HomeMy WebLinkAbout4/23/2003 - STAFF REPORTS (3) DATE: April 23, 2003
TO: City Council
FROM: Director of Community and Economic Development
Director of Procurement and Contracting
VISITOR'S CENTER IMPROVEMENTS - CITY REPRESENTATIVE SERVICES
RECOMMENDATION:
It is recommended that City Council approve 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 $40,000.
SUMMARY:
This action would provide the City with experienced owner's representative services to manage
the Visitor's Center project.
BACKGROUND:
Michael E. Fontana&Associates is currently under contract to provide City Representative services
for Phase I of the Convention Center. Staff recommends that similar services be contracted for
the new Visitor's Center.
To accomplish this, it is proposed that a new contract be approved for the construction of
improvements at the new Visitor's Center providing for as needed services on an hourly basis at
$115.00 per hour, in a total amount not to exceed $40,000.
The proposed agreement is attached along with a Minute Order for City Council consideration. It
should be noted that the agreement form has been modified from the standard form in that the
insurance provisions are limited to auto and professional liability and the indemnification clause is
limited to the negligent acts of the contractor.
Funds for this work are available in the Visitor's Center account.
OH RAYM HAROLD E. GOOD
Director of Community and Economic Director of Procurement & Contracting
Development
APPROVED:
City Manager
Attachment: Contract Services Agreement REVIEWED BY DEn OF FINANCE
1 Minute Order
3h
CITY OF PALM SPRINGS
CONTRACT SERVICES AGREEMENT FOR
MICHAEL E. FONTANA& ASSOCIATES
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 and charter city, (herein "City') and MICHAEL E. FONTANA &
ASSOCIATES, a sole proprietorship, (herein "Consultant').
NOW, THEREFORE, the parties hereto agree as follows:
1.0 SERVICES OF CONTRACTOR
1.1 Scope of Services.
In compliance with all of the terms and conditions of this Agreement, the Consultant shall
perform the work or services set forth in the "Scope of Services" attached hereto as Exhibit "A"
and incorporated herein by reference. Consultant warrants that all work and services set forth
in the Scope of Services will be performed in a competent, professional and satisfactory
manner.
1.2 Compliance With Law.
All work and services rendered hereunder shall be provided in accordance with all
ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or
local governmental agency of competent jurisdiction.
1.3 Licenses Permits Fees and Assessments.
Consultant shall obtain at its sole cost and expense such licenses, permits and
approvals as may be required by law for the performance of the services required by this
Agreement.
2.0 COMPENSATION
2.1 Contract Sum.
For the services rendered pursuant to this Agreement, Consultant shall be compensated
in accordance with the "Schedule of Compensation" attached hereto as Exhibit "B" and
incorporated herein by this reference, but not exceeding the maximum contract amount of Forty
Thousand Dollars ($40,000) ("Contract Sum").
2.2 Method of Payment.
Provided that Consultant is not in default under the terms of this Agreement, Consultant
shall be paid monthly in accordance with the Schedule of Compensation.
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In the event the Consultant subcontracts any portion of the work in compliance with
Section 3.3. of this Agreement, the contract between the Consultant and each subcontractor
shall require the subcontractor to maintain the same policies of insurance that the Consultant is
required to maintain pursuant to this Section 4.1.
4.2 Indemnification. Consultant 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, including paying any legal costs, attorneys fees, or
paying any judgment (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
or services of Consultant, its agents, employees, subcontractor, or invitees, provided for herein,
or arising from the negligent acts or omissions of Consultant hereunder, or arising from
Consultant's negligent performance of or failure to perform any term, provision, covenant or
condition of this Agreement.
4.3 Sufficiency of Insurer or Surety. Insurance or bonds required by this
Agreement shall be satisfactory only if issued by companies qualified to do business in
California, rated "A" or better in the most recent edition of Best Rating Guide, the Key Rating
Guide or in the Federal Register, and only is they are of a financial category Class VII or better,
unless such requirements are waived by the Risk Manager or designee of the City Manager due
to unique circumstances. In the event the Risk Manager determines that the work or services to
be performed under this Agreement creates an increased or decreased risk of loss to the City,
the Consultant agrees that the minimum limits of the insurance policies required by this Section
4 may be changed accordingly upon receipt of written notice from the Risk Manager; provided
that the Consultant shall have the right to appeal a determination of increased coverage by the
Director of Procurement and Contracting to the City Council of City within ten (10) days of
receipt of notice from the Director of Procurement and Contracting.
5.0 TERM
5.1 Term. Unless earlier terminated in accordance with Section 5.2 below, this
Agreement shall continue in full force until November 14, 2003.
5.2 Termination Prior to Expiration of Term. Either party may terminate this
Agreement at any time, with or without cause, upon written notice to the other party. Upon
receipt of the notice of termination, the Contractor shall immediately cease all work or services
hereunder except as may be specifically approved by the Contract Officer. In the event of
termination by the City, Contractor shall be entitled to compensation for all services rendered
prior to the effectiveness of the notice of termination and for such additional services specifically
authorized by the Contract Officer and City shall be entitled to reimbursement for any
compensation paid in excess of the services rendered.
6.0 MISCELLANEOUS
6.1 Covenant Against Discrimination. Consultant 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
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of this Agreement. Consultant shall take affirmative action to ensure that applicants are
employed and that employees are treated during employment without regard to their race, color,
creed, religion, sex, marital status, national origin or ancestry.
6.2 Non-liability of City Officers and Employees. No officer or employee of the
City shall be personally liable to the Consultant, 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 Consultant or to
its successor, or for breach of any obligation of the terms of this Agreement.
6.3 Conflict of Interest. No officer or employee of the City shall have any
financial interest, direct or indirect, in this Agreement nor shall any such officer or employee
participate in any decision relating to the Agreement which effects his financial interest or the
financial interest of any corporation, partnership or association in which he is, directly or
indirectly, interested, in violation of any State statute or regulation. The Consultant warrants
that it has not paid or given and will not pay or give any third party any money or other
consideration for obtaining this Agreement.
6.4 Notice. Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person
shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of
the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM
SPRINGS, 3200 E. Tahquitz Canyon Way, Palm Springs, California 92262, and in the case of
the Consultant, to the person at the address designated on the execution page of this
Agreement.
6.5 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or against
either party by reason of the authorship of this Agreement or any other rule of construction
which might otherwise apply.
6.6 Integration• Amendment It is understood that there are no oral agreements
between the parties hereto affecting this Agreement and this Agreement supersedes and
cancels any and all previous negotiations, arrangements, agreements and understandings, if
any, between the parties, and none shall be used to interpret this Agreement. This Agreement
may be amended at any time by the mutual consent of the parties by an instrument in writing.
6.7 Severability. In the event that part of this Agreement shall be declared
invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such
invalidity or unenforceability shall not affect any of the remaining portions of this Agreement
which are hereby declared as severable and shall be interpreted to carry out the intent of the
parties hereunder unless the invalid provision is so material that its invalidity deprives either
party of the basic benefit of their bargain or renders this Agreement meaningless.
6.8 Waiver. No delay or omission in the exercise of any right or remedy by a
nondefaulting party on any default shall impair such right or remedy or be construed as a
waiver. A party's consent to or approval of any act by the other party requiring the party's
consent or approval shall not be deemed to waive or render unnecessary the other party's
consent to or approval of any subsequent act. Any waiver by either party of any default must be
in writing and shall not be a waiver of any other default concerning the same or any other
provision of this Agreement.
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6.9 Attorneys' Fees. If either party to this Agreement is required to initiate or
defend or made a party to any action or proceeding in any way connected with this Agreement,
the prevailing party in such action or proceeding, in addition to any other relief which may be
granted, whether legal or equitable, shall be entitled to reasonable attorney's fees, whether or
not the matter proceeds to judgment.
6.10 Corporate Authority. The persons executing this Agreement on behalf of
the parties hereto warrant that (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.
[End —Signature Page Follows]
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3.0 COORDINATION OF WORK
3.1 Representative of Consultant.
Michael E. Fontana is hereby designated as being the principal and representative of
Consultant authorized to act in its behalf with respect to the work and services specified herein
and make all decisions in connection therewith.
3.2 Contract Officer.
Harold Good is hereby designated as being the representative the City authorized to act
in its behalf with respect to the work and services specified herein and make all decisions in
connection therewith ("Contract Officer"). The City Manager of City shall have the right to
designate another Contract Officer by providing written notice to Consultant.
3.3 Prohibition Against Subcontracting or Assignment.
Consultant shall not contract with any entity to perform in whole or in part the work or
services required hereunder without the express written approval of the City. Neither this
Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of
law, without the prior written approval of City. Any such prohibited assignment or transfer shall
be void.
3.4 Independent Contractor.
Neither the City nor any of its employees shall have any control over the manner, mode or
means by which Consultant, its agents or employees, perform the services required herein,
except as otherwise set forth. Consultant shall perform all services required herein as an
independent contractor of City and shall remain under only such obligations as are consistent
with that role. Consultant shall not at any time or in any manner represent that it or any of its
agents or employees are agents or employees of City.
4,0 INSURANCE AND INDEMNIFICATION
4.1 Insurance. The Consultant 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) Business Automotive Insurance. A policy of comprehensive
business automobile liability insurance written on a per occurrence basis with a single limit
liability in the amount of $500,000 bodily injury and property damage. Said policy shall include
coverage for owned, non-owned, leased and hired cars.
(b) Professional Liability Insurance. Professional Liability Insurance in a
minimal amount of$1,000,000.
The Consultant agrees that the provisions of this Section 4.1 shall not be construed as
limiting in any way the extent to which the Consultant may be held responsible for the payment
of damages to any persons or property resulting from the Consultant's activities or the activities
of any person or persons for which the Consultant is otherwise responsible.
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IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as
of the date first written above.
CITY:
CITY OF PALM SPRINGS,
a municipal corporation and charter city
David H. Ready, City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
David J. Aleshire, City Attorney
CONSULTANT:
MICHAEL E. FONTANA &ASSOCIATES
By:
Name: Michael E. Fontana
Title: Owner
Address: 1276 N. Palm Canyon Drive
Suite #204
Palm Springs, CA 92262
By:
Name:
Title:
Address:
[End of Signatures]
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EXHIBIT "A"
SCOPE OF SERVICES
Consultant shall provide consulting services to City during the development and construction of
Visitor's Center improvements in accordance with the Agreement and the following terms and
conditions:
General:
1. Report to City on status of Project.
2. Coordinate the efforts of the design team.
3. Coordinate the bidding process.
4. Advise the City regarding the selection of contractors for both the demolition phase and
construction phase.
5. Assist the City in communicating with adjacent property owners during the demolition
and construction of the project.
6. Coordinate the flow of information between the contractor and the design team.
7. Conduct regular meetings with the design team, the contractor and the City's staff
representative.
8. Regularly review schedule and progress and report to the City.
9. Regularly review project budget and report to the City.
10. Make daily visits to the site to review progress and handle on site concerns.
11. Review all changes (change orders) to the project scope, schedule and budget and
report to the City.
12. Review all pay requests and make recommendations for payment.
13. Review all lien releases.
14. Continually work to build a mutually supportive team effort.
Delete Section 4.2 and replace with the following:
Indemnification:
It is also agreed that the Contractor will not be liable to the City, or to anyone who may claim
any right due to a relationship with the City, for any acts or omissions in the performance of
services under this agreement unless such acts or omissions are due to willful misconduct. The
City will indemnify and hold the Contractor harmless from any obligations, costs, judgments,
attorneys fees and attachments arising from, growing out of, or in any way connected with the
services rendered to the City under the terms of this agreement unless the Contractor is judged
by a court of competent jurisdiction to be guiltyof willful misconduct.
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EXHIBIT "B"
SCHEDULE OF COMPENSATION
Consultant shall be compensated at the rate of $115.00 per hour in an amount not to exceed
$40,000. Consultant shall be reimbursed for out-of-pocket expenses approved in advance by
the Contract Officer and substantiated by receipts, and for mileage at the approved IRS rate for
mileage driven out of the area, if any, in the performance of this Agreement but in no event to
and from Consultant's place of business. Consultant shall provide one copy of each report; the
cost of additional copies and any printing and/or reprographics shall be reimbursed at cost to
Consultant upon presentation of receipts therefor.
Consultant shall be paid monthly in accordance with the City's normal warrant procedures,
within 30 days after receipt of an invoice documenting the services performed. The invoice
shall be in the form approved by the Citys Finance Director.
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�� •
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, FORATOTALAMOUNTNOTTO
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
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
NOT TO EXCEED $40,000.
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 $40,000. was adopted by the City Council of the City of Palm
Springs, California; in a meeting thereof held on the 23' of April, 2003.
PATRICIA A. SANDERS
City Clerk
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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 $40,000
Purpose to appropriate funds for city representative services during construction and
remodeling for the new City Visitors Center, former Tramway Gas Station
SECTION 2. SOURCE
Fund balance in Community Promotion Fund
Fund Activity Account Amount
112 29301 $40,000
Adopted this day of April, 2003.
AYES:
NOES:
ABSENT:
ATTEST; CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED AND APPROVED
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