HomeMy WebLinkAboutC33970A - Creation of Construction Documents for El Paseo Multi-Use Community CenterContract No. C33970A
CITY OF PALM DESERT
CITY MANAGER'S OFFICE
STAFF REPORT
REQUEST: APPROVAL OF A PROFESSIONAL SERVICES AGREEMENT,
CONTRACT NO. C33970A, IN THE AMOUNT OF $36,000 WITH
JMA ARCHITECTURE, INC. (PALM DESERT, CA) FOR
CREATION OF CONSTRUCTION DOCUMENTS FOR THE EL
PASEO MULTI -USE COMMUNITY CENTER PROJECT.
SUBMITTED BY:
CONTRACTOR
DATE:
CONTENTS
Recommendation
Ryan Stendell, Senior Management Analyst
JMA Architecture, Inc.
P.O. Box 778
Palm Desert, CA 92261
August 27, 2015
Draft Professional Services Agreement C33970A
Exhibits
By Minute Motion:
1. Authorize the Mayor to enter into an agreement Contract No. C33970A
in the amount of $36,000 with JMA Architecture, Inc. for creation of
construction documents for the El Paseo Multi Use Community Center,
subject to final review and approval by the City Attorney.
Funds are available in account number 4004679-4400100 for this payment.
Discussion
In November 2014, the City Council authorized a Bond Proceeds Funding Agreement
(BPFA) which was later approved by the Oversight Board and State Department of
Finance. The BPFA allowed the City to expend up to $800,000 in funds for the El Paseo
Multi Use Community Center, also known as the Entrada Pavilion. The City Council has
repeatedly expressed interest in creating a public open space to house the City's
growing Farmers Market, as well as numerous other public uses. Staff concurs as we
are continually asked by our community, philanthropic, and recreational partners for
spaces to host events.
Staff Report
Entrada Pavilion
Professional Services Agreement
August 27, 2015
Page 2of2
Contract No. C33970A
Staff has been working with JMA Architecture on the conceptual / design development
for this project. JMA has been extremely enthusiastic about this space and the potential
uses it can accommodate. The concept was proposed to the City Council at a Study
session in March of 2015 (copy attached) where it was well received. Staff has been
pleased working with this local architectural firm and is excited to move into the next
phase of design of the Entrada Pavilion project.
Fiscal Analysis
Funding for this request is located in City fund 400 but will be reimbursed through a
Bond Proceeds Funding Agreement from the Successor Agency to the Palm Desert
Redevelopment Agency.
Prepared By:
Ift-
Ryan Stendell
Senior Management Analyst
Reviewed and Concur:
Ozz- J�
Paul S. Gibson, Director of Finance
roval:
M. Wohlmuth, City Manager
Contract No. 33970A
CITY OF PALM DESERT
PROFESSIONAL CONSULTANT SERVICES AGREEMENT
PARTIES AND DATE.
This Agreement is made and entered into this day of , 20 , 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 JMA ARCHITECTURE, Inc., with its principal
place of business at PO Box 778, Palm Desert, CA 92261 ("Consultant"). City and
Consultant are sometimes individually referred to herein as "Party" and collectively as
"Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain
professional architecture, engineering, and landscape design consulting services required
by the City on the terms and conditions set forth in this Agreement. Consultant represents
that it is experienced in providing professional architecture, engineering, and landscape
design consulting services to public clients, is licensed in the State of California, and is
familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional architecture,
engineering, and landscape design consulting services for the El Paseo Multi Use
Community Center, also known as Entrada Pavilion 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 architecture,
engineering, and landscape 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.
Contract No. 33970A
3.1.2 Term. The term of this Agreement shall be from September 1, 2015 to
November 15, 2015, 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 Payment 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 persons or property, shall be promptly removed from the Project by the
Consultant at the request of the City.
3.2.5 City's Representative. The City hereby designates Ryan Stendell,
Senior 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").
Consultant shall not accept direction or orders from any person other than the City Manager,
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Contract No. 33970A
City's Representative or his/her designee. City's Representative shall have the power to act on
behalf of the City for review and approval of all products submitted by Consultant, but not the
authority to enlarge the Scope of Work or change the total compensation due to Consultant
under this Agreement. The City Manager shall be authorized to act on City's behalf and to
execute all necessary documents which increase the Scope of Work or change the
Consultant's total compensation, subject to the provisions contained in Section 3.3 of this
Agreement.
3.2.6 Consultant's Representative. Consultant hereby designates James
McIntosh, Architect, or his/her designee, to act as its representative for the performance of
this Agreement ("Consultant's Representative"). Consultant's Representative shall have full
authority to represent and act on behalf of the Consultant for all purposes under this
Agreement. The Consultant's Representative shall supervise and direct the Services, using
his/her best skill and attention, and shall be responsible for all means, methods, techniques,
sequences, and procedures and for the satisfactory coordination of all portions of the Services
under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with City
staff in the performance of Services and shall be available to City's staff, consultants and other
staff at all times.
3.2.8 Standard of Care; Performance of Employees. Consultant shall perform
all Services under this Agreement in a skillful and competent manner, consistent with the
standards generally recognized as being employed by professionals in the same discipline in
the State of California. Consultant represents and maintains that it is skilled in the professional
calling necessary to perform the Services. Consultant warrants that all employees and
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 Laws and Regulations. Consultant shall keep itself fully informed of and
in compliance with all local, state and federal laws, rules and regulations in any manner
affecting the performance of the Project or the Services, including all Cal/OSHA requirements,
and shall give all notices required by law. Consultant shall be liable for all violations of such
laws and regulations in connection with Services. If Consultant performs any work knowing it
to be contrary to such laws, rules and regulations, Consultant shall be solely responsible for all
costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials,
directors, officers, employees, agents, and volunteers free and harmless, pursuant to the
indemnification provisions of this Agreement, from any claim or liability arising out of any
failure or alleged failure to comply with such laws, rules or regulations.
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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 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
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Contract No. 33970A
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 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 agents,
representatives, employees or subconsultants.
City's Rights of Enforcement: In the event any policy of insurance required under this
Agreement does not comply with these specifications or is canceled and not replaced, City has
the right but not the duty to obtain the insurance it deems necessary and any premium paid by
City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay
premium from Consultant payments. In the alternative, City may cancel this Agreement.
Acceptable Insurers: All insurance policies shall be issued by an insurance company
currently authorized by the Insurance Commissioner to transact business of insurance 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 -Contributing 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
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Contract No. 33970A
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.
City's Right 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 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.
Timely Notice of Claims: Consultant shall give City prompt and timely notice of claims made
or suits instituted that arise out of or result from Consultant's performance under this
Agreement, and that involve or may involve coverage under any of the required liability
policies.
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. 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.
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Contract No. 33970A
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 "C" attached hereto and incorporated herein by reference. The total
compensation shall not exceed thirty six thousand dollars even ($36,000) without authorization
of the City Council or City Manager, as applicable, per the Palm Desert Municipal Code. Extra
Work may be authorized, as described below, and if authorized, will be compensated at the
rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation. Consultant shall submit to City a monthly
invoice which indicates work completed and hours of Services rendered by Consultant. The
invoice shall describe the amount of Services provided since the initial commencement date,
or since the start of the subsequent billing periods, as appropriate, through the date of the
invoice. City shall, within 30 days of receiving such invoice, review the invoice and pay all non -
disputed and approved charges thereon. If the City disputes any of Consultant's fees, the City
shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any
disputed fees set forth therein.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for
any expenses unless authorized in writing by City, or included in Exhibit "C" 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
authorization from the City Council or City Manager, as applicable, per the Palm Desert
Municipal Code.
3.3.5 Rate Increases. In the event that this Agreement is renewed pursuant to
Section 3.1.2, the rate set forth in Exhibit "C" may be adjusted each year at the time of renewal
as set forth in Exhibit "C."
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
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thereof, at least seven (7) days before the effective date of such termination. Upon
termination, Consultant shall be compensated only for those services which have been
adequately rendered to City, and Consultant shall be entitled to no further compensation.
Consultant may not terminate this Agreement except for cause.
3.5.1.2 Effect of Termination. If this Agreement is terminated as provided
herein, City may require Consultant to provide all finished or unfinished Documents and Data
and other information of any kind prepared by Consultant in connection with the performance
of Services under this Agreement. Consultant shall be required to provide such document and
other information within fifteen (15) days of the request.
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: JMA ARCHITECTURE, Inc.
PO Box 778
Palm Desert, CA 92261
ATTN: James McIntosh
City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
ATTN: Ryan Stendell, Senior 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.
3.5.3 Ownership of Materials and Confidentiality.
3.5.3.1 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 and data magnetically or otherwise recorded on computer diskettes, which are
prepared or caused to be prepared by Consultant under this Agreement ("Documents &
Data"). Consultant shall require all subconsultants to agree in writing that City is granted a
non-exclusive and perpetual license for any Documents & Data the subconsultant prepares
under this Agreement. Consultant represents and warrants that Consultant has the legal right
to license any and all Documents & Data. Consultant makes no such representation and
warranty in regard to Documents & Data which were prepared by design professionals other
than Consultant or provided to Consultant by the City. City shall not be limited in any way in its
use of the Documents & Data at any time, provided that any such use not within the purposes
intended by this Agreement shall be at City's sole risk.
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Contract No. 33970A
3.5.3.2 Confidentialitv. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents & Data either created by or provided to Consultant in
connection with the performance of this Agreement shall be held confidential by Consultant.
Such materials shall not, without the prior written consent of City, be used by Consultant for
any purposes other than the performance of the Services. Nor shall such materials be
disclosed to any person or entity not connected with the performance of the Services or the
Project. Nothing furnished to Consultant which is otherwise known to Consultant or is
generally known, or has become known, to the related industry shall be deemed confidential.
Consultant shall not use City's name or insignia, photographs of the Project, or any publicity
pertaining to the Services or the Project in any magazine, trade paper, newspaper, television
or radio production or other similar medium without the prior written consent of City.
3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be
necessary, appropriate, or convenient to attain the purposes of this Agreement.
3.5.5 Attorney's Fees. If either party commences an action against the other
party, either legal, administrative or otherwise, arising out of or in connection with this
Agreement, the prevailing party in such litigation shall be entitled to have and recover from the
losing party reasonable attorney's fees and all other costs of such action.
3.5.6 Indemnification.
3.5.6.1 Scope of Indemnity. To the fullest extent permitted by law,
Consultant shall defend, indemnify and hold the City, its directors, officials, officers,
employees, volunteers and agents free and harmless from any and all claims, demands,
causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity,
to property or persons, including wrongful death, in any manner arising out of, pertaining to, or
incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its
officials, officers, employees, subcontractors, consultants or agents in connection with the
performance of the Consultant's Services, the Project or this Agreement, including without
limitation the payment of all consequential damages, expert witness fees and attorneys fees
and other related costs and expenses. Notwithstanding the foregoing, to the extent
Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be
limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain
to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
3.5.6.2 Additional Indemnity Obligations. To the fullest extent permitted
by law, Consultant shall defend, with counsel of City's choosing and at Consultant's own cost,
expense and risk, any and all claims, suits, actions or other proceedings of every kind covered
by Section 3.5.6.1 that may be brought or instituted against City or its directors, officials,
officers, employees, volunteers and agents. Consultant shall pay and satisfy any judgment,
award or decree that may be rendered against City or its directors, officials, officers,
employees, volunteers and agents as part of any such claim, suit, action or other proceeding.
Consultant shall also reimburse City for the cost of any settlement paid by City or its directors,
officials, officers, employees, agents or volunteers as part of any such claim, suit, action or
other proceeding. Such reimbursement shall include payment for City's attorney's fees and
costs, including expert witness fees. Consultant shall reimburse City and its directors, officials,
officers, employees, agents, and/or volunteers, for any and all legal expenses and costs
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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 Governing 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 City's Right to Employ Other Consultants. City reserves right to employ
other consultants in connection with this Project.
3.5.11 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties.
3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or
transfer, either directly or by operation of law, this Agreement or any interest herein without the
prior written consent of the City. Any attempt to do so shall be null and void, and any
assignees, hypothecates or transferees shall acquire no right or interest by reason of such
attempted assignment, hypothecation or transfer.
3.5.13 Construction; References; Captions. Since the Parties or their agents
have participated fully in the preparation of this Agreement, the language of this Agreement
shall be construed simply, according to its fair meaning, and not strictly for or against any
Party. Any term referencing time, days or period for performance shall be deemed calendar
days and not work days. All references to Consultant include all personnel, employees,
agents, and 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 -Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
3.5.17 Invalidity; Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
10 Uodate 04/08/2014
Contract No. 33970A
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 Employment. 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.
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 Authority to Enter Agreement. 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.
CITY OF PALM DESERT JMA Architecture, Inc.
11 Hndata 04/OR/9014
Contract No. 33970A
Mayor or City Manager James McIntosh, Architect
ATTEST:
in
Rachelle Klassen
City Clerk
APPROVED AS TO FORM:
in
Best Best & Krieger LLP
City Attorney
12 Update 04/08/2014
Contract No. 33970A
EXHIBIT A
1. SCOPE OF SERVICES
1.1 Design Development Phase
Included will be the following:
Develop Design Ideas as depicted in the Preliminary Drawings Dated March 23,
2015.
1.2 Construction Document Phase
The architect based on the approval of the design development drawings by Client shall
prepare construction Documents. These plans shall be coordinated with all related duly
licensed design professionals as required for the completion of the Project. Plans shall
include:
A. Cover sheets
B. General notes
C. Site Plan and Details
D. Floor Plan for Restroom / Storage Room
E. Roof Plan
F. Building Sections
G. Building Elevations
H. Architectural Details
I. Electrical Design and Drawings
J. Plumbing Drawings
K. Structural Calculations
L. Framing and Foundation Plans
M. Coordinating Details for Integrating Pre -Fabricated Shade Structure into the
Project.
N. Landscape Drawings
O. Grading Plans
Architect shall submit and process approvals of the plans by (i) the City of Palm desert
("Cit)(") including, as necessary the building, fire, planning and grading departments. All
corrections and re -submittals to the City for final approvals are included in the Fixed
Fee pursuant to Article 2 below. Architect shall assist Client in applying for and
obtaining all permits and approvals normally required by law. However, this assistance
shall not extend to the preparation of separate research studies, special documentation,
or special tests not included in the Services described hereunder. P.O. Box 778, Palm
Desert, CA 92261 Telephone: (760) 346-6155 Fax (760) 346-8842 73-995 El Paseo,
Ste 201, Palm Desert, CA 92260
Contract No. 33970A
1.3 Other Architectural Services
Architect will also provide the following services for the Project:
* Landscape Design Coordination
* Civil Engineering Coordination
1.4 Excluded Services
1. Soils Engineering
2. AudioNideo Design
3. Security & Surveillance Systems
Contract No. 33970A
EXHIBIT B
SCHEDULE
SCHEDULE OF ARCHITECTURAL SERVICES)
1. Design Development — 7/24 through working drawing phase.
2. Construction Documents — Completion Date: 10/02/15
3. Permit Issuance — Approx: 10/23/15
EXHIBIT C
BREAKDOWN OF FIXED FEES:
JMA Architecture, Inc.:
Civil Engineering:
Landscape Design:
EXTRA WORK HOURLY RATES:
Contract No. 33970A
$20,500
$8,000
7 500
$36,000
1. JMA Architecture, James McIntosh: $150 / Hour
2. Civil Engineering
3. Landscape Design
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