HomeMy WebLinkAbout05776 - WATERLINE STUDIOS INC CONSTRUCTION OBSERVATION AGR FOR THE RAINMAKER FOUNTAIN Kathie Hart
From: Vicki L. Oltean
Sent: Thursday, April 04, 2013 9:28 AM
To: Kathie Hart
Cc: Jay Thompson
Subject: RE Agreement Status (Expiring Soon and Expired)
1. Merchants Landscape Services—this is under Public Works and it is my understanding they are revising the
specs for a new contract, so will need to contact Barakian on status.
2. Verizon Wireless—I will need to check our files, but I do know we still have the towers and they have been
working on them upgrading, but there are 3 or so at the Stadium. I'll let you know what I find. Question is are
we getting $$$??
3. Pacific Bell Wireless LLC—again will need to check files for status.
4. Greater Pride—I guess we felled to get a contract in 2012?? Will check with Jasmine upon her return.
tr P�n165. Waterline Studios, Inc.—this was a contract that Sharon Heider had initiated, so we could probably close as they
have not done any work since her departure.
v Nh81$6. Patricia Fierro Consulting—again another Sharon project that has been completed.
7. Green Play LLC—this project was never completed (still in draft form); so, let's keep active.
8. PlaySafe LLC -I was given direction from CM to renew agreement for continued playground inspections,
however, I have not been able to get the City Attorney to re-do what was previously done (I know he is very
busy), so what you currently have can be closed, but hopefully sometime this year we will have a new
agreement in place. I do have their updated insurance.
From: Kathie Hart
Sent: Wednesday, April 03, 2013 7:42 PM
To: Vicki L. Oltean
Cc: Jay Thompson
Subject: Agreement Status (Expiring Soon and Expired)
I have attached two reports for your review:
1. Expired Agreements Report
2. Agreements Expiring in the next 120 Days
If any of these agreements may be closed, please advise.
The SOON TO EXPIRE REPORT may also be used as a tool to help you assess which agreements 1) may be closed, and 2)
which agreements need to amended for time extensions, etc.
Please feel free to contact us if there are any questions.
Thank you.
Kathie Hart; CAfC
Chief Deputy City Clerk
City of Palm Springs 1IF(760)323-8206
3200 E Tahquitz Canyon Way Ag(760)322-8332
Palm Springs, CA 92262 jE9Kathie.Hart@Palm5priWsCA.aov
Please note that City Hull is open 8 a.m. to 6 p.m.Monday through Thursday,and closed on Fridays at this time.
1
DOCUMENT TRACKING
Page: 1
Report: One Document Detail October 7,2011
Condition: Document Numbera5776,
Document# Description Approval Date Expiration Date Closed Date
A5776 Rainmaker fountain construction observation Services 11/1712008 11117009
Company Name: Waterline Studios, Inc.
Address: Dominic Shaw,Principal, 4710 S College Ave.,Suite 112,Fort Collins,CO 80526
Contact: Mr.Shaw
Group: PARKS&RECREATION Contract Amt. Total Paid Balance
Service: In File $22,500.00 $22,500.00
xRef: VICKI OLTEAN(760)323-8277
Ins.Status: A policy has Expired
Document Tracking Items: Due Completed Tracking Amount Amount
Code Item Description Date Date Date Added Paid
under$25k-CM may auth $22,500.00
kdh to CM for sig 01123/2009
kdh sent email to Jen H(Vicki)ok to close 10119/2010
END OF REPORT
L k
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CONSULTING SERVICES AGREEMENT
WATERLINE STUDIOS, INC.
THIS AGREEMENT FOR CONSULTING SERVICES (the "Agreement") is made and
entered into this 2pday of�, , by and between the City of Palm Springs, a
California charter city and municipal corporation ("City"), and Waterline Studios, Inc., a
Colorado corporation ("Consultant").
RECITALS
A. City requires the services of a fountain consultant for "The Rainmaker" fountain
("Project").
B. Consultant has submitted to City a proposal to provide services to City pursuant
to the terms of this Agreement.
C. Based on its experience, education, training, and reputation, Consultant is
qualified to provide the necessary services to City for the Project and desires to provide such
services.
D. City desires to retain the services of Consultant for the Project.
NOW, THEREFORE, in consideration of the promises and mutual agreements contained
herein, City agrees to retain and does hereby retain Consultant and Consultant agrees to provide
services to the City as follows:
AGREEMENT
1. CONSULTANT SERVICES
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, Consultant shall provide services to City as described in the Scope of Services/Work
attached to this Agreement as Exhibit "A" and incorporated herein by reference (the "services"
or "work"), which includes the agreed upon schedule of performance and the schedule of fees.
Consultant warrants that all services and work shall be performed in a competent, professional,
and satisfactory manner in accordance with all standards prevalent in the industry. In the event
of any inconsistency between the tenus contained in the Scope of Serviccs/Work and the temps
set forth in the main body of this Agreement, the terms set forth in the main body of this
Agreement shall govern.
1.2 Compliance with Law. All services rendered under this Agreement shall be
provided in accordance with all laws, ordinances, resolutions, statutes, rules, and regulations of
City and any federal, state, or local governmental agency of competent jurisdiction.
1.3 Licenses and Permits. Consultant 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.
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50709 2
1.4 Familiarity with Work. By executing this Agreement, Consultant warrants that
it has carefully considered how the work should be performed and fully understands the
facilities, difficulties, and restrictions attending performance of the work under this Agreement.
2. TIME FOR COMPLETION.
The time for completion of the services to be performed by Consultant is an essential
condition of this Agreement. Consultant shall prosecute regularly and diligently the work of this
Agreement according to the agreed upon schedule of performance set forth in Exhibit "A".
Consultant shall not be accountable for delays in the progress of its work caused by any
condition beyond its control and without the fault or negligence of Consultant. Delays shall not
entitle Consultant to any additional compensation regardless of the party responsible for the
delay.
3. COMPENSATION OF CONSULTANT
3.1 Compensation of Consultant_ For the services rendered pursuant to this
Agreement, Consultant shall be compensated and reimbursed, in accordance with the schedule of
fees set forth in Exhibit"A," which total amount shall not exceed $22,500_
3.2 Method of Pavment. In any month in which Consultant wishes to receive
payment, Consultant shall no later than the first working day of such month, submit to City in the
form approved by City's Controller, an invoice for services rendered prior to the date of the
invoice. Payments shall be based on the hourly rates as set forth in Exhibit "A" for authorized
services performed. City shall pay Consultant for all 'expenses stated thereon, which are
approved by City consistent with this Agreement, within thirty (30) days of receipt of
Consultant's invoice.
3.3 Changes. In the event any change or changes in the Scope of Services/Work is
requested by City, the parties hereto shall execute a written amendment to this Agreement,
setting forth with particularity all terns of such amendment, including, but not limited to, any
additional fees. An amendment may be entered into:
A. To provide for revisions or modifications to documents or other work
product or work when documents or other work product or work is required by the enactment or
revision of law subsequent to the preparation of any documents, other work product, or work;
B. To provide for additional services not included in this Agreement or not
customarily furnished in accordance with generally accepted practice in Consultant's profession.
3.4 Appropriations. This Agreement is subject,to and contingent upon funds being
appropriated therefore by the City Council of City for each fiscal year covered by the
Agreement. If such appropriations are not made, this Agreement shall automatically terminate
without penalty to City.
4. PERFORMANCE SCHEDULE
4.1 Time of Essence. Time is of the essence in the performance of this Agreement-
2 Revised July 200$
507639 2
4.2 Schedule of Performance. All services rendered pursuant to this Agreement
shall be performed pursuant to the agreed upon schedule of performance set forth in Exhibit "A
The extension of any time period must be approved in writing by the Contract Officer_
4.3 Force Maieure. The time for performance of services to be rendered pursuant to
this Agreement may be extended because of any delays due to unforeseeable causes beyond the
control and without the fault or negligence of Consultant; including, but not limited to, acts of
God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic,
quarantine restrictions, riots, strikes, freight embargoes, and unusually severe weather if
Consultant shall within ten (10) days of the commencement of such condition notify the Contract
Officer who shall thereupon ascertain the facts and the extent of any necessary delay, and extend
the time for performing the services for the period of the enforced delay when and if in the
Contract Officer's judgment such delay is justified, and the Contract Officer's determination
shall be final and conclusive upon the parties to this Agreement. J✓
4.4 Term. Unless earlier terminated in accordance with Section of this
Agreement, this Agreement shall continue in full force and effect for a period commencing on
November 17, 2008 and ending on November 17, 2009 unless extended by mutual written
agreement of the parties.
5. COORDINATION OF WORK
5.1 Representative of Consultant. The following principal of Consultant is hereby
designated as being the principal and representative of Consultant authorized to act in its behalf
with respect to the services and work specified herein and make all decisions in connection
therewith: Dominic Shaw, Principal. It is expressly understood that the experience, knowledge,
education, capability, and reputation of the foregoing principal is a substantial inducement for
City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during
the term of this Agreement for directing all activities of Consultant and devoting sufficient time
to personally supervise the services hereunder. The foregoing principal may not be changed by
Consultant without prior written approval of the Contract Officer.
5.2 Contract Officer. The Contract Officer shall be the City Manager, or his/her
designee. It shall be the Consultant's responsibility to keep the Contract Officer, or his/her
designee, fully informed of the progress of the performance of the services and Consultant shall
refer any decisions that 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.
5.3 ]Prohibition Against Subcontracting or, Assignment. The experience,
knowledge, education, capability, and reputation of Consultant, its principals and employees,
were a substantial inducement for City to enter into this Agreement. Therefore, Consultant shall
not contract with any other individual or entity to perform in whole or in part the services
required hereunder without the express written approval of City. In addition, neither this
Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of
law, without the prior written approval of City.
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5076;9 2
5.4 Independent Contractor. Neither City nor any of its employees shall have any
control over the manner, mode, or means by which Consultant, its agents or employees, perform
the services required herein, except as otherwise set forth herein. Consultant shall perform all
services required herein as an independent contractor of City and shall not be an employee 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; however, City shall have the right to review
Consultant's work product, result, and advice. Consultant 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.
5.5 Personnel. Consultant agrees to assign the following individuals to perform the
services set forth herein. Consultant shall not alter the assignment of the following personnel
without the prior written approval of the Contract Officer_ Acting through the City Manager, the
City shall have the unrestricted right to order the removal of any personnel assigned by
Consultant by providing written notice to Consultant.
Name: Title_
Dominic Shaw Principal
6. INSURANCE
Consultant shall procure and maintain, at its sole cost and expense, policies of insurance
as set forth in) xbibit"B", which is attached hereto and is incorporated herein by reference.
7. INDEMNIFICATION.
To the fullest extent permitted by law, Consultant shall defend (at Consultant's sole cost
and expense), indemnify, protect, and hold harmless City, its elected officials, officers,
employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any
and all liability, actions, suits, proceedings, claims, demands, losses, costs,judgments, damages,
expenses, including legal costs and attorneys' fees, and causes of action for injury to or death of
person or persons, for damage to property, including property owned by City, for any violation
of any federal, state, or local law or ordinance, and for errors and emissions committed by
Consultant, its officers, employees, representatives, and agents, arising out of or related to
Consultant's performance under this Agreement. Under no circumstances shall the insurance
requirements and limits set forth in this Agreement be construed to limit Consultant's
indemnification obligation or other liability hereunder.
8. RECORDS AND REPORTS
8.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer
such reports concerning the performance of the services required by this Agreement as the
Contract Officer shall require.
8.2 Records. Consultant shall keep such books and records as shall be necessary to
properly perform the services required by this Agreement sand enable the Contract Officer to
evaluate the performance of such services. The Contract Officer shall have full and free access
4 Revised:July 200E
$07639.2
to such books and records at all reasonable times, including the right to inspect, copy, audit, and
make records and transcripts from such records_
8.3 Ownership of Documents. All drawings, specifications, reports, records,
documents, and other materials prepared by Consultant 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 tennination of this Agreement, and Consultant shall have no claim for further
employment or additional compensation as a result of the exercise by City of its tiJll rights or
ownership of the documents and materials hereunder. ' Consultant may retain copies of such
documents for its own use. Consultant shall have an unrestricted right to use the concepts
embodied therein.
8.4 Release of Documents. All drawings, specifications, reports, records,
documents, and other materials prepared by Consultant in the perfornance of services under this
Agreement shall not be released publicly without the prior written approval of the Contract
Officer,
8.5 Cost Records. Consultant shall maintain all books, documents, papers, employee
time sheets, accounting records, and other evidence pertaining to costs incurred while performing
under this Agreement and shall make such materials available at its offices at all reasonable
times during the term of this Agreement and for three (3) years from the date of final payment
for inspection by City and copies thereof shall be promptly furnished to City upon request.
9. ENFORCEMENT OF AGREEMENT
9.1 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 Consultant covenants and agrees to
submit to the personal jurisdiction of such court in the event of such action.
9.2 Waiver. No delay or omission in the exercise of any right or remedy of a non-
defaulting party on any default shall impair such right or remedy or be construed as a waiver.
No consent or approval of City shall be deemed to waive or render unnecessary City's consent to
or approval of any subsequent act of Consultant_ 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.
9.3 Rielits 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 samc or different times, of any other rights or
remedies for the same default or any other default by the other party.
9.4 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
5 Revised.July 2006
507639.2
any default, to compel specific performance of this Agreement, to obtain injunctive relief, a
declaratory judgment, or any other remedy consistent with the purposes of this Agreement.
9.5 Termination Prior to Expiration of Term. City reserves the right to terminate
this Agreement at any time, with or without cause, upon thirty (30) days written notice to
Consultant, except that where termination is due to the fault of Consultant and constitutes an
immediate danger to health, safety, and general welfare, the period of notice shall be such shorter
time as may be determined by the City. Upon receipt of the notice of termination, Consultant
shall immediately cease all services hereunder except such as may be specifically approved by
the Contract Officer. Consultant shall be entitled to compensation for all services rendered prior
to receipt of the notice of termination and for any services authorized by the Contract Officer
thereafter. Consultant may terminate this Agreement, with or without cause, upon thirty (30)
days written notice to City_
10. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION
10.1 Non-Liability of City Officers and Employees. No officer or employee of City
shall be personally liable to the Consultant, or any successor-in-interest, in the event of any
default or breach by City or for any amount which may become due to the Consultant or its
successor, or for breach of any obligation of the terms of this Agreement.
10.2 Covenant Against Discrimination. Consultant covenants that, by and for itself;
its heirs, executors, assigns, and all persons claiming under or through them, that there shall be
no discrimination or segregation in the performance of or in connection with this Agreement
regarding any person or group of persons on account of race, color, creed, religion, sex, marital
status, disability, sexual orientation, national origin, or ancestry.
11. MISCELLANEOUS PROVISIONS
11.1 Notice. Any notice, demand, request, 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 pre-paid, first-class mail to the address set forth below_ Either
party may change its address by notifying the other party of the change of address in writing.
Notice shall be deemed communicated seventy-two (72) hours from the time of mailing if mailed
as provided in this Section.
507639.2 6 Revised.JUIy 2006
To City: City of Palm Springs
Attention: City Manager
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
To Consultant: Waterline Studios, Inc.
Attention: Dominic Shaw
4710 S. College Ave., Ste, 112
Port'Collins, CO 80526
11.2 integrated Agreement. This Agreement contains all of the agreements of the
parties and cannot be amended or modified except by written agreement.
11.3 Amendment. This Agreement may be amended at any time by the mutual
consent of the parties by an instrument in writing.
11.4 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
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 shall be interpreted to carry out the intent of the parties hereunder.
11.5 Authority. The persons executing this Agreement on belialf of the parties hereto
warrant that they are duly authorized to execute this Agreement on behalf of said parties and that
by so executing this Agreement the patties hereto are formally bound to the provisions of this
Agreement.
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507639 2
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
stated below.
"CITY"
City of Palm Springs
Date:4�GhVUY�
David H."Ready
City Manager
APPROVE S TO FORM: ATTEST"
By. � _
Douglas C- Flalland, amcs Thompson, l
CitylAttorney City Clerk 1
"CONSULTANT"
Waterline Studios, Inc.
Date: j � •_—�_ By
Dominic Shaw
Principal
APPROVED BY CITY MANAGER
$ Revised.July 2006
$07639 2
EXHIBIT "A"
CONSULTANT'S
SCOPE OF SERVICES/WORK
Including
Schedule of fees
And
Schedule of Performance
See attached letter dated
November 7, 2008,
From Dominic Shaw,
Waterline Studios, Inc.
9 Revised July 2006
5076392
�r %VATFI'.LINC
AO N
November 7,2008
Ms. Sharon Heider
City of Palm Springs
401 South Pavilion Way
Palm Springs,CA 6226�
Re: Rainmaker Fountain
Constmcdon observation services
Dear Sharon:
I am pleased to hear that the City is moving forward with the renovation of the fountain and equally pleased that we
have been invited to assist in the effort- Herewith is our scope of work and fees, which are unchanged from our
previous proposal. We look forward to working with you again.
Attend the following meetings:
Pre-construction kick off meeting(2 days,week 1)
Critical inspection site visits -weekly for 4 weeks or 4 meetings as schedule requires
Provide the following services:
Respond to contractor questions and RFI's
Review submittal drawings and data sheets.
Provide a written site report subsequent to each site visit.
Provide a maintenance manual at the completion of the renovation work
For the purpose of this proposal we have included expenses which are estimated as follows:
Airfare $750
Hotel S200
Car rental $100
Meals $50
Total expenses per trip $1100- 1300
Fees for Services
As discussed, Waterline studios Will provide the listed services for the following Fees:
Construction Administration services S14,300
Estimated expenses S5,700
Maintenance manual $2.500
Total Fees $22,500
WATER FF,.4]URE CUNSULTAN'O
47TO 9 College Ave
fort Collins Colorado 80525
(970)2G7 9697
i
• Page 2 November 7,2008
Additional services
Any services not included in this proposal are additional services. Waterline Studios would be pleased to discuss
scope,fee and timing of any additional service rcquiremcnts. Additional trips required to site will be billed at$2000
per day plus expenses.
Should you have any questions or wish to discuss next step options,please do not hesitate to call me.
Regards,
Dominic Shaw
Waterline Studios,Inc
WATER FEATURE CONSULTANTS
4710 5 College Ave
F.n Colhn,Colomdo 80525
(970)2U7 9697
EXHIBIT "B"
INSURANCE PROVISIONS
Including
Verification of Coverage,
Sufficiency of Insurers,
Errors and Omissions Coverage,
Minimum Scope of Insurance,
Deductibles and Self-Insured Retentions, and
Severability of Interests (Separation of Insureds)
p$07639 2 Revised.July 2006
Insurance
Consultant shall procure and maintain, at its sole cost and expense, and submit
concurrently with its execution of this Agreement, in a form and content satisfactory to City,
public liability and property damage insurance against all claims for injuries against persons or
damages to property resulting from Consultant's performance under this Agreement. Consultant
shall also carry workers' compensation insurance in accordance with California workers'
cotpensation laws. Such insurance shall be kept in full force and effect during the tern of this
Agreement, including any extension thereof, and shall nob be cancelable without thirty (30) days
written notice to City of any proposed cancellation. Certificates of insurance evidencing the
foregoing and designating the City, its elected officials, officers, employees, agents, and
volunteers as additional named insureds by original endorsement shall be delivered to and
approved by City prior to commencement of services. The procuring of such insurance and the
delivery of policies, certificates, and endorsements evidencing the same shall not be construed as
a limitation of Consultant's obligation to indemnify City, its elected officials, officers, agents,
employees, and volunteers.
A. Minimum Scope of Insurance. The minimum amount of insurance required
hereunder shall be as follows:
1. Comprehensive general liability and personal injury with limits of at least
one million dollars ($1,000,000.00) combined single limit coverage per occurrence;
2. Automobile liability insurance with ',limits of at least one million dollars
($1,000,000.00)per occurrence;
3. Professional liability (errors and omissions) insurance with limits of at
least one million dollars ($1,000,000.00) per occurrence; and,
4_ Workers' Compensation insurance in the statutory amount as required by
the State of California and Employer's Liability insurance with limits of at least $1 million per
occurrence.
For any claims related to this Agreement, Consultant's insurance coverage shall be
primary insurance as respects City and its respective elected officials, officers, employees,
agents, and volunteers. Any insurance or self-insurance maintained by City and its respective
elected officials, officers, employees, agents, and volunteers shall be in excess of Consultant's
insurance and shall not contribute with it For Workers' Compensation and Employer's Liability
Insurance only, the insurer shall waive all rights of subrogation and contribution it may have
against City, its elected officials, officers, employees, agents, and volunteers.
13. Errors and Omissions Coverage. If Consultant provides claims made
professional liability insurance. Consultant shall also agree in writing either (1) to purchase tail
insurance in the amount required by this Agreement to cover claims made within three years of
the completion of Consultant's services under this Agreement, or (2) to maintain professional
liability insurance coverage with the same carrier, or equivalent coverage with another company,
in the amount required by this Agreement fnr at lead three years after completion of
j 507639.2 ReviSed:July 2006
Consultant's services under this Agreement. Consultant shall also be required to provide
evidence to City of the purchase of the required tail insurance or continuation of the professional
liability policy.
C. Sufficiency of Insurers. Insurance required herein shall be provided by
authorized insurers in good standing with the State of California. Coverage shall be provided by
insurers admitted in the State of California with an A.M. Best's Key Rating of A-, Class VII, or
better, unless otherwise acceptable to the City.
D. Verification of Coverage. Consultant shall furnish City with both certificates of
insurance and endorsements, including additional insured endorsements, effecting all of the
coverages required by this Agreement. The certificates and endorsements are to be signed by a
person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be
received and approved by the City before work commences. City reserves the right to require
Consultant's insurers to provide complete, certified copies of all required insurance policies at
any time. Additional insured endorsements are not required for Errors and Omissions and
Workers' Compensation policies-
E. Deductibles and Self-Insured IRetentious. Any deductibles or self-insured
retentions must be declared to and approved by the City. At the option of the City, either the
insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City,
its elected officials, officers, employees, agents, and volunteers; or, Consultant shall procure a
bond guaranteeing payment of losses and related investigations, claim administration, and
defense expenses.
F. Severability of Interests (Separation of Insureds). This insurance applies
separately to each insured against whom claim is made or suit is brought except with respect to
the limits of the insurer's liability.
507639,2
2 Revised July2006