HomeMy WebLinkAboutA4378 - NINYO & MOORE AIRPORT FIRE STN EXPANSION Ninyo & Moore
Airport Fire Station Expansiox
AGREEMENT #4378 Amend 1
M07004, 2-6-02
AMENDMENT NO. 1 - — — —
AGREEMENT NO. 4378, TESTING AND SPECIAL INSPECTION
SERVICES, AIRPORT FIRE STATION EXPANSION
THIS FIRST AMENDMENT to Agreement No 4378 for Contract Services, (herein
"Agreement") made and entered into on the day of zG t 2001,
by and between the CITY OF PALM SPRINGS (herein "City") and Ninyo & Wore (herein
"Contractor"), (The term Contractor includes professionals performing in a consulting
capacity.), is hereby effective February 6, 2002, as follows:
The "Contractor" has been retained to perform testing and special inspection services
related to the expansion of the airport fire station for the City of Palm Springs, Department
of Aviation (AIRPORT), which operates the Palm Springs International Airport.
2.1 Contract Sum
Original Maximum Contract Amount: $20,000
Revised Maximum Contract Amount: $40,000
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Ninyo&Moore Amendment#1 Page 1 of 2
Except as specifically worded herein, all terms and conditions of the Agreement shall
remain in full force and effect and performance of services under the Agreement shall be
governed by the provisions of the Agreement.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as
of the date first written above.
CITY OF PALM SPRINGS,
a municipal corporation
ATTEST:
Cty "er
City Cler
APPROVED AS TO FORM:
(Check one: _ Individual _ Partnership
�J Z Corporation)
Attorney CONTRACTOR:
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(NOTARIZED) m fe 'Slig(nature
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n �Print Name & Titl
By
(NOTARIZED) l/ Signature d L Llwati_CA,4F'ry 6Wa+i';sq-
Print Name & Tiffle
Mailing Address:
(Corporations require two signatures:One from each
of the following: A. Chairman of Board, President,
any Vice President: AND B. Secretary, Assistant (END OF SIGNATURES)
Secretary, Treasurer, Assistant Treasurer, or Chief
Financial Officer).
APPROV E'D
d Page 2 of 2
EALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of t �?�� Ali
County of
On �y before me s "Cep
ate /f Name and Title ofOfficer(e.g.,"Jane CA,Notary Public"
personally appeared /�/Rt2�� CGt � sa,j�t' /• -fir WIAl
Name(e)of Signer(s) ,
FI;,(ersonally known to me—OR—❑proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s)Ware subscribed to the within instrument
and acknowledged to me that het�kre/they executed the
same in bis/W/their authorized capacity(ies), and that by
hyat'fw/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, ;
executed the instrument.
�i nnvlo J.GINNS
` Commission# 7297939 z WITNESS my hand and official seal.
NotaryyPublic-Callfomiol
San Diceo County
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SI nature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: sy6r2eE'yrrCJ sYO. 'f3?�
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
i�
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
I.a�
❑ Individual ❑ Individual
❑ Corporate Officer ❑ Corporate Officer
Title(s): Title(s):
ElPartner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General
❑ Attorney-in-Fact ❑ Attorney-in-Fact
❑ Trustee ❑ Trustee
❑ Guardian or Conservator ❑ Guardian or Conservator
❑ Other: Top of thumb here ❑ Other: Top of thumb here
Is
Signer Is Representing: Signer Is Representing:
0 1994 National Notary Association•8236 Remmer Ave P.O.Box 7104•Canoga Park,CA 91309-7184 Prod No.5907 Reorder:Call Tall-Free 1-800-876-6827
Ninyo & Moore
iTesting & Special Inspection
AGREEMENT #4378
M06873, 7-5-01
CITY OF PALM SPRINGS
CONTRACT SERVICES AGREEMENT FOR
TESTING AND SPECIAL INSPECTION SERVICES
Airport Fire Station Expansion
THIS CONTRACT SERVICES AGREEMENT(herein"Agreement"),is made and entered into
this day ofs,� , by and between the CITY OF PALM SPRINGS, a municipal
corporation, (her tty") and NINYO & MOORE (herein "Contractor"). (The term Contractor
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 withal[terms and conditions of this Agreement,
the Contractor shall provide those services specified in the "Scope of Services" attached hereto
as Exhibit"A"and incorporated herein by this reference,which services may be referred to herein
as the "services" or "work" hereunder. As a material inducement to the City entering into this
Agreement,Contractor represents and warrants that Contractor is a provider of first class work and
services and Contractor is experienced in performing the work and services contemplated herein
and, in light of such status and experience, Contractor covenants that it shall follow the highest
professional standards in performing the work and services required hereunder and that all
materials will be of good quality,fit for the purpose intended. For purposes of this Agreement, the
phrase"highest professional standards"shall mean those standards of practice recognized by one
or more first-class firms performing similar work under similar circumstances.
1.2 Contractor's Proposal. The Scope of Service shall include the Contractor'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.Contractor shall obtain at its sole cost
and expense such licenses,permits and approvals as may be required by law for the performance
of the services required by this Agreement. Contractor shall have the sole obligation to pay for any
fees, assessments and taxes, plus applicable penalties and interest,which may be imposed by law
and arise from or are necessary for the Contractor's performance of the services required by this
Agreement, and shall indemnify, defend and hold harmless City against any such fees,
assessments, taxes penalties or interest levied, assessed or imposed against City hereunder.
1.5 Familiarity with Work. By executing this Contract, Contractor warrants that
Contractor(a)has thoroughly investigated and considered the scope of services to be performed,
(b) has carefully considered how the services should be performed, and (c)fully understands the
facilities, difficulties and restrictions attending.performance of the services under this Agreement.
If the services involve work upon any site, Contractor warrants that Contractor has or will
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investigate the site and is or will be fully acquainted with the conditions there existing, prior to
commencement of services hereunder. Should the Contractor discover any latent or unknown
conditions,which will materially affect the performance of the services hereunder,Contractor shall
immediately inform the City of such fact and shall not proceed except at Contractor's risk until
written instructions are received from the Contract Officer.
1.6 Care of Work. The Contractor shall adopt reasonable methods during the life of
the Agreement to furnish continuous protection to the work, and the equipment, materials, papers,
documents, plans, studies and/or other components thereof to prevent losses or damages, and
shall be responsible for all such damages, to persons or property, until acceptance of the work by
City, except such losses or damages as may be caused by City's own negligence.
1.7 Further Responsibilities of Parties.Both parties agree to use reasonable care and
diligence to perform their respective obligations under this Agreement. Both parties agree to act
in good faith to execute all instruments, prepare all documents and take all actions as may be
reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified,
neither party shall be responsible for the service of the other.
1.8 Additional Services. City shall have the right at any time during the performance
of the services, without invalidating this Agreement, to order extra work beyond that specified in
the Scope of Services or make changes by altering, adding to or deducting from said work. No
such extra work may be undertaken unless a written order is first given by the Contract Officer to
the Contractor, incorporating therein any adjustment in (i)the Contract Sum, and/or(ii)the time to
perform this Agreement, which said adjustments are subject to the written approval of the
Contractor. Any increase in compensation of up to five percent (5%) of the Contract Sum or
$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 Contractor that the provisions
of this Section shall not apply to services specifically set forth in the Scope of Services or
reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the
services to be provided pursuant to the Scope of Services may be more costly or time consuming
than Contractor anticipates and that Contractor shall not be entitled to additional compensation
therefore.
1.9 Special Requirements.Additional terms and conditions of this Agreement, if any,
which are made apart 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
Contractor shall be compensated in accordance with the "Schedule of Compensation" attached
hereto as Exhibit"C" and incorporated herein by this reference, but not exceeding the maximum
contract amount of$20,000 forthe first year of the agreement(see EXHIBIT"C") (herein"Contract
Sum"), except as provided in Section 1.8. The method of compensation may include: (i) a lump
sum payment upon completion, (ii) payment in accordance with the percentage of completion of
the services, (iii) payment for time and materials based upon the Contractor's rates as specified
in the Schedule of Compensation, but not exceeding the Contract Sum or(iv) such other methods
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as may be specified in the Schedule of Compensation.Compensation may include reimbursement
for actual and necessary expenditures for reproduction costs, telephone expense, transportation
expense approved by the Contract Officer in advance,and no other expenses and only if specified
in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor
at all project meetings reasonably deemed necessary by the City; Contractor 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 Contractor wishes to receive payment, no later
than the first (1st) working day of such month, Contractor 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 Contractor for all expenses stated thereon
which are approved by City pursuant to this Agreement no later than the last working day of the
month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance. Contractor shall commence the services pursuant to
this Agreement upon receipt of a written notice to proceed and shall perform all services within the
time period(s)established in the"Schedule of Performance"attached hereto as Exhibit"D", if any,
and incorporated herein by this reference. When requested by the Contractor, extensions to the
time period(s)specified in the Schedule of Performance may be approved in writing bythe 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 Contractor,including, but not restricted to, acts of God or of the public enemy,unusually severe
weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight
embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the
Contractor shall within ten(10)days of the commencement of such delay notify the Contract Officer
in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent
of delay, and extend the time for performing the services for the period of the enforced delay when
and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's
determination shall be final and conclusive upon the parties to this Agreement. In no event shall
Contractor be entitled to recover damages against the City for any delay in the performance of this
Agreement,howevercaused,Contractor'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 one (1) year from the date hereof, except as otherwise provided in the Schedule of
Performance.
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4.0 COORDINATION OF WORK
4.1 Representative of Contractor. The following principals of Contractor are hereby
designated as being the principals and representatives of Contractor authorized to act in its behalf
with respect to the work specified herein and make all decisions in connection therewith:
Mr Mark Cuthbert, P.E.
Ninyo & Moore
5710 Ruffin Road
San Diego, CA 92123
858/576-1000
FAX 858/576-9600
It is expressly understood that the experience, knowledge, capability and reputation of the
foregoing principalswere a substantial inducement for City to enterinto this Agreement.Therefore,
the foregoing principals shall be responsible during the term of this Agreement for directing all
activities of Contractor and devoting sufficient time to personally supervise the services hereunder.
For purposes of this Agreement, the foregoing principals may not be replaced nor may their
responsibilities be substantially reduced by Contractor without the express written approval of City.
4.2 Contract Officer.The Contract Officer shall be such personas maybe designated
by the City Manager of City. It shall be the Contractor's responsibility to assure that the Contract
Officer is kept informed of the progress of the performance of the services and the Contractor shall
refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified
herein, any approval of City required hereunder shall mean the approval of the Contract Officer.
The Contract Officer shall have authority to sign all documents on behalf of the City required
hereunder to carry out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge,
capability and reputation of Contractor,its principals and employees were a substantial inducement
for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other
entity to perform in whole or in part the services required hereunder without the express written
approval of the City. In addition, neither this Agreement nor any interest herein may be transferred,
assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for
the benefit of creditors or otherwise, without the prior written approval of City.Transfers restricted
hereunder shall include the transfer to any person or group of persons acting in concert of more
than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all
transfers into account on a cumulative basis. In the event of any such unapproved transfer,
including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall
release the Contractor or any surety of Contractor of any liability hereunder without the express
consent of City.
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").Contractor 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 Contractor shall submit evidence to the Citythat such good faith efforts have been made or that
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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 Contractor's efforts in determining whether
it will consent to a particular subcontractor. Contractor shall keep evidence of such good faith
efforts and copies of all contracts and subcontracts hereunder for the period specified in Section
6.2.
4.4 Independent Contractor. Neither the City nor any of its employees shall have any
control over the manner, mode or means by which Contractor, its agents or employees, perform
the services required herein, except as otherwise set forth herein. City shall have no voice in the
selection, discharge, supervision or control of Contractor's employees, servants, representatives
or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all
services required herein as an independent contractor of City and shall remain at all times as to
City a wholly independent contractor with only such obligations as are consistent with that role.
Contractor shall not at any time or in any manner represent that it or any of its agents or employees
are agents or employees of City. City shall not in any way or for any purpose become or be
deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member
of any joint enterprise with Contractor.
5.0 INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance. The Contractor shall procure and maintain, at its sole cost and
expense, in a form and content satisfactory to City, during the entire term of this Agreement
including any extension thereof, the following policies of insurance:
(a)Comprehensive General Liability Insurance.A policy of comprehensive general
liability insurance written on a per occurrence basis.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 $5,000,000 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 Contractor and the City against any loss,
claim or damage arising from any injuries or occupational diseases occurring to any worker
employed by or any persons retained by the Contractor in the course of carrying out the work or
services contemplated in this Agreement.
(c)Automotive Insurance.A policyof comprehensive automobile liability insurance
written on a per occurrence basis in an amount not less than either(i) bodily injury liability limits of
$500,000 per person and $1,000,000 per occurrence and property damage liability limits of
$250,000 per occurrence and $500,000 in the aggregate or (ii) combined single limit liability of
$1,000,000. Said policy shall include coverage for owned, non-owned, leased and hired cars.
(d)Additional Insurance. Policies of such other insurance, including professional
liability insurance, as may be required in the Special Requirements.
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All of the above policies of insurance shall be primary insurance and shall name the City, its
officers, employees and agents 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 Contractor shall, prior to the cancellation date,submit new evidence
of insurance in conformance with this Section 5.1 to the Contract Officer. No work or services under
this Agreement shall commence until the Contractor has provided the City with Certificates of
Insurance or appropriate insurance binders evidencing the above insurance coverages and said
Certificates of Insurance or binders are approved by the City.
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 Contractor agrees that the provisions of this Section 5.1 shall not be construed as limiting
in any way the extent to which the Contractor may be held responsible for the payment of damages
to any persons or property resulting from the Contractor's activities or the activities of any person
or persons for which the Contractor is otherwise responsible.
In the event the Contractor subcontracts any portion of the work in compliance with Section
4.3 of this Agreement, the contract between the Contractor and such subcontractor shall require
the subcontractor to maintain the same policies of insurance that the Contractor is required to
maintain pursuant to this Section 5.1.
5.2 Indemnification. Contractor agrees to indemnify the City, its officers, agents and
employees against, and will hold and save them and each of them harmless from, any and all
actions,suits,claims,damages to persons or property,losses,costs,penalties,obligations, errors,
omissions or liabilities,(herein"claims or liabilities")that may be asserted or claimed by any person,
firm or entity arising out of or in connection with the negligent performance of the work, operations
or activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein,
or arising from the negligent acts or omissions of Contractor hereunder,or arising from Contractor's
negligent performance of or failure to perform any term, provision, covenant or condition of this
Agreement,whether or not there is concurrent passive or active negligence on the part of the City,
its officers, agents or employees but excluding such claims or liabilities arising from the sole
negligence or willful misconduct of the City, its officers, agents or employees, who are directly
responsible to the City, and in connection therewith:
(a)Contractorwill defend any action or actions filed in connection with any of said
claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees
incurred in connection therewith;
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(b) Contractor will promptly pay any judgment rendered against the City, its
officers, agents or employees for any such claims or liabilities arising out of or in connection with
the negligent performance of orfailure to perform such work, operations or activities of Contractor
hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees
harmless therefrom;
(c) In the event the City, its officers, agents or employees is made a party to any
action or proceeding filed or prosecuted against Contractor for such damages or other claims
arising out of or in connection with the negligent performance of or failure to perform the work,
operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers,
agents or employees, any and all costs and expenses incurred by the City, its officers, agents or
employees in such action or proceeding, including but not limited to,legal costs and attorneys'fees.
5.3 Performance Bond. Concurrently with execution of this Agreement, Contractor
shall deliver to City a performance bond in the sum of the amount of this Agreement, in the form
provided by the City Clerk,which secures the faithful performance of this Agreement, unless such
requirement is waived by the Contract Officer. The bond shall contain the original notarized
signature of an authorized officer of the surety and affixed thereto shall be a certified and current
copy of his power of attorney.The bond shall be unconditional and remain in force during the entire
term of the Agreement and shall be null and void only if the Contractor promptly and faithfully
performs all terms and conditions of this Agreement.
5.4 Sufficiency of Insurer or Surety. Insurance or bonds required by this Agreement
shall be satisfactory only if issued by companies qualified to do business in California, rated "A"or
better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal
Register, and only if they are of a financial category Class VII or better, unless such requirements
are waived by the City Manager or designee of the City ("City Manager") due to unique
circumstances. In the event the City Manager determines that the work or services to be performed
under this Agreement creates an increased or decreased risk of loss to the City, the Contractor
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 Contractor 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. Contractor shall periodically prepare and submit to the Contract Officer
such reports concerning the performance of the services required by this Agreement as the
Contract Officer shall require. Contractor 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,
Contractor agrees that if Contractor 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 Contractor is providing design services, the cost of the project being
designed,Contractor shall promptly notify the Contract Officer of said fact,circumstance,technique
or event and the estimated increased or decreased cost related thereto and, if Contractor is
providing design services,the estimated increased or decreased cost estimate forthe project being
designed.
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6.2 Records. Contractor shall keep, and require subcontractors to keep, such books
and records as shall be necessary to perform the services required by this Agreement and enable
the Contract Officer to evaluate the performance of such services.The Contract Officer shall have
full and free access to such books and records at all times during normal business hours of City,
including the right to inspect, copy, audit and make records and transcripts from such records.
Such records shall be maintained for a period of three (3) years following completion of the
services hereunder, and the City shall have access to such records in the event any audit is
required.
6.3 Ownership of Documents. All drawings, specifications, reports, records,
documents and other materials prepared by Contractor, its employees, subcontractors and agents
in the performance of this Agreement shall be the property of City and shall be delivered to City
upon request of the Contract Officer or upon the termination of this Agreement, and Contractor
shall have no claim for further employment or additional compensation as a result of the exercise
by City of its full rights of ownership of the documents and materials hereunder. Any use of such
completed documents for other projects and/or use of uncompleted documents without specific
written authorization by the Contractor will be at the City's sole risk and without liability to
Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom.
Contractor may retain copies of such documents for its own use. Contractor shall have an
unrestricted right to use the concepts embodied therein. All subcontractors shall provide for
assignment to City of any documents or materials prepared by them, and in the event Contractor
fails to secure such assignment, Contractor shall indemnify City for all damages resulting
therefrom.
6.4 Release of Documents.The drawings,specifications,reports,records,documents
and other materials prepared by Contractor in the performance of services under this Agreement
shall not be released publicly without the prior written approval of the Contract Officer.
7.0 ENFORCEMENT OF AGREEMENT
7.1 California Law. This Agreement shall be construed and interpreted both as to
validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement
shall be instituted in the Superior Court of the County of Riverside, State of California, or any other
appropriate court in such county, and Contractor covenants and agrees to submit to the personal
jurisdiction of such court in the event of such action.
7.2 Disputes. In the event of any dispute arising under this Agreement, the injured
party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The
injured party shall continue performing its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of service of such notice and completes the
cure of such default within forty-five (45) days after service of the notice, or such longer period as
may be permitted by the injured party; provided that if the default is an immediate danger to the
health,safety and general welfare,such immediate action may be necessary. Compliance with the
provisions of this Section shall be a condition precedent to termination of this Agreement for cause
and to any legal action, and such compliance shall not be a waiver of any party's right to take legal
action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the
Contractor's right to terminate this Agreement without cause pursuant to Section 7.8.
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i •
7.3 Retention of Funds.Contractor hereby authorizes City to deduct from any amount
payable to Contractor(whether or not arising out of this Agreement) (i) any amounts the payment
of which may be in dispute hereunder or which are necessary to compensate City for any losses,
costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to
third parties, by reason of Contractor's acts or omissions in performing or failing to perform
Contractor's obligation under this Agreement. In the event that any claim is made by a third party,
the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which
shall appear to be the basis for a claim of lien, City may withhold from any payment due, without
liability for interest because of such withholding, an amount sufficient to cover such claim. The
failure of City to exercise such right to deduct or to withhold shall not, however, affect the
obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver. No delay or omission in the exercise of any right or remedy by a
nondefaulting party on any default shall impair such right or remedy or be construed as a waiver.
A party's consent to or approval of any act by the other party requiring the party's consent or
approval shall not be deemed to waive or render unnecessary the other party's consent to or
approval of any subsequent act. Any waiver by either party of any default must be in writing and
shall not be a waiver of any other default concerning the same or any other provision of this
Agreement.
7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are
cumulative and the exercise by either party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of any other rights or remedies for the
same default or any other default by the other party.
7.6 Legal Action. In addition to any other rights or remedies, either party may take
legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any
default,to compel specific performance of this Agreement,to obtain declaratory or injunctive relief,
or to obtain any other remedy consistent with the purposes of this Agreement.
7.7 Liquidated Damages. Since the determination of actual damages for any delay in
performance of this Agreement would be extremely difficult or impractical to determine in the event
of a breach of this Agreement, the Contractor 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 "D"). The City may withhold from any monies payable on account of services performed
by the Contractor any accrued liquidated damages.
7.8 Termination Prior to Expiration Of Term.This Section shall govern any termination
of this Agreement except as specifically provided in the following Section for termination for cause.
The City reserves the right to terminate this Agreement at any time, with or without cause, upon
thirty(30)days'written notice to Contractor, except that where termination is due to the fault of the
Contractor, the period of notice may be such shorter time as may be determined by the Contract
Officer. In addition,the Contractor reserves the right to terminate this Agreement at any time upon,
with or without cause, upon sixty(60) days'written notice to City, except that where termination is
due to the fault of the City, the period of notice may be such shorter time as the Contractor may
determine. Upon receipt of any notice of termination, Contractor shall immediately cease all
services hereunder except such as may be specifically approved by the Contract Officer. Except
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where the Contractor has initiated termination,the Contractor shall be entitled to compensation for
all services rendered prior to the effective date of the notice of termination and for any services
authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or
such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event
the Contractor has initiated termination, the Contractor 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 Contractor. If termination is due to the failure of the
Contractor to fulfill its obligations under this Agreement, City may, after compliance with the
provisions of Section 7.2, take over the work and prosecute the same to completion by contract or
otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the
services required hereunder exceeds the compensation herein stipulated (provided that the City
shall use reasonable efforts to mitigate such damages), and City may withhold any payments to
the Contractor for the purpose of 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 Contractor, or any successor in interest, in the event of any default
or breach by the City or for any amount which may become due to the Contractor or to its
successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest. No officer or employee of the City shall have any financial
interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in
any decision relating to the Agreement which effects his financial interest or the financial interest
of any corporation, partnership or association in which he is, directly or indirectly, interested, in
violation of any State statute or regulation.The Contractor warrants that it has not paid orgiven and
will not pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination. Contractor covenants that, by and for itself, its
heirs, executors, assigns, and all persons claiming under or through them, that there shall be no
discrimination against or segregation of,any person or group of persons on account of race, color,
creed, religion, sex, marital status, national origin, or ancestry in the performance of this
Agreement.Contractorshall 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.
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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 eitherserved personally or sent by prepaid,first-class mail, in the case of the City,
to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O.
Box 2743, Palm Springs, California 92263, and in the case of the Contractor, to the person at the
address designated on the execution page of this Agreement. Either party may change its address
by notifying the other party of the change of address in writing. Notice shall be deemed
communicated at the time personally delivered or in seventy-two(72)hours from the time of mailing
if mailed as provided in this Section.
9.2 Interpretation.The terms of this Agreement shall be construed in accordance with
the meaning of the language used and shall not be construed for or against either party by reason
of the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.3 Integration: Amendment. It is understood that there are no oral agreements
between the parties hereto affecting this Agreement and this Agreement supersedes and cancels
any and all previous negotiations,arrangements, agreements and understandings,if any,between
the parties, and none shall be used to interpret this Agreement.This Agreement may be amended
at any time by the mutual consent of the parties by an instrument in writing.
9.4 Severability. In the event that anyone 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.
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9.5 Corporate Author. The persons executing this Agreement on behalf of the
parties hereto warrant that(i)such party is duly organized and existing, (ii)they are duly authorized
to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement,
such party is formally bound to the provisions of this Agreement, and (iv) the entering into this
Agreement does not violate any provision of any other Agreement to which said party is bound.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of
the date first written above.
77TY OF P - SP INGS, CALIFORNIA
City Clerk
APPROVED AS`TTOO,FORM: APPROVED BY THE CITY COUNCIL:
By. �� Minute Order No. 6873 Date 07/05/2001
it Attorney
Date Agreement No. 4378
CONTENTS APPROVED:
By
City Manager
Date
CONTRACTOR:
n//NYD d MOdeE
(Check one: Individual, Partnership,_✓ _Corporation)
By
Signature
(NOTARI7� )
Print Name and Title:
N/NYU, AEe�cT
By
Signature
(NOTARIZED)
Print Name and Title:
1�1f�rcH� /� �l2/fl/c'S .S�cr2�frpary
Mailing Address:
57/O �4F`rrt 20/
San brego , C/-> 9Z1a3
Date
(Corporations require two signatures;one from each of the following groups:A.Chairman of Board,President,
or any Vice President; AND B. Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief
Financial Officer),
End of Signatures
CALIFORNIA ALL-PURPA ACKNOWLEDGMENT
State of ��l i ��1 t N
County of
OnZ/� �0/ before me
Dafe //// / Name and The of Officerry/( .g.,"Jane Doe,Nol Public")
personally appeared o- 42A&g wl,iio ye
Name(.)of Signer(.)
ersonally known to me—OR—❑proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s)Ware subscribed to the within instrument
and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted,
= executed the instrument.
BJNNS
c. fis_
�onmissio 4
z x Notortr P�;d�fic-CaefomjQ > WITNESS my hand and official seal.
Sian Diego Caun'Ey.. .
d •n -' r�JlyComm.B roL1.5 Aa,g7.�""J2
IT J77vC�
.., Slgnalure of Notary Public
OPTIONAL
Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
i
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑ Individual ❑ Individual
❑ Corporate Officer ❑ Corporate Officer
Title(s): Title(s):
❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General
❑ Attorney-in-Fact ❑ Attorney-in-Fact
❑ Trustee ❑ Trustee
i,.
❑ Guardian or Conservator El Guardian or Conservator ,
❑ Other: Top of thumb here ❑ Other: Top of thumb here
�nl
b
Signer Is Representing: Signer Is Representing:
O 1994 National Notary Asserie lon•8236 Remmel Ave,PO Box 7164•Canoga Park,CA 91309-7184 Prod No 5907 Reorder.Call Toll-Free 1-800-876-6827
EXHIBIT "A"
SCOPE OF SERVICES
The Contractor shall provide the full range of Testing and Special Inspection Services for the Palm
Springs International Airport Fire Station #2 Expansion (City Project#200-32). Said Testing and
Special Inspection Services shall be as specified in "Section 01410 Testing Laboratory Services"
of the project specifications, a copy of which is attached.
Contractor shall provide properly licensed testing and inspection personnel to carry out all required
work. Work may begin as early at 7:00 am and extend to 9:00 pm (see Exhibit "C" for overtime
provisions). Some after hours and weekend work may be required to ensure timely completion of
the work. Contractor shall attend construction site meetings as requested by the Contract Officer.
Contractor shall check into and out of the construction site for each visit with the Contract Officer,
who shall make a record of the visit, and the purpose and the result of the visit. All work shall be
coordinated through the Contractor Officer.
Contractor shall submit itemized billing for all testing and inspection work to the City. Itemized
billing shall include the date, time, length and result of the testing.
Contractor shall provide up to six (6) copies of all test reports to the City and its various
representatives as may be directed by the Contract Officer.
Contractor shall provide all necessary equipment and materials to carry out all required tests.
Contractor shall ensure that licenses for all inspection personnel are on file and approved by the
Palm Springs Building Department prior to carrying out inspection or testing activities.
Contractor shall ensure compliance with all job site safety standards as established by the City.
Contractor shall immediately notify City of any test failures and shall not just note same on a test
report and process as a normal report.
EXHIBIT"A"
TO CONTRACT SERVICES AGREEMENT
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EXHIBIT rB"
SPECIAL REQUIREMENTS
Section 5.2- Delete a portion of paragraph "Indemnification," beginning on line 9 as follows:
"Whether or not there is concurrent passive or active negligence on the part
of the City, its officers, agents or employees."
Section 5.3-The Performance Bond is not required by this agreement.
EXHIBIT"B"
TO CONTRACT SERVICES AGREEMENT
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EXHIBIT "C"
SCHEDULE OF COMPENSATION
Contractor shall be compensated monthly based upon the specific inspection and testing work
completed on the Palm Springs International Airport Fire Station #2 Expansion Project based on
the following rates. NOTE: For field and laboratory technicians and special inspectors, regular
hourly rates are charged during normal weekday construction hours of 7:00 a.m. to 3:30 p.m.
Overtime rates at 1.5 times the regular rates will be charged for work performed outside normal
construction hours and all day on Saturdays and Sundays All overtime shall be approved by the
City priorto work occurring. Double time rates at twice the regular rates will be charged for all work
in excess of 12 hours in one day. Holiday rates will be twice the regular rate. Lead time for any
requested service is 24 hours. Special inspection rates are based on a 4-hour minimum for the first
4 hours and an 8-hour minimum for 4 hours to 8 hours. The 4-hour minimum will be charged as
a "show-up"for inspections not conducted due to a lack of performance by the contractor. For soil
technicians, travel time for on-call services are charged portal to portal, with a minimum site visit
charge of 2 hours. Travel to distant locations that require an overnight stay will be charged at the
regular rate during travel hours. Lodging, travel costs and ground transportation will be charged
at actual cost, plus 15 percent.
1. Hourly rate for field testing and inspection. NOTE: This rate shall include project
administration, overhead, and reports.
$As noted below/hr
2. Minimum inspection time charges 4 hr. visit
Rate per lab test (rates to include project administration, overhead, and reports:
3. Sitework
a. Grading Observation and Testing $_68_/hour
b. Trench Backfill Compaction Testing $_68_/hour
c. Subgrade Testing $_68_/hour
d. Maximum Density and Optimum Moisture $ 145 /test
4. Concrete
a. Foundation Excavation Inspection $ 98 /hour
b. Mix Design Review and Approval $ 55 /hour
c. Reinforcement Inspections $_55_/hour
d Concrete Placement Inspections $_55_/hour
e. Batch Plant Inspection $_68_/hour
f. Concrete Compressive Strength Test $_17_/test
g. Steel Reinforcement Testing $ 84 /test
EXHIBIT"C
TO CONTRACT SERVICES AGREEMENT
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5. Masonry
1. Masonry Construction Inspection $---55----/hour
2. Grout Compressive Strength Test $---17----/test
3. Mortar Compressive Strength Test $_17_---/test
4. Masonry Prism Compressive Strength Test $---90_/test
6. Metals
1. Shop Welding Inspection $---55___/hour
2. Field Welding and High Strength Bolting Inspection $---55_/hour
3. High Strength Bolt Conformance Testing $---100---/test
EXHIBIT"C'
TO CONTRACT SERVICES AGREEMENT
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r
M r
EXHIBIT "Drr
SCHEDULE OF PERFORMANCE
The contract shall meet the following schedule: (all days are calendar and approvals referenced
are from the Contract Officer)
1. The project is anticipated to begin by July 25, 2001 and be completed by March of 2002.
2. Contractor shall provide the necessary testing & inspection personnel so that requests for
service made by 2:00 pm PST for service one day, shall be fulfilled the following morning.
3. Contractor shall provide test reports within one(1)week of the completion of the test if the test
results are in the passing range. Failures shall be immediately reported to the Contractor
Officer via phone or FAX.
4. Testing and inspection personnel availability shall not be the cause of construction project
delays.
EXHIBIT"D"
TO CONTRACT SERVICES AGREEMENT
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