HomeMy WebLinkAbout04492 - HOWARD NEEDLES TAMMEN BERGENDOFF HNTB ARCHITECTS Howard Needles Tammen &
Bergendoff
Convention Center Architect
AMENDMENT#1 AGREEMENT #4492 Amend 1
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AGREEMENT A4492 -ARCHITECTURAL - CONVENTION CENTER
THIS FIRST AMENDMENT to Agreement A4492 for contract services, (herein
"Agreement") made and entered into on the 4 day of 2002, by and
between CITY OF PALM SPRINGS (herein "City") and HOWARD NEEDLES TAMMEN &
BERGENDOFF (HNTB) CALIFORNIA ARCHITECTS, P.C. (herein "Architect') is hereby
amended effective December 4, 2002.
1. Exhibit "A" Scope of Services, is hereby amended by adding the following:
"III. Phase One-Kitchen Expansion and Springs Theatre and
Sales Office Conversion Construction Administration.
Architect and subconsultants to provide Architectural
Construction Administrative Services to include Request for
Information processing (RFI), submittal review, change order
preparation, field construction review.
2. Exhibit "C" Schedule of Compensation is hereby amended by adding the following
work item:
C. Phase I - Kitchen Expansion, Springs Theatre and Sales
Office Conversion Construction Administrative Services.
1. Construction Administration (Architect &
Subconsultants) Lump Sum $35,800.
2. Total reimbursables (cost plus 10%) 3,000.
Grand Total $38,800.
3. Exhibit "D" Schedule of Performance is hereby amended to add the following work
item:
6. Architectural Construction Administration Shall commence on
Note: Architect acknowledges that the June 2, 200$and run
project will be carried out in a fast track through May 15, 2003.
format and commits to expedited turn-
around of all requested review items.
JAN-02-2003 THU 05:34 PH HNTB FAX NO. 9496808910 P. 02
NOV. 27. 2002 5;45PM HNTB CORPORATION NO, 574 P, 3
I
IN WITNFSS WHEREOF,the parties have executed and entered into this Agreement as of
the date first written blow.
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Howard Needles Taffien &
• Wergendoff Calif Architects
Convention Center Architect
' AGREEMENT #4492
Mo7067, 5-1-02
CITY OF PALM SPRINGS - - --
CONTRACT SERVICES AGREEMENT FOR
ARCHITECTURAL DESIGN SERVICES
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and
entered into this 3 I day of May, 2002, by and between the CITY OF PALM
SPRINGS, a municipal corporation, (herein "City") and HOWARD NEEDLES TAMMEN
& BERGENDOFF (HNTB) CALIFORNIA ARCHITECTS, P.C. (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.
1.4 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.
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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 $25,000; whichever is
less, or in the time to perform of up to one hundred eighty (180) days may be approved
by the Contract Officer. Any greater increases, taken either separately or cumulatively
must be approved by the City Council. It is expressly understood by Architect that the
provisions of this Section shall not apply to services specifically set forth in the Scope
of Services or 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.
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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 Two Hundred Ninety-
Five Thousand Five Hundred Dollars ($295,500) (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"
IRV#13583 v3
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attached hereto as Exhibit "D", if any, and incorporated herein by this reference. When
requested by the Architect, extensions to the time period(s) specified in the Schedule of
Performance may be approved in writing by the Contract Officer but not exceeding one
hundred eighty (180) days cumulatively.
3.3 Force Maieure. The time period(s) specified in the Schedule of
Performance for performance of the services rendered pursuant to this Agreement shall
be extended because of any delays due to unforeseeable causes beyond the control
and without the fault or negligence of the Architect, including, but not restricted to, acts
of God or of the public enemy, unusually severe weather, fires, earthquakes, floods,
epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation,
and/or acts of any governmental agency, including the City, if the Architect shall within
ten (10) days of the 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:
Joseph J. Diesko, AIA as Principal in Charge
Bob Lyons as Project Manager
HNTB
One Bunker Hill
601 West Fifth Street, Suite 1010
Los Angeles, California 90071
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
IRV#I3583 V3 _4_
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personally supervise the services hereunder. For purposes of this Agreement, the
foregoing principals may not be replaced nor may their responsibilities be substantially
reduced by Architect without the express written approval of City.
4.2 Contract Officer. The Contract Officer shall be such person as may
be designated by the City Manager of City. It shall be the Architect's responsibility to
assure that the Contract Officer is kept informed of the progress of the performance of
the services and the Architect shall refer any decisions which must be made by City to
the Contract Officer. Unless otherwise specified herein, any approval of City required
hereunder shall mean the approval of the Contract Officer. The Contract Officer shall
have authority to sign all documents on behalf of the City required hereunder to carry
out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The experience,
knowledge, capability and reputation of Architect, its principals and employees were a
substantial inducement for the City to enter into this Agreement. Therefore, Architect
shall not contract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of the City. In addition, neither
this Agreement nor any interest herein may be transferred, assigned, conveyed,
hypothecated or encumbered voluntarily or by operation of law, whether for the benefit
of creditors or otherwise, without the prior written approval of City. Transfers restricted
hereunder shall include the transfer to any person or group of persons acting in concert
of more than twenty five percent (25%) of the present ownership and/or control of
Architect, taking all transfers into account on a cumulative basis. In the event of any
such unapproved transfer, including any bankruptcy proceeding, this Agreement shall
be void. No approved transfer shall release the Architect or any surety of Architect of
any liability hereunder without the express consent of City.
The City's policy is to encourage the awarding of subcontracts to persons or
entities with offices located within the jurisdictional boundaries of the City of Palm
Springs and, if none are available, to persons or entities with offices located in the
Coachella Valley ("Local Subcontractors"). Architect hereby agrees to use good faith
efforts to award subcontracts to Local Subcontractors, if Local Subcontractors are
qualified to perform the work required. In requesting for the City to consent to a
subcontract with a person or entity that is not a Local Subcontractor, the Architect shall
submit evidence to the City that such good faith efforts have been made or that no Local
Subcontractors are qualified to perform the work. Said good faith efforts may be
evidenced by placing advertisements inviting proposals or by sending requests for
proposals to 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.
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4.4 Independent Contractor. Neither the City nor any of its employees
shall have any control over the manner, mode or means by which Architect, its agents
or employees, perform the services required herein, except as otherwise set forth
herein. City shall have no voice in the selection, discharge, supervision or control of
Architect's employees, servants, representatives or agents, or in fixing their number,
compensation or hours of service. Architect shall perform all services required herein
as an independent contractor of City and shall remain at all times as to City a wholly
independent contractor with only such obligations as are consistent with that role.
Architect shall not at any time or in any manner represent that it or any of its agents or
employees are agents or employees of City. City shall not in any way or for any
purpose become or be deemed to be a partner of Architect in its business or otherwise
or a joint venturer or a member of any joint enterprise with Architect. ,
5.0 INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance. The Architect shall procure and maintain, at its sole
cost and expense, in a form and content satisfactory to City, during the entire term of
this Agreement including any extension thereof, the following policies of insurance:
(a) 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. If the
Contract Sum is greater than $100,000, the policy of insurance shall be in an amount
not less than $2,000,000 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
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.
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(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
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".
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5.4 Sufficiency of Insurer or Suretv. 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
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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 Release of Documents. The drawings, specifications, reports,
records, documents and other materials prepared by Architect in the performance of
services under this Agreement shall not be released publicly without the prior written
approval of the Contract Officer.
7.0 ENFORCEMENT OF AGREEMENT
7.1 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
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
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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.
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 of a breach of this Agreement, the Architect and its
sureties shall be liable for and shall pay to the City the sum of Zero Dollars ($ -0-) as
liquidated damages for each working day of delay in the performance of any service
required hereunder, as specified in the Schedule of Performance (Exhibit "D"). The City
IRV 913583 v3 _1 O_
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
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.
IRV#13583 v3 -tt-
8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees. No officer or
employee of the City shall be personally liable to the Architect, or any successor in
interest, in the event of any default or breach by the City or for any amount which may
become due to the Architect or to its successor, or for breach of any obligation of the
terms of this Agreement.
8.2 Conflict 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,
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.
IRV#13583 v3 -12-
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
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
IRV#13583 0 -13-
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]
IRV#13583 v3 -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
By
City Clerk City Ma nag liF 9�d' r/+tn�}cr$25,000
APPROVED AS TO FORM: Reviewed siodappra"d by
PracMrsartep�Gw4ncda*
ity ttorney Initial! ;� f.° 1
P.O.Nambee
CONTRACTOR:
HOWARD NEEDLES TAMMEN &
BERGENDOFF CALIFORNIA ARCHITECTS,
P.C.
r MIRIAM F. PROCHAZKA�
� COMM.#1287778
NOTARV PUBLIC-CALIFORNIA� (Check One: individual, _partnership,
i— ORANGE COUNTY
My Comm.ExplresDec.21,208h1 X corporation)
6-•0-- (NOTARIZED)
P , I� in u /
LjsephSj. sko Jr. AIA Vice President
�,Ucva
V16z'i � yobN.c e Print Name and Title
NOTARIZE
D) By:
Signature �—
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Nvdary a')b/,C' Print Name and Title
PAMELA PRESiON
NotayPddc—stat ofMdssoud Mailing Address: 601 W. 5th Street
Coanty of ionUpirns on Los Angeles. California 90071
Nly'�ammission Expires May 31,2005
(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.)
IRV#13583 v3
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EXHIBIT "A"
SCOPE OF SERVICES
Architect shall provide a full range of professional architectural services in
connection with the City's Convention Center Expansion, which services shall include
the following:
I. Master Plan and Conceptual Design:
A. Kick-Off Meeting in Palm Springs:
1. Confirm project schedule:
2. Establish communications procedures.
3. Determine policies/procedures to obtain existing information/documents.
4. Establish plan for focus group meetings with service providers, hotel
management, potential corporate clients and key staff.
5. Set Priorities and Goals
B. Data Gathering: -
1. Tour the Convention Center. Document existing conditions photographically.
2. Collect existing information including; drawings, specifications and reports
regarding the Convention Center.
3. Collect existing utility information from the City data.
4. Interview facilities staff in evaluating existing utility distribution, audio/visual
systems, lighting controls, HVAC systems and security systems.
5. Develop a comprehensive list of existing deficiencies to be addressed in the
expansion and an approach to bringing the existing meeting rooms and
exhibit halls up to current industry standards.
6. Conduct the focus groups identified at the kick-off meeting and Travel to
interview corporate clients when necessary.
7. Surveys beyond the reviews of existing available information in the form of
the original contribution contract documents and records will be provided if
needed as an additional service, if authorized by the City in advance.
8. Geotechnical investigation beyond existing available information will be
provided if needed as an additional service.
C. Site Evaluation:
1. Analyze the existing City plan and establish goals for the relationship of the
Convention Center to the City plan.
2. Assist the City's staff to analyze existing traffic patterns, access and
circulation-vehicular and pedestrian at-event and non-event times for
inclusion in entitlement actions. Make recommendations for future expansion
IRV#13583 v3 -16-
development. Note: A traffic engineering study is not foreseen as part of this
proposal unless done as an additional service.
3. Assist the City's staff in their analysis of the historic parking demand
experienced by the Convention Center and project how they will be impacted
by the expansion for inclusion in entitlement actions.
4. Evaluate existing service functions and establish goals for future servicing of
the Convention Center.
5. Evaluate existing landscape and establish standards for future landscape
development.
6. Research the existing utilities and related capacities.
D. Programming:
Meet with representatives of the Convention Center and draft a 'short form'
project program. The Program will identify all major project spaces and their
square footage requirements along with identification of necessary adjacencies
between spaces. Using that document as a draft Architect will:
1. Summarize the findings of the focus group meetings and the analysis of
existing deficiencies.
2. Coordinate with the City staff to establish the requirement for revenue
generating facility goals for functions such as additional food service or
merchandising opportunities and sponsorship opportunities.
3. Prepare a summary of potential newly created and renovated space.
4. Establish a preliminary estimate based upon the area requirements in the
program draft.
5. Review Program Draft, preliminary estimate and preliminary phasing
schedule with City.
6. Receive comments from the City; review and incorporate comments as
needed.
E. Concepts:
1. Develop alternative site master plans for review and comment by the City.
2. Develop alternative Convention Center design concepts for expansion and
reconstruction. Review with the Convention Center for prioritization of
concepts.
3. Provide options for combinations of concept components to address phasing.
4. Develop image concepts for review and comment by the City.
5. Establish budget parameters for the various options outlined above. Review
with the City to establish priorities.
F. Master Plan:
1. Combine elements of the above components:
a. Market Analysis
b. Programming
IRV#13583 v3 -17-
i •
c. Data Gathering
d. Concepts
e. Budget Summary
f. Phasing
2. Develop master development strategy that incorporates the established
financial strategy.
3. Prepare Master Plan Draft.
4. Review with City and collect review comments.
5. Incorporate comments, edit and finalize the plan.
G. Deliverables include ten bound copies of the following in 8 1/2"x11" format:
1. Executive Summary
2. Statement of Need for the Convention Center Expansion and renovation.'
3. Focus Group Observation and recommendations summary.
4. Summary analysis of existing deficiencies.
5. Code Impacts and Requirements Summary.
6. Written description of existing building systems.
7. Site Analysis summary and diagrams
8. Written building program noting both new facilities and improvements to
existing facilities.
9. AudioNisual System Description
10.Structural System Description
11.Proposed new building systems.
12.Color-coded conceptual plans sections and elevations.
13.One bird's eye and two ground level renderings. (Note: Cost for professional
renderings will be an additional service)
14.Master Development phasing schedule.
15.Budget Summary
II. Phase One-Kitchen Expansion and Springs Theater and Sales Offices
Conversion:
The reconfiguration of the Kitchen and the reallocation of the Springs Theater
and Sales Offices spaces into meeting rooms is defined as a Phase One. The work will
follow the layout that was developed by FSA Design in drawings dated May 30, 2001
but not including a new banquet pantry, waiters room, pantries or new dressing rooms.
In addition the reallocation of the existing business office to meeting rooms will be
included.
The work associated with the design of special systems such as
telecommunications, data, sound reinforcement, video, security and changes to the
building management systems will be addressed in future phases as they are defined in
the master planning process. This work will allow for provision of raceways and
capacity to include these systems in future phases.
IRV#13583 V3 _18_
Architect will also prepare construction documents for the use in solicitation of
bids by the City. Further, Architect will assist the City in the bidding process by
answering bidding inquiries, preparing clarifications if needed and reviewing and
commenting on the bids that are received.
Construction administration services are not included in this contract and will be
negotiated separately if and when required.
IRV#13583 v3 -19-
EXHIBIT "B"
SPECIAL REQUIREMENTS
Architect has been hired to perform the services described in the Agreement,
which include the creation of one or more designs, drawings, or plans ("Designs").
Architect acknowledges that City has budgeted the amount of Two Million Dollars
($2,000,000) for the construction phase of the Project ("Construction Budget").
Architect shall be responsible to do Project estimating to create Designs which will
enable the Project to be constructed within at an amount which shall not exceed the
Construction Budget by more than ten percent (10%). Should City solicit bids for
construction of the Project, as such Project has been designed by Architect, and the
lowest responsible bid exceeds the Construction Budget by more than ten percent
(10%), Architect agrees to revise the previous Designs, or to create new Designs, so
that a new price can be negotiated or the Project can be re-bid so that the Project does
not exceed the Construction Budget by more than ten percent (10%). Notwithstanding
the foregoing, Architect is not responsible for changes in the Project scope initiated by
City and all such changes shall include appropriate mutually agreed changes to the
Construction Budget, as are further set forth in Section 1.8 of this Agreement.
Section 4.3 Prohibition Against Subcontracting or Assignment. Architect may
subcontract with Syska and Hennessy (MEP), John A. Martin Associates
(Structural), FSA Design (Food Service Design), Turner Construction
Company (Cost Estimating), and Shen Milsom Wilke & Paoletti (Audio
Visual)
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.
IRV#I3583 0
-20-
5.25 CitV 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 two million
($2,000,000) dollars bodily injury and property damage including
coverages for contractual liability, personal injury, independent contractors,
broad form property damage, products and completed operations.
Section 5.3 Performance Bonds are hereby waived.
IRV#13583 0 -21-
EXHIBIT "C"
SCHEDULE OF COMPENSATION
I. Terms of Compensation. The services provided under this Agreement
shall be performed for a lump sum fee of two hundred ninety-five thousand five
hundred ($295,500.00) dollars, inclusive of reimbursable expenses as set forth
herein. The fee breakdown by design phase is as follows:
A. Master Plan and Conceptual Design
Total Master Plan Lump Sum Fee: $118,500
B. Phase I — Kitchen Expansion, Springs Theater and Sales Office
Conversion
1. Schematic/Design Development $ 63,500
2. Construction Documents $ 70,500
3. Bidding Support Services 7,000
Total Phase Lump Sum Fee: $ 141,000
Total Reimbursable Sums: $ 36,000
GRAND TOTAL: $ 295,500
Compensation for the above sums shall be billed to the City on a monthly
basis, based on the percentage work completed for each of the above
categories; Provided, however, that, without waiving Section 7.3 of this
Agreement, City shall have no obligation to make final payment of the Grand
Total above of two hundred ninety-five thousand five hundred ($295,500) dollars
(the "Contract Sum") beyond the percentage of work completed by Architect, and
that City may withhold payments not to exceed ten (10) percent of the Contract
Sum, pending a reasonable time for the verification that the items of work have
been completed in accordance with the Agreement. The total sums billed by
Architect to the City shall not exceed two hundred ninety-five thousand five
hundred ($295,500) dollars, inclusive of any and all reimbursable expenses.
IRV#13583 v3
-22-
EXHIBIT "D"
SCHEDULE OF PERFORMANCE
Items of Performance Time for Performance
1. Start Phase 1 Improvements May 8, 2002
and the Master Plan
2. Completion of Schematic/Design On or Before June 12, 2002
Development
3. Completion of the Master Plan On or Before June 24, 2002
4. Delivery of Completed Phase 1 On or Before August 6, 2002
Construction Documents
5. Construction Bid Process Begins On or Before August 6, 2002
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.
IRV#13583 v3 -23-
JUN. 21. 2002 2 : 09PM HNTB CORPORATION NO. 961 P. 2
A QBD. CERTIFIC OF LIABILITY INSU NCE DATE(MWDOnT)
i7t000cbk
Liberty Mutual Insurance Company ONLY AND CONFERS NO RIGHTS UPON THE CERT1pcATE
Southoreek Corporate Center 2 HOLDER THIS CERTIFICATE DOES NOT AMEND,EXTEND OR
13160 Foster, Suite 1o0 COVER A
Overland Park, KS 66213 INSURERS AFFORDING COVERAGE
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INSURERA:
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Santa Ana, CA 92707 WSURERO:
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DOCUMENT WITH RESPECT TOwmiUK THISCERTFIC.ATE MAYBE ISSUED OR MAY PERTAIN.
THE INSURANCE AFFORDED BYTHE POLICIES DESCRIBED HERIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONSAND CONDITIONS OF SUCH POLICIES MAY
LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
R TYPE OF INSURANCE POLICY NUMBER POUCY EFFECTIVE PODCY EXPIRATION
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HNTB Job 36368;Palm Springs Convention Center Expansion Additional Insured: City of Palm Springs,its officers,employees and City
Attorneys office,and,where required by written contract,ehall be coneidored primary insurance as respects the Additional Insured,and
any other insurance or self-insurance maintained by the Additional Insured shall be excess of this insurance and shall not contribute with it_
Waiver of subrogation In favor of City of Palm Springs,it s officers,employees and agents and their respective insurers.
CERTIFICATE HOLDER A13DITIONAL INSURED;TIISURERLEITER• _CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCHLLED
BEFORE THE EXPIRATION DATETHEREOF, THE ISSUING INSURER
WILL,11X1i ] MAIL 30 DAYS WRITTEN NOTICE TO THE
CERTIFICATE HOLDER NAMED TO THE LEFT, 7Lti43C76IG1t� 1
City of Palm Springs gpg)pFgpp�IyIjp�) �k
Department of Procurement and Contracting
3200 Tahquitz Canyon Way Au 0 IT�ED REP
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PRODUCER
LOCICton Companies ONLY AND CONFERS NO RIGHTS UPON THE CERTIFlCATE
444 W.47II Street,Suite 900 HOLDER THIS CERTIFICATE DOES NOT AMEND,EXTEND OR
Al TER THE QnVrRAr.9 AFPQRnFD BY THE Pell ILIFA BEV OW
Kansas City, MO 641 1 2-1 9 06 INSURERS AFFORDING COVERAGE
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200 E.Sandpointe Ave., Suite 200 1INSURER C:
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THE INSURANCE AFFORDED BYTHE POLICIES DESCRIBEDHERIN ISSUBJECY TOALL THETERMS,EXCLUSIONSAND CONDITIONSOF SUCH POLICIES AGGREGATE
LIMITS SHOWN MAY HOVE BEEN REDUCED BYPAID CLAIMS.
INS TYPE OF INSURANCE POLICY NUMBER POUCYFFFECTNE POUCYEaPIRAT10N LIMITS
GENERAL LIABILITY EACH=Uft-We SXXXXXXXX
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U lnb rEllN Form REISNnoN S WORKERS COMPENSATION AND NOTAP.PLICABLE we Au- OTEMPLOYER'S LIABILITYELEA MWNNT ILDMEA -E&MILME LLDIi(4iE-tOUDYurur $ .XX7tXXXX
A OTHER PROFESSIONAL
LA .IT PLN 008212985 1/1/02! 1/1103 $2,000,000 per claim&the annual
aggregate for all projects
DESCRIPTION OF OPERATIONSILOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENTISPECW.PROVISIONS
HNTB Job 36368; Palm Springs Convention Center Expansion
CERTIFICATE HOLDER ADDITIONAL INSURED;INSURER LETTER: CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED
BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER
QlyoT Palm Springs WILL.10DO&V50M MAIL IQ DAYS WRITTEN NOTICE TO YHE
Department of Procurement and Contracting CERTIFICATE HOLDER NAMED TO THE LEFT, C�
3200 Tahquitz Canyon Way
Palm Springs, CA 92262 S'
AUTHORRED REPRESENTATIVE T_
ACORD 25S(7197) CACORD CORPORATION 1988