HomeMy WebLinkAbout11/16/2005 - STAFF REPORTS (12) OF PALAq S
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F O RN\P City Council Staff Report
CITY COUNCIL NOVEMBER 16, 2005
CONSENT CALENDAR
Subject: GUARDRAILS REPAIR AND/OR REPLACEMENT IN VARIOUS
CITYWIDE LOCATIONS
From: City Manager
Initiated by: Director of Public Works/City Engineer
SUMMARY
This agreement will provide for the removal and disposal of damaged guardrails and
resulting material and provide for the installation of new guardrails or relocation of existing
guardrail necessary to establish original alignment and conformance to Caltrans
Specifications at four (4) locations in the City of Palm Springs.
RECOMMENDATION:
1) Approve Minute Order No. "APPROVING AGREEMENT NO.
WITH ALCORN FENCE COMPANY IN THE AMOUNT OF $31,115 FOR
GUARDRAIL REPAIR/REPLACEMENT-VARIOUS CITYWIDE LOCATIONS,CITY
PROJECT#05-23."
2) Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
'The Department of Public Works & Engineering oversees the maintenance of the City's
street system. A list of locations where existing guardrails have been damaged has been
compiled. No accident reports were made or found by the City's Police Department. The
four (4) locations and work required is as follows:
1) Indian Canyon Drive@ Railroad Bridge, south bound. Work to consist of removal
and disposal of damaged guardrail and resulting materials. Install 50 LF of new
guardrail and connection to bridge abutment.
Item No. 2 . G .
City Council Staff Report
November 16, 2005-Page 2
Guardrail Repair/Replacement, CP#05-23
2) East end of Garnet Avenue, east of Indian Canyon Drive. Work to consist of
installation of 25 LF of a new thrie beam barrier with wood post and block.
3) Gene Autry Trail @ Railroad Bridge, south bound. Work to consist of reinstallation
of existing rail and steel posts. Remove and haul out excess concrete foundations.
4) Southridge Drive, south of East Palm Canyon Drive. Work to consist of removal
and disposal of damaged guardrail and resulting materials. Install 162.5 LF of new
guardrail.
City sought informal bids from three(3)contractors. Bids were received on September 15,
2005 from two (2) contractors: Alcorn Fence Company, Riverside, CA for the amount of
$31,115 and D.C. Hubbs Construction, Yucaipa, CA for the amount of$40,760.
FISCAL IMPACT: Finance Director Revie 'mil
(Funding for this project is available in Gas Tax Account Number 133-4298-50246
(Guardrail Repair/Replacement).
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David J. Barakian Thomas J. W' on
Director of Public Works/City Engineer Assistant City Manager-Development Services
4
David FI. Ready
City Manager r
Attachments:
1. Minute Order
2. Contract Services Agreement
MINUTE ORDER NO.
APPROVING AGREEMENT WITH
ALCORN FENCE COMPANY IN THE
AMOUNT OF $31,115 FOR
GUARDRAIL REPLACEMENT/REPAIR-
VARIOUS CITYWIDE LOCATIONS,
CITY PROJECT #05-23.
I, James Thompson, City Clerk of the City of Palm Springs, California, hereby
certify that this Minute Order Approving Agreement No. with Alcorn
Fence Company in the Amount of $31,115 for Guardrail Replacement/Repair-
Various Citywide Locations, City Project #05-23, was adopted by the City Council
of the City of Palm Springs, California, in a meeting thereof held on the
day of 12005.
James Thompson, City Clerk
I
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i
I
l CITY OF PALM SPRINGS
CONTRACT SERVICES AGREEMENT
Guardrail Repair/Replacement-Various Citywide Locations, CP#05-23
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered
into this day of 2005. by and between the CITY OF PALM
SPRINGS, a municipal corporation, (herein "City") and Alcorn Fence Company, (herein
"Contractor"). The term Contractor includes professionals performing in a consulting capacity.
The parties hereto agree as follows:
1.0 SERVICES OF CONTRACTOR
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, the Contractor shall provide those services specified in the "Scope of Services"
attached hereto as Exhibit"A" and incorporated herein by this reference, which services may be
referred to herein as the "services" or "work" hereunder. As a material inducement to the City
entering into this Agreement, Contractor represents and warrants that Contractor is a provider of
first class work and services and Contractor is experienced in performing the work and services
contemplated herein and, in light of such status and experience, Contractor covenants that it shall
follow the highest professional standards in performing the work and services required hereunder
and that all materials will be of good quality, fit for the purpose intended. For purposes of this
Agreement, the phrase "highest professional standards" shall mean those standards of practice
recognized by one or more first-class firms performing similar work under similar circumstances.
1.2 Contractor's Proposal. The Scope of Service shall include the Contractor's
proposal or bid which shall be incorporated herein by this reference as though fully set forth
herein. In the event of any inconsistency between the terms of such proposal and this Agreement,
the terms of this Agreement shall govern.
1.3 Compliance with Law. All services rendered hereunder shall be provided
in accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any
Federal, State or local governmental agency having jurisdiction in effect at the time service is
rendered.
1.4 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its
sole cost and expense such licenses, permits and approvals as may be required by law for the
performance of the services required by this Agreement. Contractor shall have the sole obligation
to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be
imposed by law and arise from or are necessary for the Contractor's performance of the services
required by this Agreement, and shall indemnify, defend and hold harmless City against any such
fees, assessments, taxes, penalties or interest levied, assessed or imposed against City
hereunder.
1.5 Familiarity with Work. By executing this Contract, Contractor warrants that
Contractor(a) has thoroughly investigated and considered the scope of services to be performed,
(b) has carefully considered how the services should be performed and (c) fully understands the
facilities, difficulties and restrictions attending performance of the services under this Agreement.
If the services involve work upon any site, Contractor warrants that Contractor has, or will,
investigate the site and is or will be fully acquainted with the conditions there existing, prior to
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commencement of services hereunder. Should the Contractor discover any latent or unknown
conditions,which will materially affectthe performance of the services hereunder, Contractorshall
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.
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.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, the
Contractor shall be compensated in accordance with the "Schedule of Compensation" attached
hereto as Exhibit"C" and incorporated herein by this reference, but not exceeding the maximum
contract amount of Thirty-One Thousand One Hundred Fifteen Dollars and No Cents
($31,115.00) (herein "Contract Sum"), except as provided in Section 1.8. The method of
compensation may include (i) a lump sum payment upon completion, (ii) payment in accordance
with the percentage of completion of the services, (iii) payment for time and materials based upon
the Contractor's rates as specified in the Schedule of Compensation, but 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
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shall include the attendance of Contractor at all project meetings reasonably deemed necessary
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by the City; Contractor shall not be entitled to any additional compensation for attending said
meetings. 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, that Contractor shall not be entitled to additional compensation therefore, and the
provisions of Section 1.8 shall not be applicable for such services.
2.2 Method of Payment. Unless some other method of payment is specified in
the Schedule of Compensation, in any month in which Contractor wishes to receive payment, no
later than the first (1") working day of such month, Contractor shall submit to the City in the form
approved by the City's Director of Finance, an invoice for services rendered prior to the date of
the invoice. Except as provided in Section 7.3, City shall pay Contractor for all expenses stated
thereon which are approved by City pursuant to this Agreement no later than the last working day
of the month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this
Agreement.
3.2 Schedule of Performance. Contractor shall commence the services
pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all
services within the time period(s) established in the "Schedule of Performance" attached hereto
as Exhibit "D", if any, and incorporated herein by this reference. When requested by the
Contractor, extensions to the time period(s) specified in the Schedule of Performance may be
approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days
cumulatively.
3.3 Force Maleure. The time period(s)specified in the Schedule of Performance
for performance of the services rendered pursuant to this Agreement shall be extended because
of any delays due to unforeseeable causes beyond the control and without the fault or negligence
of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually
severe weather,fires, earthquakes,floods,epidemics, quarantine restrictions, riots, strikes,freight
embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the
Contractor shall within ten (10) days of the commencement of such delay notify the Contract
Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the
extent of delay, and extend the time for performing the services for the period of the enforced
delay when and if in the judgment of the Contract Officer such delay is justified. The Contract
Officer's determination shall be final and conclusive upon the parties to this Agreement. In no
event shall Contractor be entitled to recover damages against the City for any delay in the
performance of this Agreement, howevercaused,Contractor's sole remedy being extension of the
Agreement pursuant to this Section.
3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this
Agreement, this Agreement shall continue in full force and effect until completion of the services
but not exceeding one(1)yearfrom the date hereof, except as otherwise provided in the Schedule
of Performance (Exhibit "D").
4.0 COORDINATION OF WORK
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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:
Bob Jenkins
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 person as may be
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
contractwith any otherentity to perform in whole or in part the services required hereunderwithout
the express written approval of the City. In addition, neither this Agreement nor any interest herein
maybe transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation
of law, whether for the benefit of creditors or otherwise, without the prior written approval of City.
'Transfers restricted hereunder shall include the transfer to any person or group of persons acting
in concert of more than twenty five percent (25%) of the present ownership and/or control of
Contractor, taking all transfers into account on a cumulative basis. In the event of any such
unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No
approved transfer shall release the Contractor or any surety of Contractorof any liability hereunder
without the express consent of City.
The City's policy is to encourage the awarding of subcontracts to persons or entities with
offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are
available, to persons or entities with offices located in the Coachella Valley ("Local
Subcontractors"). Contractor hereby agrees to use good faith efforts to award subcontracts to
Local Subcontractors, if Local Subcontractors are qualified to perform the work required. In
requesting for the City to consent to a subcontract with a person or entity that is not a Local
Subcontractor, the Contractor shall submit evidence to the City that such good faith efforts have
been made or that no Local Subcontractors are qualified to perform the work. Said good faith
efforts may be evidenced by placing advertisements inviting proposals or by sending requests for
proposals to selected Local Subcontractors. The City may consider Contractor's efforts in
determining whether it will consent to a particular subcontractor. Contractor shall keep evidence
of such good faith efforts and copies of all contracts and subcontracts hereunder for the period
specified in Section 6.2.
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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 Contractors 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 contractorwith 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 property damage 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 standard ISO additional insured
endorsement form CG2010(1185) or equivalent language.
(b) Worker's Compensation Insurance. A policy of worker's compensation
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, prior to 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.
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The contractor agrees that the provisions of this Section 5A shall not be construed as limiting
in anyway the extent to which the Contractor maybe 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 to persons or property, losses, costs, penalties, obligations, errors,
omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person,
farm 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, 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;
(b) Contractor will promptly pay any judgment 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 Performance Bond. Concurrently with execution of this Agreement,
Contractor shall deliver to City a performance bond in the sum of the amount of this Agreement, in
the form provided by the City, which secures the faithful performance of this Agreement, unless
such requirement is waived by the Contract Officer. The bond shall contain the original, notarized
signature of an authorized officer of the surety and affixed thereto shall be a certified and current
copy of his powerof attorney. The bond shall be unconditional and remain in force during the entire
term of the Agreement and shall be null and void only if the Contractor promptly and faithfully
performs all terms and conditions of this Agreement
5.4 Sufficiency of Insurer or Surety. Insurance or bonds required by this
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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 may orwill materially increase or decrease the cost of the work or services contemplated
herein or, if Contractor is providing design services, the cost of the project being designed,
Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event
and the estimated increased or decreased cost related thereto and, if Contractor is providing design
services, the estimated increased or decreased cost estimate for the project being designed.
6.2 Records. Contractor shall keep, and require subcontractors to keep, such
books and records as shall be necessary to perform the services required by this Agreement and
enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall
have full and free access to such books and records at all times during normal business hours of
City, including the right to inspect, copy, audit and make records and transcripts from such records.
Such records shall be maintained for a period of three(3) years following completion of the services
hereunder, and the City shall have access to such records in the event any audit is required
6.3 Ownership of Documents. All drawings, specifications, reports, records,
documents and other materials prepared by Contractor, its employees, subcontractors and agents
in the performance of this Agreement shall be the property of City and shall be delivered to City
upon request of the Contract Officer or upon the termination of this Agreement. 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.
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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 underthis Agreement,the injured
party shall notify the injuring party, in writing, of its contentions by submitting a claim therefor. The
injured party shall continue performing its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of service of such notice and completes the
cure of such default within forty-five (45) days after service of the notice, or such longer period as
may be permitted by the injured party; provided that if the default is an immediate danger to the
health, safety and general welfare, such immediate action may be necessary. Compliance with the
provisions of this Section shall be a condition precedent to termination of this Agreement for cause
and to any legal action, and such compliance shall not be a waiver of any party's right to take legal
action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the
Contractor's right to terminate this Agreement without cause pursuant to Section 7.8.
7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any
amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the
payment of which may be in dispute hereunder or which are necessary to compensate City for any
losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be
liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform
Contractor's obligation under this Agreement. In the event that any claim is made by a third party,
the amount orvalidity of which is disputed by Contractor, or any indebtedness shall exist which shall
appear to be the basis for a claim of lien, City may withhold from any payment due, without liability
for interest because of such withholding, an amount sufficient to cover such claim. The failure of
City to exercise such right 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.
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7.7 Liquidated Damages. Since the determination of actual damages for any
delay in performance of this Agreement would be extremely difficult or impractical to determine in
the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall
pay to the City the sum of ($ 425.00) as liquidated damages for each working day of delay in the
performance of any service required hereunder, as specified in the Schedule of Performance
(Exhibit"D"). The City may withhold from any monies payable on account of services performed by
the Contractor any accrued liquidated damages.
7.8 Termination Prior to Expiration Of Term. This Section shall govern any
termination of this Agreement except as specifically provided in the following Section fortermination
for cause. The City reserves the right to terminate this Agreement at any time, with or without
cause, upon thirty (30) days written notice to Contractor, except that where termination is due to
the fault of the Contractor, the period of notice may be such shorter time as may be determined by
the Contract Officer. In addition, the Contractor reserves the right to terminate this Agreement at
any time, with or without cause, upon sixty (60) days written notice to City, except that where
termination is due to the fault of the City, the period of notice may be such shorter time as the
Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately
cease all services hereunder except 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 eventthe Contractorhas initiated termination, the Contractor shall be entitled to compensation
only for the reasonable value of the work product actually produced hereunder. In the event of
termination without cause pursuant to this Section, the terminating party need not provide the non-
terminating party with the opportunity to cure pursuant to Section 7.2.
7.9 Termination for Default of Contractor. If termination is due to the failure of the
Contractor to fulfill its obligations under this Agreement, City may, after compliance with the
provisions of Section 7.2, take over the work and prosecute the same to completion by contract or
otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the
services required hereunder exceeds the compensation herein stipulated (provided that the City
shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the
Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously
stated.
7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or
defend or made a party to any action or proceeding in any way connected with this Agreement, the
prevailing party in such action or proceeding, in addition to any other relief which may be granted,
whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall
include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be
entitled to all other reasonable costs for investigating such action, taking depositions and discovery
and all other necessary costs the court allows which are incurred in such litigation. All such fees
shall be deemed to have accrued on commencement of such action and shall be enforceable
whether or not such action is prosecuted to judgment.
8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees. No officer or employee of the
City shall be personally liable to the Contractor, or any successor in interest, in the event of any
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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, director indirect, in this Agreement nor shall any such officer or employee participate in any
decision relating to the Agreement which effects his financial interest or the financial interest of any
corporation, partnership or association in which he is, directly or indirectly, interested, in violation
of any State statute or regulation. The Contractor warrants that it has not paid or given and will not
pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination. Contractor covenants that, by and for itself,
its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of persons on account of race, color,
creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement.
Contractor shall take affirmative action to insure that applicants are employed and that employees
are treated during employment without regard to their race, color, creed, religion, sex, marital status,
national origin, or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person shall
be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City,
to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box
2743, Palm Springs, California 92263. 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 for or against either party by
reason of the authorship of this Agreement or any other rule of construction which might otherwise
apply.
9.3 Integration Amendment. It is understood that there are no oral agreements
between the parties hereto affecting this Agreement and this Agreement supersedes and cancels
any and all previous negotiations, arrangements, agreements and understandings, if any, between
the parties, and none shall be used to interpret this Agreement. This Agreement may be amended
at any time by the mutual consent of the parties by an instrument in writing.
9.4 Severability. In the event that any one or more of the phrases, sentences,
clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or
unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or
unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or
sections of this Agreement which are hereby declared as severable and shall be interpreted to carry
out the intent of the parties hereunder unless the invalid provision is so material that its invalidity
deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
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9.5 Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that(i) such party is duly organized and existing, (ii) they are duly authorized
to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement,
such party is formally bound to the provisions of this Agreement, and (iv) the entering into this
Agreement does not violate any provision of any other Agreement to which said party is bound.
(SIGNATURES ON FOLLOWING PAGE)
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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
By: By:
City Clerk City Manager
APPROVED AS TO FORM:
By:
City Attorney
CONTRACTOR: Alcorn Fence Company Check one:_Individual_Partnership_Corporation
6445 Pedley Road
Riverside, CA 92509
By: By
Signature(notarized) Signature(notarized)
Name: Name:
Title: Title:
('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 any Vice President) or any Assistant Treasurer)
State of State of I
County of Iss County of Iss
On On
before me, before me,
personally appeared personally appeared
personally known to me(or proved to me on the basis of satisfactory personally known to me(or proved to me on the basis of satisfactory
evidence)to be the person(s)whose name(s)is/are subscribed to evidence)to be the person(s)whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies),and that 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 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 entity upon behalf of which the person(s) acted, executed the
instrument. instrument.
WITNESS my hand and official seal. WITNESS my hand and official seal.
Notary Signature Notary Signature:
Notary Seal Notary Seal
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EXHIBIT "A"
SCOPE OF SERVICES
Repair or Replace damaged guardrails.
Work to include the following: Mobilization, Traffic Control, PM-10 Requirements *, Call USA Alert,
California Wage Rate Requirements (Prevailing Wage), Certified Payroll Requirement, remove and
dispose damaged guardrail and resulting materials, provide and install new guardrail or re-use
existing guardrail necessary to establish original alignment and conformance to Caltrans
Specifications at four locations listed below:
Street
1 Indian Canyon Drive @ Railroad Bridge, south bound
Remove and dispose damaged guardrail and resulting materials. Install 50 LF MBGR
with terminal system, Type SRT and connection to bridge abutment
2 East end of Garnet Avenue, east of Indian Canyon Drive
Install 25 LF Thrie Beam Barrier with wood post and block
3 Gene Autry Trail @ Railroad Bridge, south bound
Re-Install existing rail and steel posts. Remove and haul out excess concrete foundations
4 Southridge Drive, south of East Palm Canyon Drive
Remove and dispose damaged guardrail and resulting materials. Install 162.5 LF MBGR
with terminal system, and Type SIFT.
* See Exhibit B for explanation
MBGR = Metal Beam Guard Railing
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EXHIBIT "B"
SPECIAL REQUIREMENTS
A Pre-Construction meeting will be scheduled prior to the start of the work.
A "NO FEE" permit will be issued at the Pre-Construction meeting.
It shall be the Contractor's responsibility to protect all existing improvements. The Contractor shall
tie responsible for any and all damage done to existing property and adjacent properties during all
construction work, and the Contractor, at its expense, shall make any repairs that result from its
operation, to the approval of the Engineer and the subject property owner.
The work shall be done in accordance with the Standard Specifications for Public Works
Construction "Greenbook", 2003 Edition. Insofar as references may be made to Caltrans Standard
Specifications, such work shall conform to the referenced portions of the technical provisions only.
Provided, that wherever the term "Standard Specifications" is used without the prefix "Caltrans", it
shall mean the Standard Specifications for Public Works Construction "Greenbook", 2003 Edition,
as specified above.
* PM-10 Requirements will be as follows:
'I On-site water truck to control dust and track-out as needed per City Municipal Code 8.50.021
2 No Dust Control Plan is required
3 No AQMD sign is required
4 Soil or other potential dust generating materials transported onto or from the site using public
streets, shall first be watered sufficiently to prevent generation of dust and then covered so as
to prevent any spillage during transport. If deemed necessary, the Public Works and
Engineering Division may specify additional measures.
Section 4.2 Contract Officer- Pete Agres, Street Maintenance Manager is hereby designated as
being the representative the City authorized to act in its behalf with respect to the work and services
specified herein and make all decisions in connection therewith ("Contract Officer")
Section 4.3, Performance Bond-"Performance Bond" is hereby waived. In lieu of a Performance
Bond, submit a Payment Bond for the Contract Amount
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EXHIBIT "C"
SCHEDULE OF COMPENSATION
Street Lump Sum
1 Indian Canyon Drive @ Railroad Bridge, south bound 7,430
Remove and dispose damaged guardrail and resulting materials.
Install 50 LF MBGR with terminal system, Type SRT and connection
to bridge abutment
2 East end of Garnet Avenue, east of Indian Canyon Drive $ 3,930
Install 25 LF Thrie Beam Barrier with wood post and block
3 Gene Autry Trail @ Railroad Bridge, south bound 4,780
Re-Install existing rail and steel posts. Remove and haul out excess
concrete foundations
4 Southridge Drive, south of East Palm Canyon Drive $ 14,975
Remove and dispose damaged guardrail and resulting materials.
Install 162.5 LF MBGR with terminal system, and Type SFT.
Contract Total 31 115
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EXHIBIT "D"
SCHEDULE OF PERFORMANCE
Start Date November 28, 2005
Completion Date December 19, 2005
Working Days 15
No work on City Holidays:
November 24& 25, 2005 or December 23 &26, 2005 or January 2, 2006.
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