HomeMy WebLinkAboutA24660A Amendments Art Design for Portola I-10 OverpassSTAFF REPORT
CITY OF PALM DESERT
COMMUNITY DEVELOPMENT DEPARTMENT
MEETING DATE: October 24, 2019
PREPARED BY: Amy Lawrence, Management Analyst OV
REQUEST: Authorize the City Manager to approve amendments to Contract
No. A24660A with The Art Office in an amount not to exceed
$100,000 for Conceptual Art Design for the Portola Overpass
Project.
Recommendation
By Minute Motion,
1. Authorize the City Manager to approve and sign amendments to
Contract No. A24660A with The Art Office in an amount not to exceed
$100,000 for conceptual art design for the Portola Overpass Project;
and
2. Appropriate $67,500 from the unobligated General Fund Reserve to
Account No. 1104430-4309000.
Strategic Plan Obiective
This request is in line with the Arts & Culture Mini -Vision of the 2013-2033 Strategic
Plan, Envision Palm Desert — Forward Togetherwhich states:
"Arts and culture give a community its soul. Palm Desert is the cultural core of
the Coachella Valley. Cultural tourism drives economic growth in Palm
Desert. The community is host to internationally recognized cultural events
that bring significant economic benefits to the City. Palm Desert is a leader in
arts education, ensuring a well-rounded population that possesses high levels
of creativity and critical thinking skills."
Discussion
On July 25, 2019, the City entered into a professional services agreement with artist
Phillip K. Smith III (The Art Office) in the amount of $32,500 for conceptual art design for
the Portola Overpass Project. Mr. Smith presented conceptual designs and estimates
as requested, which exhausted most of the contract funding. Staff has since determined
that further consultation with Mr. Smith is needed to work through revisions to the
conceptual designs and therefore additional funding is required. Given that the City and
October 24, 2019 - Staff r'Teport
Contract No. A24660A Contract Amendments
Page 2 of 2
the artist have limited time to complete this phase of the project, staff is requesting that
the City Council give the City Manager authority to approve and sign amendments to
the current contract in an amount not to exceed $100,000.
Fiscal Analysis
Funding in the amount of $30,000 has already been paid to The Art Place for work on
this project. Because the additional costs were not anticipated, staff is requesting
appropriation of an additional $67,500 from the unobligated General Fund Reserve to
cover the cost of this amendment to the current contract in a total contract amount not
to exceed $100,000.
While there is a possibility that some or all of the costs related to this request may be
paid by the Portola 1-10 Interchange Capital Project, the amount is unknown at this time.
As such, appropriation of funds is necessary to keep the project moving forward.
LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW ASSISTANT
CITY MANAGER
eel tin
N/A 1(6/92-7414644,45' Ait)
Ryan Stendell
Robert W. Hargreaves Director of Community a1iet M. Moore Andy irestine
City Attorney Development Director of Finance Assistant City Manager
City Manager, Lauri Aylaian:
APPLICANT: None
ATTACHMENTS: Contract No. A24660A
CITY COUNCIL CTION
APPROVED ✓✓ DENIED
RECEIVED OTHER
MEET GD TE I • ' 1e' 01 �
AYES: ' - �' Iy/� tQed 4'!mil'
NOES:
ABSENT:
ABSTAIN: Une-
VERIFIED BY:
Original on File with Citj�'-c-lerk's Office
October 24, 2019 - Staff Report
Contract No. A24660A Contract Amendments
Page 2 of 2
the artist have limited time to complete this phase of the project, staff is requesting that
the City Council give the City Manager authority to approve and sign amendments to
the current contract in an amount not to exceed $100,000.
Fiscal Analvsis
Funding in the amount of $30,000 has already been paid to The Art Place for work on
this project. Because the additional costs were not anticipated, staff is requesting
appropriation of an additional $67,500 from the unobligated General Fund Reserve to
cover the cost of this amendment to the current contract in a total contract amount not
to exceed $100,000.
While there is a possibility that some or all of the costs related to this request may be
paid by the Portola 1-10 Interchange Capital Project, the amount is unknown at this time.
As such, appropriation of funds is necessary to keep the project moving forward.
LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW
N/A
Ryan Stendell
Robert W. Hargreaves Director of Community retM.00re
City Attorney Development Director of Finance
City Manager, Lauri Aylaian: !�
APPLICANT: None
ATTACHMENTS: Contract No. A24660A
ASSISTANT
CITY MANAGER
An irestine
Assistant City Manager
Contract No. A24660A
CITY OF PALM DESERT
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this 25th day of July, 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-
2578, County of Riverside; State of California ("City') and The Art Office, a Corporation in
California, with its principal place of business at 34-330 Gateway Drive, Unit 100, Palm Desert,
California ("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 services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing professional design 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 services for design
consultation for the Portola Avenue and Interstate Highway 10 Overpass project ("Project") 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 design consulting services necessary
for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached
hereto and incorporated herein by reference. All Services shall be subject to, and performed in
accordance with, this Agreement, the exhibits attached hereto and incorporated herein by
reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from July 25, 2019 to January
31, 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.
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.
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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 in
Exhibit "A" attached hereto and incorporated herein by reference. 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 Kev 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 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: Phillip K. Smith, III.
3.2.5 City's Representative. The City hereby designates Amy Lawrence,
Management Analyst, or his/her designee, to act as its representative in all matters pertaining to
the administration and performance of this Agreement ("City's Representative"). 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 enlarge the
Scope of Work or change the Consultant's total compensation subject to the provisions contained
in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from any person
other than the City Manager, City's Representative or his/her designee.
3.2.6 Consultant's Representative. Consultant hereby designates Phillip K.
Smith, Ill, 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
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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 reasonable times.
3.2.8 Standard of Care; Performance of Emnlovees. 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 subconsultants
shall have sufficient skill and experience to perform the Services assigned to them. Finally,
Consultant represents that it, its employees and subconsultants 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 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 Period of Performance. Consultant shall perform and complete all Services
under this Agreement within the term set forth in Section 3.1.2 above ("Term"). Consultant shall
also perform the Services in strict accordance with any completion schedule or Project milestones
described in Exhibit "A" attached hereto, or which may be separately agreed upon in writing by
the City and Consultant ("Performance Milestones"). Consultant agrees that if the Services are
not completed within the aforementioned Performance Time and/or pursuant to any such Project
Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged
and agreed that the City will suffer damage.
3.2.10 Laws and Regulations; Employee/Labor Certification. 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
CaVOSHA 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.
3.2.10.1 Emolovment Eliaibility-. Consultant. By executing this
Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state
and federal law respecting the employment of undocumented aliens, including, but not limited to,
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the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such
requirements and restrictions include, but are not limited to, examination and retention of
documentation confirming the identity and immigration status of each employee of the Consultant.
Consultant also verifies that it has not committed a violation of any such law within the five (5)
years immediately preceding the date of execution of this Agreement, and shall not violate any
such law at any time during the term of the Agreement. Consultant shall avoid any violation of
any such law during the term of this Agreement by participating in an electronic verification of
work authorization program operated bythe United States Department of Homeland Security, by
participating in an equivalent federal work authorization program operated by the United States
Department of Homeland Security to verify information of newly hired employees, or by some
other legally acceptable method. Consultant shall maintain records of each such verification, and
shall make them available to the City or its representatives for inspection and copy at any time
during normal business hours. The City shall not be responsible for any costs or expenses related
to Consultant's compliance with the requirements provided for in Section 3.2.10 or any of its sub-
sections.
3.2.10.2 Emplovment Eligibility: Subcontractors. Consultants. Sub -
subcontractors and Subconsultants. To the same extent and under the same conditions as
Consultant, Consultant shall require all of its subcontractors, consultants, sub -subcontractors and
subconsultants performing any work relating to the Project or this Agreement to make the same
verifications and comply with all requirements and restrictions provided for in Section 3.2.10.1.
3.2.10.3 Emplovment Eligibility: Failure to Comply. Each person
executing this Agreement on behalf of Consultant verifies that they are a duly authorized officer
of Consultant, and understands that any of the following shall be grounds for the City to terminate
the Agreement for cause: (1) failure of Consultant or its subcontractors, consultants, sub -
subcontractors or subconsultants to meet any of the requirements provided for in Sections
3.2.10.1 or 3.2.10.2; (2) any misrepresentation or material omission concerning compliance with
such requirements (including in those verifications provided to the Consultant under Section
3.2.10.2); or (3) failure to immediately remove from the Project any person found not to be in
compliance with such requirements.
3.2.10.4 Equal Oor)ortunity Emplovment. Consultant represents that it is
an equal opportunity employer and it shall not discriminate against any subconsultant, 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. Consultant shall also comply with all relevant provisions of City's Minority Business
Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in
effect or hereinafter enacted.
3.2.10.5 Not Used
3.2.10.6 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.
3.2.11 Insurance.
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3.2.11.1 Minimum Requirements. 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.
(A) General Liabilitv 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.
(B) 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.
(C) Umbrella or Excess Liabilitv 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:
(1) 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;
(2) Pay on behalf of wording as opposed to reimbursement;
(3) Concurrency of effective dates with primary policies;
and
(4) Policies shall "follow form" to the underlying primary
policies.
(5) Insureds under primary policies shall also be insureds
under the umbrella or excess policies.
3.2.11.2 Other Provisions or Requirements.
(A) 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.
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City reserves the right to require complete, certified copies of all required insurance policies, at
any time.
(B) 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.
(C) Primarv/Non-Contributinq. 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.
(D) Citv's Riahts 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.
(E) 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.
(F) 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.
(G) 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.
(H) 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
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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.
(1) 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.
(J) 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 with regard to liability and defense of suits or claims arising out of the
performance of the Agreement, under such policies. This provision shall also apply to any
excess/umbrella liability policies.
(K) Prohibition of Undisclosed Coveraae 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.
(L) 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.
(M) Pass Throuah 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.
(N) Citv's Riaht to Revise Specifications. The City or 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.
(0) 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.
(P) Timelv 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
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performance under this Agreement, and that involve or may involve coverage under any of the
required liability policies.
(Q) 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 Services.
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 Exhibit "A" attached hereto and incorporated herein by reference. The total compensation shall
not exceed twenty-five thousand dollars ($32,500.00) without written approval of the City Council
or City Manager as applicable. 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. Consultant shall submit its final invoice to City within thirty (30) days from the last
date of provided Services or termination in accordance with section 3.6.1 and failure by the
Consultant to submit a timely invoice may constitute a waiver of its right to final payment.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any
expenses unless authorized in writing by City, or included in Exhibit "A" of this Agreement.
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 written authorization
from the City.
3.4 Labor Code Requirements.
3.4.1 Prevailina Waaes. Consultant is aware of the requirements of California
Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations,
Title S, 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. If 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. It is the intent of the parties
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to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the
Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code
sections to the fullest extent required by law. 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.
3.4.2 Reaistration/DIR Compliance. If the Services are being performed on a
public works project of over $25,000 when the project is for construction, alteration, demolition,
installation, or repair work, or a public works project of over $15,000 when the project is for
maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and
1771.1, the Consultant and all subconsultants must be registered with the Department of
Industrial Relations ("DIR"). Consultant shall maintain registration for the duration of the project
and require the same of any subconsultants. This project may also be subject to compliance
monitoring and enforcement by the DIR. It shall be Consultant's sole responsibility to comply with
all applicable registration and labor compliance requirements, including the submission of payroll
records directly to the DIR. Any stop orders issued by the Department of Industrial Relations
against Consultant or any subconsultant that affect Consultant's performance of services,
including any delay, shall be Consultant's sole responsibility. Any delay arising out of or resulting
from such stop orders shall be considered Consultant caused delay and shall not be compensable
by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees
and agents free and harmless from any claim or liability arising out of stop orders issued by the
Department of Industrial Relations against Consultant or any subconsultant.
3.4.3 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 Accounting Records.
3.5.1 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.
3.6 General Provisions.
3.6.1 Termination of Agreement.
3.6.1.1 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.
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3.6.1.2 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.
3.6.1.3 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.
3.6.2 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: The Art Office
34-330 Gateway Drive, Unit 100
Palm Desert, California 92211
ATTN: Phillip K. Smith, III
City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
ATTN: Amy Lawrence, Management Analyst
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.
3.6.3 Ownership of Materials and Confidentialitv.
3.6.3.1 Documents & Data; Licensing of Intellectual Property. 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 or data
magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be
prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall
be and remain the property of City, and shall not be used in whole or in substantial part by
Consultant on other projects without the City's express written permission. Within thirty (30) days
following the completion, suspension, abandonment or termination of this Agreement, Consultant
shall provide to City reproducible copies of all Documents & Data, in a form and amount required
by City. City reserves the right to select the method of document reproduction and to establish
where the reproduction will be accomplished. The reproduction expense shall be borne by City
at the actual cost of duplication. In the event of a dispute regarding the amount of compensation
to which the Consultant is entitled under the termination provisions of this Agreement, Consultant
shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant
shall have no right to retain or fail to provide to City any such documents pending resolution of
the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a
minimum of fifteen (15) years following completion of the Project, and shall make copies available
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Contract No. A24660A
to City upon the payment of actual reasonable duplication costs. Before destroying the
Documents & Data following this retention period, Consultant shall make a reasonable effort to
notify City and provide City with the opportunity to obtain the documents.
3.6.3.2 Subconsultants. 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 its subconsultants, or those provided to Consultant by the
City.
3.6.3.3 Right to Use. City shall not be limited in any way in its use or
reuse of the Documents and Data or any part of them at any time for purposes of this Project or
another project, provided that any such use not within the purposes intended by this Agreement
or on a project other than this Project without employing the services of Consultant shall be at
City's sole risk. If City uses or reuses the Documents & Data on any project other than this Project,
it shall remove the Consultant's seal from the Documents & Data and indemnity and hold harmless
Consultant and its officers, directors, agents and employees from claims arising out of the
negligent use or re -use of the Documents & Data on such other project. Consultant shall be
responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only
with respect to the condition of the Documents & Data at the time they are provided to the City
upon completion, suspension, abandonment or termination. Consultant shall not be responsible
or liable for any revisions to the Documents & Data made by any party other than Consultant, a
party for whom the Consultant is legally responsible or liable, or anyone approved by the
Consultant.
3.6.3.4 Indemnification — Proprietary Information. Consultant shall
defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and
agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any
alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other
proprietary right of any person or entity in consequence of the use on the Project by City of the
Documents & Data, including any method, process, product, or concept specified or depicted.
3.6.3.5 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 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.
3.6.3.6 Confidential Information. The City shall refrain from releasing
Consultant's proprietary information ("Proprietary Information") unless the City's legal counsel
determines that the release of the Proprietary Information is required by the California Public
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Records Act or other applicable state or federal law, or order of a court of competent jurisdiction,
in which case the City shall notify Consultant of its intention to release Proprietary Information.
Consultant shall have five (5) working days after receipt of the Release Notice to give City written
notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall
indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents
from and against all liability, loss, cost or expense (including attorney's fees) arising out of a legal
action brought to compel the release of Proprietary Information. City shall not release the
Proprietary Information after receipt of the Objection Notice unless either: (1) Consultant fails to
fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal
action brought to compel such release; and/or (2) a final and non -appealable order by a court of
competent jurisdiction requires that City release such information.
3.6.4 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.
3.6.5 Indemnification.
3.6.5.1 To the fullest extent permitted by law, Consultant shall defend
(with counsel of City's choosing), indemnify and hold the City, its 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
acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees,
subconsultants or agents in connection with the performance of the Consultant's Services, the
Project or this Agreement, including without limitation the payment of all damages, expert witness
fees and attorney's fees and other related costs and expenses. Consultant's obligation to
indemnify shall survive expiration or termination of this Agreement and shall not be restricted to
insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees,
agents, or volunteers.
3.6.5.2 if Consultant's obligation to defend, indemnify, and/or hold
harmless arises out of Consultant's performance as a "design professional" (as that term is
defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code
section 2782.8, which is fully incorporated herein, Consultant's indemnification obligation shall be
limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of
competent jurisdiction, Consultant's liability for such claim, including the cost to defend, shall not
exceed the Consultant's proportionate percentage of fault.
3.6.6 Entire Agreement. 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.
3.6.7 Governing Law; Government Code Claim Compliance. This Agreement
shall be governed by the laws of the State of California. Venue shall be in Riverside County. In
addition to any and all contract requirements pertaining to notices of and requests for
compensation or payment for extra work, disputed work, claims and/or changed conditions,
Consultant must comply with the claim procedures set forth in Government Code sections 900 et
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Contract No. A24660A
seq. prior to filing any lawsuit against the City. Such Government Code claims and any
subsequent lawsuit based upon the Government Code claims shall be limited to those matters
that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or
changed conditions have been followed by Consultant. If no such Government Code claim is
submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified
herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.6.8 Time of Essence. Time is of the essence for each and every provision of
this Agreement.
3.6.9 Citv's Right to Emr)lov Other Consultants. City reserves right to employ
other consultants in connection with this Project.
3.6.10 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties.
3.6.11 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.
3.6.12 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 subconsdltants
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.
3.6.13 Amendment; Modification. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing and signed by both Parties.
3.6.14 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.
3.6.1b No Third -Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
3.6.16 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.
3.6.17 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
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Contract No. A24660A
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.
3.6.18 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.
3.6.19 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
3.7 Subcontracting.
3.7.1 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.
[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO
PROFESSIONAL SERVICES AGREEMENT BY AND
BETWEEN THE CITY OF PALM DESERT AND THE ART
OFFICE
CITY OF PALM DESERT
By:
LAURI AYLAIAN,
City Manager
ATTEST:
By.. -
Ra - elle D. Klassen, j
City Clerk
APPROVED AS TO FORM:
\ rt W .
Ci ttorr
THE ART OFFICE
A Palm Desert, Cafrfornia Corporation
By: A N
Its: G6-4
r /
Printed Name: Grp 1i '� • ��'" ' �l
0
Its:
Printed Name:
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Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity
of that document.
STATE OF CALIFORNIA
COUNTY OF,�e�ZQ
On %% 20! before me, b H T• (tic ✓�A4S Notary Public,
pets ally�appear'ed ►� ii + / l li. �-n ,`711, / / ,who proved to me on the basis of satisfactory
evidence t be the person(ff) whose nameks) 's re subscribed to the within instrument and acknowledged to
me that e/ ttef iey executed the same in 59hentheir authorized capacity(ies), and that by(fi`iqhaatheir
signature*on the instrument the person(s), or the entity upon behalf of which the persop(s) acts , executed
the instrument.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and 'correct.
MARYJ.BURNS
WITNESS my hand and official seal.
Notary Public - California
Riverside County >
Commission A 2218260 r■
My Comm. Expires Nov 11, 2021 1
t/v
Sign toe of K—otaf WIC
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.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ Individual
❑ Corporate Officer
Title(s)
❑ Partner(s) ❑ Limited
❑ General
❑ Attorney -In -Fact
❑ Trustee(s)
❑ 'Guardian/Conservator
❑ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
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Title or Type of Document
Number of Pages
Date of Document
Signer(s) Other Than Named Above
Contract No. A24660A
EXHIBIT "A"
SCOPE OF SERVICES, SCHEDULE OF SERVICES, AND COMPENSATION
See attached
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72500.00001 \31605678.1
Exhibit A
CtheART OFFICE
34-330 Gateway Drive : 100 Palm Desert, CA 92211 a. 760.342.41 11 info@PKS3.com www.PKS3.com
July 22, 2019
City of Palm Desert
Attn: Martin Alvarez - Economic Development Director
73510 Fred Waring Dr.
Palm Desert, CA 92260
Martin,
Thank you for the opportunity to provide conceptual design services for the potential
integration of artwork in the future Portola Overpass. I've outlined below the goals and
deliverables for this project:
Goals.
• To investigate how art and/or design can be integrated into the overpass in
order to create a more significant, memorable visual experience
• Investigate the various areas of intervention such as underside, topside, on/off-
ramps, and embankments.
• Consider the 1-10 experience vs. the Portola corridor experience.
• Consider potential of 2-D vs. 3-D intervention as well as man-made form vs.
landscaping vs light
• Give the City visuals that can progress discussions with Caltrans, engineers, etc.
Deliverables.
3-4 options for the integration of artwork and/or design visualized through a
series of computer renderings. Day and night renders will be created.
• Provide an initial understanding of materials, scale, and associated
maintenance requirements.
The fee for this work will be $25,000. The work will be completed over the course of 2-4
weeks. I anticipate that there will be 2-3 loco) meetings associated with this work. If
there is the desire to further one or more of the designs through refinement of concept
or to create entirely new concepts, a new fee can be negotiated for the additional
scope of work
Exhibit A
This fee is based on the understanding that my studio can have access to the 3-D
digital file created for the final developed layout and form of the Portola overpass as
well as associated plan views and elevations. If the 3-D digital file is NOT available, the
total fee for this project and listed deliverables will be $32,500, allowing for additional
scope and associated time to build the digital file necessary to create the experiential
computer renderings for the conceptual design. Additionally, it will be important to
have an engineer associated with the project define the areas of intervention and
those areas, dimensions or forms that cannot be altered or impinged on.
If you have any questions regarding this proposal, please do not hesitate to call me on
my cell at 760.668.0000.
Sincerely,
Phillip K. Smith, III