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HomeMy WebLinkAbout04549 - AIRPORT FRITZ FRAUCHIGER CHIHULY SCULPTURE Page: 1 Report: All Active Contracts and XREF= PUBLIC ARTS -Summary November 6, 2003 Contract Number Description Approval Date Expiration Date Closed Date A3149 Public Art Sculpture 12/29/1993 12/01/2028 Contractor:Bird Medical Technologies, Inc. Insurance Status: A policy will expire soon. XREF: PUBLIC ARTS Service: In File A3583 Public Art Sculpture Lease 09/20/1995 09/01/2005 Contractor:Desert Museum Insurance Status: Certificate and Policies are OK XREF: PUBLIC ARTS Service: In File A3738 Sculpture Time Warner Bldg, 1820 Farrell 12/06/1996 12/01/2014 Contractor ;Suitt Family Trust Insurance Status:A policy will expire soon. XREF: PUBLIC ARTS Service: In File A4549 Chihuly Artwork Maintenance 09/16/2002 09/01/2004 Contractor:Fritz Frauchiger Insurance Status: lepe' '-"al XREF: PUBLIC ARTS Service: In File A4606 Jeffrey A. Fowler 12/11/2002 12/01/2003 Contractor :Jeffrey A. Fowler Insurance Status: ((� ��p�ie (pf�0/d7 XREF: PUBLIC ARTS `ro t 110`Y Service: In File * ' * END OF REPORT" Fritz Fauchiger Chihuly Artwork Maintenance AGREEMENT #4549-Amend 1 Director signed 9-29-03 FIRST AMENDMENT TO CONTRACT SERVICES AGRE�...�n - WITH FRITZ FRAUCHIGER FOR MAINTENANCE AND CARE OF CHIHULY ARTWORK AT THE PALM SPRINGS INTERNATIONAL AIRPORT THIS FIRST AMENDMENT TO CONTRACT SERVICES AGREEMENT("Amendment") is entered into this 11th day of September, 2003 (the "Effective Date") by and between the CITY OF PALM SPRINGS, CALIFORNIA, a puNic body, corporate and politic, ("City")whose offices are located at P.O. Box 2743, 3200 East Tahquitz Canyon Way, Palm Springs, California 92263 and Fritz Frauchiger, whose address is 230 Avenida Olancha#2, Palm Springs, California, 92262 ("Contractor"). RECITALS A. On August 30, 2002,the City and Contractor entered into that certain Contract Agreement ("Original Agreement") pursuant to which Contractor agreed to clean the four Macchia glass sculptures by Dale Chihuly and the cases enclosing the sculptures at the Palm Springs International Airport, four times during the term of the Agreement. B. City and Contractor desire to amend the terms of the Original Agreement as more particularly described herein. C. Any capitalized terms not defined herein shall have the meanings ascribed to them in the Original Agreement. The Original Agreement, as modified by this Amendment, is hereinafter referred to as the"Agreement." NOW, THEREFORE, the parties hereto agree as follows: 1. Section 2.1 of the Original Agreement entitled "Contract Sum"shall be amended to read as follows,the specific amendments shown below as highlighted text: 2.1 Contract Sum. For the services rendered pursuant to this Agreement,the Contractor 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 ONE THOUSAND FIVE HUNDRED FOURTEEN AND 061100 (1,614.06) (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 Contractor'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 Contractor at all project 627/014084-0006 51615.01 a03/24/00 -1- 'tCCOi'+itb L BID P iwh 10° AGREEMiF N 6 r meetings reasonably deemed necessary by the City; Contractor shall not be entitled to any additional compensation for attending said meetings. 2. 3.4 Term. The term of the Agreement shall be extended in full force and effect until September 30, 2004. 3. Full Force and Effect. Except as expressly stated herein, all other terms of the Original Agreement shall remain in full force and effect. IN WITNESS WHEREOF the City and Contractor have executed this Agreement as of the date first written above. "CITY" ATTEST: CITY OF PALM SPRINGS, a municipal corporation t3y: — � By: City Clerk c/2 D recto , Comm ity& Economic Development APPROVED AS TO FORM: 5 "Contractor" FFJ' FP-AU GE 230 Avenida Olacha#2 Palm Springs, CA 92264 6271014084-0006 51615.01 203/24/00 -2- EXHIBIT "C" SCHEDULE OF COMPENSATION 1. Fee. The Contractor's total fee for services rendered hereunder, including all applicable taxes and all expenses relating thereto, whether or not identified in this Agreement shall be ONE THOUSAND FIVE HUNDRED FOURTEEN DOLLARS AND 06/100 ($1,514.06) 2. Interim Payments. The City shall make payments to the Contractor against the Fee as follows: 2.1 Upon execution of the Agreement: FIVE HUNDRED FOURTEEN & 06/100 ($514.06). 2.2 Following completion of each of four cleaning and maintenance service sessions and submittal of request for payment: TWO HUNDRED FIFTY AND 00/100 ($250.00) 2.3 All payments shall be made payable to Fritz Frauchiger. 2.4 City agrees to pay all amounts within thirty (30)days of the satisfaction of the conditions therefor. 627/014084-0006 51615.01 a03/24/00 -3- Fritz Frauchiger Chihuly Artwork Maintenance -- - AGREEMENT #4549 R20271, 9-16-02 CONTRACT -" — — -- for Maintenance and Care of Chihuly Artwork at the Palm Sprinas International Airport THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this 30th day of August,2002, by and between the City OF PALM SPRINGS, (herein"City"), a municipal corporation and Fritz Frauchiger. The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scone of Services. In compliance with all terms and conditions of this Agreement, the Contractor 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. Contractor 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. The services of the Contractor are limited to the work described in Exhibit"A" by Section 9.6. 1.2 Contractor's Proposal. The Scope of Services shall include the Contractors proposal 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. Contractor 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. Contractor 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 Contractor'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, Contractor warrants that Contractor(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, Contractor warrants that Contractor 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 Contractor discover any latent or unknown conditions,which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer. Page 1 of 15 a• • ,_ 1.6 Care of Work. The Contractor 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 Contractor, 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 Contractor. Any increase in compensation of up to five percent (5%) of the Contract Sum, or in the time to perform of one hundred eighty(180) days or less 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 Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor 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 Contractor anticipates and that Contractor 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 Contractor 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 TWO THOUSAND ONE AND 81/100 DOLLARS ($2,001.81). 2.2 Method of Payment. Provided that Contractor is not in default under the terms of this Agreement, Contractor shall be paid as outlined in Exhibit"C" Schedule 3.0 PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. Page 2 of 15 3.2 Schedule of Performance. Contractor 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 established in Section 3.4 of this Agreement. 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 Contractor, 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 Contractor 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 Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section. 3.4 Tern. Unless earlier terminated in accordance with Section 7.8 of this Agreement, this Agreement shall continue in full force and effect until August 30,2003., unless extended. 4.0 COORDINATION OF WORK 4.1 Contractor. The following individual is hereby designated as being the principal authorized to act with respect to the work specified herein and make all decisions in connection therewith: Fritz Frauchiger Phone 760- 217-1585 Aug.30, 2002 thru Sept. 30, 2002 20 White Sun Way Rancho Mirage, CA 92270 Beginning October 1, 2002 230 Avenida Olacha#2 Palm Springs, CA 92264 It is expressly understood that the experience, knowledge, capability and reputation of the foregoing individual was a substantial inducement for City to enter into this Agreement. Therefore, the foregoing individual shall be responsible during the term of this Agreement for directing all activities and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing individual may not be replaced nor may his responsibilities be substantially reduced 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 Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified Page 3 of 15 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 Contractor was a substantial inducement for the City to enter into this Agreement. Therefore, Contractor 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 Contractor, 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 Contractor or any surety of Contractor of any liability hereunder without the express consent of City. 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, 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 Contractor's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor 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. Contractor 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 Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. Contractor 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. If the Contract Sum is $25,000.00 or less, the policy of insurance shall be written in an amount not less than either (i) a combined single limit of $500,000.00 or (ii) bodily injury limits of $250,000.00 per person, $500,000.00 per occurrence and $500,000.00 products and completed operations and property damage limits of $100,000.00 per occurrence and $100,000.00 in the aggregate. If the Contract Sum is greater than $25,000.00 but less than or equal to $100,000.00, the policy of insurance shall be in an amount not less than either (i) a combined single limit of $1,000,000.00 for Page 4 of 15 bodily injury,death and property damage or(ii)bodily injury limits of$500,000.00 per person, $1,000,000.00 per occurrence and $1,000,000.00 products and completed operations and property damage limits of $500,000.00 per occurrence and $500,000.00 in the aggregate. If the Contract Sum is greater than $100,000.00, the policy of insurance shall be in an amount not less than $5,000,000.00 combined single limit. (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 Contractor 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 Contractor 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 $250,000.00 per person and $500,000.00 per occurrence and property damage liability limits of$100,000.00 per occurrence and $250,000.00 in the aggregate or(ii)combined single limit liability of$500,000.00. 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 agents as additional insureds. 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 Contractor 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 Contractor 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. The Contractor agrees that the provisions of this Section 5.1 shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages to any persons or property resulting from the Contractor's activities or the activities of any person or persons for which the Contractor is otherwise responsible. In the event the Contractor subcontracts any portion of the work in compliance with Section 4.3 of this Agreement, the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the Contractor is required to maintain pursuant to this Section 5.1. Page 5 of 15 5.2 Indemnification. Contractor 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 Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of Contractor hereunder, or arising from Contractor'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) Contractor 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 attomeys'fees incurred in connection therewith; (b) Contractor 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 or failure to perform such work, operations or activities of Contractor hereunder; and Contractor 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 Contractor 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 Contractor hereunder, Contractor 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 attomeys'fees. 5.3 Performance Bond. Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond in the sum of the amount of this Agreement, in the form provided by the City Clerk, which secures the faithful performance of this Agreement, unless such requirement is waived by the Contract Officer. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement. 5.4 Sufficiency of Insurer orSurety. 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 Risk Manager of the City due to unique circumstances. In the event the Risk Manager of City ("Risk Manager") determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees that the minimum Page 6 of 15 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 Risk Manager; provided that the Contractor shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within 10 days of receipt of notice from the Risk Manager. 6.0 RECORDS AND REPORTS 6.1 Reports. Contractor 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. Contractor 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 Contractor, 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 Contractor 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 Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor 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 Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Contractor 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, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. Page 7 of 15 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Contractor's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (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 Contractor's acts or omissions in performing or failing to perform Contractor'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 Contractor, 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 Contractor 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. 7.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 7.7 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event Page 8 of 15 of a breach of this Agreement,the Contractor and its sureties shall be liable for and shall pay to the City the sum of zero ($0.00) dollars as liquidated damages for each working day of delay in the performance of any service required hereunder. The City may withhold from any monies payable on account of services performed by the Contractor 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 Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Contractor 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 Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Contractor 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 (Exhibit"C") or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event of termination without cause pursuant to this Section, the terminating party need not provide non-terminating party with the opportunity to cure pursuant to Section 7.2. 7.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor 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 Contractor 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 Contractor for the purpose of setoff or partial payment of the amounts owed the City as previously stated. 7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement,the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred In such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, 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 Contractor or to its successor, Page 9 of 15 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 Contractor 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. Contractor 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. Contractor 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, City OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in the case of the Contractor, 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. Page 10 of 15 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 THEREOF, these parties have executed this Agreement on the day and year shown below. F/KiTz FP U((iHIGE 7e 31�- -0 5 76 Social Security Number 20 White Sun Way Rancho Mirage, CA 92270 After Octoberl, 2002 230 Avenida Olacha#2 Palm Springs, CA 92264 Phone 760-217-1585 ATTEST: CITY OF PALM SPRINGS a municipal corporation ByA��? lJ �f' f � By: City Clerk APPROVED AS TO FORM: 41 Page 11 of 15 �' Exhibit"A" Scope of Services Contractor shall clean, dust and re-light two double Macchia glass sculptures by Dale Chihuly and the cases enclosing the sculptures at the Palm Springs International Airport, four times over the length of this Agreement. Specific dates of each cleaning to be determined by the Contract Administrator. Page 12 of 15 Exhibit"A" Scope of Services Contractor's Proposal FRITZ A,FRAUCHIGER 20 White Sun Way,Rancho Mirage,CA 92270 (760)674-8751 August 27, 2002 Diane Morgan, Arts Administrator City of Palm Springs P.O. Box 2743 Palm Springs, CA 92263 Dear Diane, This letter shall serve as an agreement between the City oflPalm Springs and me for the coverage of personal liability insurance for me and for cleaning, dusting and re-lighting the two double Macchia glass sculptures by Dale Chihuly tt the Pahn Springs International Airport terminal. My out-of—pocket expense for the liability insurance, amounting to�, 1)00t 151 shall be reimbursed upon the signing of the contract. Billing for the cleaning of the artworks shall be individually,upon completion of each cleaning. @$250 per cleaning. Cleaning of the glass sculptures shall take place four times per year at the Taquest of the airport staff Thank you for your attention. . ger ritz rauchrger Art Consultant Page 13 of 15 Exhibit"B" Special Requirements Waiver of Certain Insurance Requirements as specified under section 5.0 of this Agreement. 1. Contractor has no employees. Therefore, Workers' Compensation Insurance is not required for this Agreement. 2. A Performance Bond is not required for this Agreement. Page 14 of 15 P Exhibit "C" Schedule of Compensation 1. Fee. The Contractor's total fee for services rendered hereunder, including all applicable taxes and all expenses relating thereto, whether or not identified in this Agreement shall be TWO THOUSAND ONE AND 81/100 DOLLARS ($2,001.81). 2. Interim Payments, The City shall make payments to the Contractor against the Fee as follows: 2.1 Upon execution of the Agreement: ONE THOUSAND ONE AND81/100 DOLLARS ($1,001.81). 2.2 Following completion of each of four cleaning and maintenance service sessions and submittal of request for payment: TWO HUNDRED FIFTY AND 001100 DOLLARS ($250.00). 2.3 All payments shall be made payable to Fritz Frauchiger. 2.4 City agrees to pay all amounts within thirty (30) days of the satisfaction of the conditions therefor. ACORDM CERTIFICATE OF LIABILITY INSURANCE D09/13/2002 * /13002 PRODUCER (909)793-2373 FAX (909)798-6983 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Davis & Graeber Insurance Services, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 470 E. Highland and Ave. HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR 9 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. P.O. Box 40 Redlands, CA 92373 INSURERS AFFORDING COV P_j li � INSURED Fritz Frauchiger INSURERA St. Paul Reinsurance '-'�.` 20 White Son Way INSURER 6 I;fin < n n Rancho Mirage, CA 92270 INSURER C: zou INSURERD: INSURER E COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE 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. INSR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LTR DATE MM/DD/YY DATE MM/DD/YY LIMITS GENERAL LIABILITY SFOSS19969 09/11/2002 09/11/2003 EACH OCCURRENCE $ 1,000,00 X COMMERCIAL GENERAL LIABILITY FIRE DAMAGE(Any one fire) $ 100,00 CLAIMS MADE [X] OCCUR MED EXP(Any one person) $ S,OD A PERSONAL$ADVINJURY S 1,000,00 GENERAL AGGREGATE $ i,Do,000 GENT AGGREGATE LIMIT APPLIES PER, PRODUCTS-COMP/OP AGG S 1,000,000 POLICY PRO LOG ECT AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ ANY AUTO (Ea acadenl) ALL OWNED AUTOS BODILY INJURY S SCHEDULED AUTOS (Per person) HIRED AUTOS BODILY INJURY NON-OWNEDAUTOS (Peraccident) $ - PROPERTY DAMAGE $ (Peracoident) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC S AUTO ONLY, AGO S EXCESS LIABILITY EACH OCCURRENCE $ OCCUR CLAIMS MADE AGGREGATE $ DEDUCTIBLE S RETENTION S S WORKERS COMPENSATION AND W TATU- TH- EMPLOYERS'LIABILITY TORV LIMITS ER E.L EACH ACCIDENT S E.L.DISEASE-EA EMPLOYEE $ El DISEASE—POLICY LIMIT--S- ---- - - OTHER DESCRIPTION OF OPERATIONSILOCATIONSIVEHICLESIEXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS e; Operations of the Named Insured Certificate Holder is Additional Insured per form 43356 on file with the company 0 Day Written Notice of Cancellation for Non-Payment of Premium CERTIFICATE HOLDER ADDITIONAL INSURED;INSURER LETTER: CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, City of Palm Springs BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY 3200 E. Tahquitz OF ANY KIND UPON THE COMPANY,ITS AGENTS OR REPRESENTATIVES. Palm Springs, CA 92263-2743 AUTHORIZED REPRESENTATIVE Ross ]ones/CSG � ACORD 25.3 (7197) ©ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed.A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement.A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25-S(7197) Sep 09 02 02: 54p Fritz R. Frauchiger (760) 83GS211 p. 2 _ Civil Service Insured Cop o Employees Amended - Personal Automobile Policy _ Coverage is provided by Civil Service Employees Insurance Company Insurance Group CSE Auto Program Effective 8127/2002,supersedes any previous declaration bearing the same number Po.,f of«Box8047 for this policy term. Reason for amendment: WaM.tC..k.CA 94596-80411TU80282-6848 CHANGE OF COVERAGE Policy# Policy Term (begins and ends at 12:01 a.m.Standard Time) Notice Date CAA 0741137 From 7/10/2002 to 1/10/2003 ST 001 9/03/2002 Named Insured and Address Agent Phone 760-325-2781 Agent# 44230-44230 FRAUCHIGER,FRITZ A & CHRISTINE RAY LUSBY INSURANCE AGENCY 20 WHITE SUN WAY C/O CU INSURANCE SERVICES RANCHO MIRAGE CA 92270 276 E PALM CANYON DR PALM SPRINGS CA 92264 Vehicles are covered pursuant to the terms and conditions of the contract Terr/ Ai...�dt Stated Deductible Veh ST RBG Year Make/Description Serial Number Use Mileage Symbol Amount Comp Coll Class 001 04 999 92 JEEP CHER LARED 1J4FJ58S1NL229054 P 10000 13 250 250* 804100 002 04 999 90 LEXS LS 400 JTBUF11EIL0039652 P 8000 16 250 _ 250* 808100 Insurance is provided where a premium is shown for the coverage Coverage Limits of Liability Premiums Ea Person Ea Occurrence Veh.i-JEEP Veh.2-LEXS Bodily Injury $ 250,000 $ 500,000 $ 110.80 $ 123.00 Property Damage $ 100,000 $ 56.40 $ 62.70 Medical Payments $ 10,000 $ p.80 $ 19.80 Uninsured MotoristBI $ 250,000 $ 500,000 $ 19.50 $ 21,80 Underinsured Motorist BI Limits included in Uninsured Motorist BI Limits above $ �7.20 $ 19.30 Comprehensive-See deductible limit above $ 8.70 $ 53.20 Collision-See deductible limit above $ 1�4.20 $ 180.00 *Uninsured Motorist-Waiver of collision deductible $ 9.10 $ 9.10 Rental Reimbursement $ 17.40 Towing&Labor $ �5.40 Total by Vehicle $ 428.50 $ 488.90 California Insurance Guaranty Association(CIGA) $ 20% Good Driver Discount Applied (See Discounts) Total Policy Premium $ 917.40 3 Insured Billed Continued on next page i d, I ! i i i M E M O R A N D U M DATE: September 19, 2002 TO: Diane Morgan — Public Arts FROM: - Office of the City Clerk RE: Fritz Frauchiger, A4549: Attached please find two copies of the above-referenced agreement between Fritz Frauchiger and the City of Palm Springs, for Maintenance and Care of Chihuly Artwork at the Airport, approved by the Director of Community & Economic Development on September 16, 2002, per R20271. Please forward one copy to the contractor and retain one copy for your files. I have forwarded a copy of the agreement to Finance, and retained a copy for our records. Should you have any questions, please let me know. Barb cc: File Finance w/agreement