HomeMy WebLinkAbout10/1/2014 - STAFF REPORTS - 2.S. ALM SpP
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C4<ffORN�P CITY COUNCIL STAFF REPORT
DATE: OCTOBER 1, 2014 CONSENT CALENDAR
SUBJECT: APPROVAL OF AMENDMENT NO. 1 TO A PROFESSIONAL SERVICES
AGREEMENT WITH MICHAEL FONTANA AND ASSOCIATES FOR ON-
CALL FACILITY CONSTRUCTION OWNER REPRESENTATIVE
SERVICES; AND, AUTHORIZING THE CITY MANAGER TO EXECUTE
ALL DOCUMENTS RELATED TO THE AGREEMENTS
FROM: David H. Ready, City Manager
BY: Community & Economic Development Department
SUMMARY
This Amendment approves additional funding for a contract for Facility Construction
Owner Representative Services with Michael Fontana and Associates for assistance in
the City in the construction of the public improvements at the Downtown Revitalization
Project, with the construction work being undertaken pursuant to the Project Financing
Agreement with Wessman Development.
RECOMMENDATION:
1. Approve Agreement No. "AMENDMENT NO. 1 TO A PROFESSIONAL
SERVICES AGREEMENT WITH MICHAEL FONTANA AND ASSOCIATES FOR ON-
CALL FACILITY CONSTRUCTION OWNER REPRESENTATIVE SERVICES;"and
2. AUTHORIZE THE CITY MANAGER TO EXECUTE ALL DOCUMENTS
RELATED TO THE ABOVE AGREEMENT.
FISCAL IMPACT
The original contract with Michael Fontana and Associates for Facility Construction
Owner Representative Services was entered into in February, 2014 and is for a term of
three years.
In a Facility Construction Owner Representative Services, the City's Owner's
Representative represents the City in meetings with the contractors and designers,
ITEM NO.
Owner's Representative Services
October 1, 2014
Page 2
providing skills and expertise in construction management, cost estimating, budgeting,
and project scheduling in a way that saves the City time and money in a project.
The nature of the Agreement is for on-call, as-needed services, so the amount of the
unspecified was Agreement because the number and type of capital projects requiring
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the Consultant's services throughout the duration of the term of the Agreement was
unknown. With the February Agreement, a Purchase Order for $25,000 was issued,
with the understanding that additional funding would need to be added once the Project
was fully underway. Per the terms of the Agreement, the Consultant's compensation is
to be identified on separate, individually authorized Task Orders corresponding to
individual projects.
The Amendment authorizes an individual Task Order (Purchase Order) and additional
funding for the Project in an amount that should be sufficient to provide owner's
representative services for the core activity of constructing the public improvements and
preparing the infrastructure for the Event Center in the Downtown Revitalization Project.
The cumulative $75,000 Task Order includes the original $25,000 Purchase Order. The
Amendment does not amend the remaining term or any other provision of the
Agreement.
Additional funding could be available under the Agreement for other Tasks, such as the
Event Center construction (which could be constructed as a separate project from the
Downtown Revitalization
/Project) under separate Task Orders.
ohn . RayNond, Director of David H. Ready, City Ma
unity'9 Economic Development
Attachments:
1. Amendment No. 1 to Professional Services Agreement
2. Professional Services Agreement
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AMENDMENT NO. 1 TO A PROFESSIONAL SERVICES AGREEMENT
On-Call Facility Construction Owner Representative Services
This Amendment No. 1 to the Professional Services Agreement ("Amendment")
is made and entered into this day of October, 2014, by and between the City of
Palm Springs, California, a California Charter City and municipal corporation ("City"),
and Michael Fontana and Associates, ("Consultant").
RECITALS
A. City has determined that there is a need for As-Needed, "On-Call" Facility
Construction Owner Representative Services for a variety of future construction
projects, including the Public Improvements constructed as part of the Downtown
Revitalization Project (hereinafter the "Project").
B. Consultant has submitted to City a proposal to provide As-Needed, "On-Call"
Facility Owner Representative Services for a variety of future construction
projects to City pursuant to the terms of this Agreement.
C. Consultant is qualified by virtue of its experience, training, education, reputation
and expertise to provide these services and has agreed to provide such services
as provided herein.
D. City desires retained Consultant to provide such professional services and
desires to extend services of Consultant.
AGREEMENT
In consideration of the promises and covenants contained in this Amendment
and other good and valuable consideration, the City and the Consultant agree:
SECTION 1. The Agreement expressly stated that the maximum contract amount
of this Agreement is undefined, and is subject to the number and type of capital projects
requiring the Consultant's services throughout the duration of the term of this
Agreement, if any. Consultant's compensation was to be limited to the amount
identified on each separate, individually authorized Task Order corresponding to a
project requiring the services of the Consultant.
SECTION 2. By approval of this Amendment, the City Council hereby authorizes
the approval of an individual Task Order (Purchase Order) in an amount sufficient to
cover the cost of required services (pursuant to Schedule "D") necessary for the
completion of the Downtown Revitalization Project, subject to the remaining term of the
Agreement and the existing cost limits established by the Palm Springs Municipal Code,
or a cumulative Seventy Five Thousand Dollars ($75,000.00).
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SECTION 3. City and Consultant agree that the terms of the Agreement, shall
remain unchanged and in full force and effect, except as specifically provided in this
Amendment.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the City and the Consultant have caused this Agreement to be
executed the day and year first above written.
ATTEST: CONTENTS APPROVED:
CITY OF PALM SPRINGS, CA
By By
City Clerk City Manager
Date: Date:
By
City Engineer
Date:
APPROVED AS TO FORM: APPROVED BY CITY COUNCIL:
By Date: Agreement No.
City Attorney
Date:
CONSULTANT
Name: Michael Fontana and Associates
Check one: _Individual _Partnership _Corporation
Corporations require two notarized signatures: One signature must be from Chairman of
Board, President, or any Vice President. The second signature must be from the Secretary,
Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer.
Address: 70411 Desert Cove
Rancho Mirage, CA 92270
By: By:
Signature (notarized) Signature (notarized)
Name: Name:
Title: Title:
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State of California )
)ss.
County of Riverside )
On before me,
Date Name and Title of Officer
Personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her,their signature(s) on the instrument the person(s) or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal
Signature of Notary Public
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CITY OF PALM SPRINGS
PROFESSIONAL SERVICES AGREEMENT
ON-CALL FACILITY CONSTRUCTION OWNER REPRESENTATIVE SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT (hereinafter "Agreement") is made and
entered into, to be effective this day of , 2014,by and between the CITY OF
PALM SPRINGS, a California charter city and municipal corporation, (hereinafter referred to as "City")
and Michael Fontana and Associates, (hereinafter referred to as "Consultant"). City and Consultant
are sometimes hereinafter individually referred to as "Party" and are hereinafter collectively referred to
as the "Parties."
RECITALS
A. City has determined that there is a need for As-Needed, "On-Call" Facility Construction
Owner Representative Services for a variety of future construction projects, (hereinafter the "Project").
B. Consultant has submitted to City a proposal to provide As-Needed, "On-Call" Facility
Owner Representative Services for a variety of future construction projects to City pursuant to the terms
of this Agreement.
C. Consultant is qualified by virtue of its experience, training, education, reputation, and
expertise to provide these services and has agreed to provide such services as provided herein.
D. City desires to retain Consultant to provide such professional services.
NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and
conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1.0 SERVICES OF CONTRACTOR
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,
Consultant agrees to perform the professional services set forth in the Scope of Services described in
Exhibit "A," which is attached hereto and is incorporated herein by reference (hereinafter referred to as
the "Services" or "Work"). As a material inducement to the City entering into this Agreement,
Consultant represents and warrants that this Agreement requires specialized skills and abilities and is
consistent with this understanding, Consultant is a provider of first class work and professional services
and that Consultant is experienced in performing the Work and Services contemplated herein and, in
light of such status and experience, Consultant covenants that it shall follow the highest professional
standards in performing the Work and Services required hereunder. For purposes of this Agreement,
the phrase "highest professional standards" shall mean those standards of practice recognized as high
quality among well-qualified and experienced professionals performing similar work under similar
circumstances.
1.2 Contract Documents. The Agreement between the Parties shall consist of the
following: (1) this Agreement; (2)the Scope of Services; (3) the City's Request for Proposals; and, (4)
the Consultant's signed, original proposal submitted to the City ("Consultant's Proposal"), (collectively
referred to as the "Contract Documents"). The City's Request for Proposals and the Consultant's
Proposal, which are both attached as Exhibits "B" and "C", respectively, are incorporated by reference
and are made a part of this Agreement. The Scope of Services shall include the Consultant's Proposal.
All provisions of the Scope of Services, the City's Request for Proposals and the Consultant's Proposal
shall be binding on the Parties. Should any conflict or inconsistency exist in the Contract
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Documents, the conflict or inconsistency shall be resolved by applying the provisions in the highest
priority document, which shall be determined in the following order of priority: (1') the terms of this
Agreement; (2nd) the provisions of the Scope of Services (Exhibit "A"); as may be amended from time to
time; (3rd) the provisions of the City's Request for Proposal (Exhibit "B"); and, (4`h) the provisions of the
Consultant's Proposal (Exhibit "C").
1.3 Compliance with Law. Consultant warrants that all Services rendered hereunder shall
be performed in accordance with all applicable federal, state, and local laws, statutes, and ordinances
and all lawful orders, rules, and regulations promulgated thereunder, including without limitation all
applicable Cal/OSHA requirements.
1.4 Licenses, Permits. Fees and Assessments. Consultant represents and warrants to
City that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are
legally required to practice its profession and perform the Work and Services required by this
Agreement. Consultant represents and warrants to City that Consultant shall, at its sole cost and
expense, keep in effect at all times during the term of this Agreement, any license, permit, qualification,
or approval that is legally required for Consultant to perform the Work and Services under this
Agreement. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus
applicable penalties and interest, which may be imposed by law and arise from or are necessary for the
Consultant's performance of the Work and 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 Agreement, Consultant warrants that
Consultant (a) has thoroughly investigated and considered the Scope of Services to be performed, (b)
has carefully considered how the Services should be performed, and (c) fully understands the facilities,
difficulties, and restrictions attending performance of the Services under this Agreement. If the
Services involve work upon any site, Consultant warrants that Consultant has or will investigate the site
and is or will be fully acquainted with the conditions there existing, prior to commencement of any
Services hereunder. Should the Consultant discover any latent or unknown conditions that will
materially affect the performance of the Services hereunder, Consultant shall immediately inform the
City of such fact and shall not proceed except at Consultant's risk until written instructions are received
from the City.
1.6 Care of Work. Consultant shall adopt reasonable methods during the term of the
Agreement to furnish continuous protection to the Work and the equipment, materials, papers,
documents, plans, studies, and/or other components thereof to prevent losses or damages, and shall
be responsible for all such damages, to persons or property, until acceptance of the Work by the City,
except such losses or damages as may be caused by City's own negligence.
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.
1.8 Performance of Services. City Manager or his desginee, as provided in Section 2.1 of
this Agreement, shall have the right at any time during the term of this Agreement to order the
performance of services as generally described in the Scope of Services to perform extra or additional
work beyond that specified in theScope of Services or make changes by altering, adding to, or
deducting from such Work. No Work may be undertaken unless a written order is first given by the City
Manager or his designee to the Consultant, incorporating therein the identification and description of
the Work to be performed, a maximum or not to exceed amount for such Work, and the time to perform
this Agreement.
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1.9 Unauthorized Aliens. Consultant hereby represents and warrants that it will comply with
all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§1101, et seq., as
amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should
Consultant so employ such unauthorized aliens for the performance of any work and/or services under
this Agreement, and should any liability or sanctions be imposed against City for such use of
unauthorized aliens, Consultant hereby agrees to reimburse City for any and all liabilities, actions, suits,
claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands,
orders, or penalties which arise out of or are related to such employment, together with any and all
costs, including attorneys' fees, incurred by City.
2.0 COMPENSATION
2.1 Maximum Contract Amount. City and Consultant hereby acknowledge and agree that
the scope of services required by this Agreement will vary dependent upon the number, type, and
extent of the services or work the Consultant shall provide; and no guarantee of the extent or the type
of services required of Consultant under the terms of this Agreement is made by the City. The annual
level of services required by this Agreement is unknown, and may significantly increase or decrease
from year to year. In acknowledgement of the fact that the number and type of capital projects requiring
the Consultant's services has not been identified for this contract, City and Consultant hereby
acknowledge and agree that a specific "Maximum Contract Sum" shall be imposed on each separate
project that the City may assign Consultant as provided in Section 1.8 and in this Section 2.1. Each
such separate project shall be identified as a Task Order or a Purchase Order authorized by the City
Manager or his designee, as provided in this Section 2.1. For the services rendered pursuant to this
Agreement, the Consultant shall be compensated in accordance with the "Schedule of Compensation"
attached hereto as Exhibit "D" and incorporated herein by this reference. Consultant's Insurance
Premiums for the coverage required under this agreement shall be a reimbursable expense and should
consultant take on other compensable work during the term of this agreement, Consultant shall notify
the City and the City's share of the reimbursable insurance premium expense shall be proportionately
reduced accordingly, subject to the mutual agreement of the parties.
The method of compensation may include: (i) a lump sum payment upon completion, (ii) payment for
time and materials based upon the Consultant's Schedule of Hourly Billing Rates as shown on Exhibit
"D", or (iii) such other methods as may be specified in the Schedule of Compensation. Compensation
shall include reimbursement for actual and necessary expenditures for reproduction costs, telephone
expense, transportation expense, and all other necessary expenditures required to perform the
professional services under this Agreement. Compensation shall include the attendance of Consultant
at all project meetings reasonably deemed necessary by the City; Consultant shall not be entitled to
any additional compensation for attending said meetings. Consultant 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 Consultant anticipates, and that Consultant shall not be entitled to additional
compensation therefore.
It is expressly agreed that the maximum contract amount of this Agreement is undefined, and is subject
to the number and type of capital projects requiring the Consultant's services throughout the duration of
the term of this Agreement, if any. Consultant shall be entitled to compensation in accordance with
separate City authorized "Task Orders' (Purchase Orders) with corresponding Not-to-Exceed payment
amounts established pursuant to the Consultant's Schedule of Hourly Billing Rates as shown on Exhibit
"D". Consultant's compensation shall be limited to the amount identified on each separate, individually
authorized Task Order corresponding to a project requiring the services of the Consultant.
By approval of this Agreement, the City Council hereby authorizes the subsequent approval of
individual Task Orders (Purchase Orders) in those amounts sufficient to cover the cost of required
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services (pursuant to Schedule "D") necessary for capital projects, subject to existing cost limits
established by the Palm SpringsMunicipal Code.
2.2 Method of Payment. Unless some other method of payment is specified in the
Schedule of Compensation (Exhibit "D"), in any month in which Consultant wishes to receive payment,
no later than the tenth (10) working day of such month, Consultant shall submit to the City, in a form
approved by the City's Finance Director, an invoice for services rendered prior to the date of the
invoice. Such requests shall be based upon the amount and value of the services performed by
Consultant and accompanied by such reporting data including an itemized breakdown of all costs
incurred and tasks performed during the period covered by the invoice, as may be required by the City.
City shall use reasonable efforts to make payments to Consultant within forty-five (45) days after receipt
of the invoice or a soon thereafter as is reasonably practical. There shall be a maximum of one
payment per month.
2.3 Chances in Scope. In the event any change or changes in the Scope of Services is
requested by the City, the Parties shall execute a written amendment to this Agreement, setting forth
with particularity all terms of such amendment, including, but not limited to, any additional professional
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; and/or (b) to provide for additional services not included in this Agreement or not customarily
furnished in accordance with generally accepted practice in Consultant's profession.
2.4 Appropriations. This Agreement is subject to and contingent upon funds being
appropriated therefore by the Palm Springs City Council for each fiscal year covered by the Agreement.
If such appropriations are not made, the City Manager may terminate this Agreement as provided in
Section 8.3 of this Agreement; otherwise, there shall be no funding for any work or services and
Consultant shall not be entitled to payment for any work or services that Consultant may provide.
3. SCHEDULE OF PERFORMANCE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement. The
time for completion of the services to be performed by Consultant is an essential condition of this
Agreement. Consultant shall prosecute regularly and diligently the Work of this Agreement according
to the agreed upon Schedule of Performance for each Task Order.
3.2 Schedule of Performance. Consultant 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. When requested by Consultant, extensions to
the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract
Officer, but such extensions shall not exceed one hundred eighty (180) days cumulatively; however, the
City shall not be obligated to grant such an extension.
3.3 Force 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
Consultant (financial inability excepted), including, but not limited to, acts of God or of the public enemy,
unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes,
freight embargoes, wars, and/or acts of any governmental agency, including the City, if Consultant,
within ten (10) days of the commencement of such delay, notifies the City Manager in writing of the
causes of the delay. The City Manager 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
City Manager such delay is justified. The City Manager's determination shall be final and conclusive
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upon the Parties to this Agreement. In no event shall Consultant be entitled to recover damages
against the City for any delay in the performance of this Agreement, however caused, Consultant's sole
remedy being extension of the Agreement pursuant to this section.
3.4 Term. Unless earlier terminated under the terms of this Agreement, this Agreement
shall continue in full force and effect for three (3) years. At the sole discretion of the City Manager,
upon written notice to Consultant and mutual agreement, the term of this Agreement may be extended
for two (2) additional one (1) year terms.
4. COORDINATION OF WORK
4.1 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 to be performed under this Agreement and make all decisions in connection
therewith: Michael Fontana. It is expressly understood that the experience, knowledge, education,
capability, expertise, and reputation of the foregoing principal is a substantial inducement for City to
enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this
Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise
the services performed hereunder. The foregoing principal may not be changed by Consultant without
prior written approval of the Contract Officer.
4.2 Contract Officer. The Contract Officer shall be such person as may be designated by
the City Manager of City, and is subject to change by the City Manager. It shall be the Consultant's
responsibility to ensure that the Contract Officer is kept fully informed of the progress of the
performance of the Services, and the Consultant 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 Assignments. The experience, knowledge,
capability, expertise, and reputation of Consultant, its principals and employees, were a substantial
inducement for City to enter into this Agreement. Therefore, Consultant shall not assign the
performance of this Agreement, nor any part thereof, nor any monies due hereunder, voluntarily or by
operation of law, without the prior written consent of City. Consultant shall not contract with any other
entity to perform the Services required under this Agreement without the prior written consent of City. If
Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be
responsible to City for the acts and omissions of its subcontractor(s) in the same manner as it is for
persons directly employed. Nothing contained in this Agreement shall create any contractual
relationships between any subcontractor and City. All persons engaged in the Work will be considered
employees of Consultant. City will deal directly with and will make all payments to Consultant. In
addition, neither this Agreement nor any interest 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 consent 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 Consultant, taking all transfers into account on a cumulative
basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this
Agreement shall be void. No approved transfer shall release Consultant or any surety of Consultant
from any liability hereunder without the express written consent of City.
4.4 Independent Contractor.
A. The legal relationship between the Parties is that of an independent contractor,
and nothing herein shall be deemed to make Consultant a City employee. During the performance of
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this Agreement, Consultant and its officers, employees, and agents shall act in an independent capacity
and shall not act as City officers or employees. The personnel performing the Services under this
Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and
control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of
Consultant or any of its officers, employees, or agents, except as set forth in this Agreement.
Consultant, its officers, employees, or agents shall not maintain an office or any other type of fixed
business location at City's offices. City shall have no voice in the selection, discharge, supervision, or
control of Consultant's employees, servants, representatives, or agents, or in fixing their number,
compensation, or hours of service. Consultant shall pay all wages, salaries, and other amounts due its
employees in connection with this Agreement and shall be responsible for all reports and obligations
respecting them, including but not limited to social security income tax withholding, unemployment
compensation, workers' compensation, and other similar matters. City shall not in any way or for any
purpose be deemed to be a partner of Consultant in its business or otherwise a joint venturer or a
member of any joint enterprise with Consultant.
B. Consultant shall not incur or have the power to incur any debt, obligation, or
liability against City, or bind City in any manner.
C. No City benefits shall be available to Consultant, its officers, employees, or
agents in connection with any performance under this Agreement. Except for professional fees paid to
Consultant as provided for in this Agreement, City shall not pay salaries, wages, or other compensation
to Consultant for the performance of Services under this Agreement. City shall not be liable for
compensation or indemnification to Consultant, its officers, employees, or agents, for injury or sickness
arising out of performing Services hereunder. If for any reason any court or governmental agency
determines that the City has financial obligations, other than pursuant to Section 2 and Subsection 1.8
herein, of any nature relating to salary, taxes, or benefits of Consultant's officers, employees, servants,
representatives, subcontractors, or agents, Consultant shall indemnify City for all such financial
obligations.
5. INSURANCE
5.1 Types of Insurance. Consultant shall procure and maintain, at its sole cost and
expense, in a form and content satisfactory to City, the insurance described herein for the duration of
this Agreement, including any extension thereof, or as otherwise specified herein, against claims which
may arise from or in connection with the performance of the Work hereunder by Consultant, its agents,
representatives, or employees. In the event the City Manager determines that the Work or Services to
be performed under this Agreement creates an increased or decreased risk of loss to the City, or in the
event the Risk Manager determines the minimum limits should be adjusted, the Consultant agrees that
the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice
from the City Manager or his designee. Consultant shall immediately substitute any insurer whose A.M.
Best rating drops below the levels specified herein. Except as otherwise authorized below for
professional liability (errors and omissions) insurance, all insurance provided pursuant to this
Agreement shall be on an occurrence basis. The minimum amount of insurance required hereunder
shall be as follows:
A. Errors and Omissions Insurance. Consultant shall obtain and maintain in full
force and effect throughout the term of this Agreement, standard industry form professional liability
(errors and omissions) insurance coverage in an amount of not less than one million dollars
($1,000,000.00) per occurrence and two-million dollars ($2,000,000.00) annual aggregate, in
accordance with the provisions of this section.
(1) Consultant shall either: (a) certify in writing to the City that Consultant is
unaware of any professional liability claims made against Consultant and is unaware of any facts which
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may lead to such a claim against Consultant; or (b) if Consultant does not provide the certification
pursuant to (a), Consultant shall procure from the professional liability insurer an endorsement
providing that the required limits of the policy shall apply separately to claims arising from errors and
omissions in the rendition of services pursuant to this Agreement.
(2) If the policy of insurance is written on a "claims made" basis, the policy shall
be continued in full force and effect at all times during the term of this Agreement, and for a period of
three (3) years from the date of the completion of the Services provided hereunder. In the event of
termination of the policy during this period, Consultant shall obtain continuing insurance coverage for
the prior acts or omissions of Consultant during the course of performing Services under the terms of
this Agreement. The coverage shall be evidenced by either a new policy evidencing no gap in
coverage, or by obtaining separate extended "tail" coverage with the present or new carrier or other
insurance arrangements providing for complete coverage, either of which shall be subject to the written
approval by the City Manager-
(3) In the event the policy of insurance is written on an "occurrence" basis, the
policy shall be continued in full force and effect during the term of this Agreement, or until completion of
the Services provided for in this Agreement, whichever is later. In the event of termination of the policy
during this period, new coverage shall immediately be obtained to ensure coverage during the entire
course of performing the Services under the terms of this Agreement.
B. Workers' Compensation Insurance. Consultant shall obtain and maintain, in full
force and effect throughout the term of this Agreement, workers' compensation insurance in at least the
minimum statutory amounts, and in compliance with all other statutory requirements, as required by the
State of California. Consultant agrees to waive and obtain endorsements from its workers'
compensation insurer waiving subrogation rights under its workers' compensation insurance policy
against the City and to require each of its subcontractors, if any, to do likewise under their workers'
compensation insurance policies. If Consultant has no employees, Consultant shall complete the
City's Request for Waiver of Workers' Compensation Insurance Requirement form.
C. Commercial General Liability Insurance. Consultant shall obtain and maintain, in
full force and effect throughout the term of this Agreement, a policy of commercial general liability
insurance written on a per occurrence basis with a combined single limit of at least one million dollars
($1,000,000.00) and two million dollars ($2,000,000.00) general aggregate for bodily injury and property
damage including coverages for contractual liability, personal injury, independent contractors, broad
form property damage, products and completed operations.
D. Business Automobile Insurance. Consultant shall obtain and maintain, in full
force and effect throughout the term of this Agreement, a policy of business automobile liability
insurance written on a per occurrence basis with a single limit liability in the amount of one million
dollars ($1,000,000.00) bodily injury and property damage. The policy shall include coverage for
owned, non-owned, leased, and hired cars.
5.2 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions
must be declared to and approved by the City Manager prior to commencing any work or services
under this Agreement. Consultant guarantees payment of all deductibles and self-insured retentions.
City reserves the right to reject deductibles or self-insured retentions in excess of $10,000, and the City
Manager may require evidence of pending claims and claims history as well as evidence of
Consultant's ability to pay claims for all deductible amounts and self-insured retentions proposed in
excess of $10,000.
5.3 Other Insurance Requirements. The following provisions shall apply to the insurance
Page 7 of 16 13
policies required of Consultant pursuant to this Agreement:
5.3.1 For any claims related to this Agreement, Consultant's coverage shall be primary
insurance as respects City and its officers, council members, officials, employees,
agents, and volunteers. Any insurance or self-insurance maintained by the City and its
officers, council members, officials, employees, agents, and volunteers shall be in
excess of Consultant's insurance and shall not contribute with it.
5.3.2 Any failure to comply with reporting or other provisions of the policies, including
breaches of warranties, shall not affect coverage provided to City and its officers, council
members, officials, employees, agents, and volunteers.
5.3.3 All insurance coverage and limits provided by Consultant and available or applicable to
this Agreement are intended to apply to each insured, including additional insureds,
against whom a claim is made or suit is brought to the full extent of the policies. Nothing
contained in this Agreement or any other agreement relating to the City or its operations
shall limit the application of such insurance coverage.
5.3.4 None of the insurance coverages required herein will be in compliance with these
requirements if they include any limiting endorsement which substantially impairs the
coverages set forth herein (e.g., elimination of contractual liability or reduction of
discovery period), unless the endorsement has first been submitted to the City Manager
and approved in writing.
5.3.5 Consultant agrees to require its insurer to modify insurance endorsements to delete any
exculpatory wording stating that failure of the insurer to mail written notice of cancellation
imposes no obligation, or that any party will "endeavor" (as opposed to being required)
to comply with the requirements of the endorsements. Certificates of insurance will not
be accepted in lieu of required endorsements, and submittal of certificates without
required endorsements may delay commencement of the Project. It is Consultant's
obligation to ensure timely compliance with all insurance submittal requirements as
provided herein.
5.3.6 Consultant agrees to ensure that Consultant's subcontractors, and any other parties
involved with the Project who are brought onto or involved in the Project by Consultant,
provide the same minimum insurance coverage required of Consultant. Consultant
agrees to monitor and review all such coverage and assumes all responsibility for
ensuring that such coverage is provided in conformity with the requirements of this
section. Consultant agrees that upon request, all agreements with subcontractors and
others engaged in the Project will be submitted to the City for review.
5.3.7 Consultant acknowledges and agrees that any actual or alleged failure on the part of the
City to inform Consultant of non-compliance with any insurance requirement in no way
imposes any additional obligations on the City nor does it waive any rights hereunder in
this or any other regard.
5.3.8 Consultant shall provide proof that policies of insurance required herein expiring during
the term of this Agreement have been renewed or replaced with other policies providing
at least the same coverage. Proof that such coverage has been ordered shall be
submitted prior to expiration. Endorsements as required in this Agreement applicable to
the renewing or new coverage shall be provided to City no later than ten (10) days prior
to expiration of the lapsing coverage.
Page 8 of 16 14
5.3.9 Requirements of specific insurance coverage features or limits contained in this section
are not intended as limitations on coverage, limits, or other requirements nor as a waiver
of any coverage normally provided by any given policy. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a given issue, and is
not intended by any party or insured to be limiting or all-inclusive.
5.3.10 The requirements in this section supersede all other sections and provisions of this
Agreement to the extent that any other section or provision conflicts with or impairs the
provisions of this section.
5.3.11 Consultant agrees to provide immediate notice to City of any claim or loss against
Consultant arising out of the Work performed under this Agreement and for any other
claim or loss which may reduce the insurance available to pay claims arising out of this
Agreement. City assumes no obligation or liability by such notice, but has the right (but
not the duty) to monitor the handling of any such claim or claims if they are likely to
involve City, or to reduce or dilute insurance available for payment of potential claims.
5.3.12 Consultant agrees that the provisions of this section shall not be construed as limiting in
any way the extent to which the Consultant may be held responsible for the payment of
damages resulting from the Consultant's activities or the activities of any person or
person for which the Consultant is otherwise responsible.
5.4 Sufficiency of Insurers. Insurance required 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 such
requirements are waived in writing by the City Manager or his designee due to unique circumstances.
5.5 Verification of Coverane.Consultant shall furnish City with both certificates of insurance
and endorsements, including additional insured endorsements, affecting all of the coverages required
by this Agreement. The certificates and endorsements are to be signed by a person authorized by that
insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City
before work commences. City reserves the right to require Consultant's insurers to provide complete,
certified copies of all required insurance policies at any time. Additional insured endorsements are not
required for Errors and Omissions and Workers' Compensation policies.
Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto
Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability
Insurance Coverage with an approved Additional Insured Endorsement with the following
endorsements stated on the certificate:
1. "The City of Palm Springs, its officials, employees, and agents are named as an
additional insured..." ("as respects City of Palm Springs Contract No. " or "for any and all work
performed with the City"may be included in this statement).
2. "This insurance is primary and non-contributory over any insurance or self-insurance the
City may have..." ("as respects City of Palm Springs Contract No. " or "for any and all work
performed with the City' may be included in this statement).
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.
Page 9 of 16 15
4. Both the Workers' Compensation and Employers' Liability policies shall contain the
insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and
volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate
holder on the policies. All certificates of insurance and endorsements are to be received and approved
by the City before work commences. All certificates of insurance must be authorized by a person with
authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter.
Failure to obtain the required documents prior to the commencement of work shall not waive the
Consultant's obligation to provide them.
6. INDEMNIFICATION
6.1 To the fullest extent permitted by law, Consultant shall defend (at Consultant's sole cost
and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees,
agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities,
actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages,
demands, orders, penalties, and expenses including legal costs and attorney fees (collectively
"Claims"), including but not limited to Claims arising from injuries to or death of persons (Consultant's
employees included), for damage to property, including property owned by City, from any violation of
any federal, state, or local law or ordinance, and from errors and omissions committed by Consultant,
its officers, employees, representatives, and agents, that arise out of or relate to Consultant's
negligence or willful misconduct under this Agreement. This indemnification clause excludes Claims
arising from the sole negligence or willful misconduct of the City, its elected officials, officers,
employees, agents, and volunteers. Under no circumstances shall the insurance requirements and
limits set forth in this Agreement be construed to limit Consultant's indemnification obligation or other
liability under this Agreement. Consultant's indemnification obligation shall survive the expiration or
earlier termination of this Agreement until all actions against the Indemnified Parties for such matters
indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely
filed, until such action is final. This provision is intended for the benefit of third party Indemnified Parties
not otherwise a party to this Agreement.
7. REPORTS AND RECORDS
7.1 Accountina Records. Consultant shall keep complete, accurate, and detailed accounts
of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Consultant
shall keep such books and records as shall be necessary to properly perform the Services required by
this Agreement and to enable the Contract Officer to evaluate the performance of such Services. The
Contract Officer shall have full and free access to such books and records at all reasonable times,
including the right to inspect, copy, audit, and make records and transcripts from such records.
7.2 Reports.Consultant shall periodically prepare and submit to the Contract Officer such
reports concerning the performance of the Services required by this Agreement as the Contract Officer
shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of the
Work and Services to be performed pursuant to this Agreement. For this reason, Consultant agrees
that if Consultant 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 Consultant
is providing design services, the cost of the project being designed, Consultant shall promptly notify the
Contract Officer of such fact, circumstance, technique, or event and the estimated increased or
decreased cost related thereto and, if Consultant is providing design services, the estimated increased
or decreased cost estimate for the project being designed.
Page 10 of 16 i S
7.3 Ownership of Documents. All drawings, specifications, reports, records, documents,
memoranda, correspondence, computations, and other materials prepared by Consultant, its
employees, subcontractors, and agents in the performance of this Agreement shall be the property of
City and shall be promptly delivered to City upon request of the Contract Officer or upon the termination
of this Agreement, and Consultant shall have no claim for further employment or additional
compensation as a result of the exercise by City of its full rights of ownership of the documents and
materials hereunder. Any use of such completed documents for other projects and/or use of
incomplete documents without specific written authorization by the Consultant will be at the City's sole
risk and without liability to Consultant, and the City shall indemnify the Consultant for all damages
resulting therefrom. Consultant may retain copies of such documents for its own use. Consultant shall
have an unrestricted right to use the concepts embodied therein. Consultant shall ensure that all its
subcontractors shall provide for assignment to City of any documents or materials prepared by them,
and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all
damages resulting therefrom.
7.4 Release of Documents. All drawings, specifications, reports, records, documents, and
other materials prepared by Consultant in the performance of services under this Agreement shall not
be released publicly without the prior written approval of the Contract Officer. All information gained by
Consultant in the performance of this Agreement shall be considered confidential and shall not be
released by Consultant without City's prior written authorization.
7.5 Audit and Inspection of Records. After receipt of reasonable notice and during the
regular business hours of City, Consultant shall provide City, or other agents of City, such access to
Consultant's books, records, payroll documents, and facilities as City deems necessary to examine,
copy, audit, and inspect all accounting books, records, work data, documents, and activities directly
related to Consultant's performance under this Agreement. Consultant shall maintain such books,
records, data, and documents in accordance with generally accepted accounting principles and shall
clearly identify and make such items readily accessible to such parties during the term of this
Agreement and for a period of three (3) years from the date of final payment by City hereunder.
8. ENFORCEMENT OF AGREEMENT
8.1 California Law and Venue.This Agreement shall be construed and interpreted both as
to validity and as to performance of the Parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement
shall be instituted in the Superior Court of the County of Riverside, State of California, or any other
appropriate court in such County, and Consultant covenants and agrees to submit to the personal
jurisdiction of such court in the event of such action.
8.2 Interpretation. This Agreement shall be construed as a whole according to its fair
language and common meaning to achieve the objectives and purposes of the Parties. The terms of
this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule
of construction of contracts (including, without limitation, California Civil Code Section 1654) that
ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of
this Agreement. The caption headings of the various sections and paragraphs of this Agreement are
for convenience and identification purposes only and shall not be deemed to limit, expand, or define the
contents of the respective sections or paragraphs.
8.3 Termination. City may terminate this Agreement for its convenience at any time,
without cause, in whole or in part, upon giving Consultant thirty (30) days written notice. Upon such
notice, City shall pay Consultant for Services performed through the date of termination. Upon receipt
of such notice, Consultant shall immediately cease all work under this Agreement, unless the notice
provides otherwise. Thereafter, Consultant shall have no further claims against the City under this
Page 11 of 16 17
Agreement. Upon termination of the Agreement pursuant to this section, Consultant shall submit to the
City an invoice for work and services performed prior to the date of termination. In addition, the
Consultant reserves the right to terminate this Agreement at any time, with or without cause, upon sixty
(60) days written notice to the City, except that where termination is due to material default by the City,
the period of notice may be such shorter time as the Consultant may determine.
8.4 Default of Consultant.
A. Consultant's failure to comply with any provision of this Agreement shall
constitute a default.
B. If the City Manager, or his designee, determines that Consultant is in default in
the performance of any of the terms or conditions of this Agreement, he/she shall notify Consultant in
writing of such default. Consultant shall have ten (10) days, or such longer period as City may
designate, to cure the default by rendering satisfactory performance. In the event Consultant fails to
cure its default within such period of time, City shall have the right, notwithstanding any other provision
of this Agreement, to terminate this Agreement without further notice and without prejudice of any
remedy to which City may be entitled at law, in equity, or under this Agreement. Consultant shall be
liable for any and all reasonable costs incurred by City as a result of such default. Compliance with the
provisions of this section shall not constitute a waiver of any City right to take legal action in the event
that the dispute is not cured, provided that nothing herein shall limit City's right to terminate this
Agreement without cause pursuant to Section 8.3.
C. If termination is due to the failure of the Consultant to fulfill its obligations under
this Agreement, City may, after compliance with the provisions of Section 8.4.13, take over the work and
prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the
extent that the total cost for completion of the Services required hereunder exceeds the Maximum
Contract Amount (provided that the City shall use reasonable efforts to mitigate such damages), and
City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the
amounts owed the City as previously stated. The withholding or failure to withhold payments to
Consultant shall not limit Consultant's liability for completion of the Services as provided herein.
8.5 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing
and signed by a duly authorized representative of the Party against whom enforcement of a waiver is
sought. Any waiver by the Parties of any default or breach of any covenant, condition, or term
contained in this Agreement, shall not be construed to be a waiver of any subsequent or other default
or breach, nor shall failure by the Parties to require exact, full, and complete compliance with any of the
covenants, conditions, or terms contained in this Agreement be construed as changing the terms of this
Agreement in any manner or preventing the Parties from enforcing the full provisions hereof.
8.6 Rights and Remedies Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are
cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude
the exercise by it, at the same or different times, of any other rights or remedies for the same default or
any other default by the other Party.
8.7 Legal Action. In addition to any other rights or remedies, either Party may take legal
action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to
compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain
any other remedy consistent with the purposes of this Agreement.
8.8 Attorney Fees. In the event any dispute between the Parties with respect to this
Agreement results in litigation or any non-judicial proceeding, the prevailing Party shall be entitled, in
Page 12 of 16
18
addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable
costs and expenses, including but not limited to reasonable attorney fees, expert consultant fees, court
costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered
in such proceeding. To the extent authorized by law, in the event of a dismissal by the plaintiff or
petitioner of the litigation or non-judicial proceeding within thirty (30) days of the date set for trial or
hearing, the other Party shall be deemed to be the prevailing Party in such litigation or proceeding.
9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
9.1 Non-liability of City Officers and Employees.No officer or employee of the City shall
be personally liable to the Consultant, or any successor-in-interest, in the event of any default or breach
by the City or for any amount which may become due to the Consultant or to its successor, or for
breach of any obligation of the terms of this Agreement.
9.2 Conflict of Interest. 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/she is, directly or indirectly, interested in violation of any state
statute or regulation. Consultant warrants that it has not paid or given and will not pay or give any third
party any money or other consideration in exchange for obtaining this Agreement.
9.3 Covenant Against Discrimination. In connection with its performance under this
Agreement, Consultant shall not discriminate against any employee or applicant for employment
because of race, religion, color, sex, age, marital status, ancestry, or national origin. Consultant shall
ensure that applicants are employed, and that employees are treated during their employment, without
regard to their race, religion, color, sex, age, marital status, ancestry, or national origin. Such actions
shall include, but not be limited to, the following: employment, upgrading, demotion or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship.
10. MISCELLANEOUS PROVISIONS
10.1 Patent and Copyright Infringement.
A. To the fullest extent permissible under law, and in lieu of any other warranty by
City or Consultant against patent or copyright infringement, statutory or otherwise, it is agreed that
Consultant shall defend at its expense any claim or suit against City on account of any allegation that
any item furnished under this Agreement, or the normal use or sale thereof arising out of the
performance of this Agreement, infringes upon any presently existing U.S. letters patent or copyright
and Consultant shall pay all costs and damages finally awarded in any such suit or claim, provided that
Consultant is promptly notified in writing of the suit or claim and given authority, information and
assistance at Consultant's expense for the defense of same, and provided such suit or claim arises out
of, pertains to, or is related to the negligence, recklessness or willful misconduct of Consultant.
However, Consultant will not indemnify City if the suit or claim results from: (1) City's alteration of a
deliverable, such that City's alteration of such deliverable created the infringement upon any presently
existing U.S. letters patent or copyright; or (2) the use of a deliverable in combination with other
material not provided by Consultant when it is such use in combination which infringes upon an existing
U.S. letters patent or copyright.
B. Consultant shall have sole control of the defense of any such claim or suit and all
negotiations for settlement thereof, Consultant shall not be obligated to indemnify City under any
settlement made without Consultant's consent or in the event City fails to cooperate in the defense of
any suit or claim, provided, however, that such defense shall be at Consultant's expense. If the use or
Page 13 of 16 19
sale of such item is enjoined as a result of the suit or claim, Consultant, at no expense to City, shall
obtain for City the right to use and sell the item, or shall substitute an equivalent item acceptable to City
and extend this patent and copyright indemnity thereto.
10.2 Notices. All notices or other communications required or permitted hereunder shall be
in writing, and shall be personally delivered, sent by pre-paid First Class U.S. Mail, registered or
certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimile with attached
evidence of completed transmission, and shall be deemed received upon the earlier of (i) the date of
delivery to the address of the person to receive such notice if delivered personally or by messenger or
overnight courier; (ii) five (5) business days after the date of posting by the United States Post Office if
by mail; or (iii) when sent if given by facsimile. Any notice, request, demand, direction, or other
communication sent by facsimile must be confirmed within forty-eight (48) hours by letter mailed or
delivered. Other forms of electronic transmission such as e-mails, text messages, instant messages
are not acceptable manners of notice required hereunder. Notices or other communications shall be
addressed as follows:
To City: City of Palm springs
Attention: City Manager
3200 E. Tahquitz Canyon Way
Palm springs, California92262
Telephone: (760) 323-8204
Facsimile: (760) 323-8332
To Consultant: Michael Fontana and Associates
Attention: Michael E. Fontana, Principal
70411 Desert Cove
Rancho Mirage, CA 92270
Telephone: (760) 567-2054
10.3 Entire Agreement. This Agreement constitutes the entire agreement between the
Parties and supersedes all prior negotiations, arrangements, agreements, representations, and
understandings, if any, made by or among the Parties with respect to the subject matter hereof. No
amendments or other modifications of this Agreement shall be binding unless executed in writing by
both Parties hereto, or their respective successors, assigns, or grantees.
10.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted
in such a manner as to be effective and valid under applicable law, but if any provision of this
Agreement shall be determined to be invalid by a final judgment or decree of a court of competent
jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without
invalidating the reminder of that provision, or the remaining provisions of this Agreement unless the
invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain
or renders this Agreement meaningless.
10.5 Successors in Interest.This Agreement shall be binding upon and inure to the benefit
of the Parties' successors and assignees.
10.6 Third Party Beneficiary.Except as may be expressly provided for herein, nothing
contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring,
any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any
entity or person not a party hereto.
10.7 Recitals.The above-referenced Recitals are hereby incorporated into the Agreement as
though fully set forth herein and each Party acknowledges and agrees that such Party is bound, for
Page 14 of 16
20
purposes of this Agreement, by the same.
10.8. Corporate Authority. Each of the undersigned represents and warrants that (i) the
Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he or she is
duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is
signing, (iii) by so executing this Agreement, the Party for which he or she is signing is formally bound
to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any
provision of any other Agreement to which the Party for which he or she is signing is bound.
(SIGNATURES ON FOLLOWING PAGE)
Page 15 of 16
21
IN WITNESS WHEREOF, the City and the Consultant have caused this Agreement to be executed the day
and year first above written.
ATTEST: CONTENTS APPROVED:
CITY OF PALM SPRINGS, CA
By By
City Clerk City Manager
Date: Date:
By
City Engineer
Date:
APPROVED AS TO FORM: APPROVED BY CITY COUNCIL:
By Date: Agreement No.
City Attorney
Date:
CONSULTANT
Name: Michael Fontana and Associates
Check one: _Individual _Partnership _Corporation
Corporations require two notarized signatures: One signature must be from Chairman of Board,
President, or any Vice President. The second signature must be from the Secretary, Assistant
Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer.
Address: 70411 Desert Cove
Rancho Mirage, CA 92270
By: By:
Signature (notarized) Signature (notarized)
Name: Name:
Title: Title:
Page 16 of 16 22
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
On _ ...._.____. before me, —
{py E 14fx itxEi t N2I1t flN"-Til:n x?ttYB tA'feC,'
personally appeared ..
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) Ware suisscribed to the
within instrument and acknowledged to me that
helshelthey executed the same in his/horlthefr authorized
capacity(ies), and that by hisrnet/their signaiuie(s) on the
instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature.._ ...................Fm
S+laxe 9bz7 F.e31.�bR1•Y? SV", m 0 WuW NW
OPTIONAL
Though the olormation below is not required try taw,it tray prove valuable,to persons relying on the document
and could prevent haneulenf rerr oval and reanxohment of this form to annfirer drx"mEnt-
Description of Attached Document
Title or'type of Document. __..
Document Date: ,---- _ .._,_._. _,. . __Number of Pages:
Signers)Other Than Named Above: __........ _
Capec"(ies)Claimed by Signer(s)
Signer's Name: __ Signer's Narne:__ ----
Individual v;individual
Corporate Officer—Titte(s): Corporate Officer—Tille(s): .,w. .
Partner—Ct Umi[ed ❑General " Partner—uLimiied LGeneral
:a Attorney in Fact L�Attorney in Fact
__'I Trustee here '- Trustee j r !-IIcv-Y;trove
Guardian or Conservator a Guardian or Conservator
D omor, _ Other:_ n j
t
Suer Is Representing:.......__._.....,_,__ Signer is Representing: j
i
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23
EXHIBIT "A"
SCOPE OF SERVICES
The SCOPE OF SERVICESand principal responsibilities may include, but are not limited to, the
following: (*all services may or may not be necessary on each project)
1. Coordinate Design Team and other consultant selection for each project.
2. Coordinate efforts of the selected design team and constructability reviews for each project.
3. Report regularly, verbally and in writing (including Staff Reports) to the City management and
Council on status of projects.
4. Coordinate the flow of information between the design team members and the City on each
project.
5. Attend meetings of city advisory boards and the City Council when said meetings relate to
projects covered by this contract.
6. Conduct regular meetings of the design team and City for each project.
7. Verify and approve the accuracy of all bid specifications and associated documents and assist
during the bidding phase of each project, analyze and verify bid results, including the processing
and approval of the construction contract documents and working with the City Attorney and all
internal City departments as needed.
8. Regularly review the schedule and budget during construction, keeping each project on time
and within budget.
9. Make regular visits to the construction site(s)to review progress and handle onsite concerns.
10. Maintain project files concerning each project's finances, correspondence and detailed records,
alsorespond to all Requests For Information or Public Records Requests in a timely fashion and
in compliance with all applicable laws and regulations.
11. Review all proposed project changes and recommend to City appropriate courses of action, and
process all necessary documents, including construction Change Orders, for any approved
changes for each project.
12. Participate in weekly construction site meetings for each project.
13. Submit invoices monthly with detailed account of staff hours attributed to specific project billings
with all staff hours attributed to project. UseCity provided project numbers or identifiers so that
each project can be separately accounted for.
14. Review all payment requests, verify and confirm accuracy and resolve any discrepancies, and
make recommendations to the City for payment processing.
15. Continually work to build a mutually supportive team throughout design and construction of each
project.
16. Cooperate, coordinate and communicate with all internal City departments as necessary,
following all City procedures and complying with all applicable ordinances, regulations and laws
for the successful completion of each project.
It will be the responsibility of the successful firm or consultant to determine the necessary staffing level
required to perform the scope of service. The City will NOT provide dedicated work space or office
space, city staff or city resources, printing or copying services, or clerical assistance in the performance
of this agreement. The City reserves the right to perform any portion of the scope of work with City
personnel and/or by other Consultants.
Material testing, survey and building inspection services are NOTpart of the scope of services under
this agreement and will be contracted for separately as needed. The successful firm or consultant will,
however, be required to work closely with and coordinate these efforts with the contracted firms
providing such services on each project.
Exhibit"A"
Page 1 of 1 24
EXHIBIT "A"
SCOPE OF SERVICES
Schedule network analysis is NOT part of the scope of services, however the successful firm or
consultant will be required to monitor on behalf of the City the progress of any and all performance
schedules as they relate to the construction projects.
END OF EXHIBIT "A"
Exhibit "A"
Page 1 of 1 25
EXHIBIT "B"
CITY'S REQUEST FOR PROPOSALS
NOTICE INVITING REQUEST FOR PROPOSALS
For
FACILITY CONSTRUCTION OWNER REPRESENTATIVE SERVICES
(RFP 09-11)
NOTICE IS HEREBY GIVEN that Request for proposals (RFP09-11), for providing Facility Construction
Owner Representative Services for the City of Palm Springs, CA will be received atthe Office of
Procurement & Contracting, City Hall, 3200 East Tahquitz Canyon Way, Palm Springs, California, until
3:00 P.M. Local Time, MONDAY, FEBRUARY 7, 2011.Proof of receipt before the deadline is a City of
Palm Springs, Division of Procurement and Contracting time/date stamp. It is the responsibility of the
Proposer to see that any proposal sent through the mail, or by any other delivery method, shall have
sufficient time to be received by the Procurement Office prior to the proposal due date and time. Note
that City Hall is open Monday thru Thursday and is closed every Friday , weekends and holidays. Late
proposals will be returned unopened.
DESCRIPTION OF WORK: The work is comprised of providing on-call, as-needed professional facility
Construction Owner Representative services in support of potential City of Palm Springs facility capital
improvement projects.
OBTAINING RFP DOCUMENTS AND REGISTRATION:
The RFP document may be downloaded via the internet at the following direct page link
http://www.i)almsprincis-ca.gov/index.asi)x?page=85 (or by visiting www.palmspringsca.gov and
clicking on Government, then Departments, then Procurement and then open Bids and Proposals).
Upon downloading the document it is IMPERATIVE that you contact Cheryl Martin, Procurement
Specialist I, via email at Cheryl.Martinna.palmsprinosca.gov or by phone at (760) 322-8373 to officially
resister for this specific project with your company name, address, phone, fax, contact person and
email address. Failure to officially register may result in not receiving addenda to the RFP. Failure to
acknowledge addenda to the RFP may render your proposal as non-responsive.
SELECTION PROCESS AND AWARD OF CONTRACT: This solicitation has been developed in the
Request for Proposals (RFP) format. Accordingly, firms should take note that multiple factors as
identified in the RFP will be considered by the Evaluation Committee to determine which proposal best
meets the requirements set forth in the RFP document. PRICE IS NOT EVALUATED AS PART OF
THE EVALUATION CRITERIA. The City reserves the right to negotiate the terms and conditions of
any resulting contract. Final contract award, if any, will be made by the Palm Springs City Council. The
selected firm will be required to comply with all insurance and license requirements of the City.
All expenses associated with the preparation, submission of an RFP proposal to the City, or
participation in any presentations, interviews or any other element of the RFP process shall be the sole
financial responsibility of the Proposer.
Craig L. Gladders, C.P.M.
Procurement and Contracting Manager
January 6, 2011
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CITY'S REQUEST FOR PROPOSALS
x ti
CITY OF PALM SPRINGS, CA
REQUEST FOR PROPOSALS #09-11
FACILITY CONSTRUCTION OWNER REPRESENTATIVE SERVICES
Request for proposals (RFP09-11), for as needed, on-call, Facility Construction Owner Representative
Services to the City of Palm Springs, CA will be received at the Office of Procurement & Contracting,
3200 East Tahquitz Canyon Way, Palm Springs, California, until 3:00 P.M. LOCAL TIME, MONDAY,
FEBRUARY 7, 2011.It is the responsibility of the Proposer to see that any proposal sent through the
mail, or any other delivery method, shall have sufficient time to be received by this specified date and
time. The receiving time in the Procurement Office will be the governing time for acceptability of
RFPproposals. Telegraphic, telephonic, faxed, emailed or other electronic or media transmission of
RFPproposals will not be accepted. Late RFPproposals will be returned unopened. Failure to register
as a Proposer to this RFP process per the instructions in the Notice Inviting Request for Proposals
(under "Obtaining RFP Documents') may result in not receiving Addenda or other important information
pertaining to this process. Failure to acknowledge Addenda may render a proposal as being non-
responsive. We strongly advise that interested firms officially register per the instructions provide in
the Notice.
1. BACKGROUND INFORMATION AND GENERAL DESCRIPTION
To clarify, this solicitation is NOT for Construction Management Services, nor for Architectural, Design
or Engineering Services. The City will seek qualified firms under separate solicitations for Construction
Management, Architectural, Design and Engineering Services at the appropriate time when a specific
project warrants such services. The purpose of this solicitation is for the City to have, as the owner, as
needed, on-call representation that will oversee and facilitate multiple construction projects on behalf of
the City and to act as the City's liaison.
The City of Palm Springs is a CharterCity in eastern Riverside County, CA with a population of over
48,000. The City owns and operates Palm Springs International Airport (PSP) as well as many other
public facilities within the community such as the Convention Center, Visitors Center, Downtown
Parking Structure, and Library, to name a few. Over the next several years the City contemplates
potential construction of new facilities as well as the remodel and expansion of existing facilities.
Examples of the types of projects that may be contemplated under this contract for construction owner
representative services may include, but are not limited to, the following: main library remodel or
expansion; new parking garage; new fire station; park concession stand remodel; computerized park
irrigation and lighting control system; stadium remodel; new pool equipment enclosure; and at the
Airport a remodel of the car rental counters, boiler system replacement, escalator replacement, desert
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EXHIBIT "B"
CITY'S REQUEST FOR PROPOSALS
landscaping conversion, old hangar demolition and demolition of car rental service facilities including
UST removal. Note that projects at PSP would not include federally funded FAA capital improvement
projects under this contract. Cost estimates for any of the potential projects listed above are not
available at this time as these projects are not yet approved.
2. PROJECT OBJECTIVE AND SCHEDULE
The objective of this solicitation is to hire a firm or individual to provide, on an as-needed basis,
professional facility Construction Owner Representative Services that will oversee and facilitate multiple
construction projects on behalf of the City and to act as the City's liaison.
Facility Construction Owner Representative consulting services are expected to be required over the
next five-year period and a contract shall be negotiated for whatever term is determined to be in the
best interests of the City. During the actual construction of facilities the services sought may be on a
full time basis, while during the design and bidding phases of projects the required services may be
limited to hourly services.
RFP SCHEDULE
Notice for Request for proposals posted and issued ..........................Thursday, January 6, 2011
Deadline for receipt of Questions...............................3:00 P.M., Thursday, January 27, 2011
Deadline for receipt of Proposals..................................3:00 P.M., Monday, February 7, 2011
Short List/ Interviews, *if desired by City............................................................to be determined
Contract awarded by City Council.......................................................................to be determined
NOTE. There will NOT be a pre-proposal conference for this procurement.
*Dates above are subject to change.
3. SCOPE OF SERVICES
The SCOPE OF SERVICESand principal responsibilities may include, but are not limited to, the
following: (*all services may or may not be necessary on each project)
17. Coordinate Design Team and other consultant selection for each project.
18. Coordinate efforts of the selected design team and constructability reviews for each project.
19. Report regularly, verbally and in writing (including Staff Reports) to the City management and
Council on status of projects.
20. Coordinate the flow of information between the design team members and the City on each
project.
21. Attend meetings of city advisory boards and the City Council when said meetings relate to
projects covered by this contract.
22. Conduct regular meetings of the design team and City for each project.
23. Verify and approve the accuracy of all bid specifications and associated documents and assist
during the bidding phase of each project, analyze and verify bid results, including the processing
and approval of the construction contract documents and working with the City Attorney and all
internal City departments as needed.
24. Regularly review the schedule and budget during construction, keeping each project on time
and within budget.
25. Make regular visits to the construction site(s)to review progress and handle onsite concerns.
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26. Maintain project files concerning each project's finances, correspondence and detailed records,
alsorespond to all Requests For Information or Public Records Requests in a timely fashion and
in compliance with all applicable laws and regulations.
27. Review all proposed project changes and recommend to City appropriate courses of action, and
process all necessary documents, including construction Change Orders, for any approved
changes for each project.
28. Participate in weekly construction site meetings for each project.
29. Submit invoices monthly with detailed account of staff hours attributed to specific project billings
with all staff hours attributed to project. UseCity provided project numbers or identifiers so that
each project can be separately accounted for.
30. Review all payment requests, verify and confirm accuracy and resolve any discrepancies, and
make recommendations to the City for payment processing.
31. Continually work to build a mutually supportive team throughout design and construction of each
project.
32. Cooperate, coordinate and communicate with all internal City departments as necessary,
following all City procedures and complying with all applicable ordinances, regulations and laws
for the successful completion of each project.
It will be the responsibility of the successful firm or consultant to determine the necessary staffing level
required to perform the scope of service. The City will NOT provide dedicated work space or office
space, city staff or city resources, printing or copying services, or clerical assistance in the performance
of this agreement. The City reserves the right to perform any portion of the scope of work with City
personnel and/or by other Consultants.
Material testing, survey and building inspection services are NOTpart of the scope of services under
this agreement and will be contracted for separately as needed. The successful firm or consultant will,
however, be required to work closely with and coordinate these efforts with the contracted firms
providing such services on each project.
Schedule network analysis is NOT part of the scope of services, however the successful firm or
consultant will be required to monitor on behalf of the City the progress of any and all performance
schedules as they relate to the construction projects.
4. PRIORCITY WORKIf your firm has prior experience working with the City DO NOTassume this
prior work is known to the evaluation committee. All firms are evaluated solely on the information
contained in their proposal, information obtained from references, and presentations if requested. All
proposals must be prepared as if the evaluation committee has no knowledge of the firm, their
qualifications or past projects.
5. SELECTION PROCESS AND EVALUATION CRITERIA
The City of Palm Springs is utilizing a Qualifications Based Selection process to select a firm to provide
the professional services requested by this RFP. The City shall review the proposals submitted in reply
to thisRFP, and a limited number of firms may be invited to make a formal presentation at a future date,
if desired by the City. The format, selection criteria and date of the presentation will be established at
the time of short listing. Preparation of proposals in reply to this RFP, and participation in any future
presentation is at the sole expense of the firms responding to this RFP.
This solicitation has been developed in the "Request for Proposals"(RFP) format. Accordingly, firms
should take note that the City will consider multiple criteria in selecting the most qualified
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CITY'S REQUEST FOR PROPOSALS
firm.Consistent with Federal, State and Local laws for the acquisition of professional services, price is
NOTanevaluation criteria.Cost proposals submitted in separate sealed envelopes are not opened, nor
considered during proposal evaluations. Upon selection of the most qualified firm, the associated cost
proposal will be used as a basis for contract negotiations. A contract shall be negotiated on the basis
of the submitted Cost Proposal, and in consideration of reasonable and mutually agreed project costs
and time requirements.Should successful negotiations not occur with the highest ranked firm, the City
may, at its sole discretion, choose to enter into negotiations with the second highest ranked firm, and so
on.
Firms are requested to submit their proposals so that they correspond to and are identified with the
following specific evaluation criteria:
A. Firm Qualifications, Experience and Background (35POINTS):
B. Understanding of Construction Owner Representative Services and work plan
approach/methodology (35 POINTS):
C. References and Experience with Projects of Similar Size and Scope (25 POINTS):
D. Local Expertise Demonstrated on the Team (5 POINTS):
Firms that qualify as a Local Business, or employ local sub-consultants, and submit a valid
business license as more fully set forth in Section D.1 below, pursuant to the City of Palm Springs
Local Preference Ordinance 1756).The full local preference, five (5) points, will be awarded to
those that qualify as a Local Business. Two (2) points will be awarded to a non-local business
that employs or retains local residents and/or firms for this project. Non-local firms that do not
employ or retain any local residents and/or firms for this project shall earn zero (0) points for this
criteria.
6. PROPOSAL CONTENTS AND SPECIAL CONDITIONS
Firms are requested to format their proposals so that responses correspond directly to, and are
identified with, the specific evaluation criteria stated in Section 5 above. The proposals must be in an
81h X 11 format, may be no more than a total of twenty five (25) pages (sheets of paper, double
sided is OK), including an organization chart, staff resumes and appendices, and cover letter. NOTE:
Dividers, Attachment "A" , Addenda acknowledgments, and the Cost Proposal ('in a separate sealed
envelope) do NOT count toward the 25 page limit. Interested firms shall submit SIX (6) copies (one
marked "Original" plus five copies) of its proposal by the deadline.
All proposals shall be sealed within one package and be clearly marked, "RFP#09-11, REQUEST FOR
PROPOSALS FOR FACILITY CONSTRUCTION OWNER REPRESENTATIVE SERVICES". Within
the sealed proposal package, the Cost Proposal shall be separately sealed from the
Qualifications/Work Proposal. Proposals not meeting the above criteria may be found to be non-
responsive.
Each proposal package must include two separately sealed envelopes:
ENVELOPE #1, clearly marked "Qualifications/Work Proposal", shall include the following
items:
• Completed Signature authorization and Addenda Acknowledgment (see Attachment A)
• Your response to the evaluation Criteria A through D as provided below.
ENVELOPE #2, clearly marked "Cost Proposal", shall include the following item:
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• List the hourly rate (or other rates as they may apply) for pre-construction services for all work
performed at the request of the City.
• List the flat monthly rate (or other rates as they may apply) for construction projects that are
assigned to the firm. The monthly rate would commence on the date that the City Council awards
the construction contract for the specific project and shall continue for sixty (60) days following the
recording of the Notice of Completion for the specific project.
• List any reimbursable expenses the City may incur.
• List any additional costs, such as drive time, that the City may incur in conjunction with the
performance of Construction Owner Representative Services.
• Do NOT include Attachment "A" in the Cost Proposal envelope. Attachment "A" is to be
included in Envelope #1, Qualifications/Work Proposal.
At a minimum, firms must provide the information identified below. All such information shall be
presented in a form that directly corresponds to the numbering scheme identified below.
SECTION A: FIRM QUALIFICATIONS, PROJECT TEAM, EXPERIENCE AND BACKGROUND
A.1 State your firm's complete name, type of firm (individual, partnership, corporation or other),
telephone number, FAX number, contact person and E-mail address. If a corporation, indicate the
state the corporation was organized under.
A.2. State the name and title of the firm's principal officer with the authority to bind your company in a
contractual agreement.
A.3 Describe your firm's background and qualifications in the type of effort that this project will
require, specifically identifying experience with providing construction owner representative services for
public agencies.
AA List the name, qualifications and availability of the key staff/team members that will be assigned
to this project. Provide detailed qualifications of the lead Representative or Project Manager that will
be assigned to this project.
A.5 Indicate the name of any sub-consultant firms that will be utilized to make up your team.
Describe each sub-consultant's background and specific expertise that they bring to this project,
SECTION B: UNDERSTANDING OF CONSTRUCTION OWNER REPRESENTATIVE SERVICES
AND WORK PLAN APPROACH/ METHODOLOGY
B.1 Describe in detail the steps that your firm would follow to provide facility construction owner
representative services, including your work plan process and methodology.
B.2 Identify your ability to ensure that projects are designed and constructed within your client's
budget and the measures taken in successfully completing all phases of a project (from design through
completion of construction).
13.3 Identify project management tools you propose to use to keep both your own staff on track and
the City staff cognizant of current project status.
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CITY'S REQUEST FOR PROPOSALS
BA Identify a construction project, carried out in a desert environment, for which your firm and the
staff proposed for this contract provided Construction Owner Representative Services, and describe
how you applied your firm's skills and abilitiesin the following areas:
(a) Responsiveness and attentiveness to client needs;
(b) Creative ability;
(c) Knowledge and understanding of the latest construction trends;
(d) Analytical capability;
(e) Oral and written communication skills;
(f) Interaction with client's organization, i.e., other divisions and personnel
(g) Sensitivity to funding constraints
B.5 For the potential projects that were briefly described in Section 1 "Background and General
Information", please comment on, and identify, any potential problems (if any) associated with these
projects that you anticipate based only on the limited information provided, and how you would work
with City staff to avoid or resolve them.
SECTION C: REFERENCES AND EXPERIENCE WITH PROJECTS OF SIMILAR SIZE AND SCOPE
CA Provide a minimum of five (5) references for recently completed Construction Owner
Representative Services for projects of a similar size and scope where the key personnel identified
above provided the professional services required. At least three (3) of the references shall be for
public/government agency projects, preferably in a desert climate. Provide contact information,
including full name and a current phone number, for each project identified.
C2 For the representative successful projects completed, explain what key issues/challenges you
faced and how you solved them. Also, please comment on the project budgeting for each.
SECTION D: LOCAL EXPERTISE DEMONSTRATED ON THE TEAM
DA Pursuant to the City of Palm Springs Local Preference Ordinance 1756, in awarding contracts for
services, including consultant services, preference to a Local Business shall be given whenever
practicable and to the extent consistent with the law and interests of the public. The term "Local
Business" is defined as a vendor, contractor, or consultant who has a valid physical business address
located within the Coachella Valley, at least six months prior to bid or proposal opening date, from
which the vendor, contractor, or consultant operates or performs business on a day-to-day basis, and
holds a valid business license by a jurisdiction located in the Coachella Valley. "CoachellaValley" is
defined as the area between the Salton Sea on the south, the San Jacinto and Santa RosaMountains
on the west, and the Little San Bernardino Mountains on the east and north. For the purposes of this
definition, "CoachellaValley" includes the cities of Beaumont and Banning and the unincorporated areas
between Banning and the City of Palm Springs. Post office boxes are not verifiable and shall not be
used for the purpose of establishing such physical address.
The contractor or consultant will also, to the extent legally possible, solicit applications for employment
and proposals for subcontractors and subconsultants for work associated with the proposed contract
from local residents and firms as opportunities occur and hire qualified local residents and firms
whenever feasible.
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CITY'S REQUEST FOR PROPOSALS
In order for a business to be eligible to claim the preference, the business MUST request the
preference in the Solicitation response (see Attachment A) and provide a copy of its current
business license (or of those it employs for this pr;*ect) from a jurisdiction in the
CoachellaValley with its proposal.
D.2 List all team members with local expertise. Clearly define their role in the overall project.
DEADLINE FOR SUBMISSION OF PROPOSALS:AII proposals must be received in the City of Palm
Springs, Division of Procurement and Contracting office by 3:00 P.M-LOCAL TIME, MONDAY,
FEBRUARY 7. 2011. Proof of receipt before the deadline is a City of Palm Springs, Division of
Procurement and Contracting time/date stamp. It is the responsibility of the Proposer to see that any
proposal sent through the mail, or by any other method, shall have sufficient time to be received by the
Procurement Office prior to the proposal due date and time. Late proposals will be returned to the
Proposer unopened. Proposals shall be clearly marked and identified and must be submitted in
a sealed package to:
City of Palm Springs
Division of Procurement and Contracting
3200 E. Tahquitz Canyon Way
Palm Springs, CA92262
Attn: Craig L. Gladders, C.P.M., Procurement & Contracting Manager
PLEASE NOTE THAT PALM SPRINGS CITY HALL IS CLOSED EVERY FRIDAY DUE TO THE
CURRENT FURLOUGH PROGRAM, AND THEREFORE IS NOT ABLE TO ACCEPT, TIME OR DATE
STAMP ANY PROPOSALS ON FRIDAYS (OR WEEKENDS AND HOLIDAYS). PLEASE TAKE THIS
INTO CONSIDERATION WHEN DELIVERING A PROPOSAL BY THE DUE DATE AND TIME AS
DEFINED IN THIS DOCUMENT.
QUESTIONS?:Proposers, their representatives, agents or anyone else acting on their behalf are
specifically directed NOT to contact any city employee, commission member, committee member,
council member, or other agency employee or associate for any purpose related to this RFP other than
as directed below. Contact with anyone other than as directed below WILL be cause for
rejection of a proposal.
ANY questions, technical or otherwise, pertaining to this request for Request for proposalsmust
be submitted IN WRITING and directed ONLY to:
Craig L. Gladders, C.P.M.
Procurement & Contracting Manager
3200 East Tahquitz Canyon Way
Palm Springs, CA92262
via FAX (760) 323-8238
or viaEMAIL: Craig.GladdersCa)palmspringsca.gov
Interpretations or clarifications considered necessary in response to such questions will be resolved by
the issuance of formal Addenda to the RFP. The deadline for all q uestions is 3:00 P.M. Local Time THURSDAY, JANUARY 27, 2011. Questions received after this date and time may not be answered.
Only questions that have been resolved by formal written Addenda via the Division of Procurement and
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EXHIBIT "B"
CITY'S REQUEST FOR PROPOSALS
Contracting will be binding. Oral and other interpretations or clarifications will be without legal or
contractual effect.
FORM OF AGREEMENT: The successful firm will be required to enter into a contractual agreement,
inclusive of insurance requirements, with the City of Palm Springs in accordance with the standard
Professional Services Agreement— provided as Attachment "B" hereto. Please note that the Exhibits in
the sample contract are intentionally not complete and will be negotiated with the selected firm and will
appear in the final Professional Services Agreement executed between the parties. Any exceptions to
the language contained in the RFP document, sample agreement, including the Insurance
Requirements, MUST be included in the proposal and clearly defined and may be considered in the
evaluation process.
Failure or refusal to enter into an Agreement as herein provided, or to conform to any of the stipulated
requirements in connection therewith, shall be just cause for an annulment of the award. If the highest
ranked firm refuses or fails to execute the Agreement, or negotiations are not successful, the City may,
at its sole discretion, enter negotiations with and award the Contract to the second highest ranked firm,
and so on.
AWARD OF CONTRACT: It is the City's intent to award a contract to the firm that can provide all of
the services identified in the RFP document. However, the City reserves the right to award a contract
to multiple Proposers or to a single Proposer, or to make no award, whichever is in the best interest of
the City. It is anticipated that award of the contract will occur at the next regularly scheduled City
Council meeting after the evaluation committee has made its final selection of the firm to be
recommended for award and a contract has been negotiated and agendized for consideration. The
decision of the City Council will be final.
Please note: this RFP does not necessarily identify each specific, individual task required to
successfully and completely implement this proposed scope of services. The City of Palm Springs
relies on the professionalism and competence of the selected firm to be knowledgeable of the general
areas identified in the scope of work and to consider in its proposal all materials, equipment, required
tasks and subtasks, personnel commitments, man-hours, labor, direct and indirect costs, etc. The City
of Palm Springs will not approve addenda to the selected firm's agreement which do not involve a
substantial change from the general scope of work identified in this RFP and the resulting final
negotiated scope and pricing.
INSURANCE:Insurance provisions are contained in the Professional Contract Services sample
agreement included in the RFP. The successful Proposer will be required to comply with these
provisions. It is recommended that Proposers have their insurance provider review the insurance
provisions BEFORE they submit their qualifications.
RESPONSIBILITY OF PROPOSER: All proposers shall be responsible. If it is found that a proposer is
irresponsible (e.g., has not paid taxes, is not a legal entity, submitted an RFP without an authorized
signature, falsified any information in the proposal package, etc.), the proposal shall be rejected.
PUBLIC RECORD: All documents submitted in response to this solicitation will become the property of
the City of Palm Springs and are subject to the California Code Section 6250 et seq., commonly known
as the Public Records Act. Information contained in the documents, or any other materials associated
with the solicitation, may be made public after the review process has been completed, negotiations
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EXHIBIT "B"
CITY'S REQUEST FOR PROPOSALS
have concluded and a recommendation for award has been officially agendized for City Council
consideration, and/or following award of contract to a specific firm, if any, by the City Council.
COST RELATED TO PROPOSAL PREPARATION: The City will NOT be responsible for any costs
incurred by any proposer in the preparation of their proposal or participation in any presentation or
interview if requested, or any other aspects of the entire RFP process.
BUSINESS LICENSE: The successful firm will be required to be licensed in accordance with the City
of Palm Springs Business License Ordinance, Municipal Code Chapter 3.40 through 3.96, entitled
"Business Tax".
PROPOSAL INFORMALITIES OR DEFECTS: The City of Palm Springs reserves the right to waive
any informality or technical defect in a proposal and to accept or reject, in whole or in part, any or all
proposals and to seek new proposals, as best serves the interests of the City.
INVESTIGATIONS: The City reserves the right to make such investigations as it deems necessary to
determine the ability of the proposer to perform the Work and the proposer shall furnish to the City all
such information and data for this purpose as the City may request. The City reserves the right to
reject any proposal if the evidence submitted by or investigation of such proposer fails to satisfy the City
that such proposer is properly qualified to carry out the obligations of the Contract and to complete the
Work contemplated therein.
SIGNED PROPOSAL AND EXCEPTIONS: Submission of a signed proposal will be interpreted to
mean that proposer has hereby agreed to all the terms and conditions set forth in all of the sheets
which make up this Request for Request for proposals, and any attached sample agreement.
Exceptions to any of the language in either the RFP documents or attached sample agreement,
including the insurance requirements, must be included in the proposal and clearly defined. Exceptions
to the City's RFP document or standard boilerplate language, insurance requirements, terms or
conditions may be considered in the evaluation process.
REQUEST FOR PROPOSAL (RFP 09-11)
FOR
FACILITY CONSTRUCTION OWNER REPRESENTATIVE SERVICES
ADDENDUM NO. 1
This Addendum is being issued for the following changes and informational items:
THE FOLLOWING REVISIONS AND/OR ADDITIONS TO THE RFP DOCUMENT AND
INSTRUCTIONS ARE TO BE INCLUDED AND SHALL TAKE PRECEDENCE OVER
ANYTHING CONTRARY ON THE PREVIOUSLY ISSUED SPECIFICATIONS AND
INSTRUCTIONS AND SHALL BE REFERRED TO HEREINAFTER AS PART OF THE
CONTRACT DOCUMENTS.
CLARIFICATION OF INSTRUCTIONS TO PROPOSERS:
PROPOSALS TO REMAIN OPEN: The Proposer shall guarantee that all contents of their
proposal shall be valid for a period of 120 calendar days from the due date of proposals.
The City has received the following questions and is hereby providing answers thereto:
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RESPONSES TO QUESTIONS RECEIVED TO DATE:
Please clarify the following statement under the SCOPE OF SERVICES found on pagethree (3):
Attend meetings of city advisory boards and the City Council when said
meetings relate to projects covered by this contract.
Item 5 states that the Owner's Representative (OR) shall "attend meetings of city advisory boards."
Q 1: Inasmuch as the Library Board (administrative authority established under the California Education
Code) and the Planning Commission are NOT advisory boards, please state if the OR's attendance is
required?
A 1: Yes, the Owner Representative will report to and receive direction from the Office of the City
Manager and as such, if appropriate and requested by the office of the City Manager or his
designee, the Owner Representative may be required to attend these types of meetings if the specific
project warrants such attendance.
Q 2: Will the OR be required to attend neighborhood meetings as scheduled by the Palm Springs Office
of Neighborhood Involvement Committee (PSNIC) when projects under the OR's contract are on the
agenda?
A 2: Yes, the Owner Representative will report to and receive direction from the Office of the City
Manager and as such, if appropriate and requested by the office of the City Manager or his
designee, the Owner Representative may be required to attend these types of meetings if the specific
project warrants such attendance.
Q 3: Will the OR be required to present or represent the City on Projects to non-governmental
organizations (NGO) such as MainStreet, Uptown, PS Chamber of Commerce, PSEDC and/or other
NGOs?
A 3: Yes, the Owner Representative will report to and receive direction from the Office of the City
Manager and as such, if appropriate and requested by the office of the City Manager or his
designee, the Owner Representative may be required to attend these types of meetings if the specific
project warrants such attendance.
Q 4: Will the OR be required to represent the city on projects, or present the project, to any
governmental Authorities Having Jurisdiction (AHJ) such as the Aqua Caliente Tribal Council (ACTC) or
tribal staff?
A 4: Yes, the Owner Representative will report to and receive direction from the Office of the City
Manager and as such, if appropriate and requested by the office of the City Manager or his
designee, the Owner Representative may be required to attend these types of meetings if the specific
project warrants such attendance.
BY ORDER OF THE CITY OF PALM SPRINGS, CALIFORNIA
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Craig L. Gladders, C.P.M.
Procurement & Contracting Manager
DATE: January 18, 2011
ADDENDUM ACKNOWLEDGMENT:
Proposer Firm Name:
Authorized Signature: Date:
Acknowledgment of Receipt of Addendum 1 is required by signing and including the acknowledgment with your submittal, or you
may also acknowledge the Addenda on the bottom of Attachment A. Failure to acknowledge this Addendum may result in your
submittal being deemed non-responsive.
REQUEST FOR PROPOSAL (RFP 09-11)
FOR
FACILITY CONSTRUCTION OWNER REPRESENTATIVE SERVICES
ADDENDUM NO. 2
This Addendum is being issued for the following changes and informational items:
THE FOLLOWING REVISIONS AND/OR ADDITIONS TO THE RFP DOCUMENT
AND
INSTRUCTIONS ARE TO BE INCLUDED AND SHALL TAKE PRECEDENCE OVER
ANYTHING CONTRARY ON THE PREVIOUSLY ISSUED SPECIFICATIONS AND
INSTRUCTIONS AND SHALL BE REFERRED TO HEREINAFTER AS PART OF THE
CONTRACT DOCUMENTS.
answers thereto:
The Cityhas received the following questions and is hereby providing a
g
RESPONSES TO QUESTIONS RECEIVED TO DATE:
Q 1: Page 17 paragraph 5.1.A Errors and Omission Insurance. On page 2 paragraph 1. Background
Information it clearly states this solicitation is only for owners representation. Therefore I would ask that
this requirement be waived as we will not be providing any Professional Services. If not waived please
understand that these types of policies are currently being written on a "claims made" basis requiring
fairly expensive premiums for this type and amount of coverage over the length of time requiring "tail'
coverage.
A 1: The City requires Professional Liability insurance for Owners Representative Services and is
not waiving this requirement at this time. Per page 9 of the RFP document under "Signed Proposal
and Exceptions" proposers are instructed that "Exceptions to any of the language in either the RFP
documents or attached sample agreement, including the insurance requirements, must be included in
the proposal and clearly defined. Exceptions to the City's RFP document or standard boilerplate
language, insurance requirements, terms or conditions may be considered in the evaluation
process." Please include any exceptions to the Professional Liability insurance requirements in your
proposal.
37
EXHIBIT "B"
CITY'S REQUEST FOR PROPOSALS
Q 2: Page 18 paragraph D. Business Automobile Insurance. I do not carry this type of insurance under
my business. I have coverage for my auto under my personal automobile insurance. Will this satisfy
the requirement as long as I have the necessary amount of coverage as stated?
A 2: Under certain circumstances, such as sole proprietorships operating a personal vehicle for
business purposes, the City Attorney/Risk Manager may consider modifying the Automobile Insurance
requirements. As in the case above, exceptions to the Automobile Insurance requirements must be
clearly defined andincluded in your proposal.
Q 3: Since I am an owner/operator and the sole employee I understand that I can complete the City's
Request for Waiver of Worker' Compensation Insurance Requirement form. The Employer Liability
Insurance requested under paragraph E of page 18 is part of the same workers' compensation policy.
Do I presume this other requirement will be waived?
A 3: Yes, those firms that qualify as sole proprietorships may complete a Waiver of Worker's
Compensation Requirement Form and the Employer Liability Insurance requirement would also be
waived. As in the case above, your intention to request an exception to or a waiver of Workers
Compensation insurance due to sole proprietorship (or for any other reason) must be clearly defined
and included in your proposal.
BY ORDER OF THE CITY OF PALM SPRINGS, CALIFORNIA
Craig L. Gladders, C.P.M.
Procurement & Contracting Manager
DATE: January 24, 2011
ADDENDUM ACKNOWLEDGMENT:
Proposer Firm Name:
Authorized Signature: Date:
Acknowledgment of Receipt of Addendum 2 is required by signing and including the acknowledgment with your submittal, or you
may also acknowledge the Addenda on the bottom of Attachment A. Failure to acknowledge this Addendum may result in your
submittal being deemed non-responsive.
REQUEST FOR PROPOSAL (RFP 09-11)
FOR
FACILITY CONSTRUCTION OWNER REPRESENTATIVE SERVICES
ADDENDUM NO. 3
This Addendum is being issued for the following changes and informational items:
THE FOLLOWING REVISIONS AND/OR ADDITIONS TO THE RFP DOCUMENT AND
INSTRUCTIONS ARE TO BE INCLUDED AND SHALL TAKE PRECEDENCE OVER
ANYTHING CONTRARY ON THE PREVIOUSLY ISSUED SPECIFICATIONS
38
EXHIBIT "B"
CITY'S REQUEST FOR PROPOSALS
ANDINSTRUCTIONS AND SHALL BE REFERRED TO HEREINAFTER AS PART OF THE
CONTRACT DOCUMENTS.
The City has received the following questions and is hereby providing answers thereto:
RESPONSES TO QUESTIONS RECEIVED TO DATE:
Q 1: In the RFP, it states that this proposal is not for Construction Management Services and that there
will be a separate solicitation for those services. Do you know when the Construction Management
RFP will be available?
A 1:Pursuant to page 2 of the RFP document under Section 1) Background Information and General
Description, "The City will seek qualified firms under separate solicitations for Construction
Management, Architectural, Design and Engineering Services at the appropriate time when a specific
project warrants such services. " There is no RFP for Construction Management Services planned at
this time, as we do not currently have a specific project that warrants such services.
Q 2: If we submit a proposal for RFP #09-11, can we also submit a proposal for Construction
Management Services?
A 2:The submission of a proposal in response to RFP #09-11 does not prohibit firms from submitting
proposals in response to future RFP's for Construction Management Services should the City conduct
such a solicitation for a specific project that warrants such services.
Q 3: If we submit for the mentioned RFP, will this preclude our firm from submitting on other services
or future RFPs that were listed (CM/Architectural/Engineering, etc.)?
A 3:The submission of a proposal in response to RFP #09-11 does not preclude firms from submitting
proposals in response to future RFP's for Construction Management, Architectural, or
Engineering Services should the City conduct such solicitations for specific projects that warrant such
services.
BY ORDER OF THE CITY OF PALM SPRINGS, CALIFORNIA
Craig L. Gladders, C.P.M.
Procurement & Contracting Manager
DATE: January 27, 2011
ADDENDUM ACKNOWLEDGMENT:
Proposer Firm Name:
AuthorizedSignature: Date:
Acknowledgment of Receipt of Addendum 3 Is required by signing and including the acknowledgment with your submittal, or you
may also acknowledge the Addenda on the bottom of Attachment A. Failure to acknowledge this Addendum may result in your
submittal being deemed non-responsive.
39
EXHIBIT "C"
CONSULTANT'S PROPOSAL
CONSULTANT'S PROPOSAL FOLLOWS THIS PAGE
40
EXHIBIT "D"
SCHEDULE OF COMPENSATION
SCHEDULE OF COMPENSATION FOLLOWS THIS PAGE
Note: Consultant's Insurance Premiums for the coverage required under this agreement shall be a
reimbursable expense and should consultant take on other compensable work during the term of this
agreement, Consultant shall notify the City and the City's share of the reimbursable insurance premium
expense shall be proportionately reduced accordingly, subject to the mutual agreement of the parties.
41
COST PROPOSAL:
List,hourly rate (or other rates as they may apply), for pre-construction services for all
work performed at the request of the City.
Hourly Rate: $135.00
List flat monthly rate (or other rates as may apply) for construction projects that are
assigned to the firm.
Monthly Rate: $15,000.00
List any reimbursable expenses the City may incur.
Reimbursable Expenses: Printing, postage, out of area travel, fees incurred on behalf of
the project (permits, construction supplies...)
List any additional costs, such as drive time, that the City may incur in conjunction with
the performance of Construction Owner Representative Services.
Other Costs: Hourly rate applies to drive time associated with the project(s),:work not
included in the scope of the project, special witness and litigation.
EXHIBIT "E"
SCHEDULE OF PERFORMANCE
As this is an on-call services agreement for potential future facility construction projects, the Schedule of
Performance shall be prepared in writing by the Consultant, subject to the approval by the City, for each project
as assigned.
END OF EXHIBIT "E"