HomeMy WebLinkAboutC34940A - Const Admin Svcs for DW Firecliff Bunker RnvatnCITY OF PALM DESERT CONTRACT NO. C34940A
STAFF REPORT
REQUEST: RATIFY A PROFESSIONAL SERVICES AGREEMENT WITH
HURDZAN GOLF TO PROVIDE CONSTRUCTION
ADMINISTRATION SERVICES FOR THE DESERT WILLOW
FIRECLIFF BUNKER RENOVATION PROJECT
SUBMITTED BY: Martin Alvarez, Director of Economic Development
DATE: June 9, 2016
CONTENTS: Hurdzan Golf Agreement
Recommendation
By Minute Motion:
1. Ratify a professional services agreement with Hurdzan Golf to provide
construction administration services for the Desert Willow Golf Firecliff
Bunker Renovation Project in the amount not to exceed $20,000.
2. Appropriate 20,000 from Desert Willow Capital Improvement Fund 441
to Account No. 4414195-4809200.
Background
In February of 2014, Hurdzan Golf, the original Desert Willow Golf Course architect was
hired to prepare a long term master improvement plan necessary to renovate the Desert
Willow Golf Resort golf courses and facilities to maintain the resort's 4.5-star rating for
quality of experience. Hurdzan Golf completed the 3-5 year capital improvement master
plan for the entire Desert Willow Golf Resort which included following components and
goals:
• A long term master plan and prioritization to improve Firecliff Golf Course's tee
boxes, bunkers and greens to their original condition.
• Development of construction plans to renovating/reshape Firecliff bunkers to
address shape, ease of maintenance, installing bunker liners, installing bunker
drainage and new sand.
• Develop and design recommendations on both golf courses to reduce
maintenance/labor costs, reduce water usage (turf reduction) and enhance the
course's sustainability.
Staff Report
Desert Willow Golf Resort Hurdzan Golf
Page 2 of 3
June 9, 2016
• Provide construction documents that will guide the renovation/leveling of the
existing practice facilities (driving ranges) to achieve improved usefulness and
image of the driving ranges.
• Provide guidance on increasing playability of the golf courses for golfers of all
skill levels by adjusting tees, landing areas, and hazards that affect play.
• Review the potential renumbering scheme to the Mountain View Course to
improve traffic flow and improve the finishing experience.
• Coordinate with staff to review existing plant palates that require attention to
improve the playability and achieve the reduction of water use.
After completion of the master improvement plan, the architect prioritized all the future
improvements, provided cost estimates, and a phasing plan. The intent of the plan is to
restore the golf resort to its original design intent and assist in maintaining its' high
quality and ranking the resort has achieved over the years.
In the summer of 2015, the first phase of the master improvement plan was
implemented with the renovation/leveling of the existing resort practice facility (driving
range).
Discussion:
On March 11, 2016, the City Council awarded a contract to Earth Sculptures, Inc. to
perform Phase II of the master improvement plan which is known as the Desert Willow
Firecliff Golf Course Bunker Renovation Project. In order to implement the project's
plans and project specifications, staff requires construction administration services by
Hurdzan Golf. The construction administration services include the following
components:
• Three site visits by the architect to provide specific field direction to the contractor
to begin the project. The second visit, at 25% project completion, will provide an
inspection of the first phase of construction and a final site inspection will review
the completed project.
• Assistance with review of contractor Requests for Information (RFI's),
clarifications and potential Change Order Requests. The construction
administration service also includes the review of progress payments.
Staff recommends that the City ratify the contract with Hurdzan Golf to provide
construction administration services for the Desert Willow Firecliff Bunker Renovation
Project in the amount not to exceed $20,000.00. This cost includes the architects three
site visits, plus reimbursement of travel expenses. Funds for these services are
available in Account No. 4414195-4809200.
G \rda\Martin Alvarez\Desert W loMFlrediff Bunker Renovation\SR DW-Hurdzan Admin Contract doc
Staff Report
Desert Willow Golf Resort Hurdzan Golf
Page 3 of 3
June 9, 2016
Fiscal Analvsis
Funds for the construction administration services contract with Hurdzan Golf require an
appropriation from the Desert Willow Capital Improvement Fund 441 in the amount of
$20,000. Funds for these services are available in Account No. 4414195-4809200.
Submitted By:
Martin Alvarez
Director of Economic Development
Reviewed:
,1 Moore
Director of Finance
Approval:
AM
cCarthy
City Manager
Department Head:
Rudy Acosta
Assistant City Manager
G \rdaWartin Alvarez\Desert WillowTirecliH Bunker Renovation\SR DW-Hurdzan Admin Contract doc
CONTRACT NO. C34940A
CITY OF PALM DESERT
DESERT WILLOW FIRECLIFF BUNKER RENOVATION PROJECT
CONSTRUCTION ADMINISTRATION AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this day of April, 2016, 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 Hurdzan Golf, a professional golf course
design firm, with its principal place of business in Columbus, Ohio ("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 golf course renovation 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 golf course renovation 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 golf course
renovation construction administration services for the Desert Willow Firecliff Bunker
Renovation project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scone 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 golf course
renovation construction administration services necessary to implement the Firecliff
Bunker Renovation Project Specifications ("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.
Updated 04/08/16
CONTRACT NO. C34940A
3.1.2 Term. The term of this Agreement shall be from May 2016-October
2016, unless earlier terminated as provided herein. The City shall have the unilateral
option, at its sole discretion, to renew this Agreement automatically for no more than 1
additional one-year term. 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. 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 "B" 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 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 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
2 BBK: 2016
CONTRACT NO. C34940A
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 is:
Michael Hurdzan, President.
3.2.5 Citv's Representative. The City hereby designates Martin Alvarez,
Director of Economic Development, 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
Michael Hurdzan, President, 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 reasonable times.
3.2.8 Standard of Care: Performance of Emplovees. 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
3 BBK: 2016
CONTRACT NO. C34940A
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 Requlations. 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.
Consultant shall not commence work under this Agreement until it has provided
evidence satisfactory to the City that it has secured all insurance required under this
section. In addition, Consultant shall not allow any subconsultant to commence work
on any subcontract until it has provided evidence satisfactory to the City that the
subconsultant has secured all insurance required under this section.
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 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, including without limitation,
blanket contractual liability. Defense costs shall be paid in addition to the limits. The
policy shall contain no endorsements or provisions limiting coverage for (1) contractual
liability; (2) cross liability exclusion for claims or suits by one insured against another; or
(3) contain any other exclusion contrary to the Agreement.
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.
Professional liability (errors & omissions) insurance. Consultant shall maintain
professional liability insurance that covers the Services to be performed in connection
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
4 BBK: 2016
CONTRACT NO. C34940A
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. Covered professional services shall specifically include all
work to be performed under the Agreement and delete any exclusions that may
potentially affect the work to be performed (for example, any exclusions relating to lead,
asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work,
etc.). If coverage is written on a claims -made basis, the retroactive date shall precede
the effective date of the initial Agreement and continuous coverage will be maintained
or an extended reporting period will be exercised for a period of at least three (3) years
from termination or expiration of 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.
Other provisions or requirements
Insurance for Subconsultants. All Subconsultants shall be included as additional
insureds under the Consultant's policies, or the Consultant shall be responsible for
causing Subconsultants to purchase the appropriate insurance in compliance with the
terms of these Insurance Requirements, including adding the City as an Additional
Insured to the Subconsultant's policies. Consultant shall provide to City satisfactory
evidence as required under Insurance Section of this Agreement.
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 endorsement must
be approved by City's Risk Manager prior to commencement of performance. The
certificates and endorsements for each insurance policy shall be signed by a person
authorized by that insurer to bind coverage on its behalf. 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 coveraqe. 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 agents, representatives, employees or subconsultants.
Citv'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.
5 ssK: 2016
CONTRACT NO. C34940A
Acceptable insurers. All insurance policies shall be issued by an insurance company
currently authorized by the Insurance Commissioner to transact business of insurance
in the State of California, with an assigned policyholders' Rating of A- (or higher) and
Financial Size Category Class VI (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, and shall require
similar written express waivers and insurance clauses from each of its subconsultants.
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.
Primary and Non-Contributinq Insurance. All insurance coverages shall be primary
and any other insurance, deductible, or self-insurance maintained by the indemnified
parties shall not contribute with this primary insurance. Policies shall contain or be
endorsed to contain such provisions.
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.
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, policies shall provide or be endorsed to provide that the City of Palm
Desert and its officers, officials, employees, and agents 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
liability policies.
Citv's riqht to revise specifications. The City 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
6 BBK: 2016
CONTRACT NO. C34940A
renegotiate Consultant's compensation.
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.
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 performance under
this Agreement, and that involve or may involve coverage under any of the required
liability policies.
Safetv. 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.
Safety precautions, where applicable, shall include, but shall not be limited to: (A)
adequate life protection and lifesaving equipment and procedures; (B) instructions in
accident prevention for all employees and subconsultants, such as safe walkways,
scaffolds, fall protection ladders, bridges, gang planks, confined space procedures,
trenching and shoring, equipment and other safety devices, equipment and wearing
apparel as are necessary or lawfully required to prevent accidents or injuries; and (C)
adequate facilities for the proper inspection and maintenance of all safety measures.
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.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation in the
amount of $5,000/Day (a total of 3 site visits), plus travel expenses, including
authorized reimbursements, for all Services rendered under this Agreement. The total
compensation shall not exceed twenty thousand dollars even ($20,000.00) 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
7 BBK: 2016
CONTRACT NO. C34940A
therein.
3.3.3 Reimbursement for Expenses. Consultant shall be reimbursed for
expenses related to travel in the amount not to exceed $7,500.00, as authorized by City
in writing prior to travel.
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.
3.3.5 Rate Increases. In the event that this Agreement is renewed
pursuant to Section 3.1.2, the rate set forth in Exhibit "C" may be adjusted each year at
the time of renewal as set forth in Exhibit "C."
3.3.6 Prevailinq Waqes. N/A
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
8 BBK: 2016
CONTRACT NO. C34940A
be required to provide such document and other information within fifteen (15) days of
the request.
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: Hurdzan Golf
1270 Old Henderson Road
Columbus, Ohio 43220
ATTN: Michael Hurdzan, President
City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
ATTN: Martin Alvarez, Dir. of Economic Development
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 Confidentiality.
3.5.3.1 Documents & Data: Licensing of Intellectual Pror)ertv.
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"). 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.
9 BBK: 2016
CONTRACT NO. C34940A
3.5.3.2 Confidentiality. 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.
3.5.3.3 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 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.
3.5.4 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.
3.5.8.1 Scope of Indemnitv. 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
10 BBK: 2016
CONTRACT NO. C34940A
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 Obliqations. 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 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 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.
3.5.8 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 Emplov 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 Assiqnment or Transfer. Consultant shall not assign, hypothecate,
or transfer, either directly or by operation of law, this Agreement or any interest herein
11 BBK: 2016
CONTRACT NO. C34940A
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 subconsultants 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.
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 subconsultant,
employee or applicant for employment because of race, religion, color, national origin,
12 BBK: 2016
CONTRACT NO. C34940A
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.
3.5.20 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.
13 BBK: 2016
CONTRACT NO. C34940A
CITY OF PALM DESERT HURDZAN GOLF
By: By:
Acting City Manager Michael Hurdzan, President
ATTEST:
By:
Rachelle D. Klassen
City Clerk
APPROVED AS TO FORM:
By:
Best Best & Krieger LLP
City Attorney
14 BBK: 2016
CONTRACT NO. C34940A
EXHIBIT "A"
SCOPE OF SERVICES
SEE ATTACHED
Hurdzan
Golf
3 Gererations of Timeless Golf Design.
Martin C. Alvarez
Director of Economic Development
City of Palm Desert
Palm Desert, California
RE: Hurdzan site visit
Dear Martin,
614.457 c955 .vww.hurdzangoIf.com
25 February 2016
We are pleased to learn that the improvements to the Desert Willow Golf Resort Firecliff Course
will become reality.
Moreover, that we will be afforded the opportunity to ensure these improvements are executed
to the shape and standards of our collective vision.
To that end, we offer for your consideration our customary, Dr. Michael J. Hurdzan, on -site fee
schedule of $5,000/day, plus expenses.
Of course, this fee includes any and all correspondence, written or verbal, necessary to ensure
this project is properly executed.
For over two decades, your success has been our success, and we are delighted to further polish
this exceptional golf facility.
Very Truly Yours,
Christopher M. Hurdzan, PhD, MBA
Hurdzan Golf Design
CONTRACT NO. C34940A
EXHIBIT "B"
SCHEDULE OF SERVICES
May 17, 2016 Site visit by Michael Hurdzan. Initial direction to contractor.
*June (TBD) 2016 Site visit by Michael Hurdzan. For confirmation of
contractors initial work and further direction, as needed.
*August
/Sept (TBD) 2016 Site visit by Michael Hurdzan to review final project
construction.
*Dates are subject to agreed upon modification, to be
scheduled based on project construction progress.
1
CONTRACT NO. C34940A
EXHIBIT "C"
SCHEDULE OF HOURLY RATES
Michael J. Hurdzan. $5,000/day. ($500/Hr)