HomeMy WebLinkAbout04465 - WALKER PARKING CONSULT DOWNTOWN PARKING STRUCTURE Walker Parking Consult/Eng
• Downtown Parking Structure
AGREEMENT #4465
R20297, 3-20-02
CITY OF PALM SPRINGS
CONTRACT SERVICES AGREEMENT FOR
DOWNTOWN PARKING STRUCTURE CONSULTING SERVICES
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and
entered into this o2D V4- day of ` �&AdZ , 2002, by and between the
CITY OF PALM SPRINGS, a municipal corporation, (herein "City") and WALKER
PARKING CONSULTANTS/ENGINEERS, INC., (herein the "Design Professional"). The
term Design Professional includes professionals performing in a consulting capacity. The
parties hereto agree as follows:
1.0 SERVICES OF DESIGN PROFESSIONAL
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, the Design Professional 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, Design Professional represents and
agrees that Design Professional is a provider of professional work and services and
Design Professional is experienced in performing the work and services contemplated
herein and, in light of such status and experience, Design Professional covenants that it
shall follow the standards of practice recognized by one or more first-class firms performing
similar work under similar circumstances in performing the work and services required
hereunder.
1.2 Design Professional's Proposal. The Scope of Service shall include
the Design Professional's proposal or bid which shall be incorporated herein by this
reference as though fully set forth herein. In the event of any inconsistency between the
terms of such proposal and this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law. All services rendered hereunder shall be
provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of
the City and any Federal, State or local governmental agency having jurisdiction in effect at
the time service is rendered.
1.4 Licenses, Permits, Fees and Assessments. Design Professional 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. Design
Professional 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 Design Professional'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. The Design Professional acknowledges that the
City has investigated the site and that the Design Professional is acquainted with the site
conditions to the extent the information has been furnished by the City concerning the site
survey data, site improvement surveys, existing utility information and subsurface
Geotechnical data for the site. By executing this Agreement, the Design Professional
acknowledges that Design Professional (a) has thoroughly analyzed and considered the
scope of services to be performed, (b) has carefully considered howthe services should be
performed, and (c) fully understands the facilities, difficulties and restrictions attending
performance of the design services under this Agreement. The Design Professional may
reasonably rely on the information provided by the City; provided, however, that should the
Design Professional discover any latent or unknown conditions, which will materially affect
the performance of the services hereunder, the Design Professional shall immediately
inform the City of such fact and shall not proceed except at Design Professional's risk until
written instructions are received from the Contract Officer.
1.6 Care of Work. The Design Professional 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 Design Professional, 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 Design Professional. 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 Design
Professional that the provisions of this Section shall not apply to services specifically set
forth in the Scope of Services or reasonably contemplated therein. Design Professional
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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 Design Professional
anticipates and that Design Professional shall not be entitled to additional compensation
therefore.
1.9 Obligation to Meet Budget. The Design Professional has been hired to
perform the services described in the Agreement, which include the creation of one or
more designs, drawings, or plans ("Designs"). Design Professional acknowledges that City
has budgeted the amount of five million ($5,000,000.00)dollars for the construction phase
of the Project ("Project Budget"). Contractor shall be responsible to complete the Project
by creating Designs which will enable the Project to be constructed within the Project
Budget by no more than ten percent (10%). In the event that City solicits bids for
construction of the project, as such Project has been designed by Contractor, and the
lowest responsible bid exceeds the Project Budget by more than ten percent (10%), the
Design Professional agrees to revise the previous Designs, orto create new Designs, at no
additional cost to City, so that a new price can be negotiated or the Project can be rebid so
that the Project does not exceed the Project Budget by more than ten percent (10%).
Notwithstanding the foregoing, Contractor is not responsible for changes in the Project
scope initiated by City and all such changes shall include appropriate mutually agreed
changes to the Project Budget.
1.10 Construction Observations. Design Professional shall visit the project
at appropriate intervals during construction to become generally familiar with the progress
and quality of the contractor's work and to determine if the work is proceeding in general
accordance with the construction documents. The City has not retained Design
Professional to make detailed inspections or to provide exhaustive or continuous project
review and observation services. The Design Professional shall not be responsible for
construction means and methods and safety issues, and does not guarantee the
performance of, and shall have no responsibility for, the acts or omissions of any
contractor, subcontractor, supplier or any other entity furnishing materials or performing
any work on the project other than Design Professional and its partners, managers,
employees, agents and assignees. If the City desires more extensive project observation
or full-time project representation, the City shall request such services be provided by the
Design Professional as Additional Service under the Agreement, or through another
contractor of the City's choice. Notwithstanding the foregoing, should the Design
Professional discover any latent or unknown conditions, which will materially affect the
performance of the services hereunder, the Design Professional shall immediately inform
the City of such fact and shall not proceed except at Design Professional's risk until written
instructions are received from the Contract Officer.
1.11 Hazardous Materials. Client acknowledges that Design Professional's
scope of services does not include any services related to asbestos or hazardous or toxic
materials. In the event that Design Professional, or any other party, encounters any of
those materials at the job site, or should it become known in any way that such materials
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may be present at the job site or at any adjacent areas that may affect the performance of
Design Professional's service, the Design Professional may, at Design Professional's
option and without liability for consequential or other damages, suspend performance of
services until the City retains appropriate specialists to identify, abate, and/or remove those
materials and warrant that the job site is in full compliance with applicable laws and
regulations.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement,
the Design Professional shall be compensated in accordance with the "Schedule of
Compensation" attached hereto as Exhibit "B" and incorporated herein by this reference,
but not exceeding the maximum contract amount of three hundred twenty-five thousand
($325,000.00)dollars and the maximum reimbursement amount of eighteen thousand five
hundred ($18,500) dollars (herein the "Contract Sum"), except as set forth in Section 1.8.
The method of compensation shall include payment in accordance with the percentage of
completion of the services as specified in the Schedule of Compensation, but not
exceeding the Contract. The Contract Sum shall include the attendance of the Design
Professional at all project meetings reasonably deemed necessary by the City; and the
Design Professional shall not be entitled to any additional compensation for attending said
meetings. All prior payments made under the existing agreement with the Design
Professional in the amount of forty-eight thousand ($48,000) dollars and reimbursable
expenses shall be applied against this Contract Sum, and this Agreement shall be deemed
to supersede all prior understandings and agreements between the respective parties
pursuant to Section 9.3.
2.2 Method of Payment In any month in which Design Professional wishes
to receive payment, no later than the first (1st) working day of such month, Design
Professional 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 Design Professional 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. The Design Professional acknowledges that time is
of the essence in the performance of this Agreement. In executing this Agreement, the
Design Professional understands that construction of the parking structure is scheduled to
commence during the month of June 2002 and that the intended date of completion is prior
to November 15, 2002. Design Professional shall take appropriate actions to timely
complete the tasks provided under this Agreement and to influence other parties to timely
perform, but Design Professional is not a guarantor of the timely performance by other
parties.
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3.2 Schedule of Performance. Design Professional has previously
commenced the services pursuant to this Agreement, and shall perform all additional
services within the time period(s) established in the "Schedule of Performance" attached
hereto as Exhibit"C", and incorporated herein by this reference. Any requested extensions
to the time period(s) specified in the Schedule of Performance by the Design Professional
must be approved in writing by the Contract Officer.
3.3 Force Maleure. 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 Design Professional, 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 Design Professional 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 Design Professional be entitled to recover damages against the City for any
delay in the performance of this Agreement, however caused. Design Professional's sole
remedy is 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 as provided in the Schedule of Performance herein (Exhibit "C") and subject to
Section 3.1.
4.0 COORDINATION OF WORK
4.1 Representative of Design Professional . The following principals of
Design Professional are hereby designated as being the principals and representatives of
Design Professional authorized to act in its behalf with respect to the work specified herein
and make all decisions in connection therewith: Donald R. Monahan, P.E., Vice President.
It is expressly understood that the experience, knowledge, capability and reputation
of the foregoing principal was a substantial inducement for City to enter into this
Agreement. Therefore, the foregoing principal shall be responsible during the term of this
Agreement for directing all activities of Design Professional and devoting sufficient time to
personally supervise the services hereunder. For purposes of this Agreement, the
foregoing principal may not be replaced nor may his responsibilities be substantially
reduced by Design Professional without the express written approval of City.
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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 Design Professional's responsibility
to assure that the Contract Officer is kept informed of the progress of the performance of
the services and the Design Professional 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 Design Professional, its principals and employees
were a substantial inducement for the City to enter into this Agreement. Therefore, Design
Professional 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; provided,
however, that the Design Professional may contract with RMH Group, Inc. for mechanical
and electrical services, Sanborn A/E, Inc. for civil engineering services, and James Cioffi
Architect for architectural services. 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 Design Professional, 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 Design Professional or any surety of Design Professional 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 Design Professional, 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
Design Professional's employees, servants, representatives or agents, or in fixing their
number, compensation or hours of service. Design Professional shall perform all services
required herein as an independent Design Professional of City and shall remain at all times
as to City a wholly independent Design Professional with only such obligations as are
consistent with that role. Design Professional 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 Design
Professional in its business or otherwise or a joint venturer or a member of any joint
enterprise with Design Professional.
5.0 INSURANCE, INDEMNIFICATION AND BONDS
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5.1 Insurance. The Design Professional shall procure and maintain, at
its sole cost and expense, in a form and content satisfactory to City, during the entire term
of this Agreement including any extension thereof, the following policies of insurance:
(a) Commercial General Liability Insurance. A policy of commercial general liability
insurance written on a per occurrence basis with a combined single limit of at least
$1,000,000 bodily injury and property damage including coverages for contractual
liability, personal injury, independent contractors, broad form property damage,
products and completed operations. The Commercial General Liability Policy shall
name the City of Palm Springs as an additional insured in accordance with standard
ISO additional insured endorsement form CG2010(1185) or equivalent language.
The Commercial General Liability Insurance shall name the City, its officers,
employees and agents as additional insured.
(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 will include $1,000,000 employer's liability.
(c) Business Automobile Insurance. A policy of business automobile liability
insurance written on a per occurrence basis with a single limit liability in the amount
of $1,000,000 bodily injury and property damage. Said policy shall include
coverage for owned, non-owned, leased and hired cars.
(d) Professional Liability Insurance. A policy of professional liability insurance
shall be provided on a per occurrence basis with a single limit liability in the amount
of$2,000,000 bodily injury and property damage including coverages for contractual
liability, personal injury, independent contractors, broad form property damage,
products and completed operations.
All of the above policies of insurance shall be primary 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. In the event any of said policies of
insurance are canceled, the Design Professional shall, prior to the cancellation date,
submit new evidence of insurance in conformance with Section 5.1 to the Contract Officer.
No work or services under this Agreement shall commence until the Design Professional
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 Design Professional agrees that the provisions of Section 5.1 shall not be
construed as limiting in any way the extent to which the Design Professional may be held
responsible for the payment of damages to any persons or property resulting from the
Design Professional's activities or the activities of any person or person for which the
Design Professional is otherwise responsible.
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In the event the Design Professional subcontracts any portion of the work in
compliance with Section 4.3 of this Agreement, the contract between the Design
Professional and such subcontractor shall require the subcontractor to maintain the same
polices of insurance that the Design Professional is required to maintain pursuant to this
Section.
All required insurance coverages and limits are, and shall be, subject to availability
on the open market, at reasonable cost(s) as determined by the City and mutually agreed
upon by the parties. The non-ability or non-affordability of any coverage(s) must be
documented in writing from Design Professional's insurance representative.
5.2 City Held Harmless-General Liability: Except for the sole negligence
of City, the Design Professional undertakes and agrees to defend, indemnify and hold
harmless City, and any and all of City's Boards, officers, agents, 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 or liability of any nature whatsoever, for death or
injury to any person, including the Design Professional's employees and agents, or for
damage to, or destruction of, any property of either part hereto, or of third persons, in any
manner to the extent arising by reasons of the acts of omissions in the performance of this
Agreement on the part of Design Professional, or any of Design Professional's
subcontractors, employees, or anyone for whom the Design Professional has obligated
itself under this Agreement, whether or not contributed to by any act or omission of City or
any of the City' Boards, officers or employees.
5.3 City Held Harmless - Professional Liability: Design Professional
undertakes and agrees to indemnify and hold harmless City, and any and all of City's
Boards, officers, agents and employees from and against all losses and expenses,
including, but not limited to, reasonable attorney's fees and reasonable costs of litigation,
damages or liability of any nature whatsoever, for death or injury to any person, including
Design Professional's employees and agents, or for damage to, or destruction of, any
property of third person, in any manager to the extent caused by the negligent acts or
omissions in performance of the professional services underthis Agreement on the part of
the Design Professional.
5.4 Performance Bond. Performance Bonds are hereby waived.
5.5 Sufficiency of Insurer or Surety. Insurance or bonds required by this
Agreement shall be satisfactory only if issued by companies qualified to do business in
California, rated "A" or better in the most recent edition of Best Rating Guide, The Key
Rating Guide or in the Federal Register, and only if they are of a financial category Class
VI I 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
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determines that the work or services to be performed under this Agreement creates an
increased or decreased risk of loss to the City, the Design Professional 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 Design Professional 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. Design Professional 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. Design Professional 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, Design Professional agrees that if
Design Professional becomes aware of any facts, circumstances, techniques, or events
that may or will materially increase or decrease the cost of providing design services orthe
cost of the project being designed, Design Professional shall promptly notify the Contract
Officer of said fact, circumstance, technique or event and the estimated increased or
decreased cost related thereto; and, if Design Professional is providing design services,
the estimated increased or decreased cost estimate for the project being designed.
6.2 Records. Design Professional 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 Design Professional, 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 Design Professional 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 Design Professional will be at the City's sole risk and without liability to
Design Professional, and the City shall indemnify the Design Professional for all damages
resulting therefrom. Design Professional may retain copies of such documents for its own
use. Design Professional shall have an unrestricted right to use the concepts embodied
therein. All subcontractors shall provide for assignment to City of any documents or
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materials prepared by them, and in the event Design Professional fails to secure such
assignment, Design Professional shall indemnify City for all damages resulting therefrom.
6.4 Release of Documents. The drawings, specifications, reports, records,
documents and other materials prepared by Design Professional 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 Design
Professional 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
Design Professional's right to terminate this Agreement without cause pursuant to Section
7.8.
7.3 Retention of Funds. This section was deleted.
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
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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 Design Professional and its
sureties shall be liable for and shall pay to the City the sum of
NONE ($ ) 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 "C"). The City may withhold from any monies
payable on account of services performed by the Design Professional 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 anytime,
with or without cause, upon thirty (30) days' written notice to Design Professional, except
that where termination is due to the fault of the Design Professional, the period of notice
may be such shorter time as may be determined by the Contract Officer. In addition, the
Design Professional reserves the right to terminate this Agreement at any time, with or
without cause, upon sixty(60)days'written notice to City, except that where termination is
due to the fault of the City, the period of notice may be such shorter time as the Design
Professional may determine. Upon receipt of any notice of termination, Design
Professional shall immediately cease all services hereunder except such as may be
specifically approved by the Contract Officer. Except where the Design Professional has
initiated termination, the Design Professional 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 Design Professional has initiated termination, the Design
Professional 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 Design Professional . If termination is due to
the failure of the Design Professional to fulfill its obligations under this Agreement, City
may, after compliance with the provisions of Section 7.2, take over the work and prosecute
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the same to completion by contract or otherwise, and the Design Professional 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 Design
Professional for the purpose of set-off or partial payment of the amounts owed the City as
previously stated.
7.10 Attorneys' Fees. If either party to this Agreement is required to initiate
or defend or made a party to any action or proceeding in any way connected with this
Agreement, the prevailing party in such action or proceeding, in addition to any other relief
which may be granted,whether legal or equitable, shall be entitled to reasonable attorney's
fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party
entitled to attorney's fees shall be entitled to all other reasonable costs for investigating
such action, taking depositions and discovery and all other necessary costs the court
allows which are incurred in such litigation. All such fees shall be deemed to have accrued
on commencement of such action and shall be enforceable whether or not such action is
prosecuted to judgment.
8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees. No officer or employee of
the City shall be personally liable to the Design Professional, 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 Design Professional 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 officeror 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 Design
Professional 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. Design Professional 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. Design Professional 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
IRV 420037 v7 -12-
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 Design Professional,to the person at the address designated on the execution page of
this Agreement. Either party may change its address by notifying the other party of the
change of address in writing. Notice shall be deemed communicated at the time personally
delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this
Section.
9.2 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of this Agreement or any other rule of
construction which might otherwise apply.
9.3 Integration; Amendment. It is understood that there are no oral
agreements between the parties hereto affecting this Agreement and this Agreement
supersedes and cancels any and all previous negotiations, arrangements, agreements and
understandings, if any, between the parties, and none shall be used to interpret this
Agreement. This Agreement may be amended at any time by the mutual consent of the
parties by an instrument in writing.
9.4 Severability. In the event that any one or more of the phrases,
sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared
invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction,
such invalidity or unenforceability shall not affect any of the remaining phrases, sentences,
clauses, paragraphs, or sections of this Agreement which are hereby declared as
severable and shall be interpreted to carry out the intent of the parties hereunder unless
the invalid provision is so material that its invalidity deprives either party of the basic benefit
of their bargain or renders this Agreement meaningless.
9.5 Corporate Authority. The persons executing this Agreement on behalf
of the parties hereto warrant that (i) such party is duly organized and existing, (ii)they are
duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so
executing this Agreement, such party is formally bound to the provisions of this Agreement,
and (iv) the entering into this Agreement does not violate any provision of any other
Agreement to which said party is bound.
[SIGNATURE PAGE FOLLOWS:]
IRV#20037 v7 -13-
IN WITNESS WHEREOF, the parties have executed and entered into this
Agreement as of the date first written above
"CITY"
CITY OF PALM SPRINGS
it Clerk
APPROVED AS TO FORM:
By:
`Gity_Attorney
CITY OF PALM SPRINGS,
a municipal corporation
By APPROVED UV MU-MY COUVIM,
City Manager ��� 4, /7 —aDDGrA ,
IRV#20037 v7 _14- �Y/ J
Corporations require two notarized signatures: One from each of the following: A.
Chairman of Board, President, or any Vice President: AND B. Secretary, Assistant
Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer.
"DESIGN PROFESSIONAL"
WALKER PARKING CONS
/ULTANTS/ENGINEERS, INC.:
��
By: n, tx ,�71L1YC1 Za
Signature (Notarized)
Thomas L.Hannula Sr. Vice President
Print Name & Title
505 Davis Rd. , Elgin, TT h0123 n /�
ailing Address
� s
Signature (Notarized) o�Ge
55:,
e
Print Name & Title
Mailing Address
IRV 420037 v7 —15—
EXHIBIT "A"
SCOPE OF SERVICES
A. Schematic Design
The Schematic Design is illustrated on the attached drawings and represents
the work performed to date by the design team,which are attached hereto as
"Exhibit Al." Initial approvals have been received from the City's Design
Review committee and the City Planning Commission as to the architectural
concepts.
B. Design Development
Further, the Design Professional will develop the approved schematic design
to evaluate appropriate systems with particular emphasis on architectural
expression, function and durability. The Design Professional will evaluate
value-engineering options to economize the various systems. Additionally,
the Design Professional will meet with the City and other governing agencies
to determine compliance with building codes and city ordinances. The
Design Professional will determine the opportunity to obtain variances, if
necessary, to enhance the financial feasibility of this project. The Design
Professional will prepare and present design development drawings and
preliminary specification.
1. Structural Design
The Design Professional will complete the following:
a. Evaluate precast concrete and post-tensioned concrete
structural systems to determine the most appropriate and cost-
effective system.
b. Design and lay-out the structural grid system to provide for
parking efficiency and patron comfort.
C. Determine crack control features, durability features, and
waterproofing requirements.
d. Determine most economical foundation system.
e. Determine building code requirements for type of construction
and fire rating.
IRV#20037 v7 -16-
• 9
2. Architectural Design
a. Further, the Design Professional will refine the schematic
design drawings for all main architectural elements of the
garage based upon the preliminary architectural concepts
provided by James Cioffi Architects. The Design Professional
will develop all elevation views, stair and elevator plans and
sections, wall/building sections, and selected details to form
the foundation for our CD production.
b. The Design Professional will prepare functional graphics and
signage plans for the interior of the garage to effectively guide
drivers and pedestrians through the parking structure.
G. The Design Professional will prepare a code analysis to
determine fire safety and life safety provisions for the parking
structure.
3. Electrical and Mechanical Design
The Design Professional will complete the following:
a. Provide a life cycle cost analysis of different light sources
including fluorescent, metal halide, and high-pressure sodium
lamps. The Design Professional will list the advantages and
disadvantages of each light source and recommend the most
appropriate system for this project.
b. Recommend lighting levels, fixture locations and fixture
manufacturers. Provide computerized calculations of
illuminance values for the recommended system.
C. Taking advantage of natural daylight, the Design Professional
will recommend switching and circuiting of lights in the garage
for energy conservation, while maintaining adequate lighting
for security.
d. Determine fire protection, security system and plumbing
systems for the parking facility.
e. Determine HVAC requirements and fire protection
requirements for elevators and equipment rooms in the parking
structure.
C. Construction Documents
IRV#20037 v7 -17-
0
The Design Professional will complete the following:
1. Prepare architectural, structural, mechanical, electrical, civil, and
landscape construction documents, including drawings and technical
specifications.
2. The Design Professional will comply with published local codes,
regulations, laws and guidelines in effect at the time of submission of
the documents for permitting.
3. Construction documents will be sealed by registered professional
Engineers and/or Architects in the State of California.
4. Obtain approval of the construction documents from governing
agencies.
D. Bidding
The Design Professional will complete the following:
1. Issue construction documents for bidding to selected, pre-qualified
contractors.
2. Issue interpretations of the construction documents and prepare
addenda summarizing clarifications and/or revisions.
3. Review bids and recommend award of construction contract.
E. Construction Administration
The Design Professional will complete the following:
1. Review shop drawings and materials sample submittals for the
project.
2. Respond to contractor requests for information and
clarifications/interpretations of the construction documents, including
such requests by Michael E. Fontana and Associates, Owner's
Representative, and Turner Construction Company, Construction
Manager, to whom multiple trade, prime contractors will be reporting.
3. James Cioffi Architect will provide weekly site observations of the
progress of the work, and Donald R. Monahan will visit the site at
least once per month during construction.
4. Issue change orders for revisions in the scope of the work.
IRV#20037 v7 18
F. Staffing
The Design Professional will provide project management, structural design and
parking consulting services for this project. The structural engineer will be Hoshi Engineer,
a registered civil engineer in the State of California. Donald R. Monahan, PE will serve as
Principal-in-Charge and Project Manager for the Design Professional.
IRV#20037 v7 -19-
EXHIBIT "B"
SCHEDULE OF COMPENSATION
I. Terms of Compensation. The services provided under this Agreement shall be
performed for a lump sum fee of three hundred twenty-five thousand ($325,000) dollars,
plus reimbursable expenses as set forth under Section II., below. This fee includes the
fees for the existing contract of $48,000, and for additional expenses for the work
performed to date. The net additional fee is then $277,000 plus reimbursable expenses.
The fee breakdown by design phase is as follows:
A. Schematic Design 15% $ 48,000
B. Design Development 25% $ 82,000
C. Construction Documents 40% $ 130,000
D. Bidding & Construction Administration 20% $ 65,000
$ 325,000
All fees incurred as of March 13, 2002 are included in the above tabulation.
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
the amounts set forth under Item D, Bidding & Construction Administration, shall be billed
to the City on a monthly basis as follows: five thousand ($5,000) for completion of the
bidding process, five thousand ($5,000) upon the completion of one third (1/3) and two
thirds (2/3)of the parking structure construction, and fifty thousand ($50,000)dollars upon
completion of the parking structure construction.
II. Reimbursable Expenses. Direct, non-labor expenses shall be reimbursed in
addition to fees at cost times a multiplier of 1.15, and includes the cost of travel and
subsistence, toll telephone calls and facsimile transmissions, postage and overnight mail,
reproductions, and similar project-related items (simply "Reimbursable Expenses"). The
Design Professional assumes that fifty(50)sets of construction documents will be provided
at a cost of approximately two hundred ($200) dollars for each set. Monthly trips will be
provided by the Design Professional free of charge during construction, and the Design
Professional's architectural subconsultant will attend weekly construction progress and
coordination meetings free of charge.
Reimbursable Expenses shall not exceed eighteen thousand five hundred
($18,500) dollars, and the total sums billed by Design Professional to the City (the
"Contract Sum"), shall not exceed three hundred forty-three thousand five hundred
($343,500.00) dollars.
1RV#20037 v7 -20-
10
EXHIBIT "C"
SCHEDULE OF PERFORMANCE
Items of Performance Time for Performance
1. Start A/E Bid Documents As soon as Possible
2. Fifty-Percent (50%) Construction On or Before April 12, 2002
Document Package Due
3. Demolition Bid Package Issued On or Before April 19, 2002
4. Complete Bid Documents On or Before May 17, 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#20037 v7
r LETTER OF TRANSMITTAL "`�
WALKER
PARKING CONSULTANTS
DATE: April 15, 2002
TO: Anthony R. Taylor, Esq.
COMPANY Burke, Williams & Sorensen, LLP
ADDRESS: 18301 Von Karman Ave., Suite 1050
CITY/STATE. Irvine, CA 92612-1009
TELEPHONE#. ° i— �� � >
CC. Don Monahan/Denver
FROM Mo Igbal
PROJECT NAME. City of Palm Springs
PROJECT NUMBER:
SUBJECT Design Services Agreement
WE ARE SENDING YOU: COPIES DATE DESCRIPTION
x Attached 4 Signed copies of the agreement, signed and
Under Separate Cover
Via notarized.
THE FOLLOWING:
Shop Drawings
Plans
Specifications
Report
x Other
THESE ARE TRANSMITTED
x For Approval
x For Your Use
For Review &Comment
Other
REMARKS:
Please send us a copy of the agreement after the City signs it. Thanks.
Signed: '
Walker
c.Awindows\lemporary mlernei filesAolk30f4A23-dN of palm spnngs transmiral to anlhony laylor doc