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HomeMy WebLinkAboutC37960A Design Interior Improvement Council Chamber 765-19C� CONTRACT NO. C37960A STAFF REPORT CITY OF PALM DESERT PUBLIC WORKS DEPARTMENT MEETING DATE: April 11, 2019 PREPARED BY: Emily Roethler, Project Manager REQUEST: Award Contract No. C37960A to Sillman Wright Architects, of San Diego, California, for design consulting services for the interior improvements to the City Council Chamber (Project No. 765-19) Recommendation By Minute Motion: 1. Award Contract No. C37960A to Sillman Wright Architects of San Diego, California, for design consulting services related to the interior improvements of the City Council Chamber in the amount of $90,000.00. 2. Appropriate $90,000.00 from unobligated General Funds to the Building Maintenance Capital Improvement Project Fund. 3. Authorize the City Manager to execute the Agreement and any necessary change orders. If the above actions are approved, funds will be available in the Project Account No. 4504161-4400100. Strateqic Plan This action has no impact on achieving the goals set forth in the Strategic Plan. Background The City Council Chamber was constructed in 1983, and there has been only one major interior renovation, which was done in 2000-2001. The restoration included removing walls and doors, replacing carpeting, improving council/director seating areas, and various audio visual (AV) upgrades. During these improvements the original public seating in the Chamber was reinstalled on top of the new carpeting. The existing 35-year old seating no longer provides the appropriate amount of Americans with Disabilities Act (ADA) mandated seating areas. The original seating that dates back to 1983 has degraded due to heavy use and age and is no longer comfortable for the residents and staff who attend Council and Commission meetings, sometimes for extended hours. The condition of the seating, along with the lack of accommodation for April 11, 2019 - Staff Report Contract No. C37960A with Sillman Wright Architects for Council Chamber Interior Design (Project No. 765-19) Page 2 of 3 ' ADA use, requires that the seating be replaced and upgraded to current standards. Additionally, the City Council Chamber is no longer in compliance with updated ADA codes and standards for access. For example, the slope of the ramp leading from the lobby to the public seating area exceeds the maximum allowed slope of 8%, the handrails are non -compliant, and the texture of the wall behind the existing handrails creates an architectural barrier for those who need to use them. As part of the City's ongoing maintenance efforts, replacing the carpet and updating other features, including improving ADA access within the Council Chamber, should be considered at this time. Staff issued a Request for Proposals (RFP) for the design of interior improvements for the Council Chambers, which was advertised on February 3, 2019. Three proposals for the design were received and were reviewed by a selection committee, which was comprised of City staff familiar with the required qualifications. The firms that submitted proposals are: CONSULTANT Sillman Wright Architects STK Architecture, Inc. RACE, Inc. LOCATION San Diego, CA_ Temecula, CA Los Angeles, California Staff is recommending the award of Contract C37960A to Sillman Wright Architects, who scored the highest among the proposers. Proiect Description This project will be broken into 2 separate phases: Phase 1 of the Council Chamber renovations include relocating the media control room from the existing location behind the seating area for the City Manager and City Attorney to the empty room behind the directors' seating, which is currently occupied with equipment for the large projection screen. The existing large screen will be removed and replaced with an LED screen wall. Additionally, a large monitor will be installed in place of the artwork hanging on the wall behind the City Attorney. This phase is estimated to cost $450,000 and will be funded using the IT Master Plan Budget. Construction is anticipated to occur during late July/early August of 2019 when the Council Chambers are not in use. Phase 2 of the Council Chamber renovations include the replacement of the built-in seating and carpet in the Council Chamber, updating the podium to meet the needs of the public, updating existing improvements to current ADA standards (access doors, ramp, handrails, and paths of travel), redesigning the restrooms to current ADA standards, and creating a new access door for the relocated control room. This phase of the project is preliminarily estimated to cost $500,000, and funding will be requested as part of the 2019/20 budget cycle for the Building Maintenance Account. Construction is April 11, 2019 - Staff Report Contract No. C, 3; 950A, with Sillman Wright Architects for Council Chamber Interior Design (Project No. 765-19) Page 3 of 3 anticipated to take place during the July/August break in 2020. Under this Professional Services Agreement, the City will work with the selected consultant to evaluate all work for Phase 2, including all ADA requirements that need to be constructed or redesigned within the City Council Chamber per a detailed Accessibility Survey prepared by the Joint Powers Insurance Authority (JPIA) for the City. The Consultant will provide the City with a biddable set of documents for all potential phases, including plans and cost estimates. Staff notes that the nature of this project and the highly visible location of it make it likely that interested persons will suggest any number of enhancements and upgrades to the project scope. While such additions to the project are always possible, they could quickly grow to eclipse the original intent, which is to improve accessibility for persons with disabilities, replace aged and uncomfortable seating, and provide floor coverings that will enhance acoustics by minimizing noises that currently disturb City Council meetings and interrupt the conduct of business. If the City Council desires a more comprehensive project, suggesting its scope at this time would be appropriate, so as to more effectively plan and appropriately budget for it. Copies of the proposals received are on file in the Public Works Department and are available upon request. Fiscal Analvsis There is no fiscal impact beyond the cost of obtaining the architecture design services at this time. Construction funds are being requested for Fiscal Year 2019-2020. The total project cost cannot be accurately estimated until the architect defines the work needed to meet the ADA requirements. However, a preliminary scope anticipated a $500,000 total construction budget for Phase 2 improvements. LEGAL REVIEW DEPT. REVIEW WA Robert W. Hargreaves Tom Garcia, P.E. City Attorney Director of Public Works FINANCIAL CITY REVIEW MANAGER ?etMoore Lau�ritylaian Director of Finance City Manager CONSULTANT: Sillman Wright Architects 7515 Metropolitan Drive, Suite 400 San Diego, CA 92108 ATTACHMENT: Agreement CONTRACT NO. C37960A ARCHITECTURE DESIGN SERVICES CITY OF PALM DESERT PROFESSIONAL CONSULTANT SERVICES AGREEMENT 1. PARTIES AND DATE. This Agreement is made and entered into this 11th day of April, 2019, by and between the City of Palm Desert, a municipal corporation, organized under the laws of the State of California, with its principal place of business at 73-510 Fred Waring Drive, Palm Desert, California, 92260 ("City") and Sillman Wright Architects, a Corporation, with its principal place of business at 7515 Metropolitan Drive, Suite 400, San Diego, California, 92108 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties." 2. RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional Architecture Design consulting services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing professional Architecture Design consulting services to public clients, is licensed in the State of California, and is familiar with the plans of City. 2.2 Project. City desires to engage Consultant to render such professional ARCHITECTURE DESIGN consulting services including but not limited to new comfortable audience seating with increased legroom as well as new ADA compliant seating, new podium to better facilitate audience, speakers and Council Members (including ADA), new carpet flooring throughout Council Chamber, add new access door for new media control room, repair and relocate existing ADA door at lobby, ADA upgrades to bring ramp, stairs and path of travel elements into compliance with current codes, as identified in the October 2018 ADA Survey prepared by Disability Access Consultants (DAC), as set forth in this Agreement. 3. TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional Architecture Design consulting services necessary for the Project ("Services"), including but not limited to meet with City staff to review and confirm project details, perform necessary field investigation, develop electronic as -built plans, develop conceptual design, conduct reviews with City staff, incorporate comments for final review, develop and deliver a full set of construction specifications and drawings, provide City staff with bid documents and (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 1 CONTRACT NO. C37960A bid assistance, and provide construction support services. All Services shall be subject to, and performed in accordance with, this Agreement, and all applicable local, state and federal laws, rules and regulations. 3.1.2 Term. The term of this Agreement shall be from April 11, 2019, to September 1, 2020, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. Upon the expiration of the initial agreement term, the agreement shall be automatically renewed for an additional one (1) year term. 3.2 Responsibilities of Consultant. 3.2.1 Independent Contractor: Control and Pavment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, nor any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth by the City. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 -2- CONTRACT NO. C37960A be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: Mark Baker, AIA, LEED AP, Principal-in-Charge/Principal Architect, Joe Lucido, LEED AP, Project Designer, Marc Stock, Project Manager, Charlie Colvin, SE, PE, Structural Engineer, Allan Ugalde, PE, LEED AP BD+C, Mechanical Engineer, Matt Samar, PE, LEED AP BD+C, Electrical Engineer, Steve Leyton, Fire Prtection Designer, and Ashok Patel, MRICS, Senior Cost Estimator. 3.2.5 City's Representative. The City hereby designates Tom Garcia, P.E., Director of Public Works, or his designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee. City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant, but not the authority to enlarge the Scope of Work or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which increase the Scope of Work or change the Consultant's total compensation, subject to the provisions contained in Section 3.3 of this Agreement. 3.2.6 Consultant's Representative. Consultant hereby designates Mark Baker, AIA, LEED AP, Principal-in-Charge/Principal Architect or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all times. 3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and sub -consultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and sub -consultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 -3- CONTRACT NO. C37960A the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub - consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If Consultant performs any work knowing it to be contrary to such laws, rules and regulations, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees, agents, and volunteers free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.2.10 Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form that is satisfactory to City. General Liability Insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO "insured contract" language will not be accepted. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. The City's Risk Manager may modify this requirement if it is determined that Consultant will not be utilizing a vehicle in the performance of his/her duties under this agreement. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 -4- CONTRACT NO. C37960A with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City of Palm Desert, its officers, agents, employees and volunteers. Umbrella or Excess Liability Insurance. Consultant may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Consultant shall obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer's liability. Such policy or policies shall include the following terms and conditions: • A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; • Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; and • Policies shall "follow form" to the underlying primary policies. • Insureds under primary policies shall also be insureds under the umbrella or excess policies. OTHER PROVISIONS OR REQUIREMENTS Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Duration of Coverage. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his/her agents, representatives, employees or subconsultants. (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 -5- CONTRACT NO. C37960A Primary/Non-Contributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City's own insurance or self-insurance shall be called upon to protect it as a named insured. City's Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications, or is canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant, or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the City of Palm Desert, its elected or appointed officers, agents, officials, employees and volunteers, or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against the City of Palm Desert, its elected or appointed officers, agents, officials, employees and volunteers, and shall require similar written express waivers and insurance clauses from each of its sub -contractors. Enforcement of Contract Provisions (non estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. (BB&K 2018) 72500.00001 \31605678.1 Rev 11-9-18 -6- CONTRACT NO. C37960A Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. Additional Insured Status. General liability, automobile liability, and if applicable, pollution liability and cyber liability, policies shall provide or be endorsed to provide that the City of Palm Desert and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies. Prohibition of Undisclosed Coverage Limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. Separation of Insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer's limits of liability. The policy(ies) shall not contain any cross -liability exclusions. Pass Through Clause. Consultant agrees to ensure that its sub -consultants, sub- contractors, and any other party involved with the project who is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage and endorsements required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with consultants, sub -contractors, and others engaged in the project will be submitted to City for review. City's Right to Revise Specifications. The City or its Risk Manager reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate Consultant's compensation. If the City reduces the insurance requirements, the change shall go into effect immediately and require no advanced written notice. Self -Insured Retentions. Any self -insured retentions must be declared to and approved by City. City reserves the right to require that self -insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City. (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 -7- CONTRACT NO. C37960A Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in the rate sheet provided by the Consultant. The total compensation shall be Ninety Thousand dollars and 00/100 ($90,000) without authorization of the City Council or City Manager, as applicable, per the Palm Desert Municipal Code. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Pavment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice. City shall, within 30 days of receiving such invoice, review the invoice and pay all non -disputed and approved charges thereon. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without authorization from the City Council or City Manager, as applicable, per the Palm Desert Municipal Code. 3.3.5 Rate Increases. In the event that this Agreement is renewed pursuant to Section 3.1.2 of this Agreement, the rate set forth in the rate sheet provided by the Consultant may be adjusted each year at the time of renewal. (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 -8- CONTRACT NO. C37960A 3.3.6 Prevailinq Waqes. Consultant is aware of the requirements of California Labor Code Section 1720, et sec ., and 1770, et seg., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. Since the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Agreement. 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 -9- CONTRACT NO. C37960A 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: Sillman Wright Architects 7515 Metropolitan Drive, Suite 400 San Diego, CA 92108 ATTN: Larry Sillman, AIA, Principal City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 ATTN: Tom Garcia, P.E., Director of Public Works Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and Confidentialitv. 3.5.3.1 Documents & Data; Licensing of Intellectual Propertv. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings and data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 3.5.3.2 Confidentialitv. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 -10- CONTRACT NO. C37960A City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement. 3.5.5 Attornev's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all other costs of such action. 3.5.6 Indemnification. 3.5.6.1 Scope of Indemnity. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant's Services, the Project or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys' fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 3.5.6.2 Additional Indemnitv Obligations. To the fullest extent permitted by law, Consultant shall defend, with counsel of City's choosing and at Consultant's own cost, expense and risk, any and all claims, suits, actions or other proceedings of every kind covered by Section 3.5.6.1 that may be brought or instituted against City or its directors, officials, officers, employees, volunteers and agents. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, volunteers and agents as part of any such claim, suit, action or other proceeding. Consultant shall also reimburse City for the cost of any settlement paid by City or its directors, officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City's attorney's fees and costs, including expert witness fees. Consultant shall reimburse City and its directors, officials, officers, employees, agents, and/or volunteers, for any and all legal expenses and costs incurred (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 11 CONTRACT NO. C37960A by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents, or volunteers. 3.5.7 Entire Aqreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties. 3.5.8 Governinq Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 Citv's Right to Emr)lov Other Consultants. City reserves right to employ other consultants in connection with this Project. 3.5.11 Successors and Assiqns. This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and sub -consultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 -12- CONTRACT NO. C37960A 3.5.16 No Third-Partv Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 Invaliditv; Severabilitv. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunity Emplovment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any sub -consultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation, or to undertake self-insurance in accordance with the provisions of that Code and agrees to comply with such provisions before commencing the performance of the Services. 3.5.21 Authoritv to Enter Aqreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.5.22 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 -13- CONTRACT NO. C37960A CITY OF PALM DESERT Laurie Aylaian, City Manager ATTEST: M Rachelle D. Klassen City Clerk APPROVED AS TO CONTENT: Tom Garcia, P.E. Director of Public Works APPROVED AS TO FORM: la Best Best & Krieger, LLP City Attorney (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 -14- SILLMAN WRIGHT ARCHITECTS in President OR Vice President Secretary OR Treasurer