HomeMy WebLinkAbout9/8/2010 - AGREEMENTS (3) Page 1 of 1
Kathie Hart
From: Jennifer Henning
Sent: December 13, 2011 3:16 PM
To: Kathie Hart
Cc: Jay Thompson f
Subject: RE: A6030-G & M (Red Echo)
Kathie,
Hello! Yes, this agreement file may be closed. Thank you for your help!! )
Best,
Jan
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.pai msp..rin.gs..-ca.gov
PLEASE NOTE: City Hall is open 8:00am -6:00pm Monday-Thursday and closed every Friday.
From: Kathie Hart
Sent: Monday, December 12, 2011 4:50 PM
To: Jennifer Henning
Cc: Jay Thompson
Subject: A6030 - G &M (Red Echo)
Jennifer:
This agreement is for the installation of Red Echo. Has everything been completed? If yes, may I
close the agreement file?
Please advise.
Thx!
Kathie Hart, CMC
Chief Deputy City Clerk
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs,CA 92262
(760)323-8206 (7b0)322-8332
P 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.
12/13/11
CONTRACT CHANGEORDER
To: G&M Construction Co. Date: January 10,2011
211 Mesquite Avenue Project: Red Echo Installation
Palm Springs,Ca 92264 Change Order No.: One 00
Contract Purchase No.: 11-0454
Account Numbers: 150-4408-50015
CHANGES IN WORK/COST
A. Removal and Replacement of Concrete for Electrical Trenching $931.50
B. Additional Grading $460.00
C. Additional Concrete Form Placement $181.13
D. Saw-cut and Remove of Portions of the Sculpture Base $747.50
E. Alternate Rock Materials $501.40
F. Alternate Plant Materials $161.00
Total Contract Increase Amount $2,982.53
REASONS FOR CHANGES:
Item A As originally bid the point of connection for the lighting system was to be in the adjacent
landscape/planter area. After construction began it was discovered that the available
electrical pull box was located within a concrete patio area. This item compensates the
contractor for saw-cutting, removal and replacement of portions of the patio for the
placement of electrical conduits.
Item B After the site had been graded changes were made to the elevations of the concrete walkways
that surround the sculpture in order to conform to ADA requirements.
Item C Following the changes to the walkway grades indicated in item B,portions of concrete forms
that had been previously placed required removal and replacement.
Item D The sculpture arrived with a pre-cast concrete base. When lighting installation began,it was
determined that the portions of the base that were in excess to the sculpture 'footprint'were
obstructing the placement of the proposed lighting. At the direction of the Electrical
Engineer, portions of the base were cut out in order to allow for proper lighting placement.
Item E At the direction of the Landscape Architect alternative rock materials were utilized in the
landscape areas adjacent to the sculpture. This item represents the difference in cost between
materials bid and the actual materials selected.
Item F At the direction of the Landscape Architect alternative plant materials were utilized in
the landscape areas adjacent to the sculpture. This item represents the difference in cost
between the plant materials that were bid and the actual materials selected.
Note: The costs of Items A-D above are based on the actual time and material required to complete
the work. All prices are inclusive of allowable mark ups. All prices indicated above are final.
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SOURCE OF FUNDS
Funds are available in the following account:
150-4408-50015 Public Art Funds/Specialized Equipment
SummaEy of Costs
Original Contract Amount: $24,500.00
This Change Order: $2,982-53-116
Previous Change Order(s): $0.00
Revised Contract Amount: $27,4$2.53
I have received a copy of this Change City ppro 1:
Order and the above AGREED PRICES
are acceptable to the contractor. Submitted by Date l/
Public Art C o inator
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By ApprovedAx tat l
D1opt acto &M Construction Director of C nity a d Economic Development
eLf �� �v�� Approved b Date �'1
City-Manager
APPROVED By CITY COUNCIL
a Atteste -
City Clerk
Distribution:
Original Executed Copies Conformed-File Co
Contractor (x) City Clerk (i)
Public Arts Coordinator W Economic Development W
Finance (1)
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�ai` atier� Of The OitY
2 s'
CITY OF PALM SPRINGS
CONTRACT SERVICES AGREEMENT FOR
Red Echo Sculpture Installation Landscaping Improvements
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and
entered into this ZI'4 day of 2010, 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
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hereunder, Contractor shall immediately inform the City of such fact and shall not proceed
except at Contractor's 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 Twenty Four Thousand Five Hundred Dollars and Zero Cents, ( 24 500)
(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
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meetings reasonably deemed necessary by the City; Contractor shall not be entitled to any
additional compensation for attending said meetings.
2.2 Method of_Pam. 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 Majeure. The time period(s) specified 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 sole
remedy being extension of the Agreement pursuant to this Section.
3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this
Agreement, this Agreement shall continue in full force and effect until completion of the 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 eing the principals and representatives of Contractor authorized to act in
its behalf with r ct t e ork specified herein and make all decisions in connection
therewith: Mr. s
It is exp es ly u derstood that the experience, knowledge, capability and reputation of
the foregoing principals were a substantial inducement for City to enter into this Agreement.
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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
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. Contract Officer to be Michael K. Lytar, Senior Public
Works Inspector. 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.
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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.
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.
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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.
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 specific 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 Indust Certificates of Insurance
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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.
• 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 ENDEAVOR ,-9 MAIL 30 DAYS* WRITTEN
NOTICE TO THE CERTIFICATE HOLDER NAMED HEREIN gt4
LIABILITY —I- ANY KIND UPON THE INSURER, ITS AGENTS OR
o912RESE NATIVES
*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
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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.2sparta.com.
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 City's 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.
6.0 REPORTS AND RECORDS
6.1 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
and, if Contractor is providing design services, the estimated increased or decreased cost
estimate for the project being designed.
6.2 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.
R
6.3 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.
6.4 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.
7.0 ENFORCEMENT OF AGREEMENT
7.1 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.
7.2 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.
7.3 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
9
to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure,
indemnify, and protect City as elsewhere provided herein.
7.4 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 party's 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.
7.5 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.
7.6 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.
7.7 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.
7.8 Termination Prior to Ex iration 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
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.
10
7.9 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.
7.10 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 attorney's fees. Attorney's
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.
8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 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.
8.2 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.
8.3 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.
9.0 MISCELLANEOUS PROVISIONS
9.1 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
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
11
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.
9.2 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.
9.3 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.
9.4 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.
9.5 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.
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
y
City Clerk City M
PROVE A FORM:
APPROVED BY CITY MANAGER
By.
City Attorney
CONTRACTOR: G&M Construction
211 West Mesquite Avenue Check one:_Individual_Partnership_Corporation
Palm Springs, CA 92264
Corporations re notarized signatures: One from each of the following: A. Chairman of Board, President,or any Vice
President:AN retary sistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer).
By: ByA( a n' J))"/2un221f
Signature tarized) Signature(notarized) / a
L.
Nam
�7 6L — Name:
Title: Y QC=5 Me-f-NT _ Title:genes ZETA Y
State of State of
County of Iss County of Iss
On o/U On —20 O
before me, before me
pels9nally appeared personally appeared �n�,
who proved to me �Y a-w -Q - /+"f Q4.a-o 1_ who proved to
on the basis of satisfactory evidence to be the personal whose me on the basis of satisfactory evidence to be the person(l
name(p)is/are subscribed to the within instrument and whose name(y)is/are subscribed to the within instrument and
acknowledged to me that he/okeMM executed the same in acknowledged to me that be/sheAhey-executed the same in
his/hw/their-authorized capacity(+e*and that by hisA; r/tkeir #his/her/leir-authorized capacity(4ay,and that by-14/her/their
signature( on the instrument the person(ptf,or the entity upon signature(j4 on the instrument the person(sl,or the entity upon
behalf of which the person()acted,executed the instrument. behalf of which the person(*J 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 official seal. WITNESS my hand and official seal.
Notary Signature: Notary Signature:
Notary Seal: Notary Seal:
DEIDRE SAUNDERS DEIDRE SAUNDERS
Commission # 1712961 Commission # 1712961
a "-u Notary Public -California z
a "-� w" Notary Public -California z : :
X 'r`' Riverside County f : "' Riverside County
I n w cevnm r—j— 1—05 .3m, I► I I I My Comm.Ext*es Jan 2.2011
EXHIBIT "A"
SCOPE OF SERVICES
Contractor shall provide relocation, replacement and installation of landscaping which includes
providing different types of rock groundcover, native plant material, irrigation, lighting and
electrical and hardscape design at the northeast corner of Gene Autry Trail and Ramon Road at
the Springs Shopping Center to improve the site for the installation of public art for the City of
Palm Springs per the specifications detailed in the plans and specifications included herein as
Exhibit "A-1", "Plans and Specifications". Contractor is responsible for the completion of a
ninety (90) day maintenance period.
14
EXHIBIT"A-1"
PLANS AND SPECIFICATIONS
15
- � t
Ex st. to reerah 1 !1
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I
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� 1
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PLAN VIEW
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ELECTRICAL SITE PLAN '� G '
"rWi N e:avor KEYED NOTES - -- --
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CYrCUCla6 D!IG 9Ya4]G 9nr1 E YYLE IXaLV S E CAIR£E FLECMreL SSIfY 9nN1 E aeaMlEO N LNCaIOCaaO P:e CanDai SlSlp6, EIEI[5 Ea1Dlil wo r �1rat as u Ywuraenean i ssac�awrw s nE cwronr• r a+sem avu E oewDum m o s�7i1R
ELECTRICAL NOTES+SYMBOL LEGEND+DETAIL 3 FIXTURE SPECIBCATIONS 1 a- E1.0
EXHIBIT"B"
SPECIAL REQUIREMENTS
Business License Requirement: 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$24,500 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 executing and recording a Notice of Completion, and not less than 30 days thereafter, the
City will authorize the payment to the Contractor of the $24,500 less the retainage fund of ten
percent (10%) of contract lump sum, which will be withheld until the completion of a ninety (90)
day maintenance period.
Release of Retainage and Other Deductions:
After executing and recording a Notice of Completion, completing a ninety (90) day maintenance
period, and not less than 35 days thereafter, the CITY will authorize the release to the
CONTRACTOR the retainage funds, ten percent (10%) of contract lump sum, withheld pursuant
to the Agreement.
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.
A landscaping maintenance period of ninety (90) calendar days will commence following the
submission and acceptance of the Notice of Completion.
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