HomeMy WebLinkAbout05744 - WESTCON CONSTRUCTION GROUP INC SIDEWALK REMOVAL/REPLACEMENT CP 08-16 0
II< DOG # 2009--0122244
p� 03/13/2009 08:00R Fee:NC
Page 1 of t
Recorded in Official Records
County of Riverside
Larry W. Ward
I` R`ssesllsor, County`Clerk 4 Recorder
S R U PAGE SIZE DA I MISC LONG RFD COPY
Recording Requested Ily And M A L 465 426 POOR NCOR SMF NCH t 'M
When Recorded Return To: f^g
City of Palm Springs Attn:City Clerk 1 �. T CTY UNI 0 r
P.O.Sox 2743 Palm Springs,CA 92263-2743
(�SP�ACARE1�A•BOVE THIS LINE FOR RECORDING USE)
l"Xal •FROM RECORDING FEE PER GOV,CODE§6103)
NOTICE OF COMPLETION
NOTICE.IS HEREBY given that:
1. The City of Palm Springs,California,is a municipal corporation,organized and incorporated pursuant to the laws of the State of California.
2. The City Clerk of the City of Palm Springs is authorized and directed to execute,on behalf of said City,any and all Notices of Completion,
3- The address ofthe City ofPalm Springs is City Hall,3200 E.Tahquitz Canyon Way,Palm Springs,California(P.O.Sox 2743,Palm Springs,
CA 92263-2743).
4. The public work of improvement on the hereinafter referred to real property within the city was COMPLETED on the 19" day of
December,2008.
5. The name of the contractor(if named)for such work of improvement was: Westcon Construction,Inc.,81-770 Trader Place,Indio,CA
92201.
6. The public work of improvement,which was completed in the City of Palm Springs,County of Riverside,State of California,is described
as follows:Tamarisk Decorative Sidewalk(Sidewalk Removal and Replacement).
7. Nature of Interest:Fee Owner
8- The propertyaddress or location ofsaid property is:Tamarisk Road,North side between North Palm Canyon Drive and Indian Canyon
Drive.
9- City Project No.08-16,Agreement Number:5744
CITY OP PALM SPRINGS: REVIEWED BY: �'�. DATED= L- Z S- 0 9
Senior Public Works Inspector
GIt�Iichael K.Lytar
BY: A dd't • DATED: 7-
Director of Public Works/City Engineer /
David J.Barakian
JAMES THOMPSON,being duly sworn,says:
That he is the City Clerk of the aforesaid City of Palm Springs,California,the corporation that executed the foregoing notice; that he makes this
verification on behalf of said corporation; that he has read the foregoing Notice of Completion,and knows the contents thereof,and that the facts
stated therein are true; that as sai� Jerk,he makes this verificadon on behalf of said municipal corporation.
c,-Z3/0q 2001
City Clerk-James Thompson Date Index No. 0309
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS
CONTRACT SERVICES AGREEMENT FOR
Sidewalk Removal and Replacement, CP#08-16
THIS CON RACT SERVICES AGREEMENT (herein "Agreement"), is made and
entered into this �',11�-1 day of 2( ?QVVr��Q.� _, 2008, by and between the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, CALIFORNIA, a public
body, corporate and politic, (herein "Agency") and Westcon Construction Group Inc., (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
Agency 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
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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
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 Agency, except such losses or damages as may be caused by
Agency'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. Agency 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 Community Redevelopment Agency. 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 Twelve Thousand Six Hundred Ninety-Four Dollars and Zero Cents,
($12,694.00) (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
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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
meetings reasonably deemed necessary by the Agency; 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 Agency in
the form approved by the Agency's Director of Finance, an invoice for services rendered prior to
the date of the invoice. Except as provided in Section 7.3, Agency shall pay Contractor for all
expenses stated thereon which are approved by Agency 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) 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 Agency, 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 Agency 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").
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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: Erik Schulthess, Project Manager.
It is expressly understood that the experience, knowledge, capability, and reputation of
the foregoing principals were a substantial inducement for Agency 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
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 Agency.
4.2 Contract Officer. The Contract Officer shall be such person as may be
designated by the City Engineer of the City. Contract Officer to be Mike 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 Agency to the Contract Officer. Unless otherwise
specified herein, any approval of Agency required hereunder shall mean the approval of the
Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of
the Agency 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 Agency 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 Agency. 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 Agency. 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 Agency.
The Agency'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 Agency to consent to a subcontract with a person or entity that is not a Local
Subcontractor, the Contractor shall submit evidence to the Agency 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 Agency 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.
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4.4 Independent Contractor. Neither the Agency 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. Agency
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 Agency and shall remain at all times as to Agency 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
Agency. Agency 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, INDEMNIFICATION AND BONDS
5.1 Insurance. The Contractor 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 Agency, 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' compensation laws. Such insurance shall be kept in full
force and effect during the term of this Agreement, including any extension thereof, and shall
not be cancelable without thirty (30) days written notice to Agency of any proposed cancellation.
Certificates of insurance evidencing the foregoing and designating the Agency, its elected
officials, officers, employees, agents, and volunteers as additional named insureds by original
endorsement shall be delivered to and approved by Agency 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 Agency, 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) combined single limit coverage per occurrence;
2. Automobile liability insurance with limits of at least one million dollars
($1,000,000) per occurrence;
3. Workers' Compensation insurance in the statutory amount as required by
the State of California and Employer's Liability Insurance with limits of at least one million
dollars ($1,000,000) per occurrence.
For any claims related to this Agreement, Consultant's insurance coverage shall be
primary insurance as respects Agency and its respective elected officials, officers, employees,
agents, and volunteers. Any insurance or self-insurance maintained by Agency 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
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contribution it may have against Agency, its elected officials, officers, employees, agents, and
volunteers.
B. 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 B+, Class VII, or
better, unless otherwise acceptable to the Agency.
C. Verification of Coverage. Consultant shall furnish Agency 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 Agency before work commences. Agency reserves the right to
require Consultant's insurers to provide complete, certified copies of all required insurance
policies at any time. Additional insured endorsements are not required for Errors and
Omissions and Workers' Compensation policies.
Verification of Insurance Coverage may be provided by: (1) an approved General and/or
Liability Endorsement Form for the Community Redevelopment Agency of 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 Community Redevelopment Agency of the City of Palm Springs, its officials,
employees and agents are named as an additional insured" ("as respects a specific
contract" or "for any and all work performed with the Agency" may be included in this
statement).
2. "This insurance is primary and non-contributory over any insurance or self-insurance the
Agency may have" ("as respects a specific contract" or "for any and all work performed
with the Agency" may be included in this statement).
3. "Should any of the above described policies be canceled before the expiration date
thereof, the issuing company will mail 30 days written notice to the Certificate Holder
named." Language such as, "endeavor to" mail and "but failure to mail such notice shall
impose no obligation or liability of any kind upon the company, its agents or
representative" is not acceptable and must be crossed out. See example below.
4. Both the Workers' Compensation and Employers' Liability policies shall contain the
insurer's waive of subrogation in favor of Agency, its elected officials, officers,
employees, agents and volunteers. See example below.
In addition to the endorsements listed above, the Community Redevelopment Agency of
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 Agency before
work commences. Failure to obtain the required documents prior to the commencement of work
shall not waive the contractor's obligation to provide them.
D. Deductibles and Self-Insured Retentions. Any deductibles or self-insured
retentions must be declared to and approved by the Agency. At the option of the Agency, either
the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the
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Agency, 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.
E. 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.
Cancellation Example:
SHOULD ANY OF THE ABOVE REFERENCED POLICIES BE
CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE
ISSUING INSURER WILL FNDE.��--oOR TO MAIL 30 DAYS* WRITTEN
NOTICE TO THE CERTIFICATE HOLDER NAMED HEREIN BUT
CAII I RF TO MAIL CI IGH NO IGE SHALL !MPC)CC NO 11RI IGATION
OR I IARII ITV OF ANY KIND I IR/lN THE INS IRCR ITS AGENTS QR
REPRESENTATIVES
*The broker/agent can include a qualifier stating "10 days notice for
nonpayment of premium."
Waiver of Subrogation Example:
"IT IS UNDERSTOOD AND AGREED THAT THE COMPANY WAIVES
THE RIGHT OF SUBROGATION AGAINST THE ABOVE ADDITIONAL
INSURED (S), BUT ONLY AS RESPECTS THE JOB OR PREMISES
DESCRIBED IN THE CERTIFICATE ATTACHED HERETO."
5.2 Indemnification. Contractor agrees to indemnify the Agency, its
officers, agents and employees against, and will hold and save them and each of them
harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs,
penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be
asserted or claimed by any person, firm or entity arising out of or in connection with the
negligent performance of the work, operations or activities of Contractor, its agents, employees,
subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions
of Contractor hereunder, or arising from Contractor's negligent performance of or failure to
perform any term, provision, covenant or condition of this Agreement, whether or not there is
concurrent passive or active negligence on the part of the Agency, its officers, agents or
employees but excluding such claims or liabilities arising from the sole negligence or willful
misconduct of the Agency, its officers, agents or employees, who are directly responsible to the
Agency, and in connection therewith:
(a) Contractor will defend any action or actions filed in connection
with any of said claims or liabilities and will pay all costs and expenses, including legal costs
and attorneys' fees incurred in connection therewith;
(b) Contractor will promptly pay any judgment rendered against the
Agency, its officers, agents or employees for any such claims or liabilities arising out of or in
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connection with the negligent performance of or failure to perform such work, operations or
activities of Contractor hereunder; and Contractor agrees to save and hold the Agency, its
officers, agents, and employees harmless therefrom,
(c) In the event the Agency, its officers, agents or employees is made
a party to any action or proceeding filed or prosecuted against Contractor for such damages or
other claims arising out of or in connection with the negligent performance of or failure to
perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to
the Agency, its officers, agents or employees, any and all costs and expenses incurred by the
Agency, its officers, agents or employees in such action or proceeding, including but not limited
to, legal costs and attorneys' fees.
5.3 Performance Bond. Concurrently with execution of this Agreement,
Contractor shall deliver to Agency a performance bond in the sum of the amount of this
Agreement, in the form provided by the City Clerk, which secures the faithful performance of this
Agreement, unless such requirement is waived by the Contract Officer. The bond shall contain
the original notarized signature of an authorized officer of the surety and affixed thereto shall be
a certified and current copy of his power of attorney. The bond shall be unconditional and
remain in force during the entire term of the Agreement and shall be null and void only if the
Contractor promptly and faithfully performs all terms and conditions of this Agreement.
5.4 Sufficiency of Insurer or Surety. Insurance or bonds required by this
Agreement shall be satisfactory only if issued by companies qualified to do business in
California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating
Guide or in the Federal Register, unless such requirements are waived by the Executive
Director or designee of the Agency ("Executive Director") due to unique circumstances. In the
event the Executive Director determines that the work or services to be performed under this
Agreement creates an increased or decreased risk of loss to the Agency, the Contractor agrees
that the minimum limits of the insurance policies and the performance bond required by this
Section 5 may be changed accordingly upon receipt of written notice from the Executive
Director or designee; provided that the Contractor shall have the right to appeal a determination
of increased coverage by the Executive Director to the Community Redevelopment Agency
within ten (10) days of receipt of notice from the Executive Director.
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 Agency 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
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Officer shall have full and free access to such books and records at all times during normal
business hours of Agency, 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 Agency shall have access to such
records in the event any audit is required.
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 Agency and shall be
delivered to Agency 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 Agency 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 Agency's sole risk and without liability to Contractor, and the Agency 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 Agency of any documents
or materials prepared by them, and in the event Contractor fails to secure such assignment,
Contractor shall indemnify Agency 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 patty's right to take legal action in the event that the dispute is not cured,
provided that nothing herein shall limit Agency'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 Agency 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
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compensate Agency for any losses, costs, liabilities, or damages suffered by Agency, and (ii) all
amounts for which Agency 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,
Agency may withhold from any payment due, without liability for interest because of such
withholding, an amount sufficient to cover such claim. The failure of Agency to exercise such
right to deduct or to withhold shall not, however, affect the obligations of the Contractor to
insure, indemnify, and protect Agency 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 Agency the sum of Seven Hundred Fifty Six Dollars ( 756) 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 Agency may withhold from any
monies payable on account of services performed by the Contractor any accrued liquidated
damages.
7.8 Termination Prior to Expiration Of Term. This Section shall govern any
termination of this Agreement except as specifically provided in the following Section for
termination for cause. The Agency 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 Agency, except that where termination is due to the fault of the Agency, 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
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.
7.9 Termination for Default of Contractor. If termination is due to the failure of
the Contractor to fulfill its obligations under this Agreement, Agency 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 Agency shall use reasonable efforts to mitigate such damages), and Agency
may withhold any payments to the Contractor for the purpose of set-off or partial payment of the
amounts owed the Agency 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 AGENCY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of Agency Officers and Employees. No officer or employee
of the Agency shall be personally liable to the Contractor, or any successor in interest, in the
event of any default or breach by the Agency 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 Agency 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.
I
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 Agency, to the Executive Director 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.
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.
COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS
ATTEST: a public body, corporate and politic
7 -
t3y""���sr+-e`er,
�f Assistant Secrets Exec rector
/ PROVED TO FORM.
B l �1�/- APPROVED BY EX (CU��''��%�= � T,;,'' ° J.-A�
✓ J City Attorney T\kU � 1
CONTRACTOR: Westcon Construction Group, Inc. Check one._Individual_Partnership Corporation
81770B Trader Place
Indio, CA 92201
Corporations re ire tw�notarized signatures. One from each of the following: A. Chairman of Board, President, or any Vice
President: B.Secret s itan,-Secretary,Treasurer,Assistant Treasurer,or Chief Finance Officer
/q 1 s
By. / BY
�/ S)gnature(notarized)__'J �1 ig ture(notarized)
N $Name: 'lz� L�7— Name: O J AT" am'-/(?y► "
��" 'Title. e—s q'9 —r Title: r
State of C0=1a��1 it State of6
n' AGi�¢r
County of VT--a511 * ounty of �s
Onooyii - (q , 26214g, On NOV. Jelp
before me lAV r1-W1"q:Jy=Jey P—V&gefore me TTAR"j-(Q
p /��ersonally appeared personally appeared
Ay:T_ 9= who proved to me C&M ;I- l K 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)is/pFesubscribed to the within instrument and whose name(s)is/pre subscribed to the within instrument and
acknowledged to me that he/shaA4W executed the same in acknowledged to me that P6she/tF ey executed the same in
his/bagl;eir authorized capacity(ies),and that by his/hef their his/her/tfyeIr authorized capaaty(ies),and that by kt/her/the,
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 official seal. WITNESS my hand and official seal.
Notary Signature: Notary Signature:
Notary Seal: Notary Seal:
R G✓"1EI-FNif 13 ` NANA,PJ Fi CE,Fbl,Mil
7 u C'=JMIM N95U 'd0
*i5g<`aJp Nuiaryf'tblic v ',etl'a i
Noarypublb-02*.'bmia
Cbrtmi+Nuxi vas t, .f TJS'3 `C`a'ati.�::s7 ,,,uax.3�{.taCS Z
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EXHIBIT "A"
SCOPE OF SERVICES
A. Remove 1350 square feet of existing 4" PCC sidewalk and construct 1700 square feet of new
sidewalk on the north side of Tamarisk Road from the existing curb to the El Paseo building
property line starting at the intersection with North Palm Canyon Drive and ending at the east
property line of the El Paseo building in accordance with drawings. Work will also include the
protection of existing palm trees and irrigation.
14
EXHIBIT "B"
SPECIAL REQUIREMENTS
Business License Requirement: Contractor shall possess a valid City of Palm Springs Business
License throughout the term of this agreement.
5.3 Performance Bond - Performance Bond requirement is hereby deleted.
The following section 5.3 Payment Bond is hereby added:
5.3 Payment Bond. Concurrently with execution of this Agreement, Contractor shall deliver to
Agency a payment bond (Material and Labor Bond) in the sum of the amount of this Agreement,
in the form provided by the City Clerk, to satisfy claims of material suppliers and mechanics and
laborers employed by Contractor on the work. The bond shall contain the original notarized
signature of an authorized officer of the surety and affixed thereto shall be a certified and
current copy of his power of attorney. The bond shall be unconditional and remain in force until
the work is accepted by Agency and until all claims for materials and labor are paid, and shall
otherwise comply with the Civil Code.
All work shall be performed in accordance with the "Greenbook" Standard Specifications for
Public Works Construction, 2006 edition.
15
EXHIBIT "C"
SCHEDULE OF COMPENSATION
Payment for services specified under Exhibit "A" Scope of Services of this Agreement shall be
paid as a lump sum of$12,694.00.
16
EXHIBIT"D"
SCHEDULE OF PERFORMANCE
TERM OF CONTRACT: All work to be completed within ten (10)working days from the agreed
Notice to Proceed date.
WORK HOURS: Working hours consist of 7 A.M. to 3:30 P.M. Monday through Friday. No work
on the weekends or holidays.
:r.
17