HomeMy WebLinkAbout4/16/2003 - STAFF REPORTS (8) DATE: APRIL 16, 2003
f
TO: CITY COUNCIL
FROM: DIRECTOR OF COMMUNITY& ECONOMIC DEVELOPMENT
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 $91,000 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 $9.1,000. Due to the preliminary nature of the current Schematic Design and
construction cost estimates, the contract requires a re-design of the project by the
architect if the final construction cost exceeds the current estimate of$737,000 by
more than 10%. Therefore, the contract also includes allowance for up to a 10%
increase in the contract amount, or $9,100, at the direction of the City Manager.
This additional amount would accommodate any required increase in architectural
and engineering fees should an increased construction budget be approved
following further refinement of the design and cost estimates. Under separate
action, the City Council will be asked to consider a construction supervision contract
with a general contractor similar to that utilized during construction of the downtown
parking garage to help streamline the required bidding of construction
subcontractors and to provide necessary oversight services during the aggressive
time frame allowed for completion of the project.
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. Due to the aggressive time
fine required to meet an October 2003 move-in, Council directed staff in late
November 2002 to begin working on securing an architect for the project.
4ev t
Following an informal RFQ process involving three local architects, the Council
approved an initial contract on January 29, 2003 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. Several meetings were held with
tourism and Tribal staffs, who currently occupy the existing Visitors Center, to
ascertain their space needs and operational concerns. Primary concerns have
included the fact that the current Visitors Center encompasses greater square
footage than the former gas station building and the less than adequate bathroom
facilities at both sites to adequately serve current and projected customer traffic.
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.
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 a trail system linking the building site to the City's entry sign north
of the site, plus an adjacent parking lot located just west of the Visitors Center
buildings with 37 parking spaces and 3 bus spaces. The parking lot and trail system
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 preliminary
construction cost estimate for the project is $737,000.
The fee for this second phase of architectural and engineering services and related
reimbursable charges for both phases totals $91,000, which is equal to 11% of
estimated construction costs, plus potential reimbursable charges equal to 10% of
total architectural and engineering fees. The subcontractors identified by the
architect for this project include Donald A. Wexler, AIA(design), RGA Landscapes,
Inc. (landscaping), Sanborn A & E (civil engineering) and Gary Wexler Design
(graphics, signage).
Due to the preliminary nature of the current Schematic Design and construction cost
estimates, the contract requires a re-design of the project by the architect if the final
construction cost exceeds the current estimate of$737,000 by more than 10%. The
contract also includes allowance for up to a 10% increase in the contract amount,
or $9,100, at the direction of the City Manager. This additional amount would
accommodate any required increase in architectural and engineering fees should
� A ;? ,
(?f-V 4
an increased construction budget be approved following further refinement of the
design and cost estimates.
JO N SRAYM fCom
iDir ty& Economic Development
APPROVE
City�Ianoer�
ATTACHMENTS:
1. Preferred Schematic Design Site Plan
2. Contract for Architectural Services
3. Minute Order
4. Budget Resolution
•f
v
h
jl
9
/ t
f
r
j m / o
13
m f
EY
p'ppNNE LL+ESGA LANTE
PRo.fEci IME, pRGH I TEGTS
9 MTDESGRIPi1W. 1� PALM 5PRINGS VI51TOR5 GENIER 131 PALFI SPRINCfiNLA9 363 J=2
I T� cl1Y ZIP
pPTE, m Fa'im 3�0:ie rr
5GnT Ei01EIpI O�h ZI EwniL.xa/J+em.ron
— 010103
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.
MUSEWCurtisMisitors Center\O+E Agreement 04.16.03.wpd
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
Officer to the Architect, 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
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 accepts the
risk that the services to be provided pursuant to the Scope of Services may be more costly or time
consuming than Architect 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 Ninety One Thousand Dollars ($91,000) (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
HAUSEWCurtisW\Visitors Center\O+E Agreement 04.16.03.wpd
-2-
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
i 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 (1") 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 Maieure. The time period(s)specified in the Schedule of Performance
for performance of the services rendered pursuant to this Agreement shall be extended because
of any delays due to unforeseeable causes beyond the control and without the fault or negligence
of the 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").
MUSERMurtisW\Visitors Center\O+E Agreement 04.16.03.wpd
-3- 114 q
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:
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
H:\USERS\CurtisW\Visitors Center\O+E Agreement 04.16.03.wpd
-4-
114 ?
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 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, priorto 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
RMERS\CurtisMvisitors Center\O+E Agreement 04.16.03.wpd
5 - A
i
appropriate insurance binders evidencing the above insurance coverages and said Certificates of
Insurance, endorsements, or binders are approved by the City.
i
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
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
H:MERMurtisW\Visitors Center\O+E Agreement 04.16.03.wpd
-6-
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 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. Architectshall periodically prepare and submitto the ContractOfficer
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 Officerto 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 forfurther 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.
HAUSEWCurtisMisitors Center\0+E Agreement 04.16.03.wpd
-7-
7h ��
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.
7.2 Disputes. In the event of any dispute arising underthis Agreement,the injured
party shall notify the injuring party, in writing, of its contentions by submitting a claim therefor. The
injured party shall continue performing its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of service of such notice and completes the
cure of such default within forty-five (45) days after service of the notice, or such longer period as
may be permitted by the injured party; provided that if the default is an immediate danger to the
health, safety and general welfare, such immediate action may be necessary. Compliance with the
provisions of this Section shall be a condition precedent to termination of this Agreement for cause
and to any legal action, and such compliance shall not be a waiver of any party's right to take legal
action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the
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.
RMEWCurtisW\Visitors Center\O+E Agreement 04.16.03.wpd
-� R/ A
7.6 LegalAction. 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
termination of this Agreement except as specifically provided in the following Section fortermination
for cause. The City reserves the right to terminate this Agreement at any time, with or without
cause, upon thirty(30)days written notice to 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 may be 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
Architectto fulfill its obligations underthis Agreement,City may,aftercompliance 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.
HMSERStCurtisW\Visitors Center\0+E Agreement 04.16.03.wpd
-9-
7d13
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 oflnterest. 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,
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,orancestry 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
HAUSEWCurtisMisitors Center\O+E Agreement 04.16.03.wpd
-10-
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.
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
-11 � /S�
EXHIBIT"A"
SCOPE OF SERVICES
Forthe 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 and security system.
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. Prepare 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
-12 --� / / [ �
documents the Architect during this phase shall:
A. Provide technical and on-site evaluations of the progress and quality of the Work executed
by the Contractor in order to verify Contractor's schedule and payments.
B. Provide coordination of appropriate construction documentation with the Contractor on
behalf of the Owner.
C. Conduct 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.
VI. Post Occupancy Evaluation:
With the intention of ensuring the facility accommodates staff needs and services, the
Architect during this phase of the project shall:
A. Conduct meetings at the Visitors Center with Owner and staff, in order to ensure maximum
functionality and use.
B. Work with the Owner and staff on opportunities for changing interior and exterior displays
in a manner consistent with the building's modern architecture.
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 seven hundred thirty-seven thousand dollars($737,000)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 maybe 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, orfor 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 forwhom Architect has obligated itself underthis Contract,whether or not
contributed to by any act or omission of City or any of the City's Boards, officers or
employees. (j
-14 �-'/0
i
5.25 City Held Harmless-Professional Liability. Architect undertakes and agrees to
indemnify and hold harmless City, and any and all of City's Boards, officers and
employees, from and against all losses and expenses, including, but not limited to,
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'
15- � � / �
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 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.
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 ninety one thousand dollars($91,000),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 50%
Construction Procurement Phase 10%
Construction Administration Phase 30%
Post Occupancy Evaluation Phase 10%
Total Compensation 100%
Compensation for the 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.
-17 -7 A v1 /
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
5. Completion of Post Occupancy Evaluation On or Before December$1, 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- -7 4 �,�
MINUTE ORDER NO.
APPROVING A CONTRACT SERVICES AGREEMENT FOR
ARCHITECTURAL AND ENGINEERING SERVICES WITH
O'DONNELL + ESCALANTE ARCHITECTS FOR NEW
VISITORS CENTER LOCATED AT 2901 NORTH PALM
CANYON DRIVE, THE FORMER TRAMWAY GAS STATION
• I HEREBY CERTIFY that this Minute Order, approving a Contract Services Agreement for
Architectural and Engineering Services with O'Donnell +Escalante Architects for the City's
new Visitors Center at 2901 North Palm Canyon Drive, in an amount not to exceed $91,000
including reimbursable expenses, in a form acceptable to the City Attorney, was approved
by the City Council of the City of Palm Springs, California, in a meeting thereof held on the
16'h day of April 2003.
PATRICIA A. SANDERS
City Clerk
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 $91,000
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 Account Amount
112 29301 $91,000
Adopted this day of April, 2003,
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED AND APPROVED