HomeMy WebLinkAbout4/30/2003 - STAFF REPORTS DATE: APRIL 30, 2003
TO: CITY COUNCIL
FROM: EXECUTIVE DIRECTOR—AIRPORTS
APPROVAL OF CONTRACT WITH O'DONNELL + ESCALANTE ARCHITECTS FOR
ARCHITECTURAL AND ENGINEERING SERVICES FOR NEW VISITORS CENTER
LOCATED AT 2901 NORTH PALM CANYON DRIVE, THE FORMER TRAMWAY GAS
STATION
RECOMMENDATION:
It is recommended that the City Council approve a contract with O'Donnell +
Escalante Architects in an amount not to exceed $64,000 for architectural and
engineering services for the City's new Visitors Center to be located at 2901 North
Palm Canyon Drive, the former Tramway Gas Station; and, a budget resolution
appropriating the funds necessary to execute the contract.
SUMMARY:
On December 4, 2002, the City Council approved the acquisition of the former
Tramway Gas Station for conversion to a new City Visitors Center with completion
prior to the expiration of the current Visitors Center lease on October 31, 2003, On
January 29,2003 City Council approved an initial contract with O'Donnell+Escalante
Architects for pre-design and schematic design services to be billed on an hourly fee
schedule not to exceed a total amount of$18,000. City Council Study Sessions were
held on March 20 and 26, 2003 to discuss conceptual Schematic Designs for the
project. Based upon those discussions, and previous meetings held with tenant
representatives and other interested parties, a preferred Schematic Design was
developed to serve as the basis for construction documents, preparation of bid
documents and actual construction. The fee for this second phase of architectural
and engineering services and related reimbursable charges totals $64,000.
BACKGROUND:
On December 4, 2002, the City Council approved the acquisition of the former
Tramway Gas Station for conversion to a new City Visitors Center with completion
prior to the expiration of the current Visitors Center lease on October 31, 2003. The
purchase transaction was closed on January 29, 2003.
Given the historic status of the Tramway Gas Station, a presentation describing
potential design options was made to the Historic Site Preservation Board by the
architect and staff on March 14 to elicit feedback from its members. In addition, an
informal"open house"for Council and HSPB members to tour both facilities was held
on March 15. Staff also met with a representative of the Bureau of Land Management
(BLM) to discuss potential future options for their involvement at the new Visitors
Center site. Interest has been expressed for a possible future multi-modal facility at
the site in coordination with the aerial tram. No specific plans have been made for an
immediate BLM/National Monument presence or a multi-modal facility at the site,
however, the initial build-out is being designed with future flexibility in this regard. /19
Visitors Center
April 30, 2003
Page Two
Study Sessions were held with the City Council on March 20 and 26, 2003 to discuss
conceptual Schematic Designs for the project. Based upon the entirety of discussions
with the various interested parties,a preferred Schematic Design has been developed
to serve as the basis for construction documents,preparation of bid'documents and
eventual construction(see attached). The design includes the interior improvements
to the former gas station building, construction of a new separate building housing
expanded restroom facilities, site improvements including landscaping, and an
adjacent parking lot located,just west of the Visitors Center buildings with 37 parking
spaces and 3 bus spaces. The parking lot would be located on property under
separate ownership by the Nichols family. Discussions are underway with the Nichols
Trust over the form of agreement, license, easement or lease, and the length of the
agreement. The established budget for the project is $500,000, as follows:
VISITORS CENTER BUDGET
Architect (includes reimbursables) $64,000.
City Representative (hourly not to exceed 40,000.
Plan Check (in house) -0-
Special Inspection (none required) -0-
Construction Staking 5,000.
Subtotal Soft Cost $109,000.
Restrooms (metal, a/c) $138,000.
Parking Lot (temp with lighting) 80,000.
Wall Demo & Replaster 7,000.
Septic Tank 12,500.
Landscaping (front of wall/trees in parking lot) 15,000.
Digital Camera System 15,000.
Interior Improvements 144,500.
Construction Costs $412,000.
Owners Contingency $39,000.
Credit for Recycled Materials (69,000.)
Total Project Budget $500 000.
No street improvements
No landscape or paths to entry sign
No raised planters or other site landscaping
The fee for this second phase of architectural and engineering services and related
reimbursable charges for both phases totals $64,000,
Visitors Center
April 30, 2003
Page Three
Attached is a Resolution approving the Architectural Contract, appointing the
Executive Director of Airports as Project Administrator and setting project
administration parameters. Also, a Budget Resolution is attached appropriating the
nec ary funds.
,,
ALLEN F. SMOOT, AAE
Executive Director—Airports
APPROVED:4
City Manager
ATTACHMENTS:
1. Preferred Schematic Design Site Plan
2. Contract for Architectural Services
3. Resolution
4. Budget Resolution
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CITY OF PALM SPRINGS
CONTRACT SERVICE AGREEMENT FOR
ARCHITECTURAL DESIGN AND ENGINEERING SERVICES
FOR VISITORS CENTER LOCATED AT 2901 N. PALM CANYON DRIVE
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered
into this day of 2003, by and between the CITY OF PALM SPRINGS,
a municipal corporation, (herein "City") and O'DONNELL + ESCALANTE ARCHITECTS, (herein
"Architect"). The term Architect includes professionals performing in a consulting capacity. The
parties hereto agree as follows:
1.0 SERVICES OF ARCHITECT
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement,the Architect 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,Architect represents and warrants that Architect is a provider of first class work and
services and Architect is experienced in performing the work and services contemplated herein
and, in light of such status and experience, Architect 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 Architect's Proposal. The Scope of Service shall include the Architect'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. Architect 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. Architect 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 Architect'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, Architect warrants that
Architect (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,Architect warrants that Architect has, or will, investigate
the site and is or will be fully acquainted with the conditions there existing, prior to commencement
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If the services involve work upon any site,Architect warrants that Architect 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 Architect discover any latent or unknown conditions, which will
materially affect the performance of the services hereunder,Architect shall immediately inform the
City of such fact and shall not proceed except at Architect's risk until written instructions are
received from the Contract Officer.
1.6 Care of Work. The Architect shall adopt reasonable methods during the
life of the Agreement to furnish continuous protection to the work, and the equipment, materials,
papers,documents,plans,studies and/or other components thereof to prevent losses or damages,
and shall be responsible for all such damages, to persons or property, until acceptance of the work
by City, except such losses or damages as may be caused by City's own negligence.
1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care
and diligence to perform their respective obligations under this Agreement. Both parties agree to
act in good faith to execute all instruments, prepare all documents and take all actions as may be
reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified,
neither party shall be responsible for the service of the other.
1.8 Additional Services. City shall have the right at any time during the
performance of the services, without invalidating this Agreement,to order extra work beyond that
specified in the Scope of Services or make changes by altering, adding to or deducting from said
work. No such extra work may be undertaken unless a written order is first given by the Contract
Officerto the Architect, incorporating therein any adjustment in (i)the Contract Sum, and/or(ii)the
time to perform this Agreement, which said adjustments are subjectto the written approval of the
Architect. Any increase in compensation of up to five percent(5%) of the Contract Sum or$25,000;
whichever is less, or in the time to perform of up to one hundred eighty(180)days may be approved
by the Contract Officer. Any greater increases, taken either separately or cumulatively must be
approved by the City Council. It is expressly understood by Architect that the provisions of this
Section shall not apply to services specifically set forth in the Scope of Services or reasonably
contemplated therein. Architect hereby acknowledges that it acceptsthe risk that the services to
be provided pursuanttothe Scope of Services may be more costly ortime consuming thanArchitect
anticipates and that Architect 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
Architect 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 Sixty Four Thousand Dollars ($64,000), (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 Architect's rates as specified in the Schedule of Compensation, but
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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 Architect at
all project meetings reasonably deemed necessary by the City;Architect 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 Architect wishes to receive payment, no later
than the first(15f)working day of such month,Architect 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 Architect 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. Architect 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 Architect, extensions to
the time period(s) specified in the Schedule of Performance may be approved in writing by the
Contract Officer but not exceeding one hundred eighty (180) days cumulatively.
3.3 Force Majeure. The time period(s)specified in the Schedule of Performance
for performance of the services rendered 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 Architect, 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
Architect 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
Architect be entitled to recover damages against the City for any delay in the performance of this
Agreement, however caused,Architect'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 two(2)years from the date hereof,except as otherwise provided in the Schedule
of Performance (Exhibit "D").
4.0 COORDINATION OF WORK
4.1 Representative of Architect. The following principals of Architect are hereby
designated as being the principals and representatives of Architect authorized to act in its behalf
with respect to the work specified herein and make all decisions in connection therewith:
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Lance O'Donnell and Ana Maria Escalante-Lentz, as Principals in Charge
O'Donnell + Escalante Architects
121 South Palm Canyon Drive - Suite 222
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 term of this Agreement for directing all
activities of Architect 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 Architect 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 Architect's responsibility to assure that the
Contract Officer is kept informed of the progress of the performance of the services and the
Architect 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 Architect, its principals and employees were a substantial
inducement for the City to enter into this Agreement. Therefore, Architect 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
Architect, 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 Architect or any surety of Architect 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"). Architect 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 Architect 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 Architect's efforts in determining whether
it will consent to a particular subcontractor. Architect 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 Architect, 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 Architect's employees, servants, representatives or
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agents, or in fixing their number, compensation or hours of service. Architect 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.
Architect 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 Architect in its business or otherwise or a joint venturer or a member of
any joint enterprise with Architect.
5.0 INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance. The Architect shall procure and maintain, at its sole cost and
expense, in a form and content satisfactory to City, during the entire term of this Agreement
including any extension thereof, the following policies of insurance:
(a) Commercial General Liability Insurance. A policy of commercial general
liability insurance written on a per occurrence basis with a combined single limit of at least
$1,000,000 bodily injury and property damage including coverages for contractual liability,
personal injury, independent contractors, broad form property damage, products and
completed operations. The Commercial General Liability Policy shall name the City of Palm
Springs as additional insured in accordance with standard ISO additional insured
endorsement form CG2010(1185) or equivalent language.
(b)Worker's Compensation Insurance. A policy of worker's compensation
insurance in an amount which fully complies with the statutory requirements of the State of
California and which includes $1,000,000 employer's liability.
(c) Business Automobile Insurance. A policy of business automobile liability
insurance written on a per occurrence basis with a single limit liability in the amount of
$1,000,000 bodily and property damage. Said policy shall include coverage for owned, non-
owned, leased and hired cars.
(d)Additional Insurance. Additional limits and coverages, which may include
professional liability insurance, will be specified in Exhibit "B".
All of the above policies of insurance shall be primary insurance and issued by companies
whose rating satisfies the requirements in Section 5.4 of this agreement. The insurer shall waive all
rights of subrogation and contribution it may have against the City, its officers, employees and
agents, and their respective insurers. In the event any of said policies of insurance are canceled,
the Architect 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 Architect 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 Architect agrees that the provisions of this Section 5.1 shall not be construed as limiting
in any way the extent to which the Architect may be held responsible for the payment of damages
to any persons or property resulting from the Architect's activities or the activities of any person or
person for which the Architect is otherwise responsible.
In the event the Architect subcontracts any portion of the work in compliance with Section 4.3
of this Agreement the contract between the Architect and such subcontractor shall require the
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subcontractor to maintain the same polices of insurance that the Architect is required to maintain
pursuant to this Section.
5.2 Indemnification. Architect 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 Architect, its agents, employees, subcontractors, or invitees, provided for herein, or
arising from the negligent acts or omissions of Architect hereunder, or arising from Architect'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) Architect 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) Architect will promptly pay anyjudgment rendered against the City, its
officers, agents or employees for any such claims or liabilities arising out of or in connection
with the negligent performance of or failure to perform such work, operations or activities of
Architect hereunder; and Architect 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 Architect 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 Architect hereunder,Architect 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,Architect
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 Architect 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 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
Architect 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
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or designee; provided that the Architect 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. Architect 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. Architect 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,Architect agrees
that if Architect 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 Architect
is providing design services, the cost of the project being designed, Architect shall promptly notify
the Contract Officer of said fact, circumstance, technique or event and the estimated increased or
decreased cost related thereto and, if Architect is providing design services,the estimated increased
or decreased cost estimate for the project being designed.
6.2 Records. Architect 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 Architect, 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. Architect 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 Architect will be at the City's sole risk and without liability to Architect, and the
City shall indemnify the Architect for all damages resulting therefrom. Architect may retain copies
of such documents for its own use. Architect 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 Architect fails to secure such assignment, Architect
shall indemnify City for all damages resulting therefrom.
6.4 Release of Documents. The drawings, specifications, reports, records,
documents and other materials prepared by Architect 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. Architect covenants and agrees to submit to the personal
jurisdiction of such court in the event of such action.
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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
Architect's right to terminate this Agreement without cause pursuant to Section 7.8.
7.3 Retention of Funds. Architect hereby authorizes City to deduct from any
amount payable to Architect (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 Architect's acts or omissions in performing or failing to perform
Architect'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 Architect, 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
Architect to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver. No delay or omission in the exercise of any right or remedy by a non-
defaulting party on any default shall impair such right or remedy or be construed as a waiver. A
party's consent to or approval of any act by the other party requiring the party's consent or approval
shall not be deemed to waive or render unnecessary the other party's consent to or approval of any
subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver
of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement,the rights and remedies of the parties
are cumulative and the exercise by either party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of any other rights or remedies for the
same default or any other default by the other party.
7.6 Legal Action. In addition to any other rights or remedies, either party may take
legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any
default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief,
or to obtain any other remedy consistent with the purposes of this Agreement.
7.7 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 Architect and its sureties shall be liable for and shall pay to the
City the sum of Zero Dollars ($-0-) 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
Architect any accrued liquidated damages.
7.8 Termination Prior to Expiration Of Term. This Section shall govern any
C:\TEMP\OE Agreement 04.23.03.wpd ON-g-
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 anytime,with or without cause,
upon thirty (30) days written notice to Architect, except that where termination is due to the fault of
the Architect, the period of notice may be such shorter time as may be determined by the Contract
Officer, In addition, the Architect 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 maybe such shorter time as the Architect may determine. Upon
receipt of any notice of termination, Architect shall immediately cease all services hereunder except
as may be specifically approved by the Contract Officer. Except where the Architect has initiated
termination, the Architect 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 Architect has initiated termination, the
Architect 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 Architect. If termination is due to the failure of the
Architect to fulfill its obligations under this Agreement, City may, after compliance with the provisions
of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise,
and the Architect 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 Architect for the
purpose of set-off or partial payment of the amounts owed the City as previously stated.
7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or
defend or made a party to any action or proceeding in any way connected with this Agreement, the
prevailing party in such action or proceeding, in addition to any other relief which may be granted,
whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall
include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be
entitled to all other reasonable costs for investigating such action, taking depositions and discovery
and all other necessary costs the court allows which are incurred in such litigation. All such fees shall
be deemed to have accrued on commencement of such action and shall be enforceable whether or
not such action is prosecuted to judgment.
8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees. No officer or employee of the City
shall be personally liable to the Architect, 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 Architect 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 Architect 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. Architect covenants that, by and for itself,
C:\TEMPIOE Agreement 04.23.03.wpd
-9- 1
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.
Architect shall take affirmative action to insure that applicants are employed and that employees are
treated during employment without regard to their race, color, creed, religion, sex, marital status,
national origin, or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person shall
be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City,
to the City Manager and to the attention of the Contract Officer - John Raymond, CITY OF PALM
SPRINGS, P.O. Box 2743, Palm Springs, California 92263. In the case of the Architect, 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(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.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date
first written above.
CITY OF PALM SPRINGS
ATTEST: a municipal corporation
By: By:
City Clerk City Manager ��/
APPROVED AS TO FORM:
By:
City Attorney
ARCHITECT:
O'DONNELL + ESCALANTE ARCHITECTS
Check one:_Individual X Partnership
_Corporation
By:
Signature
Name: Lance C. O'Donnell AIA
Title: Partner
By:
Signature
Name: Ana Maria Escalante-Lentz AIA
Title: Partner
Mailing Address: 121 South Palm Canyon Dr
Suite 222
Palm Springs, CA 92262
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EXHIBIT"A"
SCOPE OF SERVICES
For the purposes of defining responsibilities within the Scope of Work,the City as"Owner" is defined
as the Project Manager representing the City, as opposed to the City as reviewing body (e.g.
Planning, Building). Architect shall provide a full range of professional architectural services to Owner
in connection with the City's Visitor Center Remodel and Expansion, and shall include the following
services based upon Architect's prior work covered under a separate Contract Services Agreement
for Architectural Design Services dated January 29, 2003:
II. Schematic Design and Entitlement Submittal Services:
With the intention of establishing the design of the project, the Architect's services during this
continued phase of the project will include the following:
E. Submit preliminary schematic design package for review by the various public agencies
having jurisdiction, and make modifications as required.
F. Through conferences with the Owner, further define the schematic design concept and
complete the final schematic design documents for final review and approval.
G. Provide a preliminary cost of construction estimate for Owner review/approval.
H. Assist with and prepare marketing collateral material,such as presentation type drawings or
artist renderings of the site plan, floor plans and building exteriors.
III. Construction Documents Services:
With the intention of obtaining a building permit, the Architect shall:
A. Develop construction documents for review by the Owner and the various public agencies
having jurisdiction over the project, and make modifications as required.
B. Provide technical and clerical assistance to the Owner in submitting documents required for
Building, Planning, Engineering and Fire Prevention (plan check) approval.
C. Provide a detailed cost estimate for Owner review/approval.
D. Through conferences with the Owner, coordinate the operational aspects of the project as to
mechanical, electrical, phone, electronic communications; security system and site and
directional signage.
IV. Construction Procurement Services:
With the intention of obtaining a contract for construction,the Architect during this phase shall:
A. Provide technical and clerical assistance to the Owner in preparation of bid documents in
order to establish a contract for construction with a general contractor.
B. Assist in the preparation of a bid package for Owner review and approval including:
1. Construction drawings
2. Specifications
3. Bid requirements (invitation, instructions, information, bid bonds and bid form).
4. Contract forms (agreement, payment bond, performance bond and Certificates).
5. Contract conditions (general and supplemental).
V. Construction Administration:
"With the intention of ensuring the execution of the Work complies with the construction
-13- 'A #1
A. Provide technical and on-site evaluations of the progress and quality of the Work executed
by the Contractor in order to assist in verifying Contractor's schedule and payments.
B. Assist in the coordination of appropriate construction documentation with the Contractor on
behalf of the Owner.
C. Assist in conducting weekly construction progress/observation meetings at the job site, with
all involved parties, in order to ensure timely completion and faithful execution of the
Construction Documents.
13 +/
EXHIBIT"B"
SPECIAL REQUIREMENTS
Architect has been hired to perform the services described in the Agreement, which include the
creation of one or more designs,drawings,or plans("Designs"). Architect acknowledges the City has
tentatively budgeted the amount of Four Hundred Twelve Thousand Dollars ($412,000) for the
construction phase of the Project which includes any construction management fees ("Construction
Budget"). Architect shall be responsible to do Project estimating to create Designs which will enable
the project to be constructed within an amount which shall not exceed the Construction Budget by
more than ten percent(10%). Should City solicit bids for construction of the Project, as such Project
has been designed by Architect, and the lowest responsible bid plus any construction management
fees exceed the Construction Budget by more than ten percent(10%),Architect agrees to revise the
previous Designs, or to create new Designs, so that a new price can be negotiated or the project can
be re-bid so that the Project does not exceed the Construction Budget by more than ten percent
(10%). Notwithstanding the foregoing, Architect is not responsible for changes in the Project scope
initiated by City and all such changes shall include appropriate mutually agreed changes to the
Construction budget, as are further set forth in Section 1.8 of this Agreement.
Section 1.8 Additional Services. The third sentence of this section is revised to read as follows:
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.
Section 4.3 Prohibition Against Subcontracting or Assignment. Architect may subcontract with
Donald A. Wexler, AIA (design), RGA Landscapes, Inc. (Landscaping); Sanborn A & E (Civil
Engineering); Gary Wexler Design (Graphics, signage); Mechanical, Plumbing, Electrical and
Structural Engineers to be determined.
Section 5.1 Insurance This section is amended as follows:
5.1 (a) Commercial General Liability Insurance - Required insurance coverage
amended to $500,000 per occurrence and $1,000,000 general aggregate.
5.1 (c) Business Automobile Insurance - Required insurance coverage amended to
$500,000 for non-owned and hired cars.
Section 5.2 Indemnification. This entire section is hereby replaced with the following:
5.2 City Held Harmless - General Liability. Except for the sole negligence of City,
Architect undertakes and agrees to defend, indemnify and hold harmless City,and any
and all of City's Boards, officers, employees, and successors in interest, from and
against all suits and causes of action, claims, losses, demands and expenses,
including but not limited to, reasonable attorney's fees and reasonable costs of
litigation, damages(s) or liability of any nature whatsoever, for death or injury to any
person, including Architect's employees and agents, or for damage to, or destruction
of, any property of either party hereto, or of third persons, in any manner to the extent
arising by reasons of the acts or omissions in the performance of this Agreement on
the part of Architect, or any of Architect's subcontractor's, employees, or anyone for
whom Architect has obligated itself under this Contract,whether or not contributed to
by any act or omission of City or any of the City's Boards, officers or employees.
5.25 City Held Harmless - Professional Liability. Architect undertakes and agrees to
-15- W /
reasonable attorney's fees and reasonable costs of litigation, damage(s)or liability of
any nature whatsoever, for death or injury to any person, including Architect's
employees and agents, or for damage to, or destruction of, any property of third
persons, in any manner to the extent caused by the negligent acts or omissions in
performance of the professional services under this Agreement on the part of
Architect.
Section 5.3 Performance Bond. Performance Bonds are hereby waived.
Section 6.4 Release of Documents. The following is added to this section:
However, upon City approval of the final design and scope of work, the Architect shall have
rights pursuant to Section 6.5.
Section 6.5 Authorship of Documents. The following section is added:
Section 6.5 Authorship of Documents. City acknowledges the intellectual content of the
design prepared by Architect pursuant to this Agreement has marketing and promotional value.
Therefore, the Architect shall have the right to include photographic and/or artistic representations
of the design of the Project among the Architect's promotional and professional material. The
Architect shall be given reasonable access to the completed Project to make such representations.
However,the Architect's material shall not include the Owner's confidential or proprietary information
if the Owner has previously advised the architect in writing of the specific information considered by
the Owner to be confidential or proprietary. The Owner shall provide professional credit for the
Architect in the Owner's (and all other City Agencies) promotional materials for the Project.
Section 9.6 Hazardous Materials. The following section is added:
9.6 Hazardous Materials. City acknowledges that Architect has no expertise in and is not
being retained for the purposes of investigating, detecting, abating, replacing, remediating or
removing any items,products,materials or processes containing hazardous substances. City hereby
agrees to bring no claim or suit for negligence, breach of contract, indemnity or any other cause of
action against Architect and/or its consultants arising out of the presence in any property or structure
that is the subject of services performed by Architect, of asbestos,asbestos-related materials, or any
other hazardous substance, in any form whatsoever, as defined by the Environmental Protection
Agency or any other public authority. City further agrees to require the General Contractor and/or
its subcontractors to indemnify, defend and hold Architect, its officers, directors, shareholders and
employees harmless from and against any such claims regarding the presence of hazardous
substances in any property or structure that is the subject of services performed by Architect.
Section 9.7 Latent Conditions. The following section is added:
9.7 Latent Conditions. Should the Work include any remodeling, alteration or
rehabilitation work, City understands and acknowledges that certain design and technical decisions
are made on assumptions based upon readily available documents and visual observations of
existing conditions. Architect shall not perform any destructive testing or opening of any concealed
portions of the Work to ascertain its actual conditions. Should Architect's and/or its consultants'
assumptions, made in good faith, prove incorrect, City agrees that Architect and its consultants shall
not be held responsible for the performance of the Work or for any additional work or costs required
to correct any ensuing problems based upon such good-faith assumptions.
Section 9.8 Construction Means and Methods. The following section is added:
9.8 Construction Means and Methods. Architect shall not have control over or charge of
-15- / 4 r4?
and shall not be responsible for construction means, methods, techniques, schedules, sequences,
procedures, fabrication, procurement, shipment, delivery, receipt or installation, or for safety
precautions or programs in connection with the work provided by the construction contractor or its
subcontractors since such are solely the construction contractor's and its subcontractor's
responsibility under the contract for construction. Architect is not responsible for the construction
contractor's or its subcontractor's failure to carry out the work in accordance with the Contract
Documents.
-16-
EXHIBIT"C"
SCHEDULE OF COMPENSATION
The services provided under this Agreement shall be performed for a fee, inclusive of any and all
reimbursable expenses, not to exceed Seventy Two Thousand One Hundred Dollars ($72,100),
subject to adjustment as provided for in Section 1.8.
The above sum shall be allocated among the scope of services categories as follows:
Schematic Design and Entitlements Submittals Phase 0%
Construction Documents Phase 60%
Construction Procurement Phase 10%
Construction Administration Phase 30%
Total Compensation 100%
Compensation forthe above sums shall be billed to the City on a monthly basis, based on the
percentage of work completed for the scope of services categories as outlined above.
19C 1
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EXHIBIT "D"
SCHEDULE OF PERFORMANCE
Items of Performance Time for Performance
1. Completion of Schematic Design and Entitlement On or Before April 30, 2003
Submittal Services
2. Completion of Construction Documents Services On or Before June 30, 2003
3. Completion of Construction Procurement Services On or Before July 15, 2003
4. Completion of Construction Administration On or Before October 31, 2003
It is understood that the foregoing Schedule of Performance is subject to all of the terms and
conditions set forth in the text of the Agreement. The summary of the items of performance in
this Schedule of Performance is not intended to supersede or modify the more complete
description in the text. In the event of any conflict or inconsistency between this Schedule of
Performance and the text of the Agreement, the text shall govern.
-18-
PALM SPRINGS DESERT JanrceL le,Ph.D.
MUSEUM Executive Director
ART•NATURALSCIENCE N PERFORMINGAWS
April 29, 2003
Mayor Will Kleindienst
City of Palm Springs
P.O. Box 2743
Palm Springs, Ca 92262
Dear Will,
I am pleased to indicate an interest on the part of the Palm Springs Desert Museum in a
presence at the City of Palm Springs Visitor Center in the Frey Tramway Gas Station.
The Museum would, of course, wish to continue to have its rack pieces and other
informational publications available to the public at the Visitor Center. Increased
visibility for the Museum, promoting it as a major Palm Springs attraction, is certainly a
goal.
In addition, the Museum has a collection of photographs of important modernist
structures in the desert taken by architectural photographer Julius Shulman from the
1940s forward. We may be able to do a small installation of those photographs within
the Frey building to enliance visitor awareness of this important architectural element in
our city.
I look forward to working with the city on this project.
incerely,
Janice Lyle, Ph.D.
Executive Director
JL:bw
cc: John Mich 1
1
P.O.Box 2310, 101 Museum Drive,Palm Springs,California 92263-2310 760/325-7156 760/327-5069 nnx
E-nanrc:info@psmtiseum.org WEEsreE:www.psmuseum.org
MINUTE ORDER NO.
APPROVING AN AGREEMENT WITH
MICHAEL E. FONTANA AND ASSOCIATES
TO PROVIDE CITY REPRESENTATIVE
SERVICES FOR CONSTRUCTION OF
IMPROVEMENTS AT THE NEW VISITOR'S
CENTER,AT AN HOURLY RATE OF$115.00
PER HOUR, FOR A TOTAL AMOUNT NOTTO
EXCEED $35,000.
I HEREBY CERTIFY that this Minute Order approving an
agreement with Michael E. Fontana and Associates to provide
City representative services for construction of improvements
at the new Visitor's Center, at an hourly rate of $115.00 per
hour, for a total amount not to exceed $35,000, was adopted
by the City Council of the City of Palm Springs, California, in a
meeting thereof held on the 301h of April 2003.
PATRICIA A. SANDERS
City Clerk
RESOLUTION NO.
OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS,CALIFORNIA, APPROVING
AN ARCHITECTURAL CONTRACT FOR THE
VISITORS CENTER REMODEL WITH
O'DONNELL + ESCALANTE, AND
APPOINTING A PROJECTADMINISTRATOR.
WHEREAS the City has recently purchased the "Tramway Gas Station" and is desirous of
remodeling it into a new Visitors Center; and
WHEREAS the firm of O'Donnell + Escalante has previouslybeen selected by City Council
to develop a plan for this facility,
NOW THEREFORE BE IT RESOLVED as follows:
Section 1. An Agreement with O'Donnell + Escalante of Architectural and Engineering
Services related to the new Visitors Center is hereby approved in an amount
not to exceed $64,000, including reimbursables; and
Section 2. The Executive Director — Airports is hereby appointed as the Project
Administrator with the authority to execute all project contract documents on
behalf of the City and with the authority to approve Change Orders up to
$39,000 on the project.
ADOPTED this_day of , 2003.
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED &APPROVED AS TO FORM
RESOLUTION NO.
OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS,
CALIFORNIA,AMENDING THE BUDGET FOR THE 2002-03
FISCAL YEAR.
WHEREAS Resolution 20357 approving the budget for the fiscal year 2002-03 was adopted
on June 5, 2002; and
WHEREAS the City Manager has recommended, and the City Council desires to approve,
certain amendments to said budget;
NOW THEREFORE BE IT RESOLVED that the Director of Finance is authorized to record
inter-fund cash transfers as required in accordance with this Resolution,and that Resolution
20357 adopting the budget for the 2002-03 fiscal year is hereby amended as follows:
SECTION 1. ADDITIONS
Fund Activity Account Amount
112 2016 50003 Bldg & Equip $64,000
Purpose to appropriate funds for architectural and engineering services for the new City
Visitors Center, former Tramway Gas Station
SECTION 2. SOURCE
Fund balance in Community Promotion Fund
Fund Activity I Account Amount
112 29301 $64,000
Adopted this day of April, 2003,
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED AND APPROVED