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HomeMy WebLinkAbout06138 - G & M CONSTRUCTION RAINMAKER FOUNTAIN LIGHTING MODIFICATION Page 1 of 1 Kathie Hart From: Kathie Hart Sent: November 30, 2011 8:58 AM To: Jennifer Henning Subject: RE: rainmaker fountain lighting modification... Tracking: Recipient Delivery Jennifer Henning Delivered: 11/30/11 8:58 AM �NO"4 O�L v\ Perfect - THX! JQ via Kathie Hart, CMC Chief Deputy City Clerk City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs,CA 92262 (760) 323-8206 =: (760) 322-8332 Kathie.Hart@PalmSpringsCA.gov Please note that City Hall is open 8 a.m. to 6 p.m.Monday through Thursday,and closed on Fridays at this time. From: Jennifer Henning Sent: November 30, 2011 8:47 AM To: Kathie Hart Subject: rainmaker fountain lighting modification... Kathie, Good morning! I hope you had a great thanksgiving holiday!Tabi gave me the fastrack document sheet asking if the work has been completed. The work has been completed however I have just processed the last payment for a change order. So if closing the contract has no impact on the payment of the change order in then this contract may be closed. Thanks so much for all that you do!!! Please let me know if you have any questions. Have a great day!! Best, Jen Jennifer Henning Public Arts&Special Projects Coordinator Community&Economic Development/Office of Sustainability City of Palm Springs Tel:760.778.8408 Fax:760.322.8325 www.paimsprings-ca.gov PLEASE NOTE: City Hall is open 8:00am -6:00pm Monday-Thursday and closed every Friday. 11/30/11 CITYOFPALMSPRINGS gg CONTRACT CHANGEORDER A�35 To: G 6r M Construction Co. Date: October 20, 2011 211 Mesquite Avenue Project: Rainmaker Fountain Palm Springs, Ca 92264 Lighting Installation Change Order No.: One (1) Contract Purchase No.: 12-0375 Account Numbers: 150-4408.65221 CHANGES IN WORK/COST A. Additional Electrical Work, Time and Materials $1,219.00 Total Contract Increase Amount $19219.00 REASONS FOR CHANGES: Item A After construction began, actual site conditions were found to be different than anticipated in the construction drawings. At the direction of the Electrical Engineer existing conductors were removed back to the lighting controller and new conductors were installed. In addition, a new lighting timer and circuit breakers were installed. This additional work was completed on a time and materials basis and the total cost indicated above is inclusive of the actual labor and equipment necessary to complete the work and are inclusive of all applicable markups. SOURCE OF FUNDS Funds are available in the following account: 150-4408-65221 Public Art Funds/Rainmaker Fountain Repairs Summary of Costs Original Contract Amount: $4,250.00 This Change Order: $1,219.00 Previous Change Order(s): $0.00 Revised Contract Amount: $5,469.00 [SIGNATURE PAGE SEPARATELY ATTACHED] 1 ORIGINAL BID AND/OR AGREEMENT I have received a copy of this Change City Appro al: Order and the above AGREED PRICES , / are acceptable to the contractor. Submitted by Date ( zl/ Public Arts oo dinator �l By Approve t/// g6}_Date Contractor: M Co ruction Assistant Ci anager 7� > Date Approved byh4 e-Z. Date �i`' 7- 1/ Bireeter;Public Works l'y Miz-- Approved by City Manager Atteste l 1 ZD( Date ` City Clerk Distribution: Original Executed Copies Conformed-File Copv Contractor (1) City Clerk (1) Public Arcs Coordinator (1) Economic Development (1) Finance (1) 2 CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT FOR Rainmaker Fountain Lighting Modification THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this day of IkUL. , 2011, by and between the CITY OF PALM SPRINGS, a municipal corporation, herein "City") and G & M Construction, (herein "Contractor"). (The term Contractor includes professionals performing in a consulting capacity.) The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the "services" or "work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 1.2 Contractor's Proposal. The Scope of Service shall include the Contractor's proposal or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 1.4 Licenses, Permits. Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor 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 Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder. 1.5 Familiarity with Work. By executing this Contract, Contractor warrants that Contractor (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, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions, which will materially affect the performance of the services ORIGINAL BID �szz�9.i AND/Q� AvF�I t MENT hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractors risk until written instructions are received from the Contract Officer. 1.6 Care of Work. The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 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 said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of up to five percent (5%) of the Contract Sum or $25,000; whichever is less, or in the time to perform of up to one hundred eighty (180) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provisions of this Agreement, the provisions of Exhibit "B"shall govern. 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, the Contractor shall be compensated in accordance with the "Schedule of Compensation" attached hereto as Exhibit"C" and incorporated herein by this reference, but not exceeding the maximum contract amount of Four Thousand Two Hundred Fifty Dollars and Zero Cents, ( 4 250 (herein "Contract Sum"), except as provided in Section 1.8. The method of compensation may include: (i) a lump sum payment upon completion, (ii) payment in accordance with the percentage of completion of the services, (iii) payment for time and materials based upon the Contractor's rates as specified in the Schedule of Compensation, but not exceeding the Contract Sum or(iv) such other methods as may be specified in the Schedule of Compensation. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expense, transportation expense approved by the Contract Officer in advance, and no other expenses and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project 782279.1 2 meetings reasonably deemed necessary by the City; Contractor shall not be entitled to any additional compensation for attending said meetings. 2.2 Method of Payment. Unless some other method of payment is specified in the Schedule of Compensation, in any month in which Contractor wishes to receive payment, no later than the first (1st) working day of such month, Contractor shall submit to the City in the form approved by the City's Director of Finance, an invoice for services rendered prior to the date of the invoice. Except as provided in Section 7.3, City shall pay Contractor for all expenses stated thereon which are approved by City pursuant to this Agreement no later than the last working day of the month. 3.0 PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Contractor shall commence the services pursuant to 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" attached hereto as Exhibit "D", if any, and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively. 3.3 Force Maieure. The time period(s) specked in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor's remedy being extension of the Agreement pursuant to this Section. 3.4 Term. Unless earlier terminated in accordance with Secti 6.8 f is Agreement, this Agreement shall continue in full force and effect until completion of th services but not exceeding one (1) year from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit"D"). 4.0 COORDINATION OF WORK 4.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Mr. George Marantz. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the 782279.1 3 services hereunder. For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, 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 the Contractor or any surety of Contractor of any liability hereunder without the express consent of City. The City's policy is to encourage the awarding of subcontracts to persons or entities with offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are available, to persons or entities with offices located in the Coachella Valley ("Local Subcontractors"). Contractor hereby agrees to use good faith efforts to award subcontracts to Local Subcontractors, if Local Subcontractors are qualified to perform the work required. In requesting for the City to consent to a subcontract with a person or entity that is not a Local Subcontractor, the Contractor shall submit evidence to the City that such good faith efforts have been made or that no Local Subcontractors are qualified to perform the work. Said good faith efforts may be evidenced by placing advertisements inviting proposals or by sending requests for proposals to selected Local Subcontractors. The City may consider Contractor's efforts in determining whether it will consent to a particular subcontractor. Contractor shall keep evidence of such good faith efforts and copies of all contracts and subcontracts hereunder for the period specified in Section 6.2. 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor. 782279.1 4 5.0 INSURANCE AMOUNTS 5.1 Insurance. Prior to commencing any Work, all contractors, vendors and service providers shall procure and maintain, at their own cost and expense for the duration of their contract with the City, appropriate insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work or services. The types of insurance required and the coverage amounts are specified below: A. Minimum Scope of Insurance Required 1. General Liability Insurance is required whenever the City is at risk of third-party claims which may arise out of work or presence of a contractor, vendor and service provider on City premises. At a minimum this policy shall: • be written on a per occurrence basis; and • include products and completed operations liability, independent contractors liability, broad form contractual liability, and cross liability protection. 2. Automobile Liability Insurance is required only when vehicles are used by a contractor, vendor or service provider in their scope of work or when they are driven off-road on City property. Compliance with California law requiring auto liability insurance is mandatory and cannot be waived. At a minimum this policy shall: • be written on a per occurrence basis; and • include coverage for Bodily Injury and Property Damage, Owned, Non-owned and Hired Vehicles; and • include coverage for owned, non-owned, leased and hired vehicles. If an automobile is not used in connection with the services provided by the contractor, vendor or service provider, a written request to waive this requirement should be made to the City's Risk Manager. 3. Workers' Compensation and Employer's Liability Insurances is required for any contractor, vendor or service provider that has any employees at any time during the period of this contract. Contractors with no employees must complete a Request for Waiver of Workers' Compensation Insurance Requirement form available from the City's Risk Manager. At a minimum, this policy shall: • provide statutory requirements of the State of California; and • include $1,000,000 Employer's Liability. B. Minimum Limits of Insurance Coverage Required $1 Million per Occurrence/$2 Million Aggregate Umbrella excess liability may be used to reach the limits stated above. C. General Standards for Insurance Policies All insurance policies shall meet the following standards: 1. Insurance carrier is to be placed with duly licensed or approved non admitted insurers in the state of California. 2. Insurers must have a Best's rating of B+, Class VII, or higher (this rating includes those insurers with a minimum policyholder's surplus of $50 Million to $100 Million). Exceptions to the Best's rating may be considered when an insurance carrier meets all other standards and can satisfy surplus amounts equivalent to a B+, Class VII rating. 782279.1 5 3. Certificate must include evidence of the amount of any deductible or self- insured retention under the policy. D. Verification of Insurance Coverage All individuals, contractors, agencies, and organizations conducting business for the City shall provide proof of insurance by submitting one of the following: (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: 1. "The City of Palm Springs, its officials, employees and agents are named as an additional insured' ("as it relates to a speck contract" or"for any and all work performed with the City' may be included in this statement). 2. "This insurance is primary and non-contributory over any insurance or self- insurance the City may have" ("as it relates to a specific contract" or "for any and all work performed with the City' may be included in this statement). See Example A below. As an alternative to the non-contributory endorsement, the City will accept a waiver of subrogation endorsement on the General Liability policy. At a minimum, this endorsement shall include the following language: "This insurance company agrees to waive all rights of subrogation against the City of Palm Springs, its officers, officials and employees for losses paid under the terms of this policy which arise from the work performed by the named insured for the City." 3. "The insurance afforded by this policy shall not be cancelled except after thirty days prior written notice by certified mail return receipt requested has been given to the City." 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. See Example B below. The Workers' Compensation and Employer's Liability policies shall contain waiver of subrogation clause in favor of City, its elected officials, officers, employees, agents and volunteers. See Example C below. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policy. All certificates 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 works hall not waiver the contractor's obligation to provide them. E. Acceptable Alternatives to Insurance Industry Certificates of Insurance The City will accept either a CG 20 10 10 01 or a CG 20 33 10 01 (or some form specific to a particular insurance company that has similar wording) as long as the form is accompanied by a CG 20 37 10 01. In addition, the City will accept the following: • A copy of the full insurance policy which contains a thirty (30) days' cancellation notice provision (ten (10) days for non-payment of premium) and additional insured and/or loss-payee status, when appropriate, for the City. 782279.1 6 • Binders and Cover Notes are also acceptable as interim evidence for up to 90 days from date of approval F. Endorsement Language for Insurance Certificates Example A: THE INSURANCE SHALL BE PRIMARY WITH RESPECT TO THE INSURED SHOWN IN THE SCHEDULE ABOVE, OR IF EXCESS, SHALL STAND IN AN UNBROKEN CHAIN OF COVERAGE EXCESS OF THE NAMED INSURED'S SCHEDULED UNDERLYING PRIMARY COVERAGE. IN EITHER EVENT, ANY OTHER INSURANCE MAINTAINED BY THE INSURED SCHEDULED ABOVE SHALL BE IN EXCESS OF THIS INSURANCE AND SHALL NOT BE CALLED UPON TO CONTRIBUTE WITH IT. Example B: SHOULD ANY OF THE ABOVE-REFERENCED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDFAAVOR TO MAIL 30 DAYS` WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED HEREIN BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE ISIG OBLIGATION Q LIABILITY ITV OF AAIV KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES ' `The broker/agent can include a qualifier stating "10 days notice for nonpayment of premium." Example C: IT IS UNDERSTOOD AND AGREED THAT THE COMPANY WAIVES THE RIGHT OF SUBROGATION AGAINST THE ABOVE ADDITIONAL INSURED(S), BUT ONLY WITH RESPECT TO THE JOB OR PREMISES DESCRIBED IN THE CERTIFICATE ATTACHED HERETO. G. Alternative Programs/Self-Insurance Under certain circumstances, the City may accept risk financing mechanisms such as Risk Retention Groups, Risk Purchasing Groups, off-shore carriers, captive insurance programs and self-insurance programs as verification of insurance coverage. These programs are subject to separate approval once the City has reviewed the relevant audited financial statements and made a determination that the program provides sufficient coverage to meet the City's requirements. The City has recently joined SPARTA (Service Providers & Artisans Trade Activities Program)to accommodate smaller contractors and service providers who have difficulty in meeting the City's insurance requirements. The SPARTA Program offers a general liability program that provides the $1 million limit and, upon request, will also provide auto insurance with the $1 million limit(only in conjunction with the purchase of general liability insurance). SPARTA is only available during the time your company is under contract with the City. Insurance is provided on a per project basis and is overseen by the Municipality Insurance Services, Inc. Essex Insurance Company provides coverage and is an A++ rated company. There is a 24-hour response time and coverage is immediate. A quote may be obtained by calling 1-800-420-0555 or online at www.2si)arta.com. 782279.1 7 Type of work covered: A. Personal services contracts; B. General contractors and their subcontractors(certain specialty trades excluded); C. Consultants; and D. Providers of goods. H. Waiver of Modification of the Insurance Requirements Any waiver or modification of the insurance requirements can only be made by the City's Risk Manager or designee at Citys discretion. If you do not believe that the insurance requirements apply to you (e.g., you do not have employees and therefore are not subject to the State workers' compensation insurance requirements; you do not drive an automobile in connection with the services you provide to the City; professional liability or errors and omissions liability insurance is not available for the type of services you are performing, etc.), please submit a written request for waiver or modification of the insurance requirements and the reasons underlying your request to the Risk Manager. All requests for waiver or modification will be reviewed and a final determination rendered by the Risk Manager. 6. INDEMNIFICATION 6.1 Indemnification and Reimbursement.To the fullest extent permitted by law, Contractor shall defend (at Contractor'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 (Contractor's employees included), for damage to property, including property owned by City, from any violation of any federal, state, or local law or ordinance, and from errors and omissions committed by Contractor, its officers, employees, representatives, and agents, that arise out of or relate to Contractor's performance under this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Contractor's indemnification obligation or other liability under this Agreement. Contractor'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. This provision is intended for the benefit of third party Indemnified Parties not otherwise a party to this Agreement. 7.0 REPORTS AND RECORDS 7.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto 782279.1 8 and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed. 7.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and 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 times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 7.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 7.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 8.0 ENFORCEMENT OF AGREEMENT 8.1 California Law. This Agreement shall be construed and interpreted both as to validity and 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 Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10)days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Contractor's right to terminate this Agreement without cause pursuant to Section 7.8. 782279.1 9 8.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform Contractor's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein. 8.4 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A partys consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 8.5 Rights and Remedies are 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 or remedy any default, to 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 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City the sum of Five Hundred Seventy Six Dollars 576 as liquidated damages for each calendar day of delay in the performance of any service required hereunder, as specified in the Schedule of Performance (Exhibit "D"). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages. 8.8 Termination Prior to Exairation Of Term. This Section shall govern any termination of this Agreement except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days' written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Contractor reserves the right to terminate this Agreement at any time upon, with or without cause, upon sixty (60) days' written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract 782279.1 10 Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non- terminating party with the opportunity to cure pursuant to Section 7.2. 8.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated. 8.10 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys fees. Attorneys fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 9.0 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 Contractor, 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 Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 9.2 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 9.3 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 10.0 MISCELLANEOUS PROVISIONS 10.1 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of 782279.1 11 the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in the case of the Contractor, to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 10.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 10.3 Integration; Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 10.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder 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 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party 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 said party is bound. 782279.1 12 IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. CITY OF PALM SPRINGS ATTEST: a municipal corporation B City Clerk ce/2 .zd) As tent City Manager PPROVEp AS TO FORM: BY DE) eRTMENT HEAD y t-Tiby Attorney CONTRACTOR: G&M Construction 211 West Mesquite Avenue Check one:_Individual_Partnership ✓Corporation Palm Springs,CA 92264 Corporations r r no signatures: One from each of the following: A.Chairman of Board,President,or any Vice President AN ecreta is ry,Treasurer,Assistant Treasurer,or Chief Financial Officer). By: By: Signature tarized) Signature notarized) N a^ .r. M4tZ41U7'Z Name: — Z �Title: f25ttC�htT Title: SECeE LZ m-C-4 ASanc R State of Ov4 �1 State of (/�� County of AA Iss County of/ram. Iss On On 'C before me, before me, personally appeared personally appeared who proved to me who proved to on the basis of satisfactory evidence to be the person(s)whose me on the basis of satisfactory evidence to be the person(s) name(s)Ware subscribed to the within instrument and whose name(s)is/are subscribed to the within instrument and acknowledged to me that ha/she/they executed the same in acknowledged to me that he/she/they executed the same in hislherAheir authorized cepacity(ies),and that by his/her/their his/hentheir authorized capadty(ies),and that by his/herhheir signature(s)on the instrument the person(s),or the entity upon signature(s)on the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument behalf of which the person(s)acted,executed the instrument I certify under penalty of perjury under the laws of the State of I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. California that the foregoing paragraph is true and correct. WITNESS my hand and ooffidal seal. WITNESS my hand and official seal. Notary Signature:,/YLd�l�i�,�pil� Notary Signature: [1/lQj�� Notary Seal: Notary Seal: DEIDRE SAUNDERS DEIDRE SAUNDERS` Commission x 1915461 z Commission/ 1915461 Notary Public•California z Riverside County z y 1 - Notary Public-California z 3 Riverside County M Comm.Expires Jan 2.2015 M Comm.Expires Jan 2,2015 EXHIBIT"A" SCOPE OF SERVICES Contractor shall provide modifications to existing 'Rain maker fountain lighting system, complete and in place as shown on Rain Maker Fountain Electrical Lighting sheet E1, and detailed in the plans and specifications included herein as Exhibit "A-1", "Plans and Specifications". Installation of the lighting will generally include, but is not limited to: demolition and excavation of pool bottom concrete at existing lighting (2 locations), intercepting existing lighting conductors and conduits, placement in concrete and adjusting to grade of underwater junction boxes (2 locations), construction of concrete single fixture mounting pedestals (4 locations), installation of lighting fixtures (4 locations), excavation and replacement of existing concrete pool bottom and placement of electrical conduits as indicated, installation of new lighting conductors and connection to new lighting fixtures and existing conduits/conductors, painting of new concrete to match existing pool color and all other necessary/appurtenant work necessary including miscellaneous parts and equipment to ensure a fully functional lighting system in accordance with all applicable electrical standards. Note: 4426 LED Wet Nice Lighting Fixtures and JB1706 Underwater Junction Boxes will be provided to the winning bidder for installation. 14 AQ4 Y A`AI S'O9 G u w R e t C�'+rornw` pA $OFORN� RAINMAKER FOUNTAIN LIGHTING MODIFICATION DATE: July 11, 2011 SUBJECT: Lump Sum Bid Price Results The City of Palm Springs requested informal bids for Rainmaker Fountain Lighting Modifications as discussed on-site at the June 23, 2011 pre-job walk, and in accordance with the construction drawings that were distributed. The proposal submitted by G&M Construction for the work referenced above in the amount of$4,250 has been accepted by the City of Palm Springs. Listed below are the Lump Sum Total Bid Price's as submitted by each bidding firm on or before July 7, 2011. G&M Construction $4,250. Cove Electric, Inc. $4,695. Brudvik, Inc. $5,100. Rich Parzinsky Pools, Inc. $17,300. If you have any additional questions or concerns please contact me. Sincerely, Jennifer Henning Public Arts & Special Projects Coordinator Desk: 760-778-8408 BID SCHEDULE Lump Sum Price for Construction of: RAIN MAKER FOUNTAIN LIGHTING MODIFACITONS In Palm Springs, California i Description Modifications to existing'Rain maker' fountain lighting system, complete and in place as shown on Rain Maker Fountain Electrical Lighting sheet E1, generally including, but not limited to: demolition and excavation of pool bottom concrete at existing lighting(2 locations), intercepting existing lighting conductors and conduits,placement in concrete and adjusting to grade of underwater junction boxes (2 locations), construction of concrete single fixture mounting pedestals (4 locations), installation of lighting fixtures(4 locations), excavation and replacement of existing concrete pool bottom and placement of electrical conduits as indicated, installation of new lighting conductors and connection to new lighting fixtures and existing conduits/conductors,painting of new concrete to match existing pool color and all other necessary/appurtenant work necessary including miscellaneous parts and equipment to ensure a fully functional lighting system in accordance with all applicable electrical standards. Note: 4426 LED Wet Nice Lighting Fixtures and JB1706 Underwater Junction Boxes will be provided to the winning bidder for installation. The purchase of these items are not a part of this bid. TOTAL BID PRICE -FOR BID SCIIEUDLE For the lump sum price of: le $ 4 zSC� (price,in figures) $ tPTY —00LLe4�S (price in words) G 4 PslCut1S t�uLT�D QName of Bidder or Firm) Rainmaker Fountain Lighting Modification Bid Sheet Bids Due Jury 7,2011 BID SCHEDULE Lump Sum Price for Construction of. RAIN MAKER FOUNTAIN LIGHTING MODIFACITONS In Palm Springs, California Description Modifications to existing'Rain maker' fountain lighting system, complete and in place as shown on Rain Maker Fountain Electrical Lighting sheet E1, generally including, but not limited to: demolition and excavation of pool bottom concrete at existing lighting (2 locations), intercepting existing lighting conductors and conduits,placement in concrete and adjusting to grade of underwater junction boxes (2 locations), construction of concrete single fixture mounting pedestals (4 locations), installation of lighting fixtures (4 Iocations), excavation and replacement of existing concrete pool bottom and placement of electrical conduits as indicated, installation of new lighting conductors and connection to new lighting fixtures and existing conduits/conductors,painting of new concrete to match existing pool color and all other necessary/appurtenant work necessary including miscellaneous parts and equipment to ensure a fully functional lighting system in accordance with all applicable electrical standards. Note: 4426 LED Wet Nice Lighting Fixtures and JB1706 Underwater Junction Boxes will be provided to the winning bidder for installation. The purchase of these items are not a part of this bid. TOTAL BID PRICE - FOR BID SCHEUDLE For the lump sum price of: $ 4,695.00 (price in figures) $Four thousand six hundred ninety five and noll00 (price in words) Cove Electric. Inc. (Name of Bidder or Firm) Rainmaker Fountain Lighting Modification Bid Sheet Bids Due July 7,2011 BID SCHEDULE Lump Sum Price for Construction of: RAIN MAKER FOUNTAIN LIGHTING MODIFACITONS In Palm Springs,California Description Modifications to existing Rain maker' fountain lighting system, complete and in place as shown on Rain Maker Fountain Electrical Lighting sheet El, generally including,but not limited to: demolition and excavation of pool bottom concrete at existing lighting (2 locations), intercepting existing lighting conductors and conduits,placement in concrete and adjusting to grade of underwater junction boxes (2 locations), construction of concrete single fixture mounting pedestals (4 locations), installation of lighting fixtures (4 locations), excavation and replacement of existing concrete pool bottom and placement of electrical conduits as indicated, installation of new lighting conductors and connection to new lighting fixtures and existing conduits/conductors,painting of new concrete to match existing pool color and all other necessary/appurtenant work necessary including miscellaneous parts and equipment to ensure a fully functional lighting system in accordance with all applicable electrical standards. Note: 4426 LED Wet Nice Lighting Fixtures and JBI706 Underwater Junction Boxes will be provided to the winning bidder for installation. The purchase of these items are not a part of this bid. TOTAL.BID PRICE -FOR BID SCHEUDLE For the lump sum price of $ 5,100.00 (price in figures) $ Five thousand one hundred (price in words) Brudvik,Inc (Name of Bidder or Firm) Rainmaker Fountain tightlng Modification Sid Sheet Bids Due Juy 7,2011 FROM :RICH-PARZINSKY-POOLS FAX No. :7603247287 Jul; 07 2011 07:51AM P2 JUN-27-2011 MON OWS PM 01TY OF PALM SPRINGS FAX MO, 7603228360 F. 02 i BID SCHEDULE Lump Sum Price for Construction of: RAIN MAKER FOUNTAIN LIGHTING MODIFACITON9 In palm Spt , California Description fountain lighting system,eotoltlete and in Modifications to existing'llaln tttt�ke► Electrical Lb sleet El,ganorally place as shown an Rain Ma1� Fountain excavation of pool bottom concrete at including,but not limited to: ,interApti Ong b ong conductors and existing lighting e t inloc cconncreete and adju6ftg to She of underwater junction conduits,placement of concrete single fixture mounnitug pedestals boxes(2 locations),aoasuotcti fixtures(4 locations},cxeavation and (4 locations),instaUatiott of lighting placement of electrical conduits replacement of existing concrete pool bottom and p and connection to new lighting as indicated,installation of new lighting conductorsto fixtures and existing conduirs/oon&wwrs,painting of new work k n necessary te matchmatch existing Pool color and all othat neeessary)apPt�nant including miscellaneous parts and equipment to ensure a fully*notional lighting system m accordance with all applicable eleetncalstandards• Note: "24 fA:D WO Nia U F"tares and J91706 Underwater Janetim Saxes Wm r instalation. The parebese of these ttems are not a bo provided to the Winding bidder fa part of title bid TOTAL BID PRICE-FOR l; SCAEUDLE For the lump sum price of: $ (price in figures) � I I (price in words) (I�Iame of Bidder or Pi ) � aalnswr�rrwadn410^e'd��" - 1 p�.eayr.as» EXHIBIT"A-1" PLANS AND SPECIFICATIONS 15 He M ENGINEERING,200C,I�_N PAIN M4MKERRWYpPN NGMING\MD M-MCINCN PL4N.K W:9]pm IIIjig ' III III I� 9. lggga g! p51 oil plegli I ttil1111 $6% 'fig li a E A 9 4 8 E 3W all 5 Z N < m . ` 0 33 �allAll ; n 1 �R E 7i # iai I;zz i III � �t E�E��� g4 i 9�!lil3 !{elf#liltl� So a- A3z A �o j iiq i i ''1 tsgii�l Of &- SEE �■ r��� � k ai M if z rat it •$pg zp�6 OIN / m p$ p a gg 41D0 I 9 m Z�D#d ? mt� RAIN MAKER FOUNTAIN _� 04#°x NORTHEAST.CORNER OF PALM CANYON DRIVE - A ; AND ALEJO ROAD � ^— E 2 PALM SPRINGS, CALIFORNIA =: 0 0 EXHIBIT"B" SPECIAL REQUIREMENTS Business License Reauirement: Contractor shall possess a valid City of Palm Springs Business License throughout the term of this agreement 16 EXHIBIT"C" SCHEDULE OF COMPENSATION Schedule of Values (Lump-Sum Price Breakdown): The lump-sum price of$4,250 established in the Contract Documents shall serve as the basis for payment and will be incorporated into a form of Application for Payment acceptable to the City. After completion of the project, and not less than 30 days thereafter, the City will authorize the payment to the Contractor of the$4,250 lump sum. 17 EXHIBIT"D" SCHEDULE OF PERFORMANCE TERM OF CONTRACT: All work to be completed within twenty(20)working days from the agreed Notice To Proceed date. WORK HOURS: Working hours consist of 7 A.M. to 4:00 P.M. Monday through Thursday. No work shall be permitted on weekends or holidays. 18