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HomeMy WebLinkAbout05191 - BALLARD KING & ASSOC OPERATIONAL AUDIT OF JAMES O JESSIE DESERT HIGHLAND UNITY CTR DOCUMENT TRACKING Page: 1 Report: One Document Detail October 3, 2007 Condition: Document Number a5191, Document# Dsscription Approval Date, Expiration Date Closed Date A5191 operational audit of JOJ Desert Highland Unity Ctr -- $15.000 00 11/13/2005 11/17/2006 Company Name: Ballard King & Associates Address: 2743 East Ravenhill Circle, Highlands Ranch, CO 80126 Phone: (303) 470-8661 Group: CITY MANAGER Service: In File xRef: CITY MANAGER Ins. Status: Required Policies Missing Document Tracking Items' ❑ue Completed Tracking Amount Amount Code Item Description Date Date Date Added Paid under$25k CM may auth 11/18/2005 Marilynn working on cent of ins 11/18/2005 to CM for sig 11/18/2005 Distrib to dept- in file 11/28/2005 KDH note to Tray--Completed? OK TO CLOSE? e 10/03/2007 r END OF REPORT ' * * ' * ' m cri .d: p N Li BALLARD KING & ASSOC operational audit of JOJ Desert Highland Unity Ctr I AGREEMENT A5191 Under $25,000 CM auth 11-18-05 CITY OF PALM SPRINGS CONTRACT SERVICE AGREEMENT THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this 31 sc day of October, 2005, by and between the CITY OF PALM SPRINGS, a municipal corporation, (herein "City")and BALLARD KING &ASSOCIATES, LTD(herein "Contractor'). The term Contractor includes professionals performing in a consulting capacity. The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,the Contractor shall provide those services specified in the"Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the "services" or"work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards"shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 1.2 Contractor's Proposal. The Scope of Service shall include the Contractor's proposal or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 1.4 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law forthe performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary forthe Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder. 1.5 Familiarity with Work. By executing this Contract, Contractor warrants that Contractor(a)has thoroughly investigated and considered the scope of services to be performed;(b)has carefully considered how the services should be performed; and (c)fully Agreement with Ballard King &Associates October 31, 2005 Revised AE NDlOR AGRG'tDAE-NT I I I I understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has, or will, investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer. 1.6 Care of Work. The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 1.8 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i)the Contract Sum, and/or(ii)the time to perform this Agreement,which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of up to five percent (5%) of the Contract Sum or $25,000; whichever is less, or in the time to perform of up to one hundred eighty(180)days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the Special Requirements attached hereto as Exhibit B and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement,the provisions in Exhibit B shall govern. Agreement with Ballard King &Associates October31,2005 Revised i I 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, i the Contractor shall be compensated in accordance with the Schedule of Compensation attached hereto as Exhibit C and incorporated herein by this reference, but not exceeding the maximum contract amount of Fifteen Thousand Dollars($15,000.00) (herein Contract i Sum), except as provided in Section 1.8. The method of compensation may include (i) a lump sum payment upon completion, (ii) payment in accordance with the percentage of completion of the services, (iii)payment fortime and materials based upon the Contractors rates as specified in the Schedule of Compensation, but not exceeding the Contract Sum or (iv) such other methods as may be specified in the Schedule of Compensation. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expense,transportation expense approved by the Contract Officer in advance, and no other expenses and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project meetings as set forth in Exhibit C; Contractor shall not be entitled to any additional compensation for attending said meetings. 2.2 Method of Payment. Provided that Contractor is not in default under the terms of this Agreement, in any month in which Contractor wishes to receive payment, no later than the tenth (10`") day of such month, Contractor shall submit to the City in the form approved by the City's Director of Finance, an invoice for services rendered prior to the date of the invoice. City shall pay Contractor for all expenses stated thereon which are approved by City pursuant to this Agreement no later than the last working day of the month. 3.0 PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "D", if any, and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively. 3.3 Force Majeure. The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuantto this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes,freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10)days of the commencement of such delay notify the Contract Officer in writing of the causes of the Agreement with Ballard King &Associates October 31,2005 Revised i I I I I delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section. I 3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one(1)year from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit "D"). I 4.0 COORDINATION OF WORK I 4.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Ken Ballard Jeff King It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore,the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be such personas maybe designated by the City Manager of City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or Agreement with Ballard King&Associates October 31,2005 Revised i otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%)of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved f transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City. The City's policy is to encourage the awarding of subcontracts to persons or entities with offices located within the jurisdictional boundaries of the City of Palm Springs and, if inone are available, to persons or entities with offices located in the Coachella Valley ("Local Subcontractors"). Contractor hereby agrees to use good faith efforts to award subcontracts to Local Subcontractors, if Local Subcontractors are qualified to perform the work required. In requesting for the City to consent:to a subcontract with a person or entity that is not a Local Subcontractor,the Contractor shall submit evidence to the City that such good faith efforts have been made orthat no Local Subcontractors are qualified to perform the work. Said good faith efforts may be evidenced by placing advertisements inviting proposals or by sending requests for proposals to selected Local Subcontractors. The City may consider Contractor's efforts in determining whether it will consent to a particular subcontractor. Contractor shall keep evidence of such good faith efforts and copies of all contracts and subcontracts hereunder for the period specified in Section 6.2. 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Commercial General Liability Insurance. A policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least$1,000,000 bodily injury and propertydamage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. The Commercial General Liability Policy shall name the City of Palm Springs as additional insured in accordance with Agreement with Ballard King &Associates October 31,2005 Revised i standard ISO additional insured endorsement form CG2010 (1185) or equivalent I language. (b) Worker's Compensation Insurance. A policy of worker's jcompensation insurance in an amount which fully complies with the statutory requirements of the State of California and which includes $1,000,000 employer's liability. (c) Business Automobile Insurance. A policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of $1,000,000 bodily and property damage. Said policy shall include coverage for owned, non-owned, leased and hired cars. (d) Additional Insurance. Additional limits and coverages, which may include professional liability insurance, will be specified in Exhibit 'B". All of the above policies of insurance shall be primary insurance and issued by companies whose rating satisfies the requirements in Section 5.4 of this agreement. The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents, and their respective insurers. In the event any of said policies of insurance are canceled, the Contractor shall, priorto the cancellation date, submit new evidence of insurance in conformance with this Section 5.1 to the Contract Officer. No work or services underthis Agreement shall commence until the Contractor has provided the City with Certificates of Insurance, endorsements or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance, endorsements, or binders are approved by the City. The contractor agrees that the provisions of this Section 5.1 shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages to any persons or property resulting from the Contractor's activities or the activities of any person or person for which the Contractor is otherwise responsible. In the event the Contractor subcontracts any portion of the work in compliance with Section 4.3 of this Agreement the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same polices of insurance that the Contractor is required to maintain pursuant to this Section. 5.2 Indemnification. Contractor agrees to indemnify the City, its officers, agents and employees against, and will hold and save them, and each of them, harmless from any and all actions, suits, claims, damages, losses, costs, penalties,obligations, errors, omissions or liabilities (herein "claims or liabilities") resulting from injuries to persons or damages to property that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of Contractor hereunder, or arising from Contractor's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence on the part Agreement with Ballard King &Associates October 31,2005 Revised i of the City, its officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: (a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith that may be asserted or claimed by any person, firm, or entity to the extent caused by the of negligent activities of Contractor its agents or employees hereunder, excepting only liabilities due to the sole negligence or willful misconduct of the CITY, its agents or employees; (b) Contractor will promptly pay anyjudgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees are made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys'fees. 5.3 Sufficiency of Insurer or Surety. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best's Key Rating Guide or in the Federal Register, unless such requirements are waived by the City Manager or designee of the City Manager due to unique circumstances. In the event the City Manager determines that the work or services to be performed under this Agreement create an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies and the performance bond required by this Section 5 may be changed accordingly upon receipt of written notice from the City Manager or designee; provided that the Contractor shall have the right to appeal a determination of increased coverage by the City Manager to the City Council of City within ten (10)days of receipt of notice from the City Manager. 6.0 REPORTS AND RECORDS 6.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that mayor will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design Agreement with Ballard King &Associates October 31, 2005 Revised i services,the cost of the project being designed, Contractor shall promptly notify the Contract i Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed. 6.2 Records. Contractor shall keep, and require subcontractors to keep, i such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents, solely in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county. Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement,the injured party shall notify the injuring party, in writing, of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10)days of service of such notice Agreement with Ballard King &Associates October 37, 2005 Revised i i . and completes the cure of such default within forty-five (45)days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is ian immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Contractor's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform Contractor's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appearto be the basis for a claim of lien, City may withhold from any payment due,without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein. 7.4 Waiver. No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 7.7 Termination Prior to Expiration Of Term. This Section shall govern any termination of this Agreement except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Agreement at any time, with or without cause, upon ten (10) days written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition,the Contractor reserves the Agreement with Ballard King &Associates October 31,2005 Revised i I right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7,2. 7.8 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated. 7.9 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action,taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest orthe financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants Agreement with Ballard King &Associates October 31,2005 Revised I I that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under orthrough them,that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 9.0 MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263. In the case of the Contractor, it should be addressed to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed fororagainst either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 Integration; Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that(i)such party is duly organized and existing, (ii)they are duly Agreement with Ballard King &Associates October31,2005 Revised authorized to execute and deliver this Agreement on behalf of said party, (iii)by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv)the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. [SIGNATURE BLOCK ON NEXT PAGE] Agreement with Ballard King &Associates October 31, 2005 Revised IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the-date first written above CITY OF PALM SPRINGS ATTEST: a municipal corporation ty Clerk l. / 1it�y Manager naagC.�e�r/ ROVE OFORM: J E7 a / APPROVED BY CITY MANAGER ✓ City ttor CONTRACTO . Ballard King&Associates Check one:_individual—Partnershipv/Corporation 2743 E. Ravenhill Cir Highlands Ranch,CO 80126 (303)470-8661 By: By: Signature(notarized) Signature notarized) r Name: Ale ueu' -Z Name�•.��T/9/cc� ;��c_��rr'o� Title: �f�e'L"SdG�PGI Title: Srr-i-e- Iv'L (This Agreement must be signed in the above space by This Agreement must be signed in the above space by one of the following: Chairman of the Board, President one of the following:Secretary,Chief Financial Officer or or any Vice President) any Assistant Treasurer) Stateof �c:�L7y�c[�'�� ❑ State of Co ❑ Countyof S �Css County of V),,,,-(_L 3 ❑ss Orflw-L' - forg Jne. 97f, f.i i'at✓`k?�V'^ On/J IV C>♦.� 4befdre�e rs � �Zf-vl —���.Ir:-v personally appeared If—!%1n C:.` fir r-V personally appeared Ir7,n"I-0 `-.0 If-?' personally personally known to me(or proved tome an the basis-of personally known to me (or proved to me on the basis of satisfactory evidence)to be the person(s)whose name(s)is/are satisfactory evidence)to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me subscribed to the within instrument and acknowledged to me that that he/she/they executed the same in his/her/their authorized he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),or the entity upon behalf of which the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument. person(s)acted,executed the instrument. WITNESS my hand n�officll I seal. a WITNESS my hand and offs seal. Notary Signatures / Q� __ ✓✓y, ' Notary Signature f-_ tf . r � Notary Seal: AtD, Notary Seal: j 'CA elN� F9 1 H Ap q •. N19°,..XU.Ug LO\LG OP:P OO OF CO ociates F C Agreement with October 31, 2005 Revised My Commission Expires 11/04/2008 My Commission Expires 11/04/2008 EXHIBIT "A" SCOPE OF SERVICES Contractor proposes to conduct an operational audit of James O. Jesse Desert Highland Unity Center. In performing this work, Contractor agrees to the following scope of services. �SCOPE OFSERVICES Based on a site visit to the center, identify factors, issues and concerns within the recreation facility that need to be addressed, changed, altered or improved to increase the operational efficiency, public use and financial integrity of the center. Specific areas of study include: Tasks: A. Review Background Information 1. Identify facility constraints and parameters a. Market b. Site/location c. Components 2. Review facility structure/resources/policies a. Marketing and promotion tools b. Policies and procedures c. Maintenance plan d. Staffing plan e. Fee schedule (facility and programs) f. Operating budget a. Expenditures b. Revenues B. Assessment of center's physical condition and functionality 1. Supervision and control 2. Image and appeal 3. Safety and security 4. Maintenance concerns 5. Facility alterations/changes 6. Equipment and operating systems C. Review existing recreation services and programs Agreement with Ballard King &Associates October3l, 2005 Revised - 1. Participation numbers 2. Revenue figures 3. Fees and charges 4. Demand for services/facilities D. Review facility budget 1. Expenditures 2. Revenues 3. Fees and charges 4. Review existing staffing levels a. Organizational flow chart b. Job functions c. Salary levels/hourly wage scales d. Training E. Marketing 1. Marketing plan assessment 2. Promotional tools 3. Sponsorships/partnerships 4. Customer service F. Prepare a written report with the following recommendations 1. Program and service alterations or changes 2. Operations (budget, fees, staff) adjustments or enhancements 3. Marketing strategy, customer service 4. Facility alterations, etc. 5. Maintenance/safety/security changes or upgrades Agreement with Ballard King &Associates October 31,2005 Revised CONTRACTOR'S QUALIFICATIONS Ballard King & Associates (BKA) was established in 1992 by Ken Ballard and Jeff King in response to the need for market driven and reality based planning for recreation facilities. Utilizing their extensive experience in developing and operating comprehensive recreation facilities in the public sector, Ken and Jeff have integrated a hands on approach to recreation facility planning. The company offers a nation wide practice that is served by their office in Denver, Colorado. BKA has completed well over 250 feasibility, planning and operations studies for recreation facilities in the last thirteen years and has more than 60 facilities up and running across the United States. They are considered to be one of the foremost authorities on recreation facility planning and operations in the United States. In addition BKA has specialized in conducting operational audits for facilities that include a variety of amenities. Over the course of the last thirteen years, BKA has completed audits for over twelve facilities including the Belmont Plaza Pool in Long Beach, CA; the Greater Plymouth Community Center, Plymouth Meeting, PA; the RiverWinds Recreation Center, West Depthford, NJ; and the Issaquah Recreation Center, Issaquah, WA. More importantly both Ken Ballard and Jeff King have extensive first hand experience with the opening and operation of public recreation facilities. Between the two of them they have operated five different recreation facilities in the Midwest. Key Staff Contractor proposes to assign the following key staff in the performance of this project: Principal,Ken Ballard, Ken Ballard has over 15 years experience in recreation facility operation and planning. In his work with BKA, Ken has been involved with over 100 recreation center projects across the country, providing planning, feasibility and operations consulting. Prior to co- founding BKA, he was the Recreation Manager for the City of Thornton, Colorado. There he was a key member of the team responsible for the pre-design phase of an 11.5 million dollar recreation center. Ken also served as the Director of the Englewood Recreation Center where he was in charge of the operation and administration of a 55,000 square foot full service facility. The center received the 1986 "Facility of Merit" award from Athletic Business Magazine for design and operations excellence. Management experience includes: feasibility studies, facility construction and design process, space planning and equipment specifications, request for proposal, grand opening celebrations, preventive maintenance programs, staffing, budgeting, marketing and programming. Ken also has extensive program experience including: adult and youth sports, fitness/wellness, special events and cultural arts. Mr. Ballard has a Bachelor of Arts degree in History and a Bachelor of Science degree in Recreation from the University of Colorado. Mr. Ballard is a Certified Leisure Professional and is a member of several professional associations including Colorado Parks and Recreation Association and the National Recreation and Park Association. Agreement with Ballard King &Associates October 31,2005 Revised 'Jeff King, Prin . . Jeff King has over 20 years experience in ice arena and recreation facility operation. As a founding partner in BKA, Jeff has provided consulting services to numerous communities who have benefited from his extensive background in recreation center planning and management. Jeff is the former Recreation Director for the City of St. Peters, Missouri, where he was responsible for start up and operations of Rec-Plex, a 125,000 square foot recreation center which opened in July 1994. Rec-Plex was the host site for all aquatic events for the 1994 Olympic Sports Festival. Jeff was previously the Facility Manager for the Edora Pool Ice Center in Fort Collins, Colorado,where he was responsible for the operations and administration of an 83,000 square foot facility. EPIC received the 1987 "Facility of Merit"award from Athletic Business Magazine for design and operation excellence. He also served as the City's Aquatic Director. Management experience includes: facility planning and construction, facility renovation, grand opening celebrations, economic impact studies, energy conservation systems, preventative maintenance programs, staffing, budgeting, marketing, cost accounting and programming. Jeff has also served as a team leader and facilitator for the City of Fort Collins Quality Improvement Program and has been certified in Systematic Development of Informed Consent (SDIC). In addition, Mr. King's experience led to his involvement with the Colorado Parks and Recreation Association's Recreation Facility Design and Management School, including serving as chairman in 1993. Jeff was also one of the founders of the"Gateway to Success" recreation facility planning conference in St. Louis serving as the chairman in its first year. Mr. King has been a regular speaker at the Athletic Business Conference, as well numerous state conferences and ice arena management related seminars and workshops. Mr. King holds a Bachelor of Arts degree in Business Administration from Lindenwood University. Agreement with Ballard King &Associates October 31,2005 Revised EXHIBIT "B" SPECIAL REQUIREMENTS Section 5.1 (c) is hereby amended to read as follows: Section 5.1 Insurance (c) Business Automobile Insurance. A policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of $300,000 bodily and property damage. Said policy shall include coverage for owned, non- owned, leased and hired cars. Agreement with Ballard King &Associates October 31,2005 Revised EXHIBIT "C" SCHEDULE OF COMPENSATION Contractor agrees to perform all services described herein for a fixed not-to-exceed price of$15,000 plus reasonable expenses as outlined below. Contractor shall receive reimbursement for travel and other expenses as identified below or as authorized in advance by the City as reimbursable. The maximum amount to be paid to the Contractor for authorized expenses shall not exceed Two Thousand Dollars ($2,000), which amount is not included in the compensation total above. Such expenses may include: • Airfare (economy or coach class only), • Other Transportation Expenses • Lodging and subsistence necessary during periods of required travel. All reimbursables will be billed based on actual cost of services, plus 10%. Contractor shall be required to produce to City, upon City's request therefor, any receipt or other evidence of expenses listed in any invoice provided by Contractor to City. Contractor agrees to work with City until its services culminate in report as described in Exhibit"A". Contractor shall submit invoices to the City as work is completed. City shall pay Contractor pursuant to Section 2.2 of this Agreement. In no event shall Contractor's invoice amount exceed the maximum percentage allocation by task as set forth below: Facility Operational Audit Review Facility/Program 25% Stakeholder Meetings 25% Prepare Draft Report 25% Prepare Final Report: 25% Availability & Fees Contractor will perform the following services in connection with the operational audit, working at all times in close cooperation with the City's staff and its other consultants and advisors. 1. Contractor is prepared to begin work upon City's acceptance of this proposal. The study will be completed in accordance with a schedule established jointly with the City. Contractor understands that the City would like the study completed by late February 2006. 2. The fee for professional services will not exceed $15,000. Agreement with Ballard King &Associates October 31,2005 Revised 3. This fee is based on the following conditions: a. Availability of all necessary information from the City in a timely manner. b. Attendance at not more than two stakeholder meetings at the City's request. Preparation for and attendance at additional meetings will be billed according to Contractor's proposed rate of $200 per meeting. c. If the project is delayed due to circumstances over which we have no control, Contractor may request reimbursement for time and expenses incurred beyond a reasonable date. Costs will be based on Contractor's then-current billing rate schedule. 4. Contractor shall be entitled to reimbursable expenses in an amount not-to-exceed $2,000. 5. Contractor's standard rate for additional work is $120 hour. 6. One draft submittal of the report based on information provided by the City. Time and expense involved in revising tables and assumptions due to changes in information or in preparing additional draft reports constitute additional services r��6A 7. In addition to the services provided under this proposal, the City�m authorize Contractor to perform additional services for which the City will compensate Contractor based on our hourly rates at the time the work is performed, plus direct expenses. • Changes in project scope • Delays in project schedule • Any other services not specified 8. If the project is terminated for any reason, we are to be reimbursed for professional services and direct expenses incurred up to the time we receive notification of such termination. 9. This proposal may be withdrawn or amended if not accepted within 60 days of its date. Additional Services Contractor agrees to remain available to attend additional meetings and provide additional consulting services beyond the scope of the tasks listed here, as requested by the City. Such services may include: • Changes in project scope • Any other services not specified in this scope The Contractor's standard rate for consulting services beyond the scope of work as described herein is $120 per hour plus reasonable expenses. Agreement with Ballard King &Associates October 3),2005 Revised EXHIBIT "D" SCHEDULE OF PERFORMANCE Time is of the essence of this agreement. CONTRACTOR shall perform all services hereunder as expeditiously as is consistent with professional skill and care, as well as the orderly progress of the Project work so as not to be the cause, in whole or in part, of delays in the completion of the Project or in the achievement of any Project milestones, as provided herein. Specifically, CONTRACTOR shall perform its Services so as to allow for the full and adequate completion of the Project within One Hundred and Twenty (120) days of receipt of a notice to proceed. If at any time it appears that the project cannot be completed by the date specified, CONTRACTOR shall notify CITY of that fact and provide an estimate of the time when the project will be completed. If CONTRACTOR has been the sole source of delay, and if completion of the project would be expedited by use of other or additional consulting services, CITY may use the retained amounts for the purpose and shall be relieved of paying such retention to CONTRACTOR. If the CONTRACTOR's work is not satisfactory, CITY has the right to take appropriate action, including but not limited to: (1) meeting with the CONTRACTOR to review the quality of the work and resolve matters of concern; (2) requiring the CONTRACTOR to perform the work at no additional fee until it is satisfactory; (3) suspending the delivery of further work to the CONTRACTOR for an indefinite time; (4) withholding payment; or (5) terminating the Agreement as set forth in Section 7.8. Project Schedule Commence Project: November 1, 2005 Review Facility/Program November— December 2005 Stakeholder Meetings January 2006 Draft Report Submitted to City for Review: February 10, 2006 Final Report Submitted to City: February 24, 2006 Agreement with Ballard King &Associates October 31, 2005 Revised 11/28/2005 11:57 3034708642 BALLARDWING & ASSOC PAGE 02 11/23/2005 18:33 7209811169 wESTERN,HERI7AGZ IN3 ='A3E 01/02 M C&IMICATE of LIABILITY INSURANCE 11/3/005 i rnbeucE2 1 HTIS CERTIFICATE M 18GUED AS A NATTER OF INFORMATION Western a ovitave Zoo. Agcy. ONLY AND CONFERS NO RIGHTS UPON THE, .CeIMPICATE j ImoDEVRi DOES NOT r EXTEND OR PU Sox 270600 A4.TER THCOEAg � R ED 6YT POUCIES WILOW__ I yittLotoA, W 40127 ( 303-90$-'!� {'1 I INS RVA3 AFFORDING COVERAOR NAICA IPa"*D !R N�I11G aw A3$OCIATI4S Fr,JniRA aPl{IJsf-STAR INS. 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AUlir REPREAENTA ` r V ACDRDSiIS10N1lM) Q+1AC074D CORP(1kATTON 195E M E M G R A N D U M b TO: Marilynn Hannon Administrative Assistant FROM: Kathie Hart, CIVIC Chief Deputy City Clerk DATE: November 28, 2005 SUBJECT: Ballard King &Assoc. A5191 Attached are two duplicate original copies of the above referenced agreement. We have retained the original our files. Please feel free to contact me if there are any questions, ext. 8206. /kdh attach.