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HomeMy WebLinkAbout04958 - ALBERT WEBB ASSESSMENT DISTRICT AD 164 MOUNTAIN GATE II TRACT 32028 Page t of 1 Kathie Hart From: Marcus Fuller Sent: April 03, 2009 11:22 AM To: Kathie Hart Cc: Carrie Rovney Subject: RE: A4958 -Albert A Webb Assoc-Assessment Engineering Services Ad 164 S25,000 r Ok to close Sincerely, �� \ Marcus L.Fuller,P.E.,P.L.S. Assistant Director of Public Works/ Assistant City Engineer 1�City of Palm Springs (760)323-8253, ext. 8744 vw w.nalmsprines-ca.gov 1 Marcun.Fu11er�PalmsPUr^s-ca.^ov From: Kathie Hart Sent, Friday, April 03, 2009 11:14 AM To: Marcus Fuller; carrie.rovney@palmsprings-ca.gov Cc: Jay Thompson Subject: A4958 -Albert A Webb Assoc-Assessment Engineering Services Ad 164 $25,000 This was approved Sept. 2004. Completed? OK to close? Thx! Kathie Hart, CMC Chief Deputy City Clerk City of Palm 5prings 3200 E. Tahquitz Canyon Way Palm Springs,CA 92262 ��' (760)323-8206 1 �2-1 (760) 322-8332 Z Kathie.Hart@Palm$prmg$CA.gov 04/03/09 Albert A. Webb Associates Assessment Eng. Services for AD#164 AGREEMENT#4958 CITY OF PALM SPRINGS CM signed 9-9-04 Public Works and Engineering Department CONTRACT SERVICES AGREEMENT FOR---- ASSESSMENT ENGINEER SERVICES FOR ASSESSMENT DISTRICT NO. 164 "MOUNTAIN GATE II"TRACT 32028 THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this � I day of ' p}1'� 2004, by and between the CITY OF PALM SPRINGS, a municipal corporation, (herei "City")ty") and Albert A. Webb Associates, (herein "Contractor'). The term Contractor includes professionals performing in a consulting capacity. The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the"Scope of Services"attached hereto as Exhibit"A" and incorporated herein by this reference,which services may be referred to herein as the"services"or"work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and,in light of such status and experience,Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards"shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 1.2 Contractor's Proposal. The Scope of Service shall include the Contractor's proposal or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 1.4 Licenses, Permits Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder. 1.5 Familiarity with Work. By executing this Contract, Contractor warrants that Contractor (a) has thoroughly investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed and(c)fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has, or will, investigate the site and is or will be fully acquainted with the conditions there existing, prior to 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 -1- diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 1.8 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in(i)the Contract Sum,and/or(ii)the time to perform this Agreement,which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of up to five percent(5%) of the Contract Sum or$25,000;whichever is less, or in the time to perform of up to one hundred eighty(180) days maybe 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 bythis reference, but not exceeding the contract amount of Twenty-Four Thousand Eight Hundred Dollars($24,800.00), plus incidental expenses(costs for reproduction, postage, mileage, fax, and telephone charges) of Two Hundred Dollars ($200.00) for a total maximum contract amount not to exceed Twenty-Five Thousand Dollars ($25,000.00) (herein "Contract Sum"), except as provided in Section 1.8. The method of compensation may include(i)a lump sum payment upon completion, (ii) payment in accordance with the percentage of completion of the services, (iii) payment for time and materials based upon the Contractor's rates as specified in the Schedule of Compensation,but not exceeding the Contract Sum or (iv) such other methods as may be specified in the Schedule of Compensation. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expense, transportation expense approved by the Contract Officer in advance, and no other expenses and only if specified in the Schedule of Compensation. The Contract Sum 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(1'1)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 -2- eighty(180)days cumulatively. 3.3 Force Majeure. 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 Cityfor 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: Paul Thompson, Director of Assessment/Special Tax Services It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement,the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Against Subcontractina 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 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 City. The City's policy is to encourage the awarding of subcontracts to persons or entities with offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are available, to persons or entities with offices located in the Coachella Valley("Local Subcontractors"). Contractor hereby agrees to -3- 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 Citythat 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 infixing 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 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 City, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Commercial General LiabilitvInsurance. 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 dam age,products and completed operations.The Commercial General Liability Policy shall name the City of Palm Springs as additional insured in accordance with standard ISO additional insured endorsement form CG2010(1185)or equivalent language. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in an amount which fully complies with the statutory requirements of the State of California and which includes $1,000,000 employer's liability. (c)Business Automobile Insurance.A policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of$1,000,000 bodily and property damage. Said policy shall include coverage for owned, non-owned, leased and hired cars. (d)Additional Insurance.Additional limits and coverages,which may include professional liability insurance, will be specified in Exhibit"B". All of the above policies of insurance shall be primary insurance and issued bycompanies 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. -4- In the event the Contractor subcontracts any portion of the work in compliance with Section 4.3 of this Agreement the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same polices of insurance that the Contractor is required to maintain pursuant to this Section. 5.2 Indemnification. Contractor agrees to indemnify the City, its officers, agents and employees against, and will hold and save them, and each of them, harmless from any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities")that may be asserted or claimed by any person, 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) Contractorwill promptly payanyjudgment rendered againstthe City,its officers,agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work,operations or activities of Contractor hereunder;and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees are made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work,operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys'fees. 5.3 Performance Bond. Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond in the sum of the amount of this Agreement, in the form provided by the City, which secures the faithful performance of this Agreement, unless such requirement is waived by the Contract Officer. The bond shall contain the original, notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his 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. (Not applicable). 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 City Manager or designee of the City Manager due to unique circumstances. In the event the City Manager determines that the work or services to be performed under this Agreement create an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies and the performance bond required by this Section 5 may be changed accordingly upon receipt of written notice from the City Manager or designee; provided that the Contractor shall have the right to appeal a determination of increased coverage by the City Manager to the City Council of City within ten(10)days of receipt of notice from the City Manager. 6.0 REPORTS AND RECORDS 6.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the -5- cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed. 6.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three(3)years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings,specifications,reports,records,documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 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 notifythe injuring party, in writing, of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10)days of service of such notice and completes the cure of such default within forty-five(45)days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Contractor's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor(whether or not arising out of this Agreement)(1)any amounts the payment of which may be in dispute hereunder orwhich are necessary to compensate Cityfor 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 maywithhold 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 -6- insure, indemnify, and protect City as elsewhere provided herein. 7.4 Waiver. No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement,the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default bythe 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 City the sum of Zero Dollars($0.00)as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Schedule of Performance(Exhibit"D"). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages. 7.8 Termination Prior to Expiration Of Term. This Section shall govern any termination of this Agreement except as specifically provided in the following Section 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 may be determined by the Contract Officer. In addition, the Contractor reserves the right to terminate this Agreement at any time,with or without cause, upon sixty(60)days written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non- terminating party with the opportunity to cure pursuant to Section 7.2. 7.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement,City may,after compliance with the provisions of Section 7.2,takeover the work and prosecute the same to completion by contractor otherwise,and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated. 7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in anyway connected with this Agreement,the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on anyappeal,and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such -7- litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liability of City Officers and Emoloyees. No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest 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 CovenantAaainstDiscrimination. 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. Anynotice,demand,request,document,consent,approval,orcommunication 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 other Agreement to which said party is bound. -8- IN WITNESS WHEREOF,the parties have executed and entered into this Agreement as of the date first written above. CITY OF PALM SPRINGS, a municipal corporation ATTE y Clerk City Manager 111FRMHP� Amount �dSvv0 �. ZT'H''(')Vx'o L ��I H l IUI�^a�e�� � "big Clad l"lin iii(7,�� I�� A b�AA' Ebb Associat '�4 / (Check one: Individual_ Par`triers-hip'.—=Corporation) 41 By: I/ )-,�v � 1, C�L l By: Signature(notarized) Signature(notarized) Name: Matthew E. Webb Name: A. Hubert Webb Title: {{President Title: C.E.O. State of P-MkTv State of ��Rautt�9r County of 4��i�r cvtir,�c Iss County oft �u:-nsw]C Iss On___before me,Yll�Rtr Nta<-.Z iu��vG On S� � OV- before me, �� Vwj i° �[J Rc� �v•� V\j '�t� _ �I 4 f� g personally appeared @ g tI mi�-'w �. �l 6z, ' personally appeared f;\ - d-� Mbttiti `'U uh e' personally known to me (or—proved_to_me-en-the-basis-ef personally known to me (or—proved-to—me-on-the-basis-o.[ satfsfaetoryevidersce)to be the person(s)whose name(s)is/are satisfactory-evidence)to be the person(s)whose name(s)is/are subscribed to the within instrumentand acknowledged to me that subscribed to the within instrument and acknowledged to me that he/shefthey executed the same in his/herftheir authorized he/she/they executed the same in his/herltheir authorized capacity(ies), and that by his/her/their signature(s) on the capacity(ies), and that by his/herltheir signature(s•) on the instrument the person(s)-or the entity upon behalf of which the instrument-the person('s), or the entity upon behalf of which the person(s-)-actsrd, executed the instrument. person(syacted, gxecuted-th instrument. WITNESS my hand and offic al seal. WITNESS rr`y/hand and officia seal. a v �_ Notary Signature: ����,�„�% ��,�t�:� Notary Signature: 1a,.,. r✓u� _ ��---� Notary Seal: � Notary Seal: Et NftfiRt�F Rf7 a?h9r" I RIGA 'r EITV dr Cemrrn Lion 613SM3 f' rSatn:rv,�Publicer�li6�'amis > y,t,' t'crnm�s ir,nz 9Jar rz3 �. fr''lwir.:ide Ouunty �1 i '7 r �'S ! • Rnrarai s,.C"nentj^ r u V',fiy C.rpmm.F'. atrEim Vyhay31 2t?t," I:)1 iti2,i r p,�^ l48C. rerC �um+ro� y* i2E':fwr - -9- EXHIBIT "A" SCOPE OF SERVICES The intent of this contract is to provide Assessment Engineer services for the creation of the City of Palm Springs Assessment District No. 164 ("Mountain Gate II", Tract 32028) and shall provide all services and resources necessary therefor. Contractor shall provide"Preliminary' and "Final" Engineers Reports to City to assist in the Resolution of Intention and Municipal Bond Sale. The following scope of services shall be provided: I. Initial Assessment Engineering A. Initial Scoping Meeting - Contractor shall meet with City staff and members of the financing team to establish the assessment district schedule of events, procedural and financial considerations, discuss the proposed improvements, eligibility of those improvements and any limitations on the funding of those improvements (i.e. public utilities). Contractor shall discuss and identify the boundaries of the proposed assessment district, identify the scope of responsibilities and develop a program for public notification and involvement. B. Research Property Information-Contractor shall obtain the latest assessor maps and equalized tax roll on computer tape from the Riverside County Assessor's Office for all parcels within the proposed assessment district. In addition, obtain information on existing liens and assessments in order to determine overlapping debt. C. Computer Database Preparation-Contractor shall prepare a database showing the assessor's parcel numbers of each parcel within the proposed assessment district,the land use code,the area,the status of development and assessed values. From this database, a mailing list shall be prepared. D. Prepare Assessment District Study - Using information gathered for the database preparation, preliminary cost estimates for the project shall be prepared. The project cost shall be based on the preliminary engineering design,and will result in an estimate for the total amount to bond forthe project. The total amount to bond for the project shall include construction, any acquisition costs, construction contingencies, incidental expenses including assessment engineering costs, bond counsel costs, construction surveying and staking,plan checking,construction inspection,design engineering,and any other costs eligible and incidental to the construction of the project.Also included will be any financing costs associated with the bond discount.Consultation shall occurwith the bond counsel and underwriter for recommendations on the assessment district from a legal and financial perspective. E. Prepare Boundary Map-A boundary map shall be prepared for the assessment district depicting the boundary that includes all parcels that benefit from the proposed improvements. II. Assessment District Formation A. Coordination of the Adoption of Resolutions Initiating the Proceedings-Coordination with Citystaff shall occur to implement the following actions by the City Council after Bond Counsel prepared the necessary Resolution. These will include the following: declaration of intent to construct the improvements; appointment of the engineer of work, Bond Counsel, Underwriter,and any other necessary consultants for the formation of the district; authorize Assessment Engineer (Contractor) to prepare Engineer's Report. B. Prepare Preliminary Engineer's Report - A preliminary Engineer's Report shall be prepared which contains all items as required by code, including a description of the proposed improvements, and an engineer's estimate of the construction costs and incidental expenses. These costs will be based on the preliminary cost information provided by the City and developer/land owner. Also included will be a narrative description of the spread methodology including assumptions behind the determination of benefits, the assessment roll including the assessor's parcel number, owner's name, and total assessment amount, occurring after the confirmation of the assessment district. -10- EXHIBIT "A" SCOPE OF SERVICES C. Coordinate City Review Process-The Assessment Engineer(Contractor)shall submit the Preliminary Engineer's Report to the City Clerk prior to the adoption of the Resolution of Intention(ROI)and conduct workshop meetings with City staff and developer/land owner to discuss possible report revisions after staff review. D. Coordination of the Adoption of the Resolution of Intention -The Assessment Engineer (Contractor) shall coordinate the approval of the Preliminary Engineer's Report as submitted or with any recommended staff modifications and help establish a time and place for the Public Meeting and Public Hearing to be conducted by the City Council as required by code. E. Coordination of Disclosure Period - After the City Council adopts the Resolution of Intention, the Assessment Engineer (Contractor) shall prepare and mail ballots pursuant to Proposition 218 to all property owners within the proposed assessment district byfirst class mail. The ballots will contain the assessor's parcel number,the owner's name, mailing address,site address,breakdown of assessment by type of improvement, proposed assessment(lien amount), and the explanation of benefit required by Proposition 218. The City shall be provided with a bound copy of all required notices to be mailed and assistance shall be provided to the City for the correction of any wrong addresses and changed owners to maximize the disclosure process. The Assessment Engineer (Contractor) shall also coordinate with City staff to arrange for the publication of the Resolution of Intention in the local newspaper. After the Resolution of Intention is adopted, the Assessment Engineer(Contractor) shall record the boundary map with the Riverside County Recorder. The Assessment Engineer(Contractor) shall prepare and submit the final Engineer's Report to the City with any revisions as directed by the City Council. F. Participate in Public Hearings-The Assessment Engineer(Contractor)shall attend all Public Hearings and shall be prepared to give a presentation on the contents of the Engineer's Report describing the proposed improvements,explaining the assessment spread methodology and answering any questions asked by the City Council or public at large. At the second Public Hearing, the Assessment Engineer (Contractor) shall also tabulate all oral and written protests and report the percentage of protests received by the City Council. The Assessment Engineer(Contractor)shall also address the inclusion of any amendments ordered by the City Council as a result of the Public Hearing. III. Post Formation Proceedings A. Record Assessment Diagrams - The Assessment Engineer (Contractor) shall coordinate the recordation of the Assessment Diagrams,Assessment Roll,and Notice of Assessment with the County Recorder as prescribed by code. B. Mail Pre-Payment Notices-The Assessment Engineer(Contractor)shall mail the Pre-Payment Notices to the property owners with the pre-payment terms and amounts stipulated as part of the 30 day cash collection period. The Assessment Engineer (Contractor) shall also be available to answer any questions from property owners during the 30 day cash collection period. The Assessment Engineer (Contractor) shall also be available to answer any questions from property owners during the 30 day cash collection period.The Assessment Engineer(Contractor)shall also keep a log of all pre-payments received by the City,with the City providing that information to the Assessment Engineer(Contractor). At the end of the 30 day cash collection period, a paid/unpaid list shall be prepared by the Assessment Engineer(Contractor) and submitted to the City Treasurer. C. Review Preliminary Official Statement - The Assessment Engineer (Contractor) shall assist in the preparation and review of the Official Statement Document prepared by the underwriter for accuracy of content as it relates to the assessment district properties, spread methodology, and as it relates to the total amount of bond and the engineer's estimate of cost and expenses included in the final Engineer's Report. -11- EXHIBIT"B" SPECIAL REQUIREMENTS Section 5.1(d),a policyof Professional Errors and Omissions insurance in the amount of$1,000,000 is required. Section 5.3, Performance Bond, is waived. -12- EXHIBIT"C SCHEDULE OF COMPENSATION Full compensation for required services included in this contract shall be made on a time and material basis, in accordance with the following hourly Fee Schedule as shown on Exhibit"C-1", for an amount not to exceed $24,800.00. Contractor shall submit invoices, no more than once monthly, providing the City with a summary of services provided, personnel associated with the services provided, the associated hourly compensation in accordance with the attached Fee Schedule, and the total invoice amount. In addition to compensation for required services, Contractor shall be entitled to reimbursement for incidental expenses at the Contractor's cost plus 15%for a total reimbursable amount not to exceed $200.00. Invoices for reimbursement of incidental expenses shall included copies of receipts or other documentation evidencing payment of incidental expenses related to services required by this contract. Compensation for services and reimbursable expenses shall not exceed the total contract amount of $25,000.00. -13- EXHIBIT"C-1" SCHEDULE OF COMPENSATION FEE SCHEDULE RATES CLASSIFICATION 521912,E Engineering-Srrvi 9 PrincipalEngineer................................................................... ................................................ 142,00 Senior Engineer ..........................._...............,..,....................................................................... 130,00 ProjectManager....................................................................................................................... 115." Assistant Project Manager......:...................................--........................................................... $8.00 Engineer.. .................«.......................... .................«.............................................. 103.00 AssociateEngineer...................................................................................................................... 66.00 SeniorDesigner.......................................................................................................................... 82,00 Designer.................................................................................................................................... 75;00 Senior CARD Operator.......................................... ««...... ..«.....,.«............... 65.00 CARDOperator—...................... ......................................................................................... 5100 Fnvironulental Somices Principal navirenmental Specialist«.««....««......,............................«...................................... •120.00 Senior Envircmunco l Specialist......................«_.,......................«........««.............................. 106.00 FAVironmenral Specialist......................................_.................................................................... 94.00 Associate EnviroomenW Spedialst..............._.......................................................................... $2.00 EnvirottmtslCoordiilatcr__..................................................................................................... 66.00 Asseasa=YSaecial Tax Servccs „ PriraelAwociate.............................................................................. .................................... 134.00 S6ior'Araoeiatc........................._.................._............._..................................._...._........... 118.00 Associate ............................. .. 100.00 Analyst........,.... . ............................................................................... .......................................... 84.W AmismntAnalyar_................«..........,.............................,.............................................,............. 75.00 symo amsetion Services 3-Man Survey Patty and F.quipmcet..................................................._................................... 211A0 2•Mm Survey,Pattyand Equipment .................................................................................... 185,00 I-Man Survey Party and Equipment ..................................................................................... 113.00 ConstructionManager...................................................................... ........................................ 125,00 Inspector..........................................._......................................................................... ............ 90.00 Survey/Inspector Vehicle.............................................................._...............,.........,...,,,..... .60 Per Mile Stmaort Services infotwatioaSystems Canwitant._:_._......._............................._..... ................ .................. 78.00 Project Coordinator.. ..... ...................................................................................:................... 7S.00 Administrative Ascictam ............................._........................................................................... 60,00 WordProcessor.........................................._............................................................................... 40.00 Clerical ...................................................................................................................................... 28.00 Antaide Services r Special Consultants and Purchased Services...................................................................... Cost Plus I S,/# . Miscellaneous IncidentalExpenses.....................................................................................................,.,........... Cost Postageand Telaphone.. ............................................................... ' ..............................,.. Cost Prints,Copies.Delivery Charges ................................................................................................ Cost Travel&Subsistc.tee ................................................................................................................. cosp Mileage...........................................................................................................................«......... .50 Per Mile Computer Time...................................................................................«.................. « ...... 16.00IHour 015 License Fee..........«......_.................................................................................................... 30.00/Nour Expert Witness Testimony and Preparation.................................................. 325.00/Hour 'AFlUtICE CHARGE afseeaol one&Tpvrarn ti-l;riN parmdbttt%We )s Wb..a a asyoWW days laradac ofnspiee. AusckamcY tiro nnybeama rwaain�o;sr�toa mpa:aaaeraurrfwlasjs korodattof"novice. -14- EXHIBIT"D" SCHEDULE OF PERFORMANCE Contractor shall complete the"Preliminary Engineers Report"within 30 calendar days of Notice to Proceed from City and prior to the submittal of the Resolution of Intention to City Council to form Assessment District No. 164. (Resolution of Intention is estimated for September 15,2004), Contractor shall submit"Final Engineers Report" to City upon completion of Final Reports from the Real Estate Appraiser and Market Absorption Analyst(no later than October 20, 2004) and prior to Municipal Bond Sale tentatively scheduled for December 2004. -15- CONTRACT ABSTRACT Contract Company Name: Albert A. Webb & Associates Company Contact: Merle Schulze Summary of Services: Assessment Engineering Services for AD#164 Contract Price: $25,000 Funding Source: 160-4507-43200 Contract Term: One Year Contract Administration Lead Department: Public Works & Engineering Contract Administrator: David Barakian/Marcus Fuller Contract Approvals Agency Approval Date: To be Approved by City Manager n/a Agreement Number: TBA by Clerk Contract Compliance Exhibits: Signatures: Insurance: Bonds: Contract prepared by: Submitted on: By: