Loading...
HomeMy WebLinkAbout12/1/2004 - STAFF REPORTS (23) City Manager Authorized Agreements Under $25,000 Oct. 15 through Nov. 19, 2004 Contractor/ Vendor Amount Department A4979 Wildan $24,990.00 City Manager Temporary Planning Services A4980 488 Environmental $13,500.00 Comm & Econ Environmental Services Categorical Exclusion Documents for Land Exchange A4985 Piranaha Swim Team (per month) $600.00 Parks & Rec use of City Swim Center paid to City A4984 Palm Springs Aquantics (per month) $150.00 Parks & Rec use of City Swim Center paid to City A4986 Dateland Construction Cc Inc $16,800.00 Eng/Public Works Palm Canyon Wash Cleanup A4987 BrandStrategy Inc $$24,500.00 Airport Airport brand advisory and tenant strategy services 6 7 �r Ym H:\USERS\C-CLK\KATHIE H\CM Auth Agree 11-19-04.doc 't 12 i 1 CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT FOR Temporary Planning Services TH14 CONTRACT SERVICES AGREEMENT (herein "Agreement") is made and entered into this ay of QX - , 2004, by and between the CITY OF PALM SPRINGS, a municipal corporation herein "City") and W illdan (herein "Contractor"). NOW, THEREFORE, the parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all of the terms and conditions of this Agreement, the Contractor shall perform the work or services set forth in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by reference. Contractor warrants that all work and services set forth in the Scope of Services will be performed in a competent, professional and satisfactory manner. 1.2 Compliance With Law. All work and 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 of competent jurisdiction. 1.3 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. 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, Contractor shall be compensated in accordance with the "Schedule of Compensation" attached hereto as Exhibit "B" and incorporated herein by this reference, but not exceeding the maximum contract amount of Twenty Four Thousand Nine Hundred Ninety Dollars ($24,990.00) ("Contract Sum"). 2.2 Method of Payment. Provided that Contractor is not in default under the terms of this Agreement, Contractor shall be paid as outlined Exhibit "B" Schedule of Compensation. 3.0 COORDINATION OF WORK 3.1 Representative of Contractor. Al W arot is hereby designated as being the principal and representative of Contractor authorized to act in its behalf with respect to the work and services specified herein and make all decisions in connection therewith. 3.2 Contract Officer. Troy Butzlaff 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'). The City II R:\USERS\WPPUBLIC\05 Bids\W illdan - Temp Planning Services 8-02.wpd 6@ -1- ORIGINAL BID AND/OR AGREEMENT Manager of City shall have the right to designate another Contract Officer by providing written notice to Contractor. 3 3 Prohibition Against Subcontracting or Assignment. Contractor shall not contract with any entity to perform in whole or in part the work or services required hereunder without the express written approval of the City. Neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Any such prohibited assignment or transfer shall be void. 3.4 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. Contractor shall perform all services required herein as an independent contractor of City and shall remain under 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. 4,0 INSURANCE AND INDEMNIFICATION 4.1 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 a least $1,000,000 bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broadform property damage, products and completed operations. The General Liability Policy shall name the City of Palm Springs, its officers, employees, and agents, 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 such amount as will fully comply with the laws of the State of California and which will include $1,000,000 employer's liability. (c) Business Automobile Insurance. A policy of business automobile liability insurance written on aper occurrence basis with a single limit liability in the amount of $500,000 bodily injury( and property damage, Said policy shall include coverage for owned, non-owned, leased and hired cars. (d) Additional Insurance. Policies of such other insurance, including professional liability insurance in a minimal amount of $1,000,000 if contract has professional liability exposure, as may be required in Exhibit "A". All of the above policies of insurance shall be primary insurance. 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 4.1 to the Contract Officer. No work or services under this Agreement shall commence until the Contractor has provided the City with R:\USERS\WPPUBLIC\05 Bids\W illdan - Temp Planning Services 8-02.wpd -2- Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. The contractor agrees that the provisions of this Section 4.1 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 3.3 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. 4.2 Indemnification. eontidctu. agices to indemnify the Irarmtess-hum, but excluding such clain. w liabilities diising (Replaced by text in Exhibit "A") (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 is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the 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. 5.0 TERM 5.1 Term. Unless earlier terminated in accordance with Section 5.2 below, this Agreement shall continue in full force until December 31, 2005. R:\USERS\WPPUBLIC\05 Bids\W illdan -Temp Planning Services 8-02.wpd -3- 5.2 Termination Prior to Expiration of Term. Either party may terminate this Agreement at any time, with or without cause, upon thirty (30) days' written notice to the other party. Upon receipt of the notice of termination, the Contractor shall immediately cease all work or services hereunder except as may be specifically approved by the Contract Officer. In the event of termination by the City, Contractor shall be entitled to compensation for all services rendered prior to the effectiveness of the notice of termination and for such additional services specifically authorized by the Contract Officer and City shall be entitled to reimbursement for any compensation paid in excess of the services rendered. 6.0 M,ISCELLANEOUS 6.1 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 ensure 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. 6.2 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. 6.3 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he 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. 6.4 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, and in the case of the Contractor, to the person at the address designated on the execution page of this Agreement. 6.5 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. 6.6 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. R:\USERS\WPPUBLIC\05 Bids\W illdan - Temp Planning Services 8-02.wpd 6.7 Severability. In the event that part of 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 portions 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. 6.8 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 6.9 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, whether or not the matter proceeds to judgment. 6.10 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (1) such party is duly organized and existing, (H) 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 NEXT PAGE R:\USERS\WPPUBLIC\05 Bids\W illdan - Temp Planning Services 8-02.wpd 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: V g ✓/ �Aity Clerk City Manager !,°C4T�'d'S 'Jt'wLM le(C Ht'�"4"b 'Z:,r.B�.:fr` b9Ti�!t�'^�ie� dtit:,,i`t•„i{ CONTRACTOR: Willdan Check one:_Individual_Partnership_✓Corporation 13191 Crossroads Parkway North,#405 Industry, CA 91746-3497 Corporations require two notarized sign. re One from each of the following A Chairman of Board, President, or any Vice President AND Bq Secretary,Ass islant S cre ary,Treasurer,Assistant Treasurer,or Chief Financial Officer) BY: `ilJ By: a.. Signature(not. zed Signature (notarized) Name: •T(r m. 7 Ao e y---J" Name: /if Title: �J2. f�• e-e Pam . a1.2J_ F Address: t g(9( JZ 2o5 a or d$ Pete -Address: A.V iii 04 12 006 !bS Zr�9 .c� IT—kL 74(0 i: sCine 7-4.0y I l Slate of_77�� _ r_ ___ State of_t 11'6hLd) 1 County J9_Xa . � ss Cenely of ld (af J55 T- Onrso alld beforeme i'l c ' n4_ V befor e � IT Ch IJ- J I eelP P Y appearedpersonallyappeared personally known to me (or proved to me on the basis of personally known to me ( _ of satisfactory evidence) to be the percents) whose names) d� to be the personN whose name(N is/are subscribed to the within instrument and acknowledged is/a)1Q subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their to me that he/alTa/thty executed the same in his/FlErJfri authorized capacity(ies), and that by his/her/Ihen signature(s) authorized capacify(lbs), and that by his/lierjfhs.tr signaturets., on the instrument the person(c), or the entity upon behalf of on the instrument the perscri or the entity upon behalf of which the person(s)acted,executed the instrument which the person(acted,executed the Instrument W ITNESS my hand and official seal WITNESS my hand and official seal (�,� Notary Slgnatu CJ Notary Signature\ M ��F�Y Notary Seal: (� Notary Seal: ANNETTE M. ZAMORA Coml Notary igbisislon# allfarit CAtftEENt SfEHE NOtay Public-California � Us Angeles County S Cornmlbsion#1483234 WCMITLI iptes,3024,2004 Notary Public-California Orange County - MyCorni ExtolAPr 13,2 R:\USERS\WPPUBLIC\05 Bids\Willdan -Temp Planning Services 8-02.wpd EXHIBIT "A" SCOPE OF SERVICES Contractor shall provide planning support services related to the review of new development applications on an as-needed basis. Services provided by Contractor shall be performed by qualified personnel. Ms. Catherine Johnson is approved to provide services hereunder. Contractor must receive approval from the City's Contract Officer prior to utilization of other personnel to provide planning support services. Services shall be provided only as directed by the City's Contract Officer. SPECIAL REQUIREMENTS: Section 4.1 (d) - Additional Insurance The Contract shall procure and maintain a policy of professional liability insurance in an amount not less than $1,000,000.00 per claim with respect to loss arising from the actions of Contractor performing professional services hereunder on behalf of the City. Said policy shall be in conformance with the provisions of Section 4.0 of this Agreement. Replace text lined out in Section 4.2 - Indemnification with: Contractor agrees to hold harmless, indemnify and defend City, its officers, employees, agents, representatives and successors-in-interest against any and all loss, damage, cost, or expenses which the City, its officers, employees, agents, representatives, and successors-in-interest may incur or be required to pay by reason of any injury or property damage caused or incurred by Contractor, its employees, subcontractors or agents to the extent caused by their negligent acts, errors or omissions or other wrongful conduct in the performance hereunder, and in connection therewith: Replace Section 5.2 with the following: 5.2 (Revised) Termination Prior to Expiration of Term. Either party may terminate this Agreement at any time, with or without cause, upon ten (10) days' written notice to the other party. Upon receipt of the notice of termination, the Contractor shall immediately cease all work or services hereunder except as may be specifically approved by the Contract Officer. In the event of termination by the City, Contractor shall be entitled to compensation for all services rendered prior to the effectiveness of the notice of termination and for such additional services specifically authorized by the Contract Officer and City shall be entitled to reimbursement for any compensation paid in excess of the services rendered. R:\USERS\WPPUBLIC\05 Bids\Willdan - Temp Planning Services 8-02.wpd SCHEDULEB SCHEDULE OF COMPENSATION Total compensation for civil engineering support services provided shall not exceed $24,990. Compensation shall be billed at hourly rate as follows: Ms. Catherine Johnson $80 per hour Invoices shall be submitted on a regular basis, at an interval arranged with the City's Contract Officer. R:\USERS\WPPUBLIC\05 Bids\Willdan - Temp Planning Services 8-02.wpd r ` a Y COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT THI,$ CONTRA T SERVICES AGREEMENT (herein "Agreement"), is made and entered into this ay of D - 2004,byand between the COMMUNITY REDEVELOPMENT AGENCY O THE CITY OF PALM SPRINGS, a public body corporate and politic,(herein"Agency') and 488 ENVIRONMENTAL, a sole proprietorship, (herein "Contractor"). The term Contractor includes professionals performing in a consulting capacity. The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the "services"or"work" hereunder. As a material inducement to the Agency entering into this Agreement, Contractor represents and warrants that Contractor is a providerof 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 of Palm Springs 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 Agency against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against Agency 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 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 Agency of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer. H:AUSERSVCURTISW\CONTRACTS\CONTRACT SERVICE AGREEMENT FARRIS NEPA.DOC i1 .� 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 ordamages, and shall be responsible for all such damages,to persons or property, until acceptance of the work by Agency, except such losses or damages as may be caused by Agency's own negligence. 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 1.8 Additional Services. Agency shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the-Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in(i)the Contract Sum,and/or(ii)the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of up to ten percent (10%) 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 Agency. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any,which are made a part hereof are set forth in the"Special Requirements"attached hereto as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit"B" and any other provisions of this Agreement, the provisions 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 THIRTEEN THOUSAND FIVE HUNDRED DOLLARS ($13,500.00) (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 and per diem expense approved by the Contract Officer in advance, and no other expenses and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the Agency;Contractor shall not be entitled to any additional compensation for attending said meetings. 2.2 Method of Payment. Unless some other method of payment is specified in the Schedule of Compensation, in any month in which Contractor wishes to receive payment, no H:\USERS\CURTISWCONTRACTS\CONTRACT SERVICE AGREEMENT FARRIS NEPA.DOC later than the first(1 sl)working day of such month, Contractor shall submit to the Agency in the form approved by the Agency's Director of Finance, an invoice for services rendered prior to the date of the invoice. Except as provided in Section 7.3,Agency shall pay Contractor for all expenses stated thereon which, are approved by Agency pursuant to this Agreement no later than the last working day of the month. 3.0 PERFORMANCE SCHEDULE Agreement. 3.1 Time of Essence. Time is of the essence in the performance of this 3.2 Schedule of Performance. Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s)established in the "Schedule of Performance" attached hereto as Exhibit"D", if any, and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty(180)days cumulatively. 3.3 Force Maieure. The time period(s)specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to,acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the Agency, if the Contractor shall within ten(10)days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay,and extend the time for performing the services for the period of the enforced delaywhen and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against the Agency for any delay in the performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section. 3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this Agreement,this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1)year from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit"D"). 4.0 COORDINATION OF WORK 4.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: George R. Farris It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for Agency to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement,the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of Agency. H:\USERS\CURTISW\CONTRACTS\CONTRACT SERVICE AGREEMENT FARRIS NEPA.DOC 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the Agency Executive Director. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by Agency to the Contract Officer. Unless otherwise specified herein, any approval of Agency required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the Agency required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the Agency to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the Agency. In addition, neither this Agreement nor any interest herein may be transferred,assigned, conveyed,hypothecated or encumbered voluntarily or by operation of law,whether for the benefit of creditors or otherwise, without the prior written approval of Agency. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of Agency. The Agency's policy is to encourage the awarding of subcontracts to persons or entities with offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are available,to persons or entities with offices located in the Coachella Valley("Local Subcontractors"). Contractor hereby agrees to use good faith efforts to award subcontracts to Local Subcontractors, if Local Subcontractors are qualified to perform the work required. In requesting for the Agency to consent to a subcontract with a person or entity that is not a Local Subcontractor, the Contractor shall submit evidence to the Agency that such good faith efforts have been made or that no Local Subcontractors are qualified to perform the work. Said good faith efforts may be evidenced by placing advertisements inviting proposals or by sending requests for proposals to selected Local Subcontractors. The Agency may consider Contractor's efforts in determining whether it will consent to a particular subcontractor. Contractor shall keep evidence of such good faith efforts and copies of all contracts and subcontracts hereunder for the period specified in Section 6.2. 4.4 Independent Contractor. Neither the Agency nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein, except as otherwise set forth herein. Agency shall have no voice in the selection, discharge, supervision or control of Contractor's employees, servants, representatives or agents,or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of Agency and shall remain at all times as to Agency a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at anytime or in any manner represent that it or any of its agents or employees are agents or employees of Agency. Agency shall not in anyway 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 Agency, during the entire term of this Agreement including any extension thereof, the following policies of insurance: H:\USERS\CURTISW\CONTRACTS\CONTRACT SERVICE AGREEMENT FARRIS NEPA.DOC (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 Agency 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 Agency, 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 under this Agreement shall commence until the Contractor has provided the Agency 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 Agency. The contractor agrees that the provisions of this Section 5.1 shall not be construed as limiting in anyway 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 Agency,its officers,agents and employees against, and will hold and save them, and each of them, harmless from any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities")that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work,operations or activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of Contractor hereunder, or arising from Contractor's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement,whether or not there is concurrent passive or active negligence on the part of the Agency, its officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the Agency, its officers, agents or employees, who are directly responsible to the Agency, and in connection therewith: H:\USERS\CURTISW\CONTRACTS\CONTRACT SERVICE AGREEMENT FARRIS NEPA.DOC (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) Contractorwill promptly payanyjudgment rendered against the Agency, its officers,agents or employees for anysuch 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 Agency, its officers,agents, and employees harmless therefrom; (c) In the event the Agency, 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 Agency, its officers,agents or employees,any and all costs and expenses incurred by the Agency, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys'fees. 5.3 Performance Bond. Concurrently with execution of this Agreement,Contractor shall deliver to Agency a performance bond in the sum of the amount of this Agreement, in the form provided by the Agency, which secures the faithful performance of this Agreement, unless such requirement is waived by the Contract Officer. The bond shall contain the original,notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement. 5.4 Sufficiency of Insurer or Surety. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best's Key Rating Guide or in the Federal Register, unless such requirements are waived by the Agency Executive Director or designee of the Agency Executive Director due to unique circumstances. In the event the Agency Executive Director determines that the work or services to be performed under this Agreement create an increased or decreased risk of loss to the Agency, the Contractor agrees that the minimum limits of the insurance policies and the performance bond required by this Section 5 may be changed accordingly upon receipt of written notice from the Agency Executive Director or designee; provided that the Contractor shall have the right to appeal a determination of increased coverage by the Executive Director to the Agency within ten (10)days of receipt of notice from the Executive Director. 6.0 REPORTS AND RECORDS 6.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the Agency is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services,the cost of the project being designed,Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed. H:\USERS\CURTISW\CONTRACTS\CONTRACT SERVICE AGREEMENT FARRIS NEPA.DOC 6.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records as all 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 Agency, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three(3)years following completion of the services hereunder, and the Agency shall have access to such records in the event any audit is required 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees,subcontractors and agents in the performance of this Agreement shall be the property of Agency and shall be delivered to Agency upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have no claim forfurther employment or additional compensation as a result of the exercise byAgencyof 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 Contractorwill be at the Agency's sole risk and without liabilityto Contractor,and the Agency shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to Agency any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify Agency for all damages resulting therefrom. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California,or any other appropriate court in such county. 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 defaultwithin 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 maybe 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 Agency's or the Contractor's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. Contractor hereby authorizes Agency to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessaryto compensate Agency for any losses, costs, liabilities,or damages suffered by Agency,and(ii)all amounts forwhich Agency maybe liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform H:\USERS\CURTISVV\CONTRACTS\CONTRACT SERVICE AGREEMENT FARRIS NEPA.DOC Contractor's obligation under this Agreement. In the eventthat any claim is made by a third party,the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis fora claim of lien,Agency maywithhold from any payment due,without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of Agency to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure, indemnify, and protect Agency as elsewhere provided herein. 7.4 Waiver. No delay or omission in the exercise of any right or remedy by a non- defaulting party on any default shall impair such right or remedy or be construed as a waiver. A parry's consent to or approval of any act by the other party requiring the parry's consent or approval shall not be deemed to waive or render unnecessary the other parry'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 forthe same default or any other default by the other party. 7.6 Legal Action. In addition to any other rights or remedies,either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default,to compel specific performance of this Agreement,to obtain declaratory or injunctive relief,or to obtain any other remedy consistent with the purposes of this Agreement. 7.7 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the Agency the sum of ($ -None- ) 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 Agency may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages. 7.8 Termination Prior to Expiration of Term. This Section shall govern any termination of this Agreement except as specifically provided in the following Section for termination for cause. The Agency reserves the right to terminate this Agreement at any time, with or without cause, upon thirty(30) days written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Contractor reserves the right to terminate this Agreement at any time, with or without cause, upon sixty (60) days written notice to Agency, except that where termination is due to the fault of the Agency, the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except as maybe 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. 7.9 Termination for Default of Contractor. If termination is due to the failure of the H:\USERS\CURTISMCONTRACTS\CONTRACT SERVICE AGREEMENT FARRIS NEPA.DOC Contractor to fulfill its obligations under this Agreement, Agency may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the Agency shall use reasonable efforts to mitigate such damages), and Agency may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the Agency as previously stated. 7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in anyway connected with this Agreement,the prevailing party in such action or proceeding, in addition to any other relief which maybe granted,whether legal or equitable, shall be entitled to reasonable attorneys fees. Attorneys fees shall include attorneys fees on any appeal, and in addition a party entitled to attorneys fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8.0 AGENCY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liability of Agency Officers and Employees. No officer or employee of the Agency shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. No officer or employee of the Agency shall have any financial interest,direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 9.0 MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid,first-class mail, in the case of the Agency,to the Agency Executive Director and to the attention of the Contract Officer, COMMUNITY REDEVELOPMENT AGENCY 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 H:\USERS\CURTISW\CONTRACTS\CONTRACT SERVICE AGREEMENT FARRIS NEPA.DOC with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 Integration: Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences;clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that(i)such party is duly organized and existing,(ii)theyare 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 next page) H:\USERS\CURTISVV\CONTRACTS\CONTRACT SERVICE AGREEMENT FARRIS NEPA.DOC IN WITNESS WHEREOF,the parties have executed and entered into this Agreement as of the date first written above. COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS ATT T n a public body corporate and public By: l/J`l_\r �a y v, � By � e fl�h ,Assistant Secretary Executive Director APPROVED AS TO FORM: Agreement ove ande $2$,000 V�u—a Fr Ma"Cole"I,oVXC,) Reviewed and approved by By: 1-1 ' Procurement & Contra cIII Agency Counsel Initials DateM* CONTRACTOR: Check one: _Individual _Partner hip bCor ration Corporations require two notarized signatures: One signature must be from the Chairman of Board,President, or any Vice President. The second signature must be from the Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer), 488 ENVIRONMENTAL, a sole proprietorship APPROVED BY THE CITY MANAGER ON Printed Name: George R. Farris State of Al'VI County of J /Qi ss On before me, Personally appeared r aJ1' personally known to me (or pr ed to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the person(s),orthe entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. i Notary Signature: Notary Seal: EXHIBIT"A" SCOPE OF SERVICES Contractor shall, in keeping with his proposal dated October 7,2004 attached hereto as ExhibitA-1 and under the terms of this Contract with the Citys Redevelopment Agency ("Agency'), provide environmental review services necessary to prepare Categorical Exclusion (Cat Ex) documents associated with a land exchange program being pursued by the Agency and involving parcels of land located on East Palm Canyon Drive and the northwest corner of Sunrise Way and Tahquitz Canyon Way in the City of Palm Springs. Contractor shall: 1) Obtain the required Biological,Cultural Resources,and Phase 1 Surveys required for the processing of the Categorical Exclusion. 2) Prepare the Categorical Exclusion for submittal to the appropriate governing bodies. 3) Provide project management services, including attendance at meetings with Agency and Bureau of Indian Affairs(BIA)staff,to complete the processing and final approval of the Categorical Exclusion by the BIA. H:\USERS\CURTISW\CONTRACTS\CONTRACT SERVICE AGREEMENT FARRIS NEPA.DOC EXHIBIT"A-1" CONTRACTOR'S PROPOSAL 488 ENVIRONMENTAL PO BOX 2731 GALLUP, NM 87301 (505) 722-7876 Mr. Curt Watts October7, 2004 City of Palm Springs Department of Community and Economic Development 3200 E. Tahquitz Canyon Way Palm Springs, CA 92263 Dear Mr. Watts: 488 Environmental is pleased to submit this proposal to prepare Categorical Exclusion (Cat Ex) documents for the Land Exchange Project in Palm Springs, CA. The Cat Ex will comply with the National Environmental Policy Act(40CFR Parts 1500-1508) and Bureau of Indian Affairs NEPA Handbook 30 BIAM, Supplement 1. 1 have worked on numerous environmental studies on Indian Reservations both in the Palm Springs area and nation-wide. These studies include both gaming Palm Springs. and industrial projects, and particularly include the Section 14 Master Development EIS/EIR for A Scope of Services is attached. Also attached are my resume and a list of projects on which I have been involved. My services would be provided on a time-and-materials basis with a cost not to exceed the estimated amount without prior client authorization. These land transfers are not seen as controversial projects such as casino even though there has been some public concern raised on'the Section 14 Master Plan. However, if an excessive amount of comments are received, revisions will be prepared on a time and materials basis Work on the Cat Exs will begin immediately. Phase I Hazardous waste surveys are set for the second week in November. Cultural Resources and Biological Resources Surveys have also been scheduled and will be performed as soon as agreement between the City of Palm Springs and 488 Environmental has been reached. These surveys are required by the Bureau of Indian Affairs in order to support the finding in the Cat Exs. Once the field surveys have been completed, the Cat Exs will be finalized and will be issued for a 30-day public comment period. After that time, the NEPA process will be concluded for the land transfers. I look forward to working with you on this project. Please call me at 5051722-7876 if you have any questions or comments regarding this proposal. Sincerely, George R. Farris SUMMARY OF COSTS TASK 1: Environmental $ 5,000 Biological, Cultural Surveys and Studies Resources, Phase1 Surveys required. Consultants will be needed for Biological and Archeological Surveys. BIA will perform Phase I Surveys at no cost. TASK 2: Categorical $ 6,000 Includes all travel and Exclusion Preparation expenses. TASK 3: Project $ 2,000 Includes arranging for Management Cultural and Biological Studies and obtaining insurance required by the city of Palm Springs. TASK 4: Insurance $ 500 Cost only. TASK 5: Meetings, Site $ 00 Included. Visits Reimbursable Expenses $ 00 Included Allowance for responses to $ 00 None anticipated. comments on Categorical Exclusions. TOTAL $13,500 Due when Categorical Exclusions have been approved by BIA SCHEDULE Providing there are no unforeseen issues/delays concerning the Cultural and Biological surveys, the Categorical Exclusions will be completed and submitted to BIA within one week of BIA field visit set for November 9. 2 EXHIBIT"B" SPECIAL REQUIREMENTS Section 4.3 Tierra Environmental Services will provide the required Archeological and Biological Surveys as Contractor's subcontractor. Section 5.1(a) Due to the nature of the work, the Commercial General Liability Insurance requirement is modified to require coverages only in accordance with the SPARTA Insurance Program coordinated through the Risk Management Office of the City of Palm Springs. The quote received by Contractor for said insurance requirement is attached hereto as Exhibit B-1, the cost for which is included in the Contract Sum specified in Section 2.1 of this Agreement. Evidence of said insurance coverage will be supplied to Agency upon execution of this Agreement and prior to Contractor's commencement of services. Section 5.1(c) Due to the nature of the work,the Business Automobile Insurance requirement is modified to require only evidence of personal automobile policy coverage for George Farris to meet this requirement. Section 5.3 The requirements of Section 5.3 for a Performance Bond are hereby waived. H:\USERS\CURTISW\CONTRACTS\CONTRACT SERVICE AGREEMENT FARRIS NEPA.DOC EXHIBIT B-1 SPARTA Insurance Quote "Sparta QU6te7fV-'I2650 -- ""'""'�^`•Insurartce Services amrvs,Gibe . '06 Chao pd*Blvd. Date 10/7/2004 iallup,NM 87301 A are able to offer the tbllow4 Witu which are valid for 90 day, ovamp SPARTA LYSLIWX—E PP,CG--,�A,�L Conuaercial Genural Liability-Ha23+d 2 Contract value: $14,000 Gmtrag-e Pcriod:3 Months Lutuno wd Carrier azm raturanov Company Mastor Policy.3CM4099 Mwbcr Policy EtTative Daue:l 1=12003 to c4,uati(,u inaits $"000,Oa) General .sglpegxta i Sl,0UXL000 Each occwtnce 1 $1;)v0,0:)J Product&/Completed opefatiolu r SI,00),000 Personel k Aertizti u g Ljury'i5 G.( X:Frse Dat take/3!ed al Fa;�n tts E.0 udcd �edactibles $500 BI&PD Per Claimants hnclutii�Loan Aduskae❑t nxlrrse $450.00 Ps+ca ;Fully Earned) $14.06 rases(SL-k:ncecdoFoos) $50100 Certirwato Fed(Fully?amzd) TRU $514.06 Total Amount troth 1.No.CanoeLations Allowed,Premium,taxes and fdes am fully ddned at inooption. onditimss 2. Opvrations and Rating Based: Conaultenr -Prdp;a* enrummaleatat study, doing research in small :o:eanxcial tuldi'95,collecting data for p-apsrCer.Prepui g dwumant*only 110 sotual research 3.Departaw nc of planning A.Addidoelal ltwxe&s):Not Applioablo S.No Professional Liability Covmdp provided, The Ttrror.>in Risk Lntw=e Act of 2(100,ragoics Us to o&x you a quote for terrorism coverage,This t-u tion it w7ratc and not included in your coverage pr%nium. This vovwdS,; muse be 2iccapre3 Ota or rejected by you and the ahached form rotumod to us prior to bindin=. rdltiMe! PALM SPRINGS SPARTlt mined 3WOE.TahquitzCatTonWay turcd: pelm Springs Ca .02262 ;cl0.ttoru 'Asbestos,Astauh d:battery,Pmpleyu Rclalod Plactiws,Subsidence,bmdopzridcnt Contraatas,PeIlution,Cross Suit,Lead or Meg Duet,Mold or Bio-orpr{c Gromh M MU&w Puw ive Datnnasx j aat,&each of C�mtrzcx, Y21C Ekcfronic Dala, 4Ledimnl Paymenb,War or Terrorism. lbe hwwance provided under this Poxcyis!-*-d:o your wafk perramed yr behatfo:dte eatlty named""Fdditi�tul YOncd bnsurad"nbdVe end doesn't eaYard itse,�to any edaa sod:p'rfbcnw by you or your-%Wlzation.Coverage is 141*44 to tic dcsctipticn of operations and ratirg bases hood in•7mtht&_cudrdenn"itavt 2 Per t4:Master Policy,a Opy is ava&btd by written request to, Municipahry Insurdrmeo smiccs,Inc:302 Qr.C.etdtos Ave., M4W.7,Anaheim,CA 92505 aarr r;ar"ra n:r_;;+rx.:,„:taucwuzr,M Anaheim CA 9 m CA 92:nxG..nQa:aoev�: .fo-sw�wW+aa�rowee>..� acwna u�ki+,m;�aa*x'sw::t.:u.acn:�.ac:.�suca,aaaa iU2`V. _rr itos Ave Bldg k05 �800)420 lhSS(714j 547-11 Cd!fae 4)6S7-i 106 LiceruaaCA:f,C04849;OR:19.5423 Wobsito address ww-A.2sparta,com EXHIBIT"C" SCHEDULE OF COMPENSATION Total compensation for the work to be performed shall not exceed $13,500 and shall be paid by Agency to Contractor upon completion of the Scope of Services following submittal of Contractor's invoice to Agency. H:\USERS\CURTISW\CONTRACTS\CONTRACT SERVICE AGREEMENT FARRIS NEPA.DOC EXHIBIT°D" SCHEDULE OF PERFORMANCE The work will be performed following Agency's notice to proceed over an expected two to three month period of time. Providing there are no unforeseen issues/delays concerning the subcontractor's completion of the Archeological (Cultural) and Biological surveys, the Categorical Exclusions will be completed and submitted to the Bureau of Indian Affairs (BIA) within one week of BIA filed visit set for November 9, 2004. H:\USERS\CURTISMCONTRACTS\CONTRACT SERVICE AGREEMENT FARRIS NEPA.DOC AGREEMENT TO USE FACILITIES This Agreement to Use Facilities ("Agreement") is made this Z/ day of 6�— 200 ` ,by and between the City of Palm Springs("City")and Piranha Swim Team("PST"). The parties enter into this Agreement on the basis of the following facts and intentions: RECITALS WHEREAS, the City of Palm Springs ("City") and Piranha Swim Team ("PST') are mutually interested in and concerned with providing quality recreational facilities for the citizens of Palm Springs; and WHEREAS,it is recognized that through a cooperative agreement between the City and PST the community will be afforded the fulfillment of one of its recreational goals for citizens. NOW THEREFORE, the City and PST do hereby mutually agree as follows: 1. INTENT OF AGREEMENT 1.1 It is the intent of this Agreement to describe the responsibilities of the City and PST in their cooperative effort to effectively promote and provide competitive swimming for an average of one hundred(100)youth and adults. 1.2 It is the intent of this Agreement that the City endorse and recognize PST as its representative to United States Swimming events and local/regional invitational swim meets. 1.3 The parties agree that PST may identify the City's Swim Center Pool as its "home"pool for all swim meets held for or on behalf of PST during the term of this Agreement. 1.4 It is the intent of this Agreement to solidify a supportive and working relationship between PST and the City. 1.5 It is the intent of this Agreement that both the City and PST acknowledge and direct their efforts toward the development of quality swim programs at the City's Swim Center. 2. AREAS OF RESPONSIBILITY 2.1 Fees and Charges 2.1.1 PST agrees to pay the City for its use of the Swim Center Pool on a monthly basis. The payments shall be a minimum of $600 per month, payable in advance on the first of each month and may be increased pursuant to the rates identified in the City's Comprehensive Fee Schedule. (If the number of swimmers exceeds what is stated in Section 1.1 above at anytime during the term of this Agreement,PST , �,�� AGREEMENT TO USE FACILITIES Page 2 shall notify City so that an adjustment to the,monthly fee can be made.) 2.1.2 For swim meets that involve four or more teams, a $1.25-per- swimmer charge shall be paid to the City by PST within sixty (60) days following the meet. 2.2 Pool Use and Scheduling 2.2.1 The City shall make the Swim Center available on a shared, non- exclusive basis, which does not interfere with the City's other recreation programs. Notwithstanding the foregoing,it is understood that PST shall be permitted to utilize the Swim Center in accordance with the schedule below. This schedule is subject to change with the approval of the Contract Officer and in accordance with Section 2.2.2. The City has sole discretion to resolve all scheduling conflicts. The City shall act in a timely manner to resolve all scheduling conflicts. During high school water sports season, Palm Springs Unified School District's ("District") schools shall have priority use of the Swim Center. PST TYPICAL PRACTICE SCHEDULE 5:00 A.M. to 7:00 a.m. Monday through Friday 3:30 p.m, to 7:30 p.m. Monday through Friday 7:00 a.m. to 10:00 a.m. Saturday The District's schedule is subject to changes which may affect PST's use of the Swim Center Pool. During the identified sessions above, PST may use twelve(12) lanes at the Swim Center Pool. PST agrees that if City swimmers come to swim on Monday, Wednesday or Friday between 5:00 p.m. and 6:30 p.m., PST will give up lanes to accommodate two (2) City swimmers per lane until all are accommodated [up to the City's designated maximum of three (3) public swim lanes].Also,PST will have access to the baby pool area during regular workouts.At the discretion of City,PST may be given access to four(4)additional lanes if they are available.The lanes will be assigned by the City. The above-listed times apply only to"short course"training. Priority will be given to the PST for"long course"training. AGREEMENT TO USE FACILITIES Page 3 2.2.2 PST must submit its seasonal practice schedule in writing at least thirty(30) days in advance of the beginning date of the schedule. 2.2.3 PST shall submit a Facility Use Application form at least thirty (30) days prior to swim meets. The City agrees to make the pool available if such use does not impact on scheduled City programs or facility closures.Whenever possible,PST shall try to accommodate joint use of pool for dual meets that are held at the Swim Center. 2.2.4 The City agrees to rent to PST, at a minimal rate, the Pavilion kitchen, if available. The Facility Use Application form shall be submitted by PST at least six (6) months prior to the swim meet. 2.2.5 PST members shall not enter the Swim Center facility for meets or practices until a coach or designated PST adult representative is on deck to supervise unless that PST member has paid the public fee to use the pool. 2.2.6 When the Swim Center is closed for maintenance,the monthly rental rate will be prorated and adjusted accordingly. 2.3 Coaching Staff 2.3.1 PST shall have complete responsibility for the control and supervision of its coaching staff. 2.3.2 PST shall be responsible for the control and safety of its members and guests within the Swim Center. 2.3.3 It is the responsibility of PST to insure that all coaching staff is currently certified in C.P.R., First Aid and lifeguard training. The United States Swimming Coach's Certification in First Aid can apply to this qualification. Proof of such certification must be presented by PST to the City on a yearly basis. City will not provide lifeguard services for practice or swim meets. 2.3.4 Any person having supervisory or disciplinary authority over any minor member of PST is subject to a criminal background screening as specified in California Public Resources Code Section 5164. Each PST employee or volunteer having supervisory or disciplinary authority over any minor must complete the supplemental questions attached as Exhibit "A" and must concurrently submit to being fingerprinted by the City. PST must submit a completed copy of Exhibit"A"and arrange for the fingerprinting of each employee and volunteer before this Agreement may be executed by the City. The AGREEMENT TO USE FACILTIES Page 4 first year that the City performs the background screening for a particular individual, the screening shall include screening by the federal government. All subsequent years that the City is required to perform a background check on that same individual, the screening need only be performed by the state government. 2.3.5 PST must provide the City with a list of its employees and/or volunteers who will have supervisory or disciplinary authority over any minors while at the Swim Center. A true and correct list of such employees as of the date of execution of this Agreement is attached hereto as Exhibit`B". Should PST hire anew employee or volunteer who should be listed on Exhibit `B", PST must notify City of this fact within one week and PST must concurrently submit a completed copy of the questionnaire, attached as Exhibit "A" for the new person. 2.4 Equipment and Storage 2.4.1 City shall provide a storage area on a joint-use basis for PST. PST shall not hold the City liable for damages for theft of equipment or material stored on City property. 2.4.2 PST shall install equipment necessary to conduct practice and swim meets, with the exception of starting blocks. In a like manner, PST shall remove, in a timely fashion, all equipment that it installs to conduct practice and swim meets (with the exception of starting blocks). 2.4.3 PST shall repair or replace, at its expense, damaged equipment if damage occurred as a result of negligence by PST or its officers, employees, members or invitees. 2.4.4 The City shall repair or replace damaged equipment, if damaged other than by PST, at City's expense. 2.4.5 PST shall notify the City of any damaged equipment in need of repair. Should the City fail to make the requested repairs,PST shall be held harmless from any claim filed against PST for injury resulting from said damaged equipment. 2.4.6 If the rental of joint-use equipment is deemed appropriate, a charge of$40/day will be imposed. All proceeds will be donated back to the City for purchase of more joint-use equipment. AGREEMENT TO USE FACILITIES Page 5 2.5 Swim Meets 2.5.1 PST shall clean up all areas in and around the Swim Center that have been impacted by its use. The City shall coordinate with PST arrangements for trash pickup and provide equipment/supplies to maintain the cleanliness of the surrounding area if trash pickup is not readily available during the time of the swim meet. 2.5.2 The Swim Center shall be closed to the public and all City programs whenever PST uses the Swim Center for a meet. During this time, PST accepts full responsibility for the control and safety of the general public, as well as PST's members and guests. PST shall provide a first aid kit and sufficient supplies to render first aid service during the time of the swim meet. The City shall provide access to back boards during the time of the scheduled swim meet. 2.5.3 PST shall notify City of any dual meets that could allow safe access of the pool for joint use. The Swim Center staff and PST are jointly responsible for the control and safety of swimmers as pool use is shared. 2..5.4 Following the completion of swim meets, PST remains responsible for the control and safety of its guests and general public until the Swim Center is cleaned and the admission gates are locked by a PST representative. 2.6 PST Bylaws 2.6.1 PST must maintain on file two (2) copies of its Articles of Incorporation, Bylaws, and Rules and Regulations with the City Clerk's office. Any revisions must be submitted to the Parks and Recreation Manager prior to action by PST's Board. 3. INSURANCE AND INDEMNIFICATION 3.1 PST 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. Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on aper-occurrence basis with a combined single limit of$1,000,000. AGREEMENT TO USE FACILITIES Page 6 b. Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and that shall indemnify, insure and provide legal defense for both PST and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any person retained by PST in the course of carrying out the work or services contemplated in this Agreement. C. Automotive Insurance. A policy of comprehensive automobile liability insurance written on a per-occurrence basis in an amount not less than either(i)bodily injury liability limit of$250,000 per person and$500,000 per occurrence and property damage liability limits of $100,000 per occurrence and $250,000 in the aggregate, or (ii) combined single limit liability of$500,000. Said policy shall include coverage for owned,non-owned, leased and hired vehicles. All of the above policies of insurance shall be primary and shall name the City, its officers, employees and agents as additional insureds. The insurer shall waive all rights of its subrogation and contribution it may have against the City, its officers,employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) days prior written notice by registered mail to the City. In the event any of said policies of insurance are canceled,PST shall,prior to the cancellation date, submit new evidence of insurance in conformance with this Section 3.1 to the Contract Officer. No work or services under this Agreement shall commence until PST has provided the city with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverage and said Certificates of Insurance or binders are approved by the City. PST agrees that the provisions of this Section 3.1 shall not be construed as limiting in any way the extent to which PST may be held responsible for the payment of damages to any persons or property resulting from PST's activities or the activities of any person or persons for which PST is otherwise responsible. In the event PST subcontracts any portion of the work or services, the contract between PST and such subcontractor shall require the subcontractor to maintain the same policies of insurance that PST is required to maintain pursuant to this Section 3.1. AGREEMENT TO USE FACILITIES Page 7 3.2 Indemnification. PST 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 persons, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of PST, its agents, employees, subcontractors or invitees,provided for herein,or arising from the negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence on the part of the 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. PST 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. PST will promptly pay any judgment rendered against the City, its officers, agents or employees for any claim or liabilities arising out of or in connection with negligent performance of or failure to perform such work, operations or activities of PST hereunder; and PST 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, is made a party to any action or proceeding filed or prosecuted against PST 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 PST hereunder, PST agrees to pay 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. 3.3 Sufficiency of Insurer or Surety. Insurance or bonds required by the Agreement shall be satisfactory only if issued by companies qualified to do business in California rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better,unless such requirements are waived by the Risk Manager of the City("Risk Manager")due to unique circumstances. In the event the Risk Manager of the City determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City,PST agrees that the minimum limits of the insurance policies and the performance bond required by this Section 3 AGREEMENT TO USE FACILITIES Page 8 may be changed accordingly upon receipt of written notice from the Risk Manager;provided that PST shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within ten (10) days of receipt of notice from the Risk Manager. 3.4 PST shall provide the City with a properly executed copy of the "Medical Release and Liability and Waiver and Release" form attached hereto as Exhibit "C"for each swim team member, swim program participant, swim competition participant, swim coach, swim official and/or anyone else associated with PST in any way prior to said person using the City's Swim Center pool and/or facilities.The"Medical Release and Liability and Waiver and Release"form shall be executed by the coach,official,participant if over eighteen(18)years of age, and the participant's parent, natural and/or legal guardian if the participant is under eighteen(18) years of age. 4. WAIVER OF UTILITY FAILURE 4.1 PST expressly waives any and all claims to the City for compensation for any and all losses or damages sustained for any reason or any defect, deficiency or impairment of any utility system, water supply system, drainage system, electrical apparatus or wires serving the Swim Center. 5. ENFORCEMENT OF AGREEMENT 5.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute,claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county,and PST covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 5.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten(10) days of service of such notice and completes the cure of such default within forty-five (45)days after service of the 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 PST's right to terminate this Agreement without cause pursuant to Section 5.6. AGREEMENT TO USE FACILITIES Page 9 5.3 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. 5.4 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 time, of any other rights or remedies for the same default or any other default by the other party. 5.5 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 purpose of this Agreement. 5.6 Termination Prior to Expiration of Term. This section shall govern any termination of this Agreement. The City reserves the right to terminate this Agreement at any time, with or,without cause,upon sixty(60)days' written notice to PST, except that where termination is due to the fault of PST,the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, PST 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 PST may determine. 5.7 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 attorneys' fees. Attorneys' fees shall include attorneys' fees on any appeal. In addition, a party entitled to attorneys' 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 that 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. AGREEMENT TO USE FACILITIES Page 10 6. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 6.1 Non-liability of City Officers and Employees. No officer or employees of the City shall be personally liable to PST or any successor in interest in the event of any default or breach by the City or for any amount that may become due to PST or to its successor or for breach of any obligation of the terms of this Agreement. 6.2 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 that affects 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. PST 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. 6.3 Covenant Against Discrimination. PST covenants that, by and for itself,its heirs, executors, assigns and all persons claiming under or through them, there shall be no discrimination against or segregation of anyperson or group of persons on account of race, color, creed, religion, sex, marital status, sexual preference,domestic partnership status,national origin or ancestry in the performance of this Agreement. 7. MISCELLANEOUS PROVISIONS 7.1 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 pre-paid,first-class mail,in the case of the City,to the Director of Parks and Recreation, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and, in the case of PST, 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. 7.2 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 that might otherwise apply. AGREEMENT TO USE FACILITIES Page 11 7.3 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. 7.4 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 court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement that 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 basis benefit of their bargain or renders this Agreement meaningless. 7.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that(i) such parry 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. 8. COORDINATION OF WORK 8.1 Representatives of PST. The following principals of PST are hereby designated as being the principals and representatives of PST, authorized to act in its behalf with respect to the work specified herein and make all decision in connection therewith: President or Board of Directors' Designee 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 PST and devoting sufficient time to personally supervise the uses hereunder. However, if, through the course of this contract, the representatives of PST change, written notice of such change shall be submitted to the City. A change in representatives shall not represent a change in the intent or direction of the contractual agreement between the City and PST. AGREEMENT TO USE FACILITIES Page 12 8.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City. It shall be PST's responsibility to assure that the Contract Officer is kept informed of PST's use of the Swim Center and shall refer any decisions that must be made by the City to the Contract Officer. Unless otherwise specified herein,any approval of the City required hereunder shall need the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of City required hereunder to carry out the terms of this Agreement. 9. TERM 9.1 Unless earlier terminated in accordance with Section 5.6 of this Agreement; this Agreement shall continue in full force and effect for a period of one year beginning November 1, 2004 and ending October 31, 2005. This Agreement is executed by the duly authorized representative of the City of Palm Springs and Piranha Swim Team as of the date first written above. "CITY" CITY OF PALM SPRINGS B By: City Manager rector of Parks and Recre tion Attest:-- APPROVED BY THE CITY MANAGER �\ ity Clerk ON 770 14Z. . . "PST„ Piranha S 'm Team By C� I -%✓-ea ate/ By: Its: Approved as to Form: By: Legal Counsel for Piranha Swim Team "EXHIBIT A" Page 1 of 2 SUPPLEMENTAL QUESTIONNAIRE Pursuant to California Public Resources Code §5164, this form must be completed by all applicants for positions involving supervisory or disciplinary authority over any minor. YES NO 1. Have you ever been convicted of sexual assault or assault with intent to commit mayhem? ❑ ❑ 2. Have you ever been convicted or unlawful sexual intercourse with a person under age 18? ❑ ❑ 3. Have you ever been convicted of rape? ❑ ❑ 4. Have you ever been convicted of the rape of a spouse? ❑ ❑ 5. Have you ever been convicted of willful harm or injury to a child? ❑ ❑ 6. Have you ever been convicted of child endangerment? ❑ ❑ 7. Have you ever been convicted of corporal punishment or injury to a child? ❑ ❑ 8. Have you ever been convicted or willful infliction of corporal injury to a spouse, former ❑ ❑ spouse,cohabitant,or mother or father of your child? 9. Have you ever been convicted of any sexual crime or offense? ❑ ❑ 10. Have you ever been convicted of any of the following crimes or of an attempt to commit any of the following crimes? 10.1. Kidnapping? ❑ ❑ If yes,were you convicted of kidnapping or attempted kidnapping with the intent to ❑ ❑ commit rape,sodomy,lewd or lascivious acts,oral copulation,or forcible acts of sexual penetration? 10.2. Kidnapping for ransom? ❑ ❑ If yes,were you convicted of kidnapping for ransom or attempted kidnapping for ransom ❑ ❑ with the intent to commit rape, sodomy, lewd or lascivious acts,oral copulation,or forcible acts of sexual penetration? 10.3. Sexual battery? ❑ ❑ 10.4. Aiding,abetting or soliciting the rape,rape of a spouse,or forcible acts of sexual ❑ ❑ penetration? 10.5. Enticement of an unmarried minor female for purposes of prostitution? ❑ ❑ 10.6. Aiding and abetting the enticement of an unmarried minor female for purposes.of ❑ ❑ prostitution? 10.7. Inducing sexual intercourse with another when the other's consent is procured by false ❑ ❑ pretenses with the intent to create fear? 10.8. Pimping of a minor? ❑ ❑ 10.9. Pandering of a minor? ❑ ❑ 10.10. Procurement of a child under 16 years of age for lewd or lascivious acts? ❑ ❑ 10.11. Abduction(taking away)of a person under age 18 for purposes of prostitution? ❑ ❑ 10.12. Aggravated sexual assault of a child? ❑ ❑ 10.13. Incest? YES NO 10.14. Sodomy? 10.15. Lewd or lascivious acts or the solicitation of the same? ❑ ❑ 10.16. Oral copulation? ❑ ❑ 10.17. Continuous sexual abuse of a child? ❑ ❑ 10.18. Forcible acts of sexual penetration or the solicitation of the same? ❑ ❑ 10.19. Selling,distributing,printing or exhibiting of child pornography? ❑ ❑ 10.20. Sexual exploitation of a child? ❑ ❑ 10.21. Employment or use of a minor to perform prohibited acts? ❑ ❑ 10.22. Advertising child pornography? ❑ ❑ 10.23. Possession of child pornography? ❑ ❑ 10.24. Annoying or molesting a child under 18? ❑ ❑ 10.25. Solicitation of rape by force or violence,sodomy by force or violence,or oral ❑ ❑ copulation by force or violence? 10.26. Indecent exposure? ❑ ❑ 10.27. Procuring,counseling,or assisting any person to commit indecent exposure? ❑ ❑ 10.28. Contributing to the delinquency of a minor? ❑ ❑ 10.29. Sending harmful material to a minor with the intent to seduce said minor? ❑ ❑ 11. Have you ever been convicted of armed robbery? ❑ ❑ 12. Have you ever been convicted of armed carjacking? ❑ ❑ 13. Have you ever been convicted of assault or attempted murder of a public official? ❑ ❑ 14. Have you ever been convicted of false imprisonment? ❑ ❑ 15. Have you ever been convicted of assault? ❑ ❑ 16. Have you ever been convicted of battery? ❑ ❑ 17. Have you ever been convicted of murder? ❑ ❑ 18. Have you ever been convicted of mayhem? ❑ ❑ 19. Have you ever been convicted of a crime that requires you to register as a sex offender in the ❑ ❑ State of California? CERTIFICATION OF APPLICANT I hereby certify that all responses herein are true and correct,and I understand and agree that any misstatement or omission of material fact may cause forfeiture on my part of all rights to employment by this City. Date: Signature: "EXHIBIT A" Page 2 of 2 "EXHIBIT B" LIST OF FACILITY USER'S EMPLOYEES AND VOLUNTEERS WHO HAVE SUPERVISORY OR DISCIPLINARY AUTHORITY "EXHIBIT B" Page 1 of 1 "EXHIBIT C" - Page 1 of 2 CITY OF PALM SPRINGS RECREATION DIVISION SWIM CENTER EMERGENCY CARD/MEDICAL RELEASE/WAIVER AND RELEASE FORM Participant Name: Last First MI Parent/Guardian Name: Last First MI Home Address: City/State/Zip Code: Phone(day): Phone(evening): ff under 18,the following information is required., Age Date of Birth: Medical/Health Insurance: Physician's Name/Phone: EMERGENCY CONTACTS First and Last Names Relationship to Phone(Day) Phone(Evening) Phone Participant (Pager/Cellular) MEDICAL RELEASE I hereby represent that I am/the participant is physically able to participate in the swim program,event,practice and/or other related activity and that I have/the participant has no medical condition that may cause any health problem related to my/the participant's involvement in the swim program,event, practice and/or other related activity at the Palm Springs Swim Center. WAIVER AND RELEASE FORM I acknowledge,understand and agree that swimming and/or diving and participation in a swimming program,event, practice and/or other related activity are extreme tests of a person's physical and mental limits and that my/my child's and/or minor's,for whom I am the natural and/or legal guardian, (hereinafter the term"child"shall refer to the parent's child and/or a minor under the care of a natural and/or legal guardian) participation in a swimming program,event, practice and/or other related activity can cause potential death, minor to serious injuries,disability,property damage and/or loss.I also acknowledge,understand and agree that being in the proximity of swimming pools creates a danger given wet, slippery and/or other conditions which may result in my/my child's slipping and/or falling. With a full understanding of the potential risks, I HEREBY ASSUME ALL RISKS associated with my/my child's participation in any and all swim programs, events, practices,team sports,and other related activities at the Palm Springs Swim Center,including,but not limited to,any injury, disability, damage, and/or loss related in any way to: swimming; diving; coaching; officiating; strenuous physical activity and/or exertion;striking and/or being struck by objects and/or persons;slipping and/or falling off/from any and all surfaces and/or all appurtenances located at the Palm Springs Swim Center;and/or exposure to chemicals,heat,cold and/or humidity.I acknowledge,understand and agree that said risks may result in injuries that include,but are not limited to:sprain;strain and/or tear of muscles and/or ligaments;fracture and/or dislocation of joints and/or bones; head and/or facial injuries;spinal cord and/or internal injuries;and/or other injuries and/or disabilities. acknowledge,understand and agree that the usual risks,hazards and dangers of incurring damages and/or injuries increase when any structure and/or device is used in conjunction with swimming,diving,coaching,and/or officiating.I understand that these risk,hazards and dangers are further increased when other persons,whether or not of the same level of experience of swimming,are present at the same time and using the same facilities.ALL SUCH RISKS ARE KNOWN AND APPRECIATED BY ME. I hereby take the following action for myself,my child and my child's executors,administrators,heirs,next of kin,successors and assigns, and/or anyone else who might claim on my and/or my child's behalf:a)I WAIVE,RELEASE AND DISCHARGE the City of Palm Sp r ngs, its officers,agents,and employees,from any and all duty to me and/or my child from any and all actions,suits,claims,damages to person or property,losses,costs,penalties,obligations or liabilities(hereinafter"claims or liabilities")which are related in anywayto my/my child's use of the Palm Springs Swim Centerfor any purpose,including,but not limited to,participating in a swim program,practice,events,and/or other related activity, including all liability for any active or passive negligence by the City of Palm Springs, its officers, agents, or employees, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City of Palm Springs, its officers,agents, or employees.This release and waiver extends to all claims and liabilities of every kind or nature whatsoever,foreseen or unforeseen,known or unknown;b)I AGREE NOT TO SUE the City,its employees,agents,and officers for any of the claims or liabilities that I have waived,released or discharged herein;and c)I AGREE TO INDEMNIFY,DEFEND AND HOLD HARMLESS the City of Palm Springs,its employees, agents,and officers from claims or liabilities that may be asserted or claimed by any person,firm, and/or entity arising out of or in connection with my/my child's actions during my/my child's use of the Palm Springs Swim Center,whether or not there is concurrent passive or active negligence on the part 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. i runner agree to grant 10 me aty or vaim springs the right to take my photograph and/or video of myself/my child,to use my/my child's name,likeness,and image,in print,video,and/or electronic medial form,in promotional materials and/or any account or record of my/my child's participation in any activities at the Palm Springs Swim Center without compensation to me/my child. I understand and agree that if I/my child vandalize and/or destroy City property,fees and/or damages will be assessed for which I will be billed and which I agree to pay forthwith. I/my child understand and agree that I/my child may be denied further admission to the Palm Springs Swim Center if I/my child vandalize and/or destroy any City property. SIGNATURE(S) REQUIRED As evidenced by my signature,I certifythat I have read and I understand the foregoing Medical Release and Waiverand Release of Liability form;and understand and agree that I have given up substantial rights,and affirm that I am eighteen (18)years of age or older. Printed Name Participant's Signature Date Signed I AM UNDER THE AGE OF EIGHTEEN (18)YEARS OF AGE, MY PARENT/GUARDIAN HAS READ AND COMPLETED THE SECTION BELOW. (If applicant is under 18 years of age, a parent or guardian must execute, in addition to the foregoing Waiver and Release,the following,for and or behalf of the minor.) The undersigned (parent or guardian name), the parent or natural guardian or legal guardian of (minor's name)executes the foregoing Medical Release and Waiver and Release of Liability form for and on behalf of the minor named herein. I hereby bind myself,the minor and all other assigns to the terms of the Medical Release and Waiver and Release of Liability. I represent that I have legal capacity and authority to act for and on behalf of the minor named herein,and I agree to indemnify, defend,and hold harmless the City, its employees, agents,and officers from any claims or liabilities assessed against them as a result of any insufficiency of my legal capacity or authority to act for and on behalf of the minor in the execution of the Medical Release and Waiver and Release of Liabilityform whether or not there is concurrent passive or active negligence on the part 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. Printed Name Parent's/Guardian's Signature Date Signed "EXHIBIT C"-Page 2 of 2 AGREEMENT TO USE FACILITIES This Agreement to Use Facilities ("Agreement") is made this day of 2004 , by and between the City of Palm Springs ("City") and Palm Springs Aquatics ("PSA"). The parties enter into this Agreement on the basis of the following facts and intentions: RECITALS WHEREAS,the City of Palm Springs ("City") and Palm Springs Aquatics("PSA") are mutually interested in and concerned with providing quality recreational facilities for the citizens of Palm Springs; and WHEREAS, it is recognized that through a cooperative agreement between the City and PSA the community will be afforded the fulfillment of one of its recreational goals for citizens. NOW THEREFORE, the City and PSA do hereby mutually agree as follows: I. INTENT OF AGREEMENT 1.1 It is the intent of this Agreement to describe the responsibilities of the City and PSA in their cooperative effort to effectively promote and provide competitive swimming for an average of twenty-five (25) youth and adults. 1.2 The parties agree that PSA may identify the City's Swim Center Pool as its "home"pool for all swim meets held for or on behalf of PSA during the term of this Agreement. 1.3 It is the intent of this Agreement to solidify a supportive and working relationship between PSA and the City. 1.4 It is the intent of this Agreement that both the City and PSA acknowledge and direct their efforts toward the development of quality swim programs at the City's Swim Center. 2. AREAS OF RESPONSIBILITY - 2.1 Fees and Charges 2.1.1 PSA agrees to pay the City for its use of the Swim Center Pool on a monthly basis. The payments shall be a minimmn of $150 per month, payable in advance on the first of each month and may be increased pursuant to the rates identified in the City's Comprehensive Fee Schedule. (If the number of swimmers exceeds what is stated in Section 1.1 above at any time during the term of this Agreement, PSA shall notify City so that an adjustment to the monthly fee can be made.) 23324v2 6i 11 %G d AGREEMENT TO USE FACILITIES Page 2 2.2 Pool Use and Scheduling 2.2.1 The City shall make the Swim Center available on a shared, non- exclusive basis, which does not interfere with the City's other recreation programs. Notwithstanding the foregoing,it is understood that PSA shall be permitted to utilize the Swim Center in accordance with the schedule below. This schedule is subject to change with the approval of the Contract Officer and in accordance with Section 2.2.2. The City has sole discretion to resolve all scheduling conflicts. The City shall act in a timely manner to resolve all scheduling conflicts. During high school water sports season, Palm Springs Unified School District's ("District") schools shall have priority use of the Swim Center. PSA TYPICAL PRACTICE SCHEDULE 5:00 A.M. to 7:00 a.m. Monday—Wednesday—Friday 3:00 p.m. to 6:30 p.m. Monday through Friday 7:00 a.m. to 9:00 a.m. Saturday The District's schedule is subject to changes which may affect PSA's use of the Swim Center Pool. During the Monday, Wednesday and Friday morning sessions,and the Monday through Friday after school sessions, identified above, PSA may use three (3) lanes at the Swim Center Pool. At the discretion of City, PSA may be given access to four (4) additional lanes if they are available. The lanes will be assigned by the City. On Saturday mornings when the Piranha Swim Team has dual meets scheduled, PSA will not be allowed to use the Swim Center Pool. The above-listed times apply only to"short course"training. Priority will be given to the Piranhas Swim Team("PST")for"long course" training. PSA will have to adjust its times around the PST if it chooses to train"long course." 2.2.2 PSA must submit its seasonal practice schedule in writing at least thirty(30) days in advance of the beginning date of the schedule. 2.2.3 PSA members shall not enter the Swim Center facility for meets or practices until a coach or designated PSA adult representative is on deck to supervise unless that PSA member has paid the public fee to use the pool. 2.2.4 When the Swim Center is closed for maintenance,the monthly rental rate will be prorated and adjusted accordingly. 23324v2 AGREEMENT TO USETACILITIES Page 3 2.3 Coaching Staff 2.3.1 PSA shall have complete responsibility for the control and supervision of its coaching staff. 2.3.2 PSA shall be responsible for the control and safety of its members and guests within the Swim Center. 2.3.3 It is the responsibility of PSA to insure that all coaching staff is currently certified in C.P.R., First Aid and lifeguard training. The United States Swimming Coach's Certification in First Aid can apply to this qualification. Proof of such certification must be presented by PSA to the City on a yearly basis. City will not provide lifeguard services for practice or swim meets. 2.3.4 Any person having supervisory or disciplinary authority over any minor member of PSA is subject to a criminal background screening as specified in California Public Resources Code Section 5164. Each PSA employee or volunteer having supervisory or disciplinary authority over any minor must complete the supplemental questions attached as Exhibit "A" and must concurrently submit to being fingerprinted by the City. PSA must submit a completed copy of Exhibit"A"and arrange for the fingerprinting of each employee and volunteer before this Agreement may be executed by the City. The first year that the City performs the background screening for a particular individual, the screening shall include screening by the federal government. All subsequent years that the City is required to perform a background check on that saine individual, the screening need only be performed by the state government. 2.3.5 PSA must provide the City with a list of its employees and/or volunteers who will have supervisory or disciplinary authority over any minors while at the Swim Center. A true and correct list of such employees as of the date of execution of this Agreement is attached hereto as Exhibit`B". Should PSA hire a new employee or volunteer who should be listed on Exhibit "B", PSA must notify City of this fact within one week and PSA must concurrently submit a completed copy of the questionnaire, attached as Exhibit "A" for the new person. 2.4 Equipment and Storage 2.4.1 PSA shall install equipment necessary to conduct practice and swim meets, with the exception of starting blocks. In a like manner, PSA shall remove, in a timely fashion, all equipment that it installs to 23324v2 AGREEMENT TO USE FACILTIES Page 4 conduct practice and swim meets (with the exception of starting blocks). 2.4.2 PSA shall repair or replace, at its expense, damaged equipment if damage occurred as a result of negligence by PSA or its officers, employees, members or invitees. 2.4.3 The City shall repair or replace damaged equipment, if damaged other than by PSA, at City's expense. 2.4.4 PSA shall notify the City of any damaged equipment in need of repair. Should the City fail to make the requested repairs, PSA shall be held harmless from any claim filed against PSA for injury resulting from said damaged equipment. 2.4.5 If the rental of joint-use equipment is deemed appropriate, a charge of$40/day will be imposed. All proceeds will be donated back to the City for purchase of more joint-use equipment. 2.5 PSA Bylaws 2.5.1 PSA must maintain on file two (2) copies of its Articles of Incorporation, Bylaws, and Rules and Regulations with the City Clerk's office. Any revisions must be submitted to the Parks and Recreation Manager prior to action by PSA's Board. 3. INSURANCE AND INDEMNIFICATION 3.1 PSA 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. Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on aper-occurrence basis with a combined single limit of$1,000,000. b. Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and that shall indeinnify, insure and provide legal defense for both PSA and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any person retained by PSA in the course of carrying out the work or services contemplated in this Agreement. C. Automotive Insurance. A policy of comprehensive automobile liability insurance written on a per-occurrence basis in an amount not 23324v2 AGREEMENT TO USE FACILITIES Page 5 less than either(i)bodily injury liability limit of$250,000 per person and$500,000 per occurrence and property damage liability limits of $100,000 per occurrence and $250,000 in the aggregate, or (ii) combined single limit liability of$500,000. Said policy shall include coverage for owned, non-owned, leased and hired vehicles. All of the above policies of insurance shall be primary and shall name the City, its officers, employees and agents as additional insureds. The insurer shall waive all rights of its subrogation and contribution it may have against the City,its officers,employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty(30) days prior written notice by registered mail to the City. In the event any of said policies of insurance are canceled,PSA shall,prior to the cancellation date, submit new evidence of insurance in conformance with this Section 3.1 to the Contract Officer. No work or services under this Agreement shall commence until PSA has provided the city with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverage and said Certificates of Insurance or binders are approved by the City. PSA agrees that the provisions of this Section 3.1 shall not be construed as limiting in any way the extent to which PSA may be held responsible for the payment of damages to any persons or property resulting from PSA's activities or the activities of any person or persons for which PSA is otherwise responsible. In the event PSA subcontracts any portion of the work or services, the contract between PSA and such subcontractor shall require the subcontractor to maintain the same policies of insurance that PSA is required to maintain pursuant to this Section 3.1. 3.2 Indemnification. PSA agrees to indemnify the City, its officers, agents and employees against and will hold and save therm and each of therm 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 persons, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of PSA, its agents, employees, subcontractors or invitees,provided for herein,or arising from the negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence on the part of the city, its officers, agents or employees, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of 23324v2 AGREEMENT TO USE FACILITIES Page 6 the City,its officers,agents or employees who are directly responsible to the City and, in connection therewith: a. PSA 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. PSA will promptly pay any judgment rendered against the City, its officers, agents or employees for any claim or liabilities arising out of or in connection with negligent performance of or failure to perform such work, operations or activities of PSA hereunder; and PSA 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, is made a party to any action or proceeding filed or prosecuted against PSA 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 PSA hereunder, PSA agrees to pay 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. 3.3 Sufficiency of Insurer or Surety. Insurance or bonds required by the Agreement shall be satisfactory only if issued by companies qualified to do business in California rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better,unless such requirements are waived by the Risk Manager of the City("Risk Manager")due to unique circumstances, In the event the Risk Manager of the City determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, PSA agrees that the minimum limits of the insurance policies and the performance bond required by this Section 3 may be changed accordingly upon receipt of written notice from the Risk Manager; provided that PSA shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within ten (10) days of receipt of notice from the Risk Manager. 23324v2 AGREEMENT TO USE FACILITIES Page 7 3.4 PSA shall provide the City with a properly executed copy of the "Medical Release and Liability and Waiver and Release" form attached hereto as Exhibit "C" for each swim team member, swim program participant, swim competition participant, swim coach, swim official and/or anyone else associated with PSA in any way prior to said person using the City's Swim Center pool and/or facilities.The"Medical Release and Liability and Waiver and Release"form shall be executed by the coach,official,participant if over eighteen (18) years of age, and the participant's parent, natural and/or legal guardian if the participant is under eighteen (18)years of age. 4. WAIVER OF UTILITY FAILURE 4.1 PSA expressly waives any and all claims to the City for compensation for any and all losses or damages sustained for any reason or any defect, deficiency or impairment of any utility system, water supply system, drainage system, electrical apparatus or wires serving the Swim Center. 5. ENFORCEMENT OF AGREEMENT 5.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute,claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and PSA covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 5.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten(10)days of service of such notice and completes the cure of such default within forty-five (45) days after service of the 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 PSA's right to terminate this Agreement without cause pursuant to Section 5.6. 23324v2 AGREEMENT TO USE FACILITIES Page 8 5.3 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. 5.4 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 time, of any other rights or remedies for the same default or any other default by the other party. 5.5 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 purpose of this Agreement. 5.6 Termination Prior to Expiration of Term. This section shall govern any termination of this Agreement. The City reserves the right to terminate this Agreement at any time, with or without cause,upon sixty(60) days' written notice to PSA, except that where termination is due to the fault of PSA, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, PSA 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 PSA may determine. 5.7 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 attorneys' fees. Attorneys' fees shall include attorneys' fees on any appeal. hi addition, a party entitled to attorneys' 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 that 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. 23324v2 AGREEMENT TO USE FACILITIES Page 9 6. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 6.1 Non-liability of City Officers and Employees. No officer or employees of the City shall be personally liable to PSA or any successor in interest in the event of any default or breach by the City or for any amount that may become due to PSA or to its successor or for breach of any obligation of the terms of this Agreement. 6.2 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 that affects 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. PSA warrants that it has not paid or given and will not pay or give any third parry any money or other consideration for obtaining this Agreement. 6.3 Covenant Against Discrimination. PSA covenants that, by and for itself, its heirs, executors, assigns and all persons claiming under or through them, 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, sexual preference,domestic partnership status,national origin or ancestry in the performance of this Agreement. 7. MISCELLANEOUS PROVISIONS 7.1 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 pre-paid,first-class mail, in the case of the City,to the Director of Parks and Recreation, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and, in the case of PSA, 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. 7.2 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 that might otherwise apply. 23324v2 AGREEMENT TO USE FACILITIES Page 10 7.3 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. 7.4 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 court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement that 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 basis benefit of their bargain or renders this Agreement meaningless. 7.5 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. 8. COORDINATION OF WORK 8.1 Representatives of PSA. The following principals of PSA are hereby designated as being the principals and representatives of PSA, authorized to act in its behalf with respect to the work specified herein and make all decision in connection therewith: President or Board of Directors' Designee I I I I Tahquitz Canyon Way, Suite 103 Palm Springs, CA 92262 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 tern of this Agreement for directing all activities of PSA and devoting sufficient time to personally supervise the uses hereunder. However, if,through the course of this contract, the representatives of PSA change, written notice of such change shall be submitted to the City. A change in representatives shall not represent a change in the intent or direction of the contractual agreement between the City and PSA. 23324v2 AGREEMENT TO USE FACILITIES Page 11 8.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City. It shall be PSA's responsibility to assure that the Contract Officer is kept informed of PSA's use of the Swim Center and shall refer any decisions that must be made by the City to the Contract Officer. Unless otherwise specified herein,any approval of the City required hereunder shall need the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of City required hereunder to carry out the terms of this Agreement. 9. TERM 9.1 Unless earlier terminated in accordance with Section 5.6 of this Agreement, this Agreement shall continue in full force and effect for a period of one year beginning November 1, 2004 and ending October 31, 2005. This Agreement is executed by the duly authorized representative of the City of Palm Springs and Palm Springs Aquatics as of the date first written above. "CITY" CITY OF PALM SPRINGS BYa By/recto�rof City Manage Parks and Recreation Att st• ity Clerk APPROVED 6Y THE CRY MANAGER "PSA" ON, ' � PALM SPRINGS AQUATICS By: It-- I s:�,t i Its: 2 Approved as to Form: By: Legal Counsel for Palm Springs Aquatics 23324v2 "EXHIBIT A" Page 1 of 2 SUPPLEMENTAL QUESTIONNAIRE Pursuant to California Public Resources Code §5164, this form must be completed by all applicants for positions involving supervisory or disciplinary authority over any minor. YES NO 1. Have you ever been convicted of sexual assault or assault with intent to commit mayhem? ❑ pf 2. Have you ever been convicted or unlawful sexual intercourse with a person under age 18? ❑ f❑ 3. Have you ever been convicted of rape? ❑ d 4. Have you ever been convicted of the rape of a spouse? ❑ pi 5. Have you ever been convicted of willful harm or injury to a child? ❑ p 6. Have you ever been convicted of child endangerment? ❑ d 7. Have you ever been convicted of corporal punishment or injury to a child? ❑ Q 8. Have you ever been convicted or willful infliction of corporal injury to a spouse,former ❑ p� spouse, cohabitant, or mother or father of your child? 9. Have you ever been convicted of any sexual crime or offense? p 10. Have you ever been convicted of any of the following crimes or of an attempt to commit any of the following crimes? 10.1. Kidnapping? ❑ If yes,were you convicted of kidnapping or attempted kidnapping with the intent to ❑ p commit rape,sodomy, lewd or lascivious acts,oral copulation,or forcible acts of sexual penetration? 10.2. Kidnapping for ransom? ❑ d If yes,were you convicted of kidnapping for ransom or attempted kidnapping for ransom ❑ with the intent to commit rape,sodomy, lewd or lascivious acts, oral copulation, or forcible acts of sexual penetration? 10.3. Sexual battery? ❑ ©/ 10.4. Aiding,abetting or soliciting the rape,rape of a spouse,or forcible acts of sexual ❑ p' penetration? 10.5. Enticement of an unmarried minor female for purposes of prostitution? ❑ p" 10.6. Aiding and abetting the enticement of an unmarried minor female for purposes of ❑ Ell' prostitution? 10.7. Inducing sexual intercourse with another when the other's consent is procured by false ❑ p� pretenses with the intent to create fear? 10.8. Pimping of a minor? ❑ l/ 10.9. Pandering of a minor? ❑ 10.10. Procurement of a child under 16 years of age for lewd or lascivious acts? ❑ p 10.11. Abduction(taking away)of a person under age 18 for purposes of prostitution? ❑ El' 10.12. Aggravated sexual assault of a child? ❑ 52/ 10.13. Incest? ❑ 21 YES NO 10.14. Sodomy? ❑ d 10.15. Lewd or lascivious acts or the solicitation of the same? ❑ 16 10.16. Oral copulation? ❑ ❑/ 10.17. Continuous sexual abuse of a child? ❑ 5� 10.18. Forcible acts of sexual penetration or the solicitation of the same? ❑ lZ 10.19. Selling, distributing,printing or exhibiting of child pornography? ❑ d 10.20. Sexual exploitation of a child? ❑ 10.21. Employment or use of a minor to perform prohibited acts? ❑ 10.22. Advertising child pornography? ❑ 10.23. Possession of child pornography? ❑ 10.24. Annoying or molesting a child under 18? ❑ p' 10.25. Solicitation of rape by force or violence, sodomy by force or violence,or oral ❑ l� copulation by force or violence? 10.26. Indecent exposure? ❑ d 10.27. Procuring, counseling,or assisting any person to commit indecent exposure? ❑ E{ 10.28. Contributing to the delinquency of a minor? ❑ �/ 10.29. Sending harmful material to a minor with the intent to seduce said minor? ❑ [� 11. Have you ever been convicted of armed robbery? ❑ 12( 12. Have you ever been convicted of armed carjacking? ❑ 13. Have you ever been convicted of assault or attempted murder of a public official? ❑ [� 14. Have you ever been convicted of false imprisonment? ❑ p 15. Have you ever been convicted of assault? ❑ Id 16, Have you ever been convicted of battery? ❑ d 17. Have you ever been convicted of murder? ❑ 18. Have you ever been convicted of mayhem? ❑ 19. Have you ever been convicted of a crime that requires you to register as a sex offender in the ❑ t� State of California? CERTIFICATION OF APPLICANT I hereby certify that all responses herein are true and correct, and I understand and agree that any misstatement or omission of material fact may cause forfeiture A n my part of all rights to employment by is City. Dale: Signature: a "EXHIBIT A" Page 2 of 2 "EXHIBIT B" LIST OF FACILITY USER'S EMPLOYEES AND VOLUNTEERS WHO HAVE SUPERVISORY OR DISCIPLINARY AUTHORITY "EXHIBIT B" Page 1 of I 233242 "EXHIBIT C" - Page 1 of 2 ' CITY OF PALM SPRINGS RECREATION DIVISION SWIM CENTER EMERGENCY CARD/MEDICAL RELEASE/WAIVER AND RELEASE FORM Participant Name: Last First MI Parent/Guardian Name: Last First MI Home Address: City/State/Zip Code: Phone(day): Phone(evening): If under 18,the following information is required. Age Date of Birth: /_/_ Medical/Health Insurance: Physician's Name/Phone: EMERGENCY CONTACTS First and Last Names Relationship to Phone(Day) Phone(Evening) Phone Participant (Pager/Cellular) MEDICAL RELEASE I hereby represent that I am/the participant is physically able to participate in the swim program,event,practice and/or other related activity and that I have/the participant has no medical condition that may cause any health problem related to my/the participant's involvement in the swim program,event, practice and/or other related activity at the Palm Springs Swim Center. WAIVER AND RELEASE FORM I acknowledge,understand and agree that swimming and/or diving and participation in a swimming program,event,practice and/or other related activity are extreme tests of a person's physical and mental limits and that my/my child's and/or minor's,for whom I am the natural and/or legal guardian, (hereinafter the term"child"shall refer to the parent's child and/or a minor under the care of a natural and/or legal guardian)participation in a swimming program, event, practice and/or other related activity can cause potential death, minor to serious injuries,disability,property damage and/or loss.I also acknowledge,understand and agree that being in the proximity of swimming pools creates a danger given wet, slippery and/or other conditions which may result in my/my child's slipping and/or falling. With a full understanding of the potential risks, I HEREBY ASSUME ALL RISKS associated with my/my child's participation in any and all swim programs,events,practices,team sports,and other related activities at the Palm Springs Swim Center, including, but not limited to,any injury, disability, damage, and/or loss related in any way to: swimming; diving; coaching; officiating; strenuous physical activity and/or exertion;striking and/or being struck by objects and/or persons;slipping and/orfalling off/from any and all surfaces and/or all appurtenances located at the Palm Springs Swim Center;and/or exposure to chemicals,heat,cold and/or humidity.I acknowledge,understand and agree that said risks may result in injuries that include,but are not limited to:sprain;strain and/ortear of muscles and/or ligaments;fracture and/or dislocation of joints and/or bones; head and/or facial injuries; spinal cord and/or internal injuries; and/or other injuries and/or disabilities. I acknowledge, understand and agree that the usual risks,hazards and dangers of incurring damages and/or injuries increase when any structure and/or device is used in conjunction with swimming,diving,coaching,and/or officiating.I understand thatthese risk,hazards and dangers are further increased when other persons,whether or not of the same level of experience of swimming, are present at the same time and using the same facilities. ALL SUCH RISKS ARE KNOWN AND APPRECIATED BY ME. I hereby take the following action for myself, my child and my child's executors,administrators,heirs, next of kin,successors and assigns, and/or anyone else who might claim on my and/or my child's behalf:a)I WAIVE,RELEASE AND DISCHARGE the City of Palm Springs, its officers,agents,and employees,from any and all duty to me and/or my child from any and all actions,suits,claims,damages to person or property,losses,costs,penalties,obligations or liabilities(hereinafter"claims or liabilities")which are related in any wayto my/my child's use of the Palm Springs Swim Centerforany purpose,including,but notlimited to,participating in a swim program,practice,events,and/or other related activity, including all liability for any active or passive negligence by the City of Palm Springs, its officers, agents, or employees, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City of Palm Springs, its officers,agents, or employees.This release and waiver extends to all claims and liabilities of every kind or nature whatsoever,foreseen cr unforeseen,known or unknown;b)I AGREE NOT TO SUE the City,its employees,agents,and officers for any of the claims or liabilities that I have waived, released or discharged herein;and c) I AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS the City of Palm Springs, its employees, agents, and officers from claims or liabilities that may be asserted or claimed by any person, firm, and/or entity arising out of or in connection with my/my child's actions during my/my child's use of the Palm Springs Swim Center,whether or not there is concurrent passive or active negligence on the part of the City,its officers,agents,or employees,but excluding such claims or liabilities I further agree to grant to the City of Palm Springs the right to take my photograph and/or video of myself/my child,to use my/my child's name,likeness,and image,in print,video,and/or electronic medial form,in promotional materials and/or any account or record of my/my child's participation in any activities at the Palm Springs Swim Center without compensation to me/my child. I understand and agree that if I/my child vandalize and/or destroy City property,fees and/or damages will be assessed for which I will be billed and which I agree to pay forthwith. I/my child understand and agree that I/my child may be denied further admission to the Palm Springs Swim Center if I/my child vandalize and/or destroy any City property. SIGNATURE(S) REQUIRED As evidenced by my signature,I certify that I have read and I understand the foregoing Medical Release and Waiver and Release of Liability form; and understand and agree that I have given up substantial rights, and affirm that I am eighteen (18)years of age or older. Printed Name Participant's Signature Date Signed I AM UNDER THE AGE OF EIGHTEEN (18)YEARS OF AGE, MY PARENT/GUARDIAN HAS READ AND COMPLETED THE SECTION BELOW. (If applicant is under 18 years of age, a parent or guardian must execute, in addition to the foregoing Waiver and Release,the following,for and or behalf of the minor.) The undersigned (parent or guardian name), the parent or natural guardian or legal guardian of (minor's name) executes the foregoing Medical Release and Waiver and Release of Lability form for and on behalf of the minor named herein. I hereby bind myself,the minor and all other assigns to the terms of the Medical Release and Waiver and Release of Liability. I represent that I have legal capacity and authority to act for and on behalf of the minor named herein, and I agree to indemnify, defend, and hold harmless the City, its employees, agents, and officers from any claims or liabilities assessed against them as a result of any insufficiency of my legal capacity or authority to act for and on behalf of the minor in the execution of the Medical Release and Waiver and Release of Liability form whether or not there is concurrent passive or active negligence on the part 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. Printed Name Parent's/Guardian's Signature Date Signed "EXHIBIT C"-Page 2 of 2 rL. TDI CERTIFICATE OF LIABILITY INSURANCE OATE(MMDDYV)021 1041-800-777-4930 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATIONnagement Services, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE x 32712 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Phoenix, AZ 85064-2712 INSURERS AFFORDING COVERAGE INSURED PALM SPRINGS AQUATIC INSURER A:Lexincrton Insurance Company USA Swimming etal Incl Local Swimming Committees INSURER B:Mutual of Omaha Insurance Company JOHN CYGANIEWICZ 1111 E TARQUITZ CANYON WAY, SUITE 103 INSURER C: PALM SPRINGS, CA 92262-6789 INSURER D: COVERAGE INSURER E: S THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE _ POLICYNUMBER POLICY EFFECTIVE POLICY E%PIRATION LIMITS A GENERAL LIABILITY 0379401 12/31/03 12/31/09 EACH OCCURRENCE $2,000,000 X COMMERCIALGENERAL LIABILITY FIRE DAMAGE(Any one lire) $100,000 CLAIMS MADE OCCUR MED E%P(Any one person X Participant Legal ) $EXCLUDED PERSONAL&ADV INJURY $ 1,000,000 X Liability Included GENERAL AGGREGATE $4,000,000 GEN'L AGGREGATELIMIT APPLIES PER: PRODUCTS-COMP/OP AGO $2,000,000 POLICY PRO LOC AUTOMOBILE LIABILITY ANY AUTO COMBINED SINGLE LIMIT (Ea accident) $ ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per person) $ HIRED AUTOS NON-OWNED AUTOS BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO AUTO OTHER THAN EAACC $ AUTO ONLY: AGG $ A EXCESS LIABILITY 6500411 12/31/03 12/31/04 EACH OCCURRENCE $3,000,000 X OCCUR CLAIMS MADE AGGREGATE $8,000,000 DEDUCTIBLE RETENTION $ $ a EMPLOYERS' ON AND WCSIMIU- OTH- EMPLOYERS'LIABILITY E.L.EACH ACCIDENT $ E.L.DISEASE-EA EMPLOYEE $ OTHER E.L.DISEASE-POLICY LIMIT $ E XS ACC MED/DENTAL AD 6 D TSNPSP35054 01/01/04 01/01/05 Maximum 25,000 DESCRIPTION OF OPERATIONS/LOCATIONSIVEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS Verification of General/Excess Liability for INSURED ACTIVITIES per attached. The Certificate Holder is included as Additional Insured per attached ADDITIONAL INSURED ENDORSEMENT EFFECTIVE CERTIFICATE ISSUE DATE. CERTIFICATE HOLDER ADDITIONAL INSURED;INSURER LETTER: CANCELLATION SHOULD ANY OFTHE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION City of Palm Springs DATE THEREOF,THE ISSUING INSURER WILL L ` W MAIL 30 DAYS WRITTEN Dept of Fac/Rec Division ATTN: Vicki Oltean NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,0UIDEAXZX9X6Z"O SHALL 401 S Pavilion Way R palm Springs, CA 92262 AUTHORIZED REPRESENTATIVE ACORD25-S(7/97) CA-PSA - USA ,:(w,kR 1643619 a ACORD CORPORATION 1988 ...... Powered Dateland Construction Co. Inc Palm Canyon Wash Cleanup AGREEMENT#4986 CITY OF PALM SPRINGS CM,signed on 10-29-04 CONTRACT SERVICES AGREEMENT FOR Palm Canyon Wash Cleanup THIS CONTRACT 1ERVICES AGREEMENT (herein "Agreement") is made and entered into this v9�' day of (/(�A WIM , 2004, by and between the CITY OF PALM SPRINGS, a municipal corporation (herein "City") and Dateland Construction Co, Inc. (herein "Contractor"). NOW, THEREFORE, the parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all of the terms and conditions of this Agreement, the Contractor shall perform the work or services set forth in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by reference. Contractor warrants that all work and services set forth in the Scope of Services will be performed in a competent, professional and satisfactory manner. 1.2 Compliance With Law. All work and 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 of competent jurisdiction. 1.3 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. 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, Contractor shall be compensated in accordance with the "Schedule of Compensation" attached hereto as Exhibit "B" and incorporated herein by this reference, but not exceeding the maximum contract amount of Sixteen Thousand Eight Hundred Dollars ($16,800.00) ("Contract Sum"). 2.2 Method of Payment. Provided that Contractor is not in default under the terms of this Agreement, Contractor shall be paid as outlined Exhibit "B" Schedule of Compensation. 3.0 COORDINATION OF WORK 3.1 Representative of Contractor. Jim Richert is hereby designated as being the principal and representative of Contractor authorized to act in its behalf with respect to the work and services specified herein and make all decisions in connection therewith. 3.2 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 H:\USERS\ENG\Contr.Agreements\CONT SVCS AGR- Dateland Construction - Palm Canyon Wash ' Cleanup.wpd Officer'). The City Manager of City shall have the right to designate another Contract Officer by providing written notice to Contractor. 3.3 Prohibition Against Subcontracting or Assignment. Contractor shall not contract with any entity to perform in whole or in part the work or services required hereunder without the express written approval of the City. Neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Any such prohibited assignment or transfer shall be void. 3.4 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. Contractor shall perform all services required herein as an independent contractor of City and shall remain under 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. 4.0 INSURANCE AND INDEMNIFICATION 4.1 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 a least $1,000,000 bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broadform property damage, products and completed operations. The General Liability Policy shall name the City of Palm Springs, its officers, employees, and agents, as additional insured in accordance with standard ISO additional insured endorsement form CG2010(11 S5) or equivalent language. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which will include $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 $500,000 bodily injury and property damage, Said policy shall include coverage for owned, non-owned, leased and hired cars. (d) Additional Insurance. Policies of such other insurance, including professional liability insurance in a minimal amount of $1,000,000 if contract has professional liability exposure, as may be required in Exhibit "A". All of the above policies of insurance shall be primary insurance. 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 4.1 to the Contract Officer. No work or H:\USERS\ENG\Contr.Agreements\CONT SVCS AGR- Dateland Construction -Palm Canyon Wash Cleanup.wpd -2- services under this Agreement shall commence until the Contractor has provided the City with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of,Insurance or binders are approved by the City. The contractor agrees that the provisions of this Section 4.1 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 3.3 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. 4.2 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, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of Contractor hereunder, or arising from Contractor's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence on the part of the 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; (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 is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the 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. 5.0 TERM 5.1 Term. Unless earlier terminated In accordance with Section 5.2 below, this Agreement shall continue in full force until December 31, 2004. H:\USERS\ENG\Contr.Agreements\CONT SVCS AGR-Dateland Construction - Palm Canyon Wash Cleanup.wpd -3- y 5.2 Termination Prior to Expiration of Term. Either party may terminate this Agreement at any time, with or without cause, upon thirty (30) days' written notice to the other party. Upon receipt of the notice of termination, the Contractor shall immediately cease all work or services hereunder except as may be specifically approved by the Contract Officer. In the event of termination by the City, Contractor shall be entitled to compensation for all services rendered prior to the effectiveness of the notice of termination and for such additional services specifically authorized by the Contract Officer and City shall be entitled to reimbursement for any compensation paid in excess of the services rendered. 6.0 MISCELLANEOUS 6.1 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 ensure 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. 6.2 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. 6.3 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he 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. 6.4 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, and in the case of the Contractor, to the person at the address designated on the execution page of this Agreement. 6.5 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. 6.6 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. H:\USERS\ENG\Contr.Agreements\CONT SVCS AGR- Dateland Construction - Palm Canyon Wash Cleanup.wpd -4- This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 6.7 Severability. In the event that part of 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 portions 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. 6.8 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 6.9 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, whether or not the matter proceeds to judgment. 6.10 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (1) 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 NEXT PAGE H:\USERS\ENG\Contr.Agreements\CONT SVCS AGR-Dateland Construction - Palm Canyon Wash Cleanup.wpd -5- IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. CITY OF PALM SPRINGS ATTEST: ((,.1 a municipal corporation l By:_ l B 2✓, / City Clerk City Manager Agreemefrmount+� V'' V APPROVE© BY THE CITY MANAGER. ON �-F 9- a Reviewed and approved by CONTRACTOR: Dateland Construction Co, Inc. 1�4V6Check o Individual Pan hi C porati p Coach Highway111 �'rocurem�n CO- Tradflig Coachella,CA 92236 Corporations require two notarized signatures: One from each of the following.' A. � President:AND B.SecretW ,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financia i lli G By: / BY' Signature(notarized) Signature(notarized) ��,.n-ia,3 r Name: r''` ��'� Name Title: �i^m j Title: Address: 3L?s Wt,-> ( Address: State of n ta. f State of Countycf'Rwcrs.dess County of fss 0 before me, On before me, personally appearred �v-rv.5 1\, 'k ,w c� personally appeared ersonally known to me (or_proved—to—me--on—the"-basis-of personally known to me (or proved to me on the basis of saHsfaelary--ev1 ence) to be the person(s) whose name(sj satisfactory evidence) to be the person(s) whose name(s) Ware subscribed to the within instrument and acknowledged is/are subscribed to the within instrument and acknowledged to me that hefi&hQAlpy executed the same in hisAwf4aeir to me that he/she/they executed the same in his/her/their authorized capacity(aes), and that by his/herHheir slgnature(e) authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s}, or the entity upon behalf of on the instrument the person(s), or the entity upon behalf of which the person(s)acted,executed the instrument. which the person(s)acted,executed the instrument. WITNESS my hand a d official seal. WITNESS my hand and official seal. Notary Signature: Notary Signature: Notary Seal: Notary Seal: DIANE ROGERS ROSS Cnmmissicn G 1362914 Notary public-California Riverside County iMYConxrt.F]gfiroE Jun 29,2l)0$y H:\USERS\ENG\Contr.Agreements\CONT SVCS AGR- Dateland Construction -Palm Canyon Wash Cleanup.wpd -6- N EXHIBIT "A" SCOPE OF SERVICES Work Area: Palm Canyon Wash between Araby Drive and East Palm Canyon Drive. Remove sand piles to return area to natural grade. Back fill "borrow pit' with existing stockpiled material. All work to be performed pursuant to "Palm Canyon Wash" plan dated October 19, 2004. Work to be in accordance with the Standard Specifications for Public Works Construction and City of Palm Springs Municipal Code. Contractor to submit a total final quantity of material removed from the site, location of site to which material was taken and fee paid to Contractor by receiver of material (if any). Information to be provided on forms furnished by the City. All work to be completed on or before November 3, 2004. H:\USERS\ENG\Contr.Agreements\CONT SVCS AGR- Dateland Construction -Palm Canyon Wash Cleanup.wpd -7- � y SCHEDULE B SCHEDULE OF COMPENSATION Compensation shall be a lump sum amount of $16,800, payable upon completion of all work. A 10% retention will be withheld from the final payment. Providing no claims or stop notices have been filed, the retention will be released 35 days after the recording date of the Project Notice of Completion. H:\USERS\ENG\Contr.Agreements\CONT SVCS AGR- Dateland Construction -Palm Canyon Wash Cleanup.wpd -8- �BrandStrategy Inc LLLlirport Brand Advisory & Tenant Strategy Services CITY OF PALM SPRINGS AGREEMENT#4987 CONTRACT SERVICE AGREEMENT CM signed on 11-03-04 THIS CONTRACT SERVICES AGREEMENT(herein °Agreement'), is made and entered into this 25`h day of October, 2004, by and between the City of Palm Springs, a municipal corporation, (herein "City") and BrandStrategy, Incorporated, a Washington Corporation, (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 j 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 circumstancesa.%%g c.oraeo rclebQ ro e.l�F u- 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 land this Agreement, the terms of this Agreement shall govern. I 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 10/26/2004 F 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 underthis 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 Officerto 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 $24,500; 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. 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 10/26/2004 -2- the maximum contract amount of Twenty Four Thousand Five Hundred Dollars ($24,500) (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, (it!) 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 shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City; Contractor shall not be entitled to any additional compensation for attending said meetings. 2.2 Method of Payment. Unless some other method of payment is specified in the Schedule of Compensation, in any month in which Contractor wishes to receive payment, no later than the first (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 Maieure. The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to,acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots,strikes,freight embargoes,wars, litigation,and/or acts of any governmental agency, including the 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,however caused,Contractor's sole remedy being extension of the Agreement pursuant to this Section. 10/26/2004 -3- U \ 3.4 Term. Unless earlier terminated in accordance with Section T8 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"). 4.0 COORDINATION OF WORK 4.1 Representative of Contractor. The following principal 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: Duane Knapp It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principal was a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement,the foregoing principal 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 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 otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transferto any person or group of persons acting in concert of more than twenty five percent(25%)of the present ownership and/or control of Contractor,taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of 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 10/26/2004 -4- 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. 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 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 Com e ssa/tionn Insu ance. A policy of worker's compensation insurance in amount which fully complies with the statutory requirements of the St at o 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. 10/26/2004 -5- (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 under this 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 ndemnification. Contractor agrees to indemni the City, its officers, agents and employe against, and will hold and save them, and ach of them, harmless from any and all actio , suits, claims, damages to persons property, losses, costs, penalties,obligations, err s,omissions or liabilities, (herein"cl ' s or liabilities")that maybe asserted or claimed by an person, firm or entity arising o t of or in connection with the negligent performance of t work, operations or acti ties of Contractor, its agents, employees,subcontractors,or vitees, provided for her ' ,or arising from the negligent acts or omissions of Contractor hereu der, or arising from ontractor's negligent performance of or failure to perform any term, prov ion, covenant o condition of this Agreement,whether or not there is concurrent passive or act a negligen on the part of the City, its officers,agents or employees but excluding such claim or liabil' es arising from the sole negligence or willful misconduct of the City, its officers,agen or mployees,who are directly responsible to the City, and in connection therewith: (a) Contractor ill de d any action or actions filed in connection with any of sai laims or lia ilities and will pay all costs and expenses, including le I costs and orneys' fees incurred in connection therewith; (b) ontractor will promptly pay judgment rendered against the City,.s officers, agents or employees r any such claims or liabilities ari ' g out of or in connection with the egligent performance of or f ure to perform such work, operations r activities of Contractor ereunder;and Contractor agrees to save an old the City, its officers, 10/26/2004 -6- l agents, and emplXneedii armless erefrom; � (c) In the even , its icers, agents or employees are made a party to any p ceeding filed or prosecuted against Contractor for sa s or other claims arising out of or in connection with tig performance of or failure to perform the work, operation o of ontractor hereunder,Contractor agrees to paytothe Citycers, a ents or employees, any and all costs and expenses incy the Ci its officers, agents or employees in such action or prg, includi but not limited to, legal costs and attorneys' fees. lL 5.3 Performance BoXeentl urr ntly with execution of this Agreement, Contractor shall deliver to City a pe and in the sum of the amount of this Agreement, in the form provided by t 'ch secures the faithful performance of this Agreement, unless such requiremend by the Contract Officer. The bond shall contain the original, notarized signatuthorized officer of the surety and affixed thereto shall be a certified and curref is power of attorney. The bond shall be unconditional and remain in force duntir term of the Agreement and shall be null and void only if the Contractor promptlfully erforms all terms and conditions of this Agreement. L 5.4 Sufficiencv ofvXfrom r or Sure Insuranceor bonds required by this Agreement shall be satisfactory osued b companies qualified to do business in California, rated "A"or better in theecent dition of Best's Key Rating Guide or in the Federal Register, unless such requis ar waived by the City Manager or designee of the City Manager due to unique circ . In the event the City Manager determines that the work or services to be ped rider this Agreement create an increased or decreased risk of loss to the City, nt ctor agrees that the minimum limits of the insurance policies and the performand quired by this Section 5 may be changed accordingly upon receipt of written from th City Manager or designee; provided that the Contractor shall have the right al a det mination of increased coverage by the City Manager to the City Council ofthin 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 or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services,the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services,the estimated increased or decreased cost estimate for the project being designed. 10/26/2004 -7- iF 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 reports, records,documents,techniques, processes 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.Q 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 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 10/26/2004 n -8- U *Ls ��',tscxx kAt& W%U: wl\%401 J0- 1r�-t.�.►.c.�.�-wQ���,,, d,r�oQ �t�.�?-no ho.ana�.�n�- 5�hpt�r¢s�e'� Gor'4'1^�c`�p�=s Na,� ®lr �ww,�S� ��G,�e1( �pR►,fie 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 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 parry's consent to or approval of any act by the other party requiring the parry'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,orto 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 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 maybe 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 10/26/2004 -9- 9.0 MISCELLANEOUS PROVISIONS 9A 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. 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 otherAgreement to which said party is bound. [SIGNATURE BLOCK ON NEXT PAGE] 10/26/2004 -11- i_ IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above CITY OF PALM SPRINGS ATTEST: 1 a municipal corporation 1; City Clerk City Manage l\ APPROVED BY THE CITYQ {� CONTRACTOR: Check one:_Individual_Partnership_Corporation 8 , AP By: crP'�� By: Signature rized) Signature(notarized) Namel- kkayse F: 114410, 1441 D,p Name: Title: �hr[St�. ^,"/ �2f�/' 2.U 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 or one of the following:Secretary,Chief Financial Officer or any Vice President) any Assistant Treasurer) State of CyAG1F6k1V1f state of Countyof �C/ ptss me, County of ❑ss On 10—.u-Q// before On before me, �ft� c� personally appeared personally appeared personally known to me (or proved to me on the basis of pweenaµy-known-W-u+e (or roved to r e on the basis of satisfactory evidence)to be the person(s)whose name(s)is/are satisfactory evidence to be t e person(s�whose name(sr)is/am subscribed to the within instrument and acknowledged to me that suliscrioea tothe witnin instrument and acknowledged to methat he/she/they executed the same in his/heritheir authorized he/sh,e/tlpy executed the same in his/hetlthair authorized capaclty(les), and that by his/her/their signature(s) on the capacity(ige), and that by hisfW111or signature(c) on the instrument the person(s),or the entity upon behalf of which the Instrument the person(;or the entity upon behalf of which the person(s)acted,executed the instrument person(p}acted,executed the instrument. WITNESS my hand and official seal. WITNESS my hand and official snealrl. Notary Signature: M, Notary Signature: Notary Seal: Notary Seal: =$IAQNWjCb9"WUX)0Aw apgpco'ogqnd AcM �OKICI#UOMWWOJ �tolnv-w ii3Nvr 10/26/2004 -12- EXHIBIT"A" SCOPE OF SERVICES Contractor proposes to provide Brand Advisory services to the Palm Springs International Airport. In performing this work, Contractor agrees to the following scope of services. Task I Tenant Strategy—BrandStrategy, Inc., in partnership with the Palm Springs International Airport, will develop an "experience" audit for all airport tenants (airlines, retail, and food service organizations)to deliver exceptional products and services for all visitors. Task 11 BrandPromise Development—BrandStrategy, Inc., in partnership with the Palm Springs International Airport, will define and develop a promise that will deliver a "One of a Kind" Experience. Task III Culturalization—Creates a customized Culturalization training guide for Palm Springs International Airport employees and associates on how to deliver a "One of a Kind" Experience. The City acknowledges that Contractor and its President, Duane Knapp are acting in the capacity of an advisor and as such; our ideas, thoughts and recommendations are offered to the Palm Springs International Airport to accept or decline. Contractor will be utilizing our intellectual property as well as proprietary and confidential materials, methodologies, reports, techniques, processes, terminology, trademarks, etc. It is understood that nothing herein shall in any way limit, modify or restrict Contractor rights, title and interest in the above mentioned intellectual property, and methodologies that may be utilized in this project. 10/26/2004 -13- EXHIBIT"B" SPECIAL REQUIREMENTS 1. Paragraph 5.1 (b)regarding Worker's Compensation Insurance is hereby waived in its entirety. 2. Paragraph 5.2 Indemnification is hereby amended to read: "5.2 Indemnification. City acknowledges that Contractor is serving in the capacity of advisor. As such, recommendations are made for City officers and employees to accept or decline and City understands that Contractor is not acting as an officer, director, either explicity or implicity. If and to the extent that proceeds of insurance are inadequate, Contractor agrees to protect, indemnify and save harmless City and its officers,officials,employees and volunteers from and against all claims, demands and causes of action by contractor's employees or third parties on account of personal injuries or death or on account of property damages arising out of the work to be performed by contractor hereunder and resulting from the negligent act or omissions of contractor, contractor's agents, employees or subcontractors." 3. Paragraph 5.2 (a) is hereby deleted in its entirety. 4. Paragraph 5.2 (b) is hereby deleted in its entirety. 5. Paragraph 5.2 (c) is hereby deleted in its entirety. 6. Paragraph 5.3 Performance Bond is hereby waived in its entirety. 7. Paragraph 5.4 Sufficiency of Insurer or Surety is hereby deleted in its entirety. 10/26/2004 -14- EXHIBIT"C" SCHEDULE OF COMPENSATION Professional Fees Task I. Tenant Strategy $1,950 (Total fee$6,500—30%due now,30%due Jan.20"'and 40%due upon completion) Task II. Development of a BrandPromise $1,800 (Total fee$6.000—30%due now,30%due Jan.20d'and 40%due upon completion) Task III. Culturalization yggavc�-- $6,000 (Total fee$12,000—30°%due now,30%due on Jan.201"and h due upon completion) Amount Due Now $7,350 Amount Due on Jan. 20.,2005 $7,350 Amount Due Upon Completion $9,800 Total $24,500 Please FedEx payments using our FedEx# 157306065 to: BrandStrategy, Inc. 2415 T Avenue, Suite 210 Anacortes, WA 98221 360-293-8810 10/26/2004 -15- 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. The project is expected to take about sixteen weeks to complete. The anticipated completion date is March 2005 10/26/2004 -16-