HomeMy WebLinkAbout23P382 - Phong K. Nguyen, M.D. A Professional CorporationCONTRACT ABSTRACT
Contract/Amendment
Name of Contract:
Company Name:
Company Contact:
Email:
Summary of Services:
Contract Price:
Contract Term:
Public Integrity/ Business
Disclosure Forms:
Contract Administration
Lead Department:
Contract Administrator/ Ext:
Contract Approvals
Council/City Manager Approval Date:
Agreement Number:
Amendment Number:
Contract Compliance
Exhibits:
Insurance:
Routed By:
Bonds:
Business License:
Sole Source Co-Op
CoOp Agmt #: Sole Source
Documents: CoOp Name:
CoOp Pricing:
By: Submitted on:
Contract Abstract Form Rev 8.16.23
Authorized Signers:
Name, Email
(Corporations require 2 signatures)
Amendment No.1 - Medical Director Services for Fire/EMS
Phong K. Nguyen, M.D. A Professional Corporation
Phong Nguyen
phongnguyenrymg@aol.com
provide medical director services for Fire/EMS + $888 for 3-year
DEA license registration fee.
$56,000 + $888 = $56,888
January 15, 2024 through January 14, 2026
Yes
Phong K. Nguyen, phongnguyenrymg@aol.com
Phong K. Nguyen, phongnguyenrymg@aol.com
Fire Department
Jason Loya
January 11, 2024, 1I
23P382
1
Yes
Yes
Yes
Procurement
N/A
No
RFP 15-23
N/A
N/A
N/A
8/12/2024 Brian Sotak-Rossman
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Page 1 of 3
Revised: 10.31.23
AMENDMENT NO. 1 TO THE PROFESSIONAL SERVICES
AGREEMENT 23P382
BETWEEN THE CITY PALM SPRINGS AND PHONG K. NGUYEN, M.D.
1. Parties and Date.
This Amendment No. 1 to the professional services agreement 23P328 is made and entered
into as of this 12th day of August, 2024, by and between the City of Palm Springs (“City”) and Phong
K. Nguyen, M.D. A Professional Corporation, a California Corporation (“Consultant”). City and
Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”
2. Recitals.
2.1 Agreement. The City and Consultant have entered into an agreement entitled
“Professional Services Agreement 23P382” dated January 15, 2024 (“Agreement”) for the purpose of
retaining the services of Consultant to provide Medical Director Services for the Fire/EMS department
for an amount not to exceed $56,000 and a term of January 15, 2024 to January 14, 2026, with three
one-year extension options at the City’s sole discretion, approved by City Council on January 11,
2024, Item 1I.
2.2 Amendment. The City and Consultant desire to amend the Agreement to add scope
and compensation.
2.3 Amendment Authority. This Amendment No. 1 is authorized pursuant to Section 2.3
of the Agreement.
3. Terms.
3.1 Maximum Contract Amount. The first two sentences of Section 2.1 of the Agreement
is hereby amended in its entirety, to add $888 for a three-year Drug Enforcement Agency (DEA)
license registration fee, to read as follows:
“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 “B” and incorporated herein by this reference.
Compensation shall not exceed the maximum contract amount of $56,888.00
("Maximum Contract Amount"), except as may be provided under Section 1.8.”
3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. 1, all
other provisions of the Agreement remain in full force and effect and shall govern the actions of the
parties under this Amendment No. 1. From and after the date of this Amendment No. 1, whenever
the term “Agreement” or “Contract” appears in the Agreement, it shall mean the Agreement as
amended by this Amendment No. 1.
3.3 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they
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Revised: 10.31.23
have each received adequate and independent consideration for the performance of the obligations
they have undertaken pursuant to this Amendment No. 1.
3.4 Severability. If any portion of this Amendment No. 1 is declared invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall
continue in full force and effect.
3.5 Counterparts. This Amendment No. 1 may be executed in duplicate originals, each of
which is deemed to be an original, but when taken together shall constitute but one and the same
instrument.
[SIGNATURES ON FOLLOWING PAGE]
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Revised: 10.31.23
SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS
AND PHONG K. NGUYEN, M.D. A PROFESSIONAL CORPORATION
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _______________________________________ By: _________________________________________
Signature Signature (2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: N/A Item No. N/A
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________
City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
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8/12/2024 8/12/2024
8/12/2024
CONTRACT ABSTRACT
Contract/Amendment
Name of Contract:
Company Name:
Company Contact:
Email:
Summary of Services:
Contract Price:
Contract Term:
Public Integrity/ Business
Disclosure Forms:
Contract Administration
Lead Department:
Contract Administrator/ Ext:
Contract Approvals
Council/City Manager Approval Date:
Agreement Number:
Amendment Number:
Contract Compliance
Exhibits:
Insurance:
Routed By:
Bonds:
Business License:
Sole Source Co-Op
CoOp Agmt #: Sole Source
Documents: CoOp Name:
CoOp Pricing:
By: Submitted on:
Contract Abstract Form Rev 8.16.23
Authorized Signers:
Name, Email
(Corporations require 2 signatures)
Medical Director Services for Fire/EMS
Phong K. Nguyen, M.D. A Professional Corporation
Phong Nguyen
phongnguyenrymg@aol.com
provide medical director services for Fire/EMS
$56,000
January 15, 2024 through January 14, 2026
Yes
Phong K. Nguyen, phongnguyenrymg@aol.com
Phong K. Nguyen, phongnguyenrymg@aol.com
Fire Department
Jason Loya
23P382
N/A
Yes
Yes
Yes
Procurement
N/A
No
RFP 15-23
N/A
N/A
N/A
12/21/2023 Brian Sotak-Rossman
DocuSign Envelope ID: 74D303D5-2F2C-4EDF-A0CF-C54916CD1099
January 11, 2024
Page 1 of 26
PROFESSIONAL SERVICES AGREEMENT 23P382
MEDICAL DIRECTOR SERVICES FOR FIRE/EMS
THIS PROFESSIONAL SERVICES AGREEMENT ( “Agreement”) is entered into, and
effective on January 15, 2024, between the CITY OF PALM SPRINGS, a California charter city
and municipal corporation, (“City”) and Phong K. Nguyen, M.D. A Professional Corporation, a
California corporation, (“Consultant”). City and Consultant are individually referred to as
“Party” and are collectively referred to as the “Parties”.
RECITALS
A. City requires the services of a licensed and qualified firm to provide Medical
Director Services for the Fire/EMS department (“Project”).
B. Consultant has submitted to City a proposal to provide Medical Director Services
for the Fire/EMS department, to City under 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 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
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Proposal”), (collectively referred to as the “Contract Documents”). The City’s Request for
Proposals and the Consultant’s Proposal, which are both attached as Exhibit “B”, 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: (1st) the provisions of the Scope of
Services (Exhibit “A”); (2nd) the provisions of the City’s Request for Proposal; (3rd) the terms of
this Agreement; and, (4th) the provisions of the Consultant’s Proposal.
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.
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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 “B” and incorporated herein by this reference. Compensation shall
not exceed the maximum contract amount of $56,000.00 ("Maximum Contract Amount"), except
as may be provided under Section 1.8. The method of compensation shall be as set forth in
Exhibit “B.” 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 “B”), 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
reporting data including an itemized breakdown of all costs incurred and tasks performed during
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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 “B”),
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 Majeure. 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);
and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of
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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 two years,
commencing on January 15, 2024, and ending on January 14, 2026, unless extended by mutual
written agreement of the Parties. In addition, the term may be extended at the sole discretion of
the City upon written notice to the Consultant, for three (3) additional one (1) year terms.
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: Phon
Nguyen, MD APC, Physician/Owner. 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
fully informed of the progress of the performance of the Services. Consultant shall refer any
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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.
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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
expense, the insurance described herein. The insurance shall be for the duration of this
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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,
in full force and effect throughout the term of this Agreement, workers’ compensation insurance
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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,
including breaches of warranties, shall not affect coverage provided to City and its officers,
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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
intended by any party or insured to be limiting or all-inclusive.
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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).
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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 Design 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
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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.
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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
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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
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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
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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
To Consultant: Phong K. Nguyen, M.D. A Professional Corporation
Attention: Phong Nguyen
543 Acacia Court
Redlands, CA 92373
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
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
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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.
10.10 Compliance with Economic Sanctions in Response to Russia's Actions in
Ukraine. When funding for the services is provided, in whole or in part, by an agency controlled
of the State of California, Consultant shall fully and adequately comply with California
Executive Order N-6-22 (“Russian Sanctions Program”). As part of this compliance process,
Consultant shall also certify compliance with the Russian Sanctions Program by completing the
form located in Exhibit “C” (Russian Sanctions Certification), attached hereto and incorporated
herein by reference. Consultant shall also require any subconsultants to comply with the Russian
Sanctions Program and certify compliance pursuant to this Section.
[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM
SPRINGS AND PHONG K. NGUYEN, M.D. A PROFESSIONAL CORPORATION
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated
below.
CONTRACTOR:
By: _______________________________________ By: _________________________________________
Signature Signature (2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: ___________________ Item No. ____________
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________
City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
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1/10/2024 1/10/2024
1/12/2024
1-I01/11/2024
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EXHIBIT “A”
SCOPE OF SERVICES
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1.1 Background:
The Fire Department is in need of a Medical Director for the Fire/EMS Department at the
City. The Fire Department’s EMS program requires a dedicated Medical Director for the
Department’s Advanced Life Support (ALS) program. Medical oversite, protocol
compliance, skill verification, and medical training are all critical components of an
effective and professional ALS program. The ALS program must keep up with modern
medicine practices, and new studies, skills, and techniques.
1.2 Scope:
A. The Contractor with serve as the Medical Director for the Palm Springs Fire
Department.
B. Medications:
1. The Medical Director will be the Drug Enforcement Agency (DEA)
Registrant, authorizing the purchase and use of schedule 2, 3, and 4
medications by the Department.
2. The Medical Director will sign DEA form 222 so the Department may order
medications as needed.
C. Equipment:
1. The Medical Director will authorize, under their medical license, the purchase
of medical equipment and medications.
2. The Medical Director will participate and advise in the selection of medical
equipment at the discretion of the Department.
D. Quality Improvement Meetings:
1. The Medical Director will participate in quarterly Quality Improvement
meetings at up to 5 hours/meeting.
2. The Medical Director will teach up to two classes/year for each of the three
shifts, each class being no more than 4 hours.
E. Call Follow Up:
1. Unlimited consultation by field personnel regarding call follow up. Field
personnel may contact the Medical Director directly.
F. Patient Follow Up:
1. The Medical Director will attain patient follow up as requested by the
Department.
G. Investigation of Clinical Error, Conflicts, Disciplinary issues:
1. The Medical Director will aid in investigations of clinical errors and Quality
Improvement issues at the discretion of the Department.
2. The Medical Director will participate in corrective action plans at the
discretion of the Department.
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3. Assist the EMS Agency Staff in the resolution of conflicts within the EMS
system, whenever technical medical expertise is required or appropriate in the
resolution of such conflicts.
4. Participate in disciplinary hearings involving medical issues or the
performance of EMS personnel in matters directly affecting patient care at the
discretion of the Department.
H. Testify / Prepare Reports:
1. The Medical Director may be required to testify in court on behalf of the City
of Palm Springs and/or the City of Palm Springs Fire Department.
2. When requested, prepare reports and drafts of materials requiring technical
medical expertise.
I. Continuing Education:
1. Provide medical direction for the PSFD paramedic and EMT continuing
education program.
2. The Medical Director may serve as the principal physician instructor for these
programs.
J. Video / Computer Based Training:
1. The Medical Director may be filmed for training purposes and have the film
placed on the Department’s video/computer-based training platform.
2. The Medical Director will participate in remote learning / video/computer-
based training.
K. Medications, Equipment, and Pilot Projects:
1. Assist the EMS Staff or assigned program manager with research,
development, and continuous quality improvement for all respective programs
and/or pilot projects related to emergency and non-emergency medical care
and services.
2. Develop and maintain a system to review and evaluate new medications, EMS
equipment, and innovative EMS patient care modalities for possible
implementation; to potentially improve patient care.
L. Represent the Department as the official Medical Director for Emergency Medical
Dispatch implementation and routine oversight:
1. The Medical Director will work with outside medical directors for special
events as needed. If required, separate reimbursement will be made on a
quarterly basis based on the hours worked and the hourly rate on the cost
proposal form.
M. Representation at the Riverside County Emergency Services:
1. The Medical Director will represent the Department as needed at Riverside
County Emergency Services meetings, including but not limited to Quality
Council.
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N. Exposure, Infection Control Plan and Biohazard Consulting:
1. The Medical Director will consult with the Department on all incidents of
exposure or possible exposure. The Medical Director will aid the Designated
Infection Control Officer (DICO) in making the determination if an exposure
has occurred.
2. At the request of the Department, the Medical Director will consult with the
exposed employee and/or their treating physician.
3. The Medical Director will assist in the updating the Department’s Infection
Control Plan.
O. Academy:
1. At the discretion of the Department, the Medical Director may be requested to
provide instruction at the entry level fire academy.
2. The instruction shall be no more than 8 hours of instruction per academy and
will not exceed 16 hours in a calendar year if there is more than 1
academy/year.
P. Emergency Medical Services Redesign:
1. The Medical Director will assist in a potential EMS redesign at the discretion
of the Department.
Q. Consultant:
1. The Medical Director will serve as the consultant to the PSFD EMS staff for
ongoing evaluation and management of PSFD emergency services.
R. EMT / Paramedic Department Qualified:
1. The Medical Director will authorize an “in-house” representative to conduct
staff evaluations to recommend approval of new staff to operate as an EMT or
Paramedic.
1.3 Schedule:
Work will commence on the date of executed contract and all work shall be completed by
end of contract date. The term of this contract is for two years, with three one-year
options to renew at the City’s sole discretion.
1.4 Compensation:
Work will be compensated on a lumpsum basis. Contract pricing includes all labor,
expenses, and incidentals to complete the work outlined in the contract scope. The
Contractor may request monthly payments based on the percentage of work completed
for the previous month as long as a detailed progress report is provided to support the
amount requested. No additional compensation will be due by the City unless the contract
is modified for additional work requested by the City.
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EXHIBIT “B”
SCHEDULE OF COMPENSATION
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EXHIBIT “C”
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CITY OF PALM SPRINGS
3200 E TAHQUITZ CANYON WAY, PALM
SPRINGS, CA 92262
(760) 322-8328
BUSINESS LICENSE CERTIFICATE
Fees Paid:$140.00
ISSUANCE OF THIS LICENSE DOES NOT ENTITLE THE
LICENSEE TO OPERATE OR MAINTAIN A BUSINESS
IN VIOLATION OF ANY OTHER LAW OR ORDINANCE.
THIS IS NOT AN ENDORSEMENT OF THE ACTIVITY
NOR OF THE APPLICANT'S QUALIFICATIONS.
Business Name:Phong Nguyen, MD APC
DBA:
Owner:Phong Nguyen MD
Mailing Address:543 Acacia Ct.
Redlands, CA 92373
License Number:ICA-005025-2024
Expiration Date:01/31/2025
PLEASE NOTE THAT IT IS YOUR RESPONSIBILITY TO
RENEW AND UPDATE THIS LICENSE ANNUALLY.
Business Location:300 N El Cielo Rd., Palmc, CA
92262
Business Description:Services - Medical Director @ PS
Fire Department
TO BE POSTED IN A CONSPICUOUS PLACE
DocuSign Envelope ID: 74D303D5-2F2C-4EDF-A0CF-C54916CD1099
DocuSign Envelope ID: 74D303D5-2F2C-4EDF-A0CF-C54916CD1099
DocuSign Envelope ID: 74D303D5-2F2C-4EDF-A0CF-C54916CD1099