Loading...
HomeMy WebLinkAbout04634 - ODONNELL ESCALANTE ARCHITECTS VISITOR CENTER FREY O'Donnell + Escalante Architects Visitors Center Remodel AGREEMENT#4634 MO 7246, 1-29-03 CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT FOR ARCHITECTURAL DESIGN SERVICES THIS CONTRA�T SERVICES AGREEMENT (herein "Agreement"), is made and entered into this day of Viin,,a + f , 2003, by and between the CITY OF PALM SPRINGS, a municipal corpo ation, (he in "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 CONTRACTOR 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 that it is experienced in performing the work and services contemplated herein, and that it can and will at all times perform hereunder in a first class, professional manner, meaning that Architect's services shall be satisfied in accordance with standards of practice recognized for architectural firms of similar size, quality, experience and expertise as Architect, 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 applicable 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 A Licenses, Permits, Fees and Assessments. Architect shall obtain at its sole cost and expense such professional licensees, permits and approvals as may be required by law to perform the professional services required of Architect by this Agreement. Architect shall assist the general contractor in, but not be responsible for, obtaining building permits. 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. Community&Economic Development v.l UM�"""T Ar, 1.5 Familiarity with Work. By executing this Contract, Architect represents 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 represents 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, its employees, consultants and subcontractors shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to Architect's work, materials, papers, documents, plans, studies and/or other instruments of Architect's services 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 or its employees, other contractors or other consultants, or its 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 $5,000; 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 to those services that are reasonably necessary for the completion of the services within the Scope of Services. 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. Community&Economic Development v.1 -2_ 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 of 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 Eighteen Thousand Dollars ($18,000) (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 not exceeding the Contract Sum or (iv) such other methods as may be specified in the Schedule of Compensation. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expense, transportation expense approved by the Contract Officer in advance, and no other expenses and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Architect at all project meetings that Architect is reasonably notified of and that are reasonably deemed necessary by the Contract Officer, the Project Manager or the City Manager; 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 (1st) 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 and Architect understands that it shall perform its services in a prompt and efficient manner pursuant to the terms hereof. 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 Community&Economic Development v.1 _3_ 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 knowledge 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: 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, California 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 Community&Economic Development v.1 -4_ 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 Community&Economic Development v.1 _5 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) Comprehensive General Liability Insurance A policy of comprehensive general liability insurance written on a per occurrence basis. The policy of insurance shall be in an amount not less than either (i) a combined single limit of $1,000,000 for bodily injury, death and property damage or (ii) bodily injury limits of $500,000 per person, $1,000,000 per occurrence and $1,000,000 products and completed operations and property damage limits of$500,000 per occurrence (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both the Architect and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Architect in the course of carrying out the work or services contemplated in this Agreement. (c) Automotive Insurance. A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of $500,000 per person and $1,000,000 per occurrence and property damage liability limits of $250,000 per occurrence and $500,000 in the aggregate or (ii) combined single limit liability of $1,000,000. Said policy shall include coverage for owned, non-owned, leased and hired cars. (d) Additional Insurance. Policies of such other insurance, including professional liability insurance, as may be required in the Special Requirements. All of the above policies of insurance shall be primary insurance and shall name the City, its officers, employees and City Attorneys' office as additional insureds, except Community&Economic Development v.l -6- that the City shall not be named as an additional insured for the Worker's Compensation Insurance nor the Professional Liability Insurance. The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) days prior written notice by registered mail to the City. In the event any of said policies of insurance are canceled, 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 or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. Except for the Worker's Compensation and Professional Liability Insurance, all certificates shall name the City as additional insured (providing the appropriate endorsement), be signed by an authorized agent of the insurer, and shall contain the following "cancellation" notice: CANCELLATION: Should any of the above described policies be cancelled before the expiration date thereof, the issuing company shall mail an advance 30-day written notice to the Certificate holder named herein." 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 persons 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 policies of insurance that the Architect is required to maintain pursuant to this Section 5.1. 5.2 Indemnification. See Exhibit "B". 5.3 Performance Bond. See Exhibit "B". Community&Economic Development v1 -7_ 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 Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the City Manager or designee of the City ("City Manager") due to unique circumstances. In the event the City 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 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. 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 reasonable 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. City acknowledges the drawings, specifications and other documents prepared by Architect, its employees, subcontractors and consultants pursuant to this Agreement are instruments of professional service ("Instruments"). Upon payment in full of all undisputed monies due architect, the Instruments shall become the property of City. Architect shall have no Community&Economic Development vl _8_ claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the Instruments; provided, however, that any modification of the Instruments or use for other projects for which Architect is not retained and does not provide professional services shall be at City's sole risk and without liability to Architect, and shall require the removal of Architect's title block and indicia from the Instruments unless otherwise agreed in writing by Architect. City shall indemnify and hold harmless Architect, its officers, directors and employees from and against any loss, damage, liability, claims, demands, suits and expenses, including but not limited to reasonable attorneys'fees and costs, resulting from use of the Instruments as aforementioned, without agreement in writing from Architect. 6.4 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. 6.5 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. However, upon City approval of the final design and scope of work, the Architect shall have rights pursuant to Section 6.4. 7.0 ENFORCEMENT OF AGREEMENT 7.1 Interpretation: 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, as prepared by both parties hereto. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and 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 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 Community&Economic Development v.1 -9_ 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 are 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. Notwithstanding anything in this Agreement to the contrary, Architect does not waive, relinquish or release any claims or rights it may have to any amounts deducted hereunder, and shall be entitled to seek recourse for collection against City for any amounts deducted (i) the payment of which should not have been disputed and/or (ii) are not necessary to compensate City for any losses, costs, liabilities or damages, either suffered by City or for which City is liable to third parties, by reason of Architect's acts or omissions in connection with this Agreement. 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 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. 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. Community&Economic Development v.l _t O_ 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 Damacies. 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"Do). 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 for termination for cause. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days' written notice to 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 upon, 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 such 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 such 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 Community&Economic Development v.t 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 i 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 knowingly 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, or ancestry in the performance of this Agreement. Architect shall take affirmative action so 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, Community&Economic Development v.1 -12- first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in the case of the Architect, to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 Integration: Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. 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 Community&Economic Development v.1 -13- 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. 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. 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. [SIGNATURE PAGE FOLLOWS] Community&Economic Development v.1 -14- IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. ATTEST: CITY OF PALM SPRINGS, CALIFORNIA City Jerk 3� 3 l� City Manager - � i Wirer J�1'"Y+tj l3ailn 3ju { D-V IV I (M 1i e>S I✓'v+'11? "I CONTRACTOR: O'DONNELL + ESCALANTE ARCHITECTS (Check One: individual, _partnership, _ corporation) (NOTARIZED) `"�� ignature La e C O'Donnell AIA P int Name andIt' (NOTARIZED) g , Sign ture Ana Maria Escalante-Lentz AIA Print Name and Title Mailing Address: 121 South Palm Canyon Drive Suite 222 Palm Springs CA 92262 (Corporations require two signatures; one from each of the following:A. Chairman of Board, President, any Vice President; AND B. Secretary,Assistant Secretary,Treasurer,Assistant Treasurer, or Chief Financial Officer.) Community&Economic Development v.1 -15- 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, which services shall include the following: I. Pre-Design Services: With the intention of clarifying the project program and goals, role responsibilities, methods of communication and the establishment of a detailed schedule, the Architect's services will include the following: A. Administrative Organization: 1. Review the requirements of all public agencies having jurisdiction over the project. 2. Carefully review and analyze all documents, provided by the Owner, including the final programming document. 3. Through conferences with the Owner and the entire design team, develop a protocol for the distribution of information and general communication. B. Data Gathering: 1. Tour the Visitor Center. Document existing conditions photographically. 2. Collect existing information including; drawings, specifications and reports regarding the Visitor Center. 3. Collect existing utility information including sewer/septic information from the City data or"as-builts." 4. Interview Tourism staff in evaluating audio/visual needs, office and restroom needs, retail requirements, and telephone/Internet requirements. 5. Develop a comprehensive list of existing deficiencies to be addressed in the expansion and an approach to bringing the building and site to a useful state and City standards. 6. Conduct the focus groups identified at a kick-off meeting and interview other stakeholders and potential users of the facility in order to establish an architectural program. Community&Economic Development v.1 -16- C. Site Evaluation: 1. Assist the City's staff to analyze existing traffic patterns, access and circulation - vehicular and pedestrian — at peak and non-peak times for inclusion in entitlement actions, Make recommendations for future expansion and adjacent Master Plan development. (The Property has been included in a draft master plan study —"Master Plan"-- for development of a large mixed commercial, office and residential development on the Property. The Master Plan has not at the present time been reviewed or approved through the City's planning process. The City and the Seller desire to keep the landscaping and public improvement or common areas in and around the Property as part of the integrated Master Plan for the Plan Area and intend to cooperate in a reciprocal access and easement agreement at such time as the remainder of the Plan Area is approved and developed.) Note: A traffic engineering study is not foreseen as part of this proposal unless done as an additional service. 2. Assist the City's staff in their analysis of the historic parking demand experienced by the current Visitor Center and project how the new Center will be impacted by the expansion for inclusion in entitlement actions. 3. Evaluate functions at the current Visitor Center and establish goals for future servicing of the new Visitor Center. 4. Evaluate existing landscape at the site (Tramway Gas Station) and establish standards for future landscape development. 5. Research the existing utilities and related capacities, including the issue of sewer service. I Schematic Design Services: With the intention of establishing the design of the project, the Architect's services during this phase of the project will include the following: A. Develop various alternative "conceptual" site plans for review by the Owner and the various public agencies having review over the project. B. Provide technical and clerical assistance to the Owner in submitting the documents required for public review and approval. C. Based upon the approved space program and requirements as provided by the owner and the approved site plan prepared by the Architect, the Architect shall Community&Economic Dmlopmant v.1 -17- prepare a conceptual floor plan for review and approval by the Owner. Through conferences with the Owner, coordinate the functional and circulations aspects of the approved conceptual plan. D. Prepare a preliminary schematic design package for Owner review and approval including: 1. Site Plan. 2. Floor Plan. 3. Exterior Elevations and/or sketches. 4. Site and Building Section, as required per City agencies. Community&Economic Development v.l -18- EXHIBIT "B" SPECIAL REQUIREMENTS 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 5.2 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 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. A policy of professional liability insurance shall be provided on a per occurrence basis with a single limit liability in the amount of five hundred thousand($500,000) dollars per claim & aggregate. Community&Economic Development¢i -19- The total aggregate liability of the Architect and the Architect's consultants shall not exceed the Architect's total fee for services rendered on this project. Section 5.3 Performance Bonds are hereby waived. Community&Economic Development U -20- EXHIBIT "C" SCHEDULE OF COMPENSATION Services for Pre-Design and Schematic Design under this Agreement shall be performed on an hourly basis not to exceed eighteen thousand dollars ($18,000), per the following schedule: 1.1.1 Hourly Rates: Principal Architect $1201hr Senior Designer/Project Manager $901hr Sr. Technical Staff $751hr Intermediate Technical Staff $65/hr Technical Staff $55/hr Clerical Staff $45/hr The total sums billed by Architect to the City shall not exceed eighteen thousand ($18,000) dollars, inclusive of any and all reimbursable expenses. Community&Economic Development v.1 -21- EXHIBIT "D" SCHEDULE OF PERFORMANCE Items of Performance Time for Performance 1. Start Scoping/Design Work Upon Notice to Proceed 2. Completion of Pre-Design Services On or Before March 19, 2003 3. Completion of various alternative On or Before March 19, 2003 "conceptual" site plans (Schematic Design Item II.A.) 4. Completion of remaining Schematic On or Before April 30, 2003 Design Items 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. Community&Economic Development v.1 -22- Client#: 6077 ODONNESCA DATE Aw-Rnr CERTIFICATE OF LIABILITY INSURANCE 02/04/20031rr) PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Dealey,Renton &Associates ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE P. O. Box 10550 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Santa Ana, CA 92711-0550 714 427-6810 INSURERS AFFORDING COVERAGE INSURED INSURER A:United States Fidelity &Guaranty O'Donnell + Escalante Architects o . INSURER B:Security_Ins. Co. of Hartford' 121 So. Palm Canyon Dr. #222 INSURER - -� c: Palm Springs, CA 92262 INsuRER D: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD`INDICAT.ED.;NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS 6ERT1FICpTE'MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. I NSF[ POLICY FIE CTIVE POLICY EXPIRATION LIMITS LTH TYPE OF INSURANCE POLICY NUMBER DATE MM/DD/YY DATE MMIDD/YY A GENERAL LIABILITY BKO1136573 06/09/02 06/09/03 EACH OCCURRENCE _ $500 OOO X .,COMMERCIAL GENERAL LIABILITY , FIRE DAMAGE(Anyone Flre s500000 _] CLAIMS MADE IX OCCURI MEi DEXP(Any oneperson) $10001 O PERSONAL&ADV INJURY $500,000 GENERAL AGGREGATE $1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OPAGG $1,000,000 POLICY I PJECTRO- -- LOC A IAU,CMOBILELIABILITY BKO1136573 06/09/02 06/09/03 COMBINED SINGLE LIMIT $SOO,000 (Ea accltlent) ANVAUTO I _ jALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS I (Per person) HIRED AUTOS BODILY IN J URY $ X NON-OWNED AUTOS (Peraccltlent) _. PROPERTY DAMAGE $ (Per accltlent) GARAGE LIABILITY _AUTO ONLY-EAACCIDENT $ _ iANYAUTO OTHER THAN EAACC $ _ AUTO ONLY. AGO $ EXCESS LIABILITY _ EACH OCCURRENCE OCCUR CLAIMS MADEI AGGREGATE _$ ,$ DEDUCTIBLE __ —__ _ RETENTION $ I $ IT- WORKERS COMPENSATION AND _ TOA11.AlMLTSL—ER� EMPLOYERS'LIABILITY IE.L.EACH ACCIDENT E.L.DISEAS_E-EAEMPLOYEE $ _ E.L.DISEASE-POLICYLIMI $ B OTHER Professional SAE0302904 06/09/02 06/09/03 $500,000 per claim Claims Made $500,000 arm agg �Retro Dt: 619/95 $5,000 ded per claim DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/EXCLUSIONS AD BE D BY ENDORSEMENTISPECIAL PROVISIONS General Liab policy excludes claims arising out of the performance of professional srvcs Re: Architectural operations by Named Insured for New Visitors Center, Palm Springs City of Palm Springs, its officers, employees and City's Attorney office are named as additional insured on General Liability CERTIFICATE HOLDER ADDMONALINSUREDpNSURER LETTER: _ CANCELLATION Ten Day Notice for Non-Payment of Premium SHOULD ANYOFTHEABOVE DESCRIBED POLICIES BE CANCELLED BEFORETHE EXPIRATION City of Palm Springs DATETHEF)EOF,THE ISSUING INSURERWILLVM)1XQIXAOMAIL*30_—DAYSWRITTEN City Hall NOTICETOTHE CERTIFICATE HOLDER NAMED TOTHE LEFT,BXR%Xx=)WxX1WAXXxxX 3200 E.Tahquitz Canyon Way xtecosxxt�oaUOTsixDCIXKo7xlc)UaXltolwiaNp:rntaNZNetxvpofmt�o7can7azxRrXx Palm Springs, CA 92262 X+1E RR%%7AXIIM%. 11 AUTHOgIZED REPRESENTATIVE 14 ACORD 25-S(7/97)1 of 1 #M75413 KAH 0 Ac CORPORATION 1988 Policy Number: 13xo1136573 Owners Lessees or Contractors (Form B) ADDITIbNAL INSURED Change(s) Effective: 02/04/2003 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance policy under the following: LIABILITY COVERAGE PART: Schedule Name of Person or Organization: City of Palm Springs City Hall 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 SECTION II - WHO IS AN INSURED is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of "your work" for that insured by or for you. PRIMARY INSURANCE : IT IS UNDERSTOOD AND AGREED THAT THIS INSURANCE IS PRIMARY AND ANY OTHER INSURANCE MAINTAINED BY THE ADDITIONAL INSURED SHALL BE EXCESS ONLY AND NOT CONTRIBUTING WITH THIS INSURANCE . SEVERABILITY OF INTEREST: IT IS AGREED THAT EXCEPT WITH RESPECT TO THE LIMIT OF IN_SURA_NCE, _ THIS COVERAGE SHALL APPLY AS IF EACH ADDITIONAL INSURED WERE THE ONLY INSURED AND SEPARATELY TO EACH INSURED AGAINST WHOM CLAIM IS MADE OR SUIT IS BROUGHT. WAIVER OF SUBROGATION: IT IS UNDERSTOOD AND AGREED THAT THE COMPANY WAIVES THE RIGHT OF SUBROGATION AGAINST THE ABOVE ADDITIONAL INSURED (S) , BUT ONLY AS RESPECTS THE JOB OR PREMISES DESCRIBED IN THE CERTIFICATE ATTACHED HERETO. CL/BF 22 40 03 95 p •' '� CraVL c va G TILE ABIMED ACORD CERTIFICATE OF LIABILITY INSURANCE February 4 2003 Pa.deer THIS CFRIIFICATEISISSUED AS AMATTER OF 210705 INFORMATION ONLYAND CONFERS NO RIGHTS UPON Paycbex Itie1MII01 THE CERTIFICATE HOLDER THIS CERTHICATE Ile Hatbmd DOES NOT AMEND,EXTEND OR ALTERTHE COVERAGE 305 Famimoon Averse AFFORDED BY THE POLICIES BELOW. Fatminesn,Cr 06032-190 lunned I..Afforft C.veew c LANCE ODONNEIL&ANAESCACANIEIECPS Emmeur A: HastlmdFuelmmace Crmpaey DBAODONNEILPLUSFSCAIANTEARCMTECIS E..B- I21 S PALM CANYON DR STE 222 Emma C PAIMSPRINGS,CA Emma D: 92262 F..760320-7397 "gjE THE POLICIES OF INSURANCEUSUMB WHAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACTOR GMER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SURIECI TO AELTHE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICES.AGGREGATE LIMITS SHOWN MAY HAW BEEN REDUCED BY PAID CLAIMS. General Lltb=y Baser. Limit. ComvGil C>snl Liability FacEOraysenoo: S Qais Made: Fme Damapp(.ryomfie): L Ocom: Med Esp se(my oa pasou): $ Palley Nambn: Personal&Adv Lability: $ Policy Effective Dak: General AWcg e: _ Policy Ezpim D.te: Paoducb-Comp/Op AM $ Goner.l AWeVk Limit Applies Pet: Policy: PmjaE LDC: Amlamobile L.blty lm.er. LdLa Any Ano: Comb She Limit(,.accident): $ Al Owned Amur: Romy lnjmy(Pea Pema-): $ Scle(lWed Auks: Bodily h4ta Pet Accident): $ HitedAmos: Pmpedy Damag(Pa Arctdert): $ Nov Owned AWm: Policy Numbes: Policy E0kctbo Date: Poli ivtionDak: Gavle L.bOily I... Cldla A,Aub: Amb Only-EA.A tide , Policy Navix: Olbea Tim Auk,Only: PolityEffective Dak: EAACcident; : Policy Eapitation Dak: A�egale: $ X. .LJ b lty Immer. L4mI. Occur.: Each Ocean.: S Cl.ims Made: AffiB+le: _ Deductible- Retention, j Policy Numd a: Policy Effective Due: P.H intionDak: WoMee.C.mWemtlom =77�KK70H)952 Lmit. &BRgwy.e.LdNtyWC SbtWory Limits: X Ober: Paliry Nmnlrm: E.LEacbAcciatt: 51,000,M0.00 PolicyFikctiveDak: ELDise.-FAF.VIaee: $1,000,000.00 PolicyPapiuumoD.k: E.L Dtsease-Pan—Limit $1,000,000.00 De.cdpHon of.peas[bur/locatlomhebicl<a/eaEd.m.ddrd by end0nemevhpedd Pmvislom: ARCHITECIVAL SERVICES AT VARIOUS LOCATIONS Ces .te Holder Camclat/om ATIN:KURT WATTS Slamld anT.f lie above dvcmibed policies be r..,kd belo a Ibe CITY OFPAEM SPRINGS capitation tlak tbeseof,for issuing immea will endeavour b ml 10 days DEFT OF COMbI1NLIY&ECONOMIC DEVE-OPMENT woi mortice b fl.ceatiLcde lmldet named b[bekk but failme b do 3200ETAHQUITZCANYONWAY no sball impure m obligation our liability of kind upon[k imma,its PALM SPRINGS,CA 92262 ageotom tepmseat.tivice. Fv:760 3M-5375 Rele a ce Number.0034-OSSEP02 AVIHIX2®REPRESENTATIVE: