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HomeMy WebLinkAbout00256C - KARIOTIS ASSOCIATES PLAZA THEATER SEISMIC ANALYSIS Kariotis & Associates Seismic Analysis-Plaza Theater AGREEMENT #256 R735, 11-7-90 CONTRACT SERVICES AGREEMENT FOR KARIOTIS & ASSOCIATES THIS AGREEMENT FOR CONTRACT SERVICES (herein "Agreement" ) , is made and entered into by and between the PALM SPRINGS REDEVELOPMENT AGENCY (herein "City" ) , a public entity and KARIOTIS & ASSOCIATES (herein "Consultant" ) . The parties hereto agree as follows: 1.0 SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Consultant 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 . Consultant warrants that all services will be performed in a competent, professional and satisfactory manner in accordance with the standards prevalent in the industry, and all materials will be of good quality, fit for the purpose intended. 1.2 Consultant 's Proposal. The Scope of Services shall include the Contractor ' s proposal or bid as detailed in Consultant ' s letter of October 11, 1990, 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 and in effect at the time service is rendered. 1.4 Licenses, Permits, Fees and Assessments. Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement . Consultant 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 Consultant ' s performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes -1- 0 a CONTRACT SERVICES AGREEMENT penalties or interest levied, assessed or imposed against City hereunder . 1.5 Familiarity with Work. By executing this Contract, Consultant warrants that Consultant (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, Consultant warrants that Consultant 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 Consultant discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant ' s risk until written instructions are received from the Contract Officer . 1.6 Care of Work. The Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages 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 request extra work or request 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 Consultant, 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 Consultant . -2- 0 a CONTRACT SERVICES AGREEMENT 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, the Consultant shall be compensated in accordance with the "Schedule of Compensation" attached hereto as Exhibit "B" and incorporated herein by this reference, but not exceeding the maximum contract amount of Thirteen Thousand Eight Hundred Twenty-Five Dollars ( $13,825 . 00) (herein "Contract Sum" ) , except as provided in Section 1.8. The method of compensation shall be monthly progress payments in accordance with the percentage of completion of the services specified in Exhibit A. 2.2 Method of Payment. Unless some other method of payment is specified in the Schedule of Compensation (Exhibit B) , in any month in which Consultant wishes to receive payment, no later than the fifth ( 5th) working day of such month, Consultant 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 Consultant 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. Consultant 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 "C, " if any, and incorporated herein by this reference. When requested by the Consultant, 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 (Exhibit "C" ) 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 Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, -3- 0 CONTRACT SERVICES AGREEMENT earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall within ten (10) days of the commencement of such delay notify the Contracting Officer in writing of the causes of the delay. The Contracting 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 Contracting Officer such delay is justified. The Contracting Officer ' s determination shall be final and conclusive upon the parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant ' s sole remedy being extension of the Agreement pursuant to this Section. 3.4 Term. Unless earlier terminated in accordance with Section 7 . 5 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) year from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit C) . 4.0 COORDINATION OF WORK 4.1 Representative of Consultant. The following principals of Consultant are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: John Kariotis, SE, President Michael Krakower, SE, Corporate Secretary 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 Consultant 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 Consultant without the express written approval of City. -4- i 0 CONTRACT SERVICES AGREEMENT 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the Executive Director of City. It shall be the Consultant ' s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Consultant 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 Assign- ment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant 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 Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer , including in any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release any surety of Consultant of any liability hereunder without the express consent of City. 4.4 Independent Consultant. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth. City shall have no voice in the selection, discharge, supervision or control of Consultant ' s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent Consultant with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in -5- 0 f CONTRACT SERVICES AGREEMENT any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Consultant shall procure and maintain, at its cost, comprehensive general liability and property damage insurance, including automobile and excess liability insurance, against all claims for injuries against persons or damages to property resulting from Consultant ' s negligent acts or omissions rising out of or related to Consultant ' s performance under this Agreement. Consultant shall also carry Workers ' Compensation Insurance in accordance with State Workers ' Compensation laws . The Contract Officer may require professional liability insurance in such amount as the Contract Officer deems appropriate. The requirements herein for subrogation may be waived by the Contract Officer with respect to such professional liability insurance. The insurance required hereunder shall be kept in effect during the term of this Agreement and shall not be subject to reduction in coverage below the limits established herein, nor cancellation nor termination without thirty ( 30) days ' prior written notice by registered letter to City. The insurer shall waive the right of subrogation against City, its officers, employees and agents, and the coverage shall be primary for losses arising out of Consultant ' s performance hereunder and neither the City nor its insurers shall be required to contribute to any such loss . A certificate evidencing the foregoing and naming the City as an additional insured shall be delivered to and approved by the City prior to commencement of the services hereunder . The procuring of such insurance or the delivery of policies or certificates evidencing the same shall not be construed as a limitation of Consultant ' s obligation to indemnify the City, its officers and employees. The amount of insurance required hereunder shall be determined by the Contract Sum in accordance with the following table: -6- CONTRACT SERVICES AGREEMENT Coverage (personal Contract Sum injury/property damage) Less than $25,000 $100,000 per individual $300,000 per occurrence $25,000 - $50 ,000 $250,000 per individual $500, 000 per occurrence Over $50,000 $500,000 per individual $1,000 ,000 per occurrence 5.2 Indemnification. Consultant agrees to indemnify the City, its officers 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 Consultant, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of Consultant hereunder . In connection therewith: (a) Consultant 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) Consultant will promptly pay any judgment 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 such work, operations or activities of Consultant hereunder; and Consultant 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 is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of the work, operation -7- • 0 CONTRACT SERVICES AGREEMENT or activities of Consultant hereunder , Consultant 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 reasonable attorneys ' fees . 6.0 RECORDS AND REPORTS 6.1 Reports. Consultant 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. 6.2 Records. Consultant shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three ( 3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Consultant, 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, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Consultant will be at the City' s sole risk and without liability to Consultant, and the City shall indemnify the Consultant for all damages resulting therefrom. Consultant may retain copies of such documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Consultant fails to secure such -8- • CONTRACT SERVICES AGREEMENT assignment, Consultant shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Consultant 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 or Orange, State of California, or any other appropriate court in such counties, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 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. 7.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.4 Leval 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, -9- 0 CONTRACT SERVICES AGREEMENT or to obtain any other remedy consistent with the purposes of this Agreement. 7.5 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 Consultant, except that where termination is due to the fault of the Consultant, the period of notice may be such shorter time as may be determined by the Contract Officer . In addition, the Consultant 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 Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer . Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation (Exhibit "B" ) or such as may be approved by the Contract Officer . 7.6 Termination for Default of Consultant. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may take over the work and prosecute the same to completion by contract or otherwise, and the Consultant 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 Consultant for the purpose of setoff or partial payment of the amounts owed the City as previously stated. 7.7 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 -10- 0 0 CONTRACT SERVICES AGREEMENT which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor , or for breach of any obligation of the terms of this Agreement . 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 Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement . 8.3 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement . Consultant 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, docu- ment, 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 Executive Director and to the attention of the Contract Officer, PALM SPRINGS REDEVELOPMENT AGENCY, P.O. Box -11- CONTRACT SERVICES AGREEMENT 2743, Palm Springs, California 92263-1786, and in the case of the Consultant, 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 effect 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. -12- • CONTRACT SERVICES AGREEMENT IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date stated below for execution by the Mayor . "CITY" PALM SPRINGS REDEVELOPMENT AGENCY Dated: /` �rG� By. Agency Chairperson Dated: `'-%J ° �' By: «( Executive Director ATTEST: / Executive Secretary APPROVED AS TO FORM: RUTAN & TUCKER Fes=- David A eshire Agency 40unsel -13- • 0 CONTRACT SERVICES AGREEMENT "CONSULTANT" KARIOTIS & ASSOCIATES Dated: fr nL� r� Pt By: Name Address : Kariotis & Associates Structural Engineers 711 Mission Street, Suite D South Pasadena, CA 91030 8/355/014084-0002/007 11/13/90 -14- • CONTRACT SERVICES AGREEMENT EXHIBIT "A" SCOPE OF SERVICES Consultant shall provide engineering services as follows: 1 . Plan a test program to determine the compressive strength of the existing concrete at the Plaza Theatre. 2 . Plan a test program to determine the compressive modulus and in-place shear strength of the masonry infills . 3 . Arrange for testing services and observe testing of block material from the Plaza Theatre. 4 . Conduct seismic analysis of the infill of building based on research and tentative methods developed by the Hazardous Building Committee of the Structural Engineers Association of Southern California. 5 . Make reproducible drawings from existing structural drawings to describe the supplemental structural strengthening system for the use of the cost estimator . 6 . Perform the seismic analysis and file reports of the results of the seismic analysis to the City. 7 . Make recommendations for strengthening of the structure. 8. Coordinate the proposed strengthening procedures . -15- i 9 CONTRACT SERVICES AGREEMENT 9 . Provide consultation with the City and the cost estimator to determine schematic costs of recommended strengthening work . -16- CONTRACT SERVICES AGREEMENT EXHIBIT "B" SCHEDULE OF COMPENSATION The total fee for engineering services shall not exceed $13,825 . 00 . City will make monthly progress reports pursuant to Section 2 . 0 of this Agreement and such payments will be based upon the percentage of work completed at the time of invoicing. The Consultant shall be compensated for services performed in accordance with the following schedule: Current hourly rates : Principals Consultations, Reports, $105 . 00 per hour and Investigations Design $ 90 . 00 per hour Licensed Engineers Consultations, Reports, $ 90 . 00 per hour and Investigations Design $ 80 . 00 per hour Research Analysts $ 75 . 00 per hour Structural Designers $ 70 . 00 per hour Drafters $ 55 . 00 per hour Non-technical Personnel $ 48 . 00 per hour -17- CONTRACT SERVICES AGREEMENT EXHIBIT "C" SCHEDULE OF PERFORMANCE Consultant shall be prepared to undertake the work specified in this Agreement within forty-five ( 45) days from the effective date of the Agreement. Consultant shall complete all work required under this Agreement within ninety ( 90) days of undertaking performance hereunder . -18-