINATION. The Term of the Contract shall and on December 31, 2020 (the'Termination Date").
As of the Termination Date, each Partys rights and obligations under the Contract shall end.
3. NO ADMISSION. Neither Party admits or acknowledges fault, negligence, deficiencies or wrongdoing in
connection with the Contract, the Services or this Agreement, and this Agreement shall not be evidence of any
admission of any kind by any Party.
4. MUTUAL GENERAL RELEASE: Effective upon the Effective Date, the City and Contractor, on their
own behalf and also on behalf of all managers, directors, offioers, shareholders, employees, agents, and
insurers, as well as any successors or assigns (collectively the "Releasers") fully and completely releases the
other Party and its principals, agents, officers, directors, partners, managers, attorneys, employees,
representatives, insurers, successors and assigns, and, if applicable, their partners, beneficiaries, and any
parent, subsidiary, division, affiliated or related companies and their respective predecessors, successors and
assigns (collectively the "Releasers") from ANY AND ALL sums of money, claims, liabilities, damages, causes
of action, defects, or violations of law, of whatever kind or nature, whether known or unknown, fixed or
contingent, or suspected or unsuspected by them which any of them now owns, holds, has or claims to have, or
at any prior time owned, held, had or claimed to have against any of the Releasees up to and including the date
of this Agreement, including but not limited to claims arising out of and/or relating to the Contract, the
Amendment, the Services and the matters leading to this Agreement (collectively, the "Claims"j. The Releasors
understand, acknowledge and agree that this Release may be pleaded as a full and complete defense to any
claim, demand, action, or other proceeding which may be brought by or on behalf of any Releasor relating to the
Claims released in this Agreement. Notwithstanding anything to the contrary in this Paragraph or this
Agreement:
(a) This Release does not apply to any obligations expressly created or affirmed pursuant to this
Agreement, including those specific exoeptions in Paragraph 6.
5. UNKNOWN CLAIMS: The Releasors acknowledge that there is a risk that subsequent to the execution
of this Agreement, one or more of them will discover facts or will discover, suffer or incur claims, liabilities,
damages, losses, costs, expenses, attorneys fees, or identify causes of action which were unknown or
unanticipated at the time of this Agreement which may have materially affected their respective decisions to give
the Releases contained in this Agreement (collectively the "Unknown Clalwal. Despite this knowledge and
understanding, the Releasors understand and agree: (1) that he, she and/or it is assuming the risk of each and
every Unknown Claim, and (2) that, except as set forth in subparagraph (a) in the preceding paragraph, he, she
and/or it is releasing all claims of every kind or nature whatsoever, known or unknown, suspected or
unsuspected, and each expressly waives all rights under Section 1542 of the Civil Code of California, which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR
OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
6. EXCEPTIONS TO MUTUAL GENERAL RELEASE & UNKNOWN CLAIMS. Noiwithstanding any
provision of this Agreement, City and its Releasors do not release Contractor or any other Releasee from the
following:
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(i) demands, claims, and causes of actions arising from deficiencies in workmanship, equipment or
materials installed as a part of the Construction Services (the "Deficiency Rights");
(H) demands, claims, and causes of actions for damage to Irrigation infrastructure by the Contractor
or Contractor's subcontractors due to active performance of the Services in a negligent or reckless
manner (the'Irrigatlon Damage Rights");
(M) demands, claims, and causes of actions arising from guarantees to repair or warranty obligations
from Contractor, and from any person who supplied any product, material, workmanship or component of
the Contract to Contractor's subcontractors, suppliers or material persons (regardless of tier) as required
by the Construction Services portions of the Contract (the `Warranty Rights');
(iv) rights to indemnity and defense from third -party claims to the extent Contractor, or any insurer of
Contractor, would be obligated to indemnify City and its Releasors, pursuant to the Contract or applicable
law in the absence of this Agreement, including without limitation, any right to indemnity from: (a) claims
for loss or damage to personal property, and (b) claims for injury or death to any person (collectively the
"Indemnity Rights");
(v) demands, claims, and causes of actions brought under the False Claims Act, Gov. Code § 12650
et seq. (the "False Claim Rights");
(vi) if a third -party files an action against City arising out of the Contract, Amendment, or the
Services, City shall not be precluded from seeking to allocate responsibility to Contractor through an
affirmative defense, or if applicable, filing a cross -complaint against Contractor In such action (the "Third
Party Rights");
(vii) Contractorrs obligation under the Contract to submit personal property or written materials to the
City at the conclusion of the Contract, including, but not limited to, equipment and material warranties,
operation and maintenance manuals, subcontractor releases, and keys or any other City property loaned
to the Contractor (for example, access devices for irrigation infrastructure) (the 'Compietion Rights").
7. CITY REPRE ENTATIONS: The City represents that as of the date of this Agreement it Is not aware of
(a) any claims asserted by any person, or (b) any rights it may have against any person including Contractor or
any Releases, constituting an exception to the Release provisions of this Agreement, including but not limited to
any Deficiency Rights, the Irrigation Damage Rights, Warranty Rights, Indemnity Rights, False Claim Rights or
Third Party Rights. Concurrently with the execution of this Agreement, City shall send to Contractor by email a
list of all items or property it believes Contractor must provide or return to satisfy the City's Completion Rights.
S. ATTORNEYS' FEES: If any Party institutes any action or proceeding to enforce this Agreement or
collect any amounts due under this Agreement, the prevailing Party in any such action or proceeding shall be
entitled to receive from the non -prevailing Parties all cost and expenses, including actual attorneys' and other
fees, reasonably Incurred by the prevailing Party in connection with such action or proceeding.
9. MISCELLANEOUS: The paragraph headings are convenience and reference only, and shall not be
used to interpret this Agreement. No amendment of any provision of this Agreement shall be enforceable unless
In writing. This Agreement contains the entire agreement between its Parties as to is sub)ect. There are no other
agreements, promises or inducements, oral or otherwise, contrary to the temp of this Agreement. In the event of
a conflict between the terms of the Contract and this Agreement, this Agreement shall control. This Agreement
shall be governed exclusively by, and construed and enforced exclusively in accordance with, the law of the
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State of California without regard to Its choice of law Provisions. In the event that any oondit or covenant in
this Agreement Is held to be Invalid the same shah be deemed severable, and the remainhtg provlgions deemed
valid to the fullest extent permitted by law. Each Party had the opPortunhy to be represented by counsel of Its
choice in negotiating this Agreement. Each Party enters this Agreement holy and without duress. Any nde of
const don to the affect that emblguities are to be resolved against draPong Party stied not ap* In the
Interpretation of this Agreerrrent.
10. COUNiERPAM; This Agreement may be executed In several counferparts, each of which shall be
deemed an WOW, but which together cans0tute the same Instrument. The Pwitlee shell transmit exemW
counferparks) to the other Party by a -mail, persaol delivery or etectroft transmission of an ele0olc or digital
s wmk ne from a commerdatly available electronic or digital signature pladbrm (e.g. Do mftn, WghSowture).
Any counterpret delivered as provided in this Paragraph shell be deemed to have been duly and validly
delivered and be vaild and effective for all purposes. This Agreement and any other agreements between the
Parties may be executed by efecdronfc signatures, Includlng ctgilal signatures, as provided by federal or
CaNDWe law, Including but not limited to the Uniform Elecbonic Transactions Act the fadend ESIGN Act of
2000, or other apolcable law.
11. EEEMM RM: The Effective date of this Agreement shah be December 21. 2020.
Date: December 21, 2020 CITY OF PALM SPRINGS, CALIFORNIA
David H. Ready, r
Date: December 21, 2020 ATM
aY .wcw*
Date: December 21, 2020 CONTRACTOR
URBAN HABITAT
Date: December 28, 2020 APPROVED AS TO FORM:
Jeff Bellinger, City Attorney
APPROVED BY CITY MANAGER
Rage 4 of 4
CONTRACT ABSTRACT
2 Original:
Termination Agreement and Mutual General Release - Agreement No. 7141
Contract
Company Name: Urban Habitat Environmental Landscapes
Company Contact: Theresa Brennan, CEO
Summary of Services: Parkway, Median and Assessment Districts, Landscape
and Grounds Maintenance Services (A7141)
Contract Term: Termination 12/31/2020
Contract Administration
Lead Department: Maintenance and Facilities
Contract Administrator: Staci Schafer
Contract Approvals
City Manager Approval:
Agreement Number: TBA-
Contract Compliance
Exhibits: On file (A7141)
Signatures: On file
Insurance: On file
Bonds: On file
Contract Prepared By: BBK
Submitted on: 12/28/2020
By: Tabitha Richards
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Ashton Gout
From:
Ashton Gout
Sent:
Wednesday, December 23, 2020 4:55 PM
To:
John Paul Maier
Subject:
Memo: While you were out
1. Administrative Appeals Board
A. January 11 Special Meeting
i. Staff reports due December 28
1. Mike Villegas - La Bonitas
.-2- Patrick Clifford - 2392 N. San Clemente
a. Please connect with Patrick on Monday (12/28) He wasn't in the office so
I'm not sure if he's aware of this report add -on.
ii. Agenda post -January 4
15 day notices have been sent via email to appellants -12/22
1. 2392 N. San Clemente received mailed notice
January 27 Regular Meeting
L Staff reports due January 13
1. Mike Villegas - Cruz Fitness & O'Donnell House
2. Patrick Clifford -1575 F. Sunny Dunes Road
John Paul - Minutes from December 2 and January 11
ii. Agenda Post -January 20
— iii. 15 day notices to appellants -January 12
2. Public Hearing Notices c�k !,--
A. (Irod and Racquet Club have be ushed - a g to Davi_cLlNFewell-
i. o placed bac on your des
B. 2 new PHNs were sent to us by Joanne (12/22) for publishing January
i. I sent both PHNS to Maria for translation due by Dec. 28 @ 9AM
ii. Joanne will provide you with labels the week of Dec. 28
3. Recorded Documents
�ailedlhe r c rde dac meats to staff t-hatfiom'ITarrd�tliver as e
T e docum s w 'ec a �e��
i. se c Ric
ii. 1 is on your desk - City signatures / notary missing
i. Have not confirmed with Tom
Can cancel if we don't receive any from staff*
go 0
5. Contracts
A. We have a total of four contracts in Jeff's office pending signature
i. 3 are Historic Properties from Ken
ii. 1 is a Sub. Of Trust and Full Reconveyance from Diana
B. The stack of contracts you left me have been logged. I have a stack that requires insurance and a
stack that I need to scan/file when I return.
C. I have placed some of the contracts in the stack back on your desk with individual post -its, as
there were some questions along the way.
6. Public Records Requests
A. I currently have 10 open PRAs. The production dates are scheduled for Monday, January 4. I'll be
able to handle these when I return. (None pressing)
Other than that, I think that's all!
Hope you had a Merry Christmas and I'll see you in the New Year!
Ash
December 28, 2020 -
January 3, 2021
Monday, December 28
F*12:00am Ashton's Vacation - Ashton Gout .e
9:00am - 9:1 Sam PS ERP Weekly Zoom Meeting
(https://usO2web.zoom.us/j/81039620111) Kirsten D'Amatot`?
10:00am - 10:30am Department Meeting - Anthony Mejia iP
011:00am - 11:30am AAS Staff Report Due - Ashton Gout
N4:30pm - 5:00pm Send Email to Councilmembers (notifications for
agenda),,-'
Wednesday, December 30
Ashton's Vacation -Ashton Gout
�FFoatin Holiday - Mejia Anthony Mejia
,3:30pm - 4:00pm Email to Council (On Council Meeting Days) t";
14:30pm - 5:00pm Send Email to Councilmembers (notifications for
agenda) t'�
Friday, January 1
December 2020
SuMo TuWe Th Fr Sa
1 2 3 4 5
6 7 8 9 10 11 12
13141516171819
20 21 22 23 24 25 26
27 28 29 30 31
Tuesday, December 29
January 2021
SuMo TuWe Th Fr Sa
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28 29 30
31
4-Ashton's Vacation - Ashton Gout
3:00pm - 3:30pm Mailed Notice for Impact Fee Report - Anthony
Mejia
94:30pm - 5:00pm Send Email to Councilmembers (notifications for
agenda) ip
Thursday, December 31
e• 12:30am Ashton's Vacation - Ashton Gout
Posted for Closed Session next week? - Anthony Mejia
Saturday, January 2
n8:00am - 8:30am Canceled: Maddy Act Posting Update Anthony
Mejia �
Sunday, January 3
1.1— Dead m';—
12/28/2020 9:49 AM
Quality Code 2150 N 1 , Street, Suite 200
Seattle, Washington 9i3133133
• phone 206-216-95001 fax 206-216-99M
Publishing...
December 14, 2020
Mr. John Paul Maier
Chief Deputy City Clerk
P.O. Box 2743
3200 Tahquitz Canyon Way
Palm Springs, CA 92262
Dear John:
I hope this letter finds you well and your family and friends safe. It has certainly
been a difficult, often surreal year. Thank you for your continued trust and
confidence in Quality Code Publishing to meet your codification needs.
Despite the challenges of 2020, I'm happy to share that we will be rolling out
our new website very soon. You can be assured we have kept our core
principles with regards to reliability, accessibility, security, accuracy of content
and ease of use for both the public and City staff. Before we move your code to
the new website, we will contact you with details about the move and the
enhancements.
Your continued satisfaction is of the utmost importance to us. Please contact
me if you have questions about additional services or processes.
We wish you a wonderful holiday season and look forward to working with you
in 2021.
With warmest regards,
Nancy L.'1=1e mer
President