HomeMy WebLinkAbout04003 - ONE STOP CENTER JOHN TUITE o� SA�y City of Palm Springs
Office of the City Clerk
(760) 323-8205
C�[1FOR N MEMORANDUM
Date: S-/?/ba
To:
From: City Clerk
AGREEMENT# 1 '00 --
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Signa Ve
John Tuite
Consultant for One-Stop Ctr.
AGREEMENT #4003
CONTRACT SERVICES AGREEMENT FOR CM Signed, 7-1-98
CONSULTING SERVICES OF JOHN J. TUI
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement") , is made
and entered into this 1st day of July, 1998 by and between the THE
CITY OF PALM SPRINGS, (herein "City") , a body, corporate and
politic and JOHN J. TUITE (herein "Contractor") The parties
hereto agree as follows :
1 .0 SERVICES OF CONTRACTOR
1 . 1 Scope of Services . In compliance with all terms
and conditions of this Agreement, the Contractor shall provide
those services specified in the "Scope of Services" attached hereto
as Exhibit "A" and incorporated herein by this reference, which
services may be referred to herein as the "services" or "work"
hereunder. Contractor warrants that all services will be performed
in a competent, professional and satisfactory manner in accordance
with the standards prevalent in the industry, and all materials
will be of good quality, fit for the purpose intended.
1 .2 Contractor' s Proposal . The Scope of Services 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 sha:'.1 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 indemm-iify,
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 cons:..dered how the services should be performed, and (c)
fully understands the facilities, difficulties and restrictions
Contract Services
John J. Tuite
June 1998
attending performance of the services under this Agreement. If the
services involve work upon any site, Contractor warrants that
Contractor has or will investigate the site and is or will be fully
acquainted with the conditions there existing, prior to
commencement of services hereunder. Should the Contractor discover
any latent or unknown conditions, which will materially affect the
performance of the services hereunder, Contractor shall immediately
inform the City of such fact and shall not proceed except at
Contractor' s risk until written instructions are received from the
Contract Officer.
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 five
percent (5%) or less of the Contract Sum, or in the time to perform
of one hundred eighty (180) days or less may be approved by the
Contract Officer. Any greater increases, taken either separately
or cumulatively must be approved by the City Council . It is
expressly understood by Contractor that the provisions of this
Section shall not apply to services specifically set forth in the
Scope of Services or reasonably contemplated therein. Contractor
hereby acknowledges that it accepts the risk that the services to
be provided pursuant to the Scope of Services may be more costly or
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John J. Tuite
June 1998
time consuming than Contractor anticipates and that Contractor
shall not be entitled to additional compensation therefore.
1 . 9 Special Requirements . Additional terms and
conditions of this Agreement, if any, which are made a part hereof
are set forth in the "Special Requirements" attached hereto as
Exhibit "B" and incorporated herein by this reference. In the
event of a conflict between the provisions of Exhibit B and any
other provisions of this .Agreement, the provisions 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 FIVE THOUSAND
DOLLARS ($5,000.00) (herein "Contract Sum") , except as provided in
Section 1 . 8 . The method of compensation may include: (i) a lump
sum payment upon completion, (ii) payment in accordance with the
percentage of completion of the services, (iii) payment for time
and materials based upon the Contractor' s rates as specified in the
Schedule of Compensation, but not exceeding the Contract Sum or
(iv) such other methods as may be specified in the Schedule of
Compensation. Compensation may include reimbursement for actual
and necessary expenditures for reproduction costs, telephone
expense, transportation expense approved by the Contract Officer in
advance, and no other expenses and only if specified in the
Schedule of Compensation. The Contract Sum shall include the
attendance of Contractor at all project 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 (Exhibit C) ,
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.
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Contract Services
John J. Tuite
June 1998
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 by the Contract Officer but not exceeding one
hundred eighty (180) days cumulatively.
3 . 3 Force Majeure. 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 exterLd the time for performing the services
for the period of the enforced delay when and if in the judgment of
the Contract Officer such delay is justified. The Contract
Officer' s determination shall be final and conclusive upon the
parties to this Agreement. In no event shall Contractor be
entitled to recover damages against the City for any delay in the
performance of this Agreement, however caused, Contractor' s sole
remedy being extension of the Agreement pursuant to this Section.
3 . 4 Term. Unless earlier terminated in accordance with
Section 7 . 8 of this Agreement, this Agreement shall continue in
full force and effect through October 1998, or sooner, except as
otherwise provided in the Schedule of Performance.
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
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John J. Tuite
June 1998
its behalf with respect to the work specified herein and make all
decisions in connection therewith:
JOHN J. TUITE
It is expressly understood that the experience, knowledge,
capability and reputation of the foregoing principals were a
substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the
term of this Agreement for directing all activities of 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 person as may be designated by the City Manager of City. It
shall be the Contractor' s responsibility to assure that the
Contract Officer is kept informed of the progress of the
performance of the services and the Contractor shall refer any
decisions which must be made by City to the Contract Officer.
Unless otherwise specified 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.
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Contract Services
John J. Tuite
June 1998
No approved transfer shall release the Contractor or any surety of
Contractor of any liability hereunder without the express consent
of City.
4 . 4 Independent Contractor. Neither the City nor any
of its employees shall have any control over the manner, mode or
means by which Contractor, its agents or employees, perform the
services required herein, except as otherwise set forth herein.
City shall have no voice in the selection, discharge, supervision
or control of Contractor' s employees, servants, representatives or
agents, or in fixing their number, compensation or hours of
service. Contractor shall perform all services required herein as
an independent contractor of City and shall remain at all times as
to City a wholly independent contractor with only such obligations
as are consistent with that role. Contractor shall not at any time
or in any manner represent that it or any of its agents or
employees are agents or employees of City. City shall not in any
way or for any purpose become or be deemed to be a partner of
Contractor in its business or otherwise or a joint venturer or a
member of any joint enterprise with Contractor.
5.0 INSURANCE, INDEIvZTIFICATION AND BONDS
5. 1 Insurance. The Contractor shall procure and
maintain, at i-ts 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:
Comprehensive 6ener-al Liability Ins-ur-anee. �.
e---1 ef --- prehensi-Fe geneiFul liability i-nsuranee written
pefeseurrenee basis if the Contract SciaE is $25, 090 nn less-
,-the pelicy of insar-anee shell: be w�-itt- t net less than
e; the3n (i combined since t}-. Svn 099 . nn (id:) bodily
.
1 C[xCTT - �-C v, v
inj
-ar-y limits „f $259 nnn 90- $500 nnn nn per eeeaL�renee
and $590, 900 . 00 prediaets
damage limits of $109, 000 . 00 per eeeurrenee and $inn nnn nn in -h
aggregate. f—the Eent aet S—� -- g=eater than $25, eee. 90 brit less
c n�BB, th^ el ; of ; nsuranee shall be
an amount net ess than either (i) a eembined—single liiftit ef
9e9, 9ee. 9e aic bedilyinjury, death and pi=epeL=ty elam ge er (ii}
^ " l " } ems of $599, eee. eeeerSen, ci nnn
eee' =ram T 7 999, 999 . 99=�reduete end completed rnnn. n n ,at ene—a=
grepeat' lamage limits e€ $50e eee nn per eecurreree an'
$800 nnn nn
��Tt y.r , . o -
6
0 0
Contract Services
John J. Tuite
June 1998
$i n r r �r � -,t et less
8-08-0:-OS t i� �n,,{rr-arm= shall l „
be
than eembined single i ; i
(b) We is Gempensatien insurance. A policy ef
wAi=1EeL=1s eempensatien—�+r"rr5-1333'_.___- in :lulu _________ _ill fully __ p.1
i4th the laws of the State-ef Galif,.,,,._a and whieh shall indeffinify,-
insidre and provide legal
,e€ensebeth the Eentraeter and the
City against any less, claim or damage arising frem any el=
eecupaa-; -,l diseases
persons
^�CK ll''retainedby the Contr-actor—in the eeui:se of ___--1 -__g _�+
LYY er serviees p l ntem a t�Ts Agreement.
i'*
.��,.,„�,
(c) y, Automotive Insurance. A-pe�e��eemp�3ensive
aatemebile liabi' lityi["xrsiaL=a --- --ritt..,.. -- - - eeeiai------ basis in
an ameant net less than either (i) bedily injury liability limits
of $250 n0o_ o_o_pei� peLsez and $$5 nnn nn per eeetirrenee—and.
p EED PYty F.aiTf - li;ab' lity _ : -is .c per eeeurrenee and,
50 nnnnn the aggregate er (ii) eembined B4 --I -14__4t
liability of $500 nnn
ewneelrnen ewneE4,
leaseei anei hired ears-.
(d) Additional Insurance. Pe'--ties of st-ieh ether
±neic �anee, ineli:idinq _refessienal lial}T_'_3' insiiranee, as may be
- - ---ea in ti e—p, -.i n. 1.,__ - nts
All of the above policies of insurance shall be primary
insurance and shall name the City, its officers, employees and
agents as additional insureds . The insurer shall waive all rights
of subrogation and contribution it may have against the City, its
officers, employees and agents and their respective insurers. All
of said policies of insurance shall provide that said insurance may
not be amended or canceled without providing thirty (30) days prior
written notice by registered mail to the City. In the event any of
said policies of insurance are canceled, the Contractor shall,
prior to the cancellation date, submit new evidence of insurance in
conformance with this Section 5. 1 to the Contract Officer. No work
or services under this Agreement shall commence until the
Contractor has provided the City with Certificates of Insurance or
appropriate insurance binders evidencing the above insurance
coverages and said Certificates of Insurance or binders are
approved by the City.
The Contractor agrees that the provisions of this Section 5. 1
shall not be construed as limiting in any way the extent to which
the Contractor may be held responsible for the payment of damages
to any persons or property resulting from the Contractor' s
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Contract Services
John J. Tuite
June 1998
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 Risk Manager of the City due to
unique circumstances . In the event the Risk Manager of City ("Risk
Manager") determines that the work or services to be performed
under this Agreement creates an increased or decreased risk of loss
to the City, the Contractor agrees that the minimum limits of the
insurance policies and the performance bond required by this
Section 5 may be changed accordingly upon receipt of written notice
from the Risk Manager; provided that the Contractor shall have the
right to appeal a determination of increased coverage by the Risk
Manager to the City Council of City within 10 days of receipt of
notice from the Risk Manager.
6.0 RECORDS AND REPORTS
6. 1 Reports . Contractor shall periodically prepare and
submit to the Contract Officer such reports concerning the
performance of the services required by this Agreement as the
Contract Officer shall require.
6.2 Records. Contractor shall keep, and require
subcontractors to keep, such books and records as shall be
necessary to perform the services required by this Agreement and
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Contract Services
John J. Tuite
June 1998
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. Ccntraeteragrees te indemnify
the G ty its „fficers, -agents-canEi e:f, -7 eyees -affainst, and will laeld
and save them and eaeh et them harmless from, any anel all aet e s,
twits, elaiRiis--, damages to persens—er pi=epeL=1.y, '-esses, east
penes, ebligatinns, ei=rere, ema:ssians er -liabilities, erein
"e4ains—er liabilrt i that may be asserted er e1a4--1 1-
peL=sen,ta; fa-r,,, er ------1 arising eat ef -- --- ------------- vi---- ----
1igent pei=fei=manee e f the werk, eperatiens ei= activities—ef
Gei�__-m-�-c�,Ts aEJ"e�s, e3Ftpzeyees, supee33+craecvrs, eiF invitees-.-
P—revi ed few- herein, ei= aris±ng fromthe negligent aets er
em}ssj:ens ef Gentracter hereunder, er arieing fram Gent-- ter-1
negligent pee=manee of er failure tepei=ferm any tern �reaTs3an
eevenant e� eenditien of this Agreement, whe4�her—er r-4- the=ems
Eoncurrent passive-er-caeti ye of gligenee eia tits part of the r+�
its „f f r_a—'J'R}c,--,—� EffaP eyee5 but-exeluding ^sLieh elaims e- '
(a) Contractor will defend any action or actions filed
in connection with any of said claims or liabilities and will pay
all costs and expenses, including legal costs and attorneys ' fees
incurred in connection therewith;
(b) Contractor will promptly pay any judgment rendered
against the City, its officers, agents or employees for any such
claims or liabilities arising out of or in connection with the
negligent performance of or failure to perform such work,
operations or activities of Contractor hereunder; and Contractor
agrees to save and hold the City, its officers, agents, and
employees harmless therefrom;
(c) In the event the City, its officers, aqents 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
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Contract Services
John J. Tuite
June 1998
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
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Contract Services
John J. Suite
June 1998
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 .
7 . 3 Retention of Funds. Contractor hereby authorizes
City to deduct from any amount payable to Contractor (whether or
not arising our 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 waives: by either party of any default must be
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Contract Services
John J. Tuite
June 1998
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 0 Dollars
($ 0 ) as liquidated damages for each working day of delay in the
performance of any service required hereunder, as specified in the
Schedule of Performance (Exhibit "D") . The City may withhold from
any monies payable on account of services performed by the
Contractor any accrued liquidated damages .
7 . 8 Termination Prior to Expiration Of Term. This
Section shall govern any termination of this Agreement except as
specifically provided in the following Section for termination for
cause. The City reserves the right to terminate this Agreement at
any time, with or without cause, upon thirty (30) days ' written
notice to Contractor, except that where termination is due to the
fault of the Contractor, the period of notice may be such shorter
time as may be determined by the Contract Officer. In addition,
the Contractor reserves the right to terminate this Agreement at
any time upon, with or without cause, upon sixty (60) days' written
notice to City, except that where termination is due to the fault
of the City, the period of notice may be such shorter time as the
Contractor may determine.. Upon receipt of any notice of
termination, Contractor shall immediately cease all services
hereunder except such as may be specifically approved by the
Contract Officer. Contractor shall be entitled to compensation for
all services rendered prior to the effective date of the notice of
termination and for any services authorized by the Contract Officer
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Contract Services
John J. Tuite
June 1998
thereafter in accordance with the Schedule of Compensation (Exhibit
"C") or such as may be approved by the Contract Officer, except as
provided in Section 7 . 3 . In the event of termination without cause
pursuant to this Section, the terminating party need not provide
non-terminating party with the opportunity to cure pursuant to
Section 7 .2 .
7 . 9 Termination for Default of Contractor. If
termination is due to the failure of the Contractor to fulfill its
obligations under this Agreement, City may, after compliance with
the provisions of Section 7 .2, take over the work and prosecute the
same to completion by contract or otherwise, and the Contractor
shall be liable to the extent that the total cost for completion of
the services required hereunder exceeds the compensation herein
stipulated (provided that the City shall use reasonable efforts to
mitigate such damages) , and City may withhold any payments to the
Contractor for the purpose of setoff or partial payment of the
amounts owed the City as previously stated.
7 . 10 Attorneys ' Fees . If either party to this Agreement
is required to initiate or defend or made a party to any action or
proceeding in any way connected with this Agreement, the prevailing
party in such action or proceeding, in addition to any other relief
which may be granted, whether legal or equitable, shall be entitled
to reasonable attorney' s fees . Attorney' s fees shall include
attorney' s fees on any appeal, and in addition a party entitled to
attorney' s fees shall be entitled to all other reasonable costs for
investigating such action, taking depositions and discovery and all
other necessary costs the court allows which are incurred in such
litigation. All such fees shall be deemed to have accrued on
commencement of such action and shall be enforceable whether or not
such action is prosecuted to judgment.
8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8 . 1 Non-liability of City Officers and Employees . No
officer or employee of the City shall be personally liable to the
Contractor, or any successor in interest, in the event of any
default or breach by the City or for any amount which may become
due to the Contractor or to its successor, 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
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John J. Tuite
June 1998
financial interest or the financial interest of any corporation,
partnership or association in which he is, directly or indirectly,
interested, in violation of any State statute or regulation. The
Contractor warrants that it; has not paid or given and will not pay
or give any third party any money or other consideration for
obtaining this Agreement.
8 . 3 Covenant Against Discrimination. Contractor
covenants that, by and for itself, its heirs, executors, assigns,
and all persons claiming under or through them, that there shall be
no discrimination against or segregation of, any person or group of
persons on account of race, color, creed, religion, sex, marital
status, national origin, or ancestry in the performance of this
Agreement. Contractor shall take affirmative action to insure that
applicants are employed and that employees are treated during
employment without regard to their race, color, creed, religion,
sex, marital status, national origin, or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9. 1 Notice. Any notice, demand, request, document,
consent, approval, or communication either party desires or is
required to give to the other party or any other person shall be in
writing and either served personally or sent by prepaid,
first-class mail, in the case of the City, to the City Manager and
to the attention of the Contract Officer, CITY OF PALM SPRINGS,
P.O. Box 2743, Palm Springs, California 92263, and in the case of
the Contractor, to the person at the address designated on the
execution page of this Agreement. Either party may change its
address by notifying the other party of the change of address in
writing. Notice shall be deemed communicated at the time
personally delivered or in seventy-two (72) hours from the time of
mailing if mailed as provided in this Section.
9.2 Interpretation. The terms of this Agreement shall
be construed in accordance with the meaning of the language used
and shall not be construed for or against either party by reason of
the authorship of this Agreement or any other rule of construction
which might otherwise apply.
9. 3 Integration,; Amendment. It is understood that
there are no oral agreements between the parties hereto affecting
this Agreement and this Agreement supersedes and cancels any and
all previous negotiations, arrangements, agreements and
understandings, if any, between the parties, and none shall be used
to interpret this Agreement. This Agreement may be amended at any
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John J. Tuite
June 1998
time by the mutual consent of the parties by an instrument in
writing.
9. 4 Severability. In the event that any one or more of
the phrases, sentences, clauses, paragraphs, or sections contained
in this Agreement shall be declared invalid or unenforceable by a
valid judgment or decree of a court of competent jurisdiction, such
invalidity or unenforceability shall not effect any of the
remaining phrases, sentences, clauses, paragraphs, or sections of
this Agreement which are hereby declared as severable and shall be
interpreted to carry out the intent of the parties hereunder unless
the invalid provision is so material that its invalidity deprives
either party of the basic benefit of their bargain or renders this
Agreement meaningless .
9. 5 Corporate Authority. The persons executing this
Agreement on behalf of the parties hereto warrant that (i) such
party is duly organized and existing, (ii) they are duly authorized
to execute and deliver this Agreement on behalf of said party,
(iii) by so executing this Agreement, such party is formally bound
to the provisions of this Agreement, and (iv) the entering into
this Agreement does not violate any provision of any other
Agreement to which said party is bound.
IN WITNESS WHEREOF, the parties have executed and entered into
this Agreement as of the date first written above.
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ATTEST: THE CITY OF P NGS
B B
Y:
CiZV Clerk City ager
APPROVED AS TO FORM BY AGENCY COUNSEL
City Att rney
CON*Jhn
OR:
By:
Nam J. ui eTitlrac or
f31°'V'C re 07Y MANAGER
4CO3
Contract Services
John J. Tuite
June 1998
EXHIBIT "A"
SCOPE OF SERVICES
Consultant will be available on a part-time basis to the City
and the Palm Springs Economic Development Corporation for counsel
and advice, particularly on matters regarding the funding,
operation and organization of the One-Stop Center.
Consultant will be available up to 75 hours during July and
September, 1998 .
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June 1998
EXHIBIT "B"
SPECIAL REQUIREMENTS
Schedule 5. 1 (a) Comprehensive General Liability Insurance,
Schedule 5. 1 (b) Worker' s Compensation Insurance, Schedule 5. 1 (c)
Automotive Insurance, Schedule 5. 1 (d) Additional Insurance and
Schedule 5.2 Indemnification shall not be applicable.
Contract Officer agrees to waive Performance Bond, as provided
in Schedule 5. 3 Performance Bond.
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John J. Tuite
June 1998
EXHIBIT "C"
SCHEDULE OF COMPENSATION
The maximum sum of Five Thousand Dollars ($5,000. 00) to be
paid on an as-needed basis during the three-month period from July
1 - September 30, 1998 .
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