HomeMy WebLinkAboutClaim #659 - Ruhnau, Ruhnau & Clark & Assoc. CITY OF PALM DESERT
CITY CLERK DEPARTMENT
STAFF REPORT
REQUEST: CLAIM AGAINST THE CITY (#659) BY RUHNAU, RUHNAU & CLARKE &
ASSOCIATES IN THE AMOUNT OF $133,350 PLUS INTEREST AND
ATTORNEY FEE
SUBMITTED BY: Rachelle Klassen, City Clerk
DATE: March 25, 2010
CONTENTS: • Staff Report
• Recommendations of Claims Adjusters and Staff
• Claim No. 659
Recommendation
By Minute Motion, reject the Claim and direct the City Clerk to so notify the
Claimant.
Background
Based on a review of the subject Claim and the recommendation of the Claims Adjuster,
Risk Manager, City Attorney, and staff, it is recommended that the Claim be rejected.
Discussion of this item should be held in Closed Session pursuant to Government Code Section
54956.9(b), potential litigation.
Fiscal Analysis
City of Palm Desert participates in the self-insurance pool of the California Joint Powers Insurance
Authority (CJPIA). Action to reject the subject Claim does not have a fiscal impact on the City at
this time.
Submitted by: Approved:
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Rac elle D. Klasse , CM , City Clerk hn M. Wohlmuth, City Manager
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CIT COUNC[LACTtON
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February 22, 2010
TO: Tl�e City of Palm Desert
ATTENTION: Rachelle D.Klassen, C ity Clerk
RE: Claim : Ruhnau, Ruhnau, &Associates vs. The C ity of Palm
Desert
Claimant : Ruhnau, Ruhnau, &Associates
D/Event . 11/18/2009
Rec'd Y/Office : 2/18/2010
Our File : S-1519161-RQ
We have reviewed the captioned claim /pleadings and request that you take the action indicated below:
• REFER TO AGENCY ATTORNEY:
We have determined that the subject matter of this claim does not appear to
meet the criteria for participation in the California JPIA's Liability Protection
Program. We suggest you refer the claim to your Agency's attorney for
recommended action. At your request we will review any subsequent pleadings
and/or information for application under the California JPIA Liability
Protection Program.
Please note that the California JPIA Memorandum of Liability Coverage
provides for review of our coverage determination by the California JPIA's
Chief Executive Officer. The request for review must be made in writing and
within 90 days of the date of this written notice of a lack of coverage. The
request for review should be mailed to the California Joint Powers Insurance
Authority— Attn: Jonathan Shull, Chief Executive Officer, 8081 Moody Street,
La Palma, CA 90623. Additional information regarding the appeal of coverage
determinations may be found in Section S.J. of the California JPIA
Memorandum of Liability Coverage.
If you have any questions please contact the undersig ned.
V ours,
C A RE & COMPA Y
��'��i��`�._
cc: CJPIA w/enc. icha�. Marque
Attn.: Chief Executive Of�cer
CARL WA�;REN & CO.
CLAIMS MANAGEMENT CLAIMS A.DJUSTERS
770 Placen[ia Avenue,Placentia,CA 92870-6832
Mail:P.O.Box Z5180•Santa Ana,Ca 92799-5180
Phone:(714)572-5200 •(800)572-6900•Fax:(714)961-8131
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TO: CJPIA (c/o CARL WARREN & CO.), CITY MANAGER, CITY ATTORNEY,
ACM FOR FZEDEVELOPMENT, DIRECTOR OF PUBLIC WORKS,
CITY ENGINEER, PARKS & RECREATION SERVICES MANAGER,
RISK MANAGER
FI�OM: CITY CLERK
DATE: FEBRUARY 18, 2010
SUBJECT: CLAIM NO. 659` - CLAIM AGAINST THE CITY BY RUHNAU, RUHNAU &
CLARKE&ASSOCIATES IN THE AM�UNT C�F$133,350 PLUS INTEREST
AND ATTORNEY FEE
The attached Claim No. 659 is being transmitted to you for the following:
❑ Information only.
or
� Review and recommendation to the Claims Review Committee for any action
required by the City of Palm Desert.
We would appreciate your report, if requested, by March 18, 2010, for timely response to
the Claimant.
------�..._._�.___.� v �t U
RACHEL �� '
LE D. KLASSEN, CMC
CITY CLERK �,�,v�
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Attachment (as noted)
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MURTAUGH MEYER NELSON �t. TREGLIA LLP
ATTORNEYS AT LAW
A LIMITEO LIABILITY PAR7NERSHIP INCIUDING PROFESSIONAI CORPORATIONS
2603 MAIN STREET, 9TH FLOOR
IRVINE, CALIFORNtA 92614-6232
TE�EPHONE(949)794-4000
FacslMi�E(949)794-4099
TIMOTHY J MCELFISH
ASSOCIATE TMCELfISH�a MMNT.COM
}�cbruary 17, 20]0
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i�lA O VERNI TE EXPRESS C= �p1�`
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Rachelle Klassen, City Clerk °° o��i
City of Palin Desert ao ���''..�'
73-510 Fred Waring Drive `�'�' �"�
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Palm Desert, California 92260 � ��o
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Re: Claim Against City of Palm Desert and Palm Desert Redevelopment -' �"
Agency
File No. 500-13542
Dear Mrs. Klassen:
Pursuant to our conversation this afternoon, enclosed are Exhibits A-C that are
attached to and incorporated into the governmental claim against the City of Palm Desert
and the Palm Desei-t Redevelopment Agency filed with your office on February 16, 2010.
ror your convenience, I have enclosed a complete conformed copy of the
Governmental Claim (containing the received stamp from your office) with the
Attachment and Exhibits A-C attached. Should you require any additional information,
please feel free to contact me directly. Thank you for your assistance in this matter.
5incerely,
MllRTAUGH MEYER NELSON&TREGLIA LLP
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Timothy J McElfish
TJM:mpc
452184
� ��Overnitel�,��;��3 (800) 683-7648 � •• • �
overniteexpress.com Morning Overnite 0 '
SHIPMENT NUMBER: 10334-396892-091 1 of 1 Residence �
INTERNAI UIILINGR[FfR[NC[ ACCOUNI'NUMBER �
500-13542 10334 ��clared Value �
3rd PARTY BILLING ACCOUNT i!(OPTIONAL) DATE COD AMOUNT
02/17/2010 $ �
FROM (YOUR NAME) YOUR PHONE#
I AUTHORIZE RELEASE OF THIS
E�in K. Barton (949) 794-4000 SHIPMENT WITHOUT SIGNA7URE
COMPANY OF RECIPIENT
Murtaugh Meyer Nelson & Tre lia LLP RELEASE SIGNATURE
g Erin K,Barton �
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2603 Main Street 9th fl.
y�TM STATE ZIPCODE(RE�UIRED) � � � ■
Irvine CA 92614 � „��, f
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PHONE#
Rachelle Klassen, City Clerk (760) 346-0611 ii�i
:OMPANY
City of Palm Desert City Clerk
iTREET(WE CANNOT OEIIVER TO PO BOXES} FLOOR OR SUITE
T3-510 Fred Waring Drive ■ ' �
��N STATE ZIPCODE
Palm Desert CA 92260 ,' ■
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3PECIAL INSTRUCTIONS: �,z.s
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' CITY OF pALM DESERI'
CLAIM AGAIN5T THE CITY OF p}�,T„� Dg,�ERT ASSIGNED CLAIM�NO. J�
,
and Pa esert Re evclopment Ag nC ' .- . � .����~�^ ^
�,, '� , �,,
(For Money and Damages)
Received by: �,,, � ��I 0 F[��3 (b Pf i 3: ( J
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via: U.S. Mai! Interoffice Mai! Over-the-Counter xX
A CLAIM MUST BE FILED WITH THE CITY CLERK OF TyE CITY OF PA�,M DESE
MONTHS AFTER WHICH THE IIVCIDENT Oit E , RT W[THIN SIX
AGAINST THE CITY OF p/�LM DE5ERT, NOT ANpTHER pUBLIC�ENTITYR WHERR CLAIM IS,
INSUFFICIENT, pI,EAgE USE ADDITIONAL PAPER AND IDEN1'IFY IIVFORMATI
PARAGRAPH NUMBER. � spACE IS
COMPLETED CLAIMS MUST BE MAILED OIt DELIVERED TO T E CITY
CLERK CITY OF PALM DESERT 73-51p FRED WARING DRNE P A L I�t D E S E R T CA 922
TO THE HtaNQRABLE MAY�JR AND CITY COUNCIL, City af Palm Desert Califor • 60.
, nia:
The undersigned respectfully submit(s) the foilowing ciaim and information relative to dama e
person(s)and/or personat property: g (s) to
j• CLAIMAhiT INFORMATIDN:
NAME Ruhnau, Ruhnau, & Clarke & Associates, a California Corporation
. ADDRESS 3 �5 Tenth Street Riverside California 92501
PHOtVE NO. 9 51-5 2 9-7 715 DATE OF B�IRTH: N A
SOCiAL SECURITY NO. N A_ _ DRIV�R'S LICEN5E NO.
2• lVame, telephone nurnber and post oftice address to which clairnant d A
sent, if other than abave: e s i r e s n o t i c e s t o be
Michael Murtaugh, Esq.
Murtau h Me er Nelsor'i & Treglia, LLP
2603 Main Street, 9t F oor, Irvine, a i ornia,
�• 4ccurrence or event from which the claim arises: •
a. DA'fE; November ss, 2009 b, rIME. N/A
Iocation See Attac�'iment, Paragrap ,---- �• PLACE (exact and specific
d• How and under what circumstances dicf damage or injury oecur? Spe�ify the particular
occurrence, event, act or ommission you claim caused the injury or damage. (Use
additiona! paper if necessary.) Sea Attachment, Paragraph 1.
e• What particular actian by the City, or its employees, caused the a!leged dama e or
injury? See Attachment Para ra h 1 . g
Page 1 of 2
� � � � ���
4• Give a general description of the indebtedness, obligation, injury, damage, or lass incurred
so far as it may .be known at the tirne of presentation of the claim. Tf there were no
injuries, state "no injuries": See Attachment, Paragraph 2 .
-------------
3• Give the name(s) af the City emplayee(s)causing the damage or injury: See Attachment,
Paragraph 3 .
6• Name and address of any other person(s) injured: N A
7. Name and address of the owner of any damaged praperty: N/A
�• Damages claimed: S�e Attachment Paragraph 2 .
a. Amount clairned as of this date: $ 133, 350. 00
b. Estimated amount of future costs: $ Unknown
C. Total amount claimed: $ 133,350.00 plus Interest and Attorney Fee
d. Basis for computation of amounts claimed include copies af al! bills, invoices,
estimates, etc.): See Attachment, Para ra h 4 .
9. 'Names and addresses.of all witnesses, hospitats, doctors, etc.: See Attachment,
Paragraph 3 .
Z�. Any additional information, including police reports, which might be hetpfuI in considering
this ctaim: In oxder to timel resolve this matter cl.aimant is willin
to acce t settlement in the amount of $83,250. 00.
VDARNING:IT IS A CRIMINAL OFFENSE TO FILE A FALSE CLAIMi PENAL C�JDE 72;
INSURANCE CODE 556.1).
I have read the matters and statements made in the above claim, and I know the same to be true o �
my own knowledge, except as to those matters stated upon information or belief as to such matters
I believe the same to be true. I certify under penalty of perjury that the foregoing is TRUE AhlD
CORRECT'.
Signed this ' ay of WClor��20 10, at
____ �tau ��bt�, ca�t�o�wi�.
� .
SIG A E CL IMAINT SIG�IA URE O CLAIMANT
Office of the City Clerk, Palm Desert, Caiifornia D(�C. NO.
_,_,_____ DATE FILED .
Page 2 of 2
ATTACHIVIENT TO CLAIM OT'
RUHNAU,RUHI�TAU, C:LARI�E �c ASSUCIATES
1• How the Dama e or In'ur Occurrecl ai�d Actions b the Cit of Palm
Desert and Palm Desert Redevelo ment A euc :
On or about March 23, 2006, the City of Palm; Desez-t and the Palm Desert
Redevelopment Agency ("palm Desert") ar�d Ruhnau, Ruhnau,
Clarke & Associates, a
California CorporatioiZ ("Ruhn�u"), e��tered into an Agreement for Professional Services
("the Agreement"; a copy of which is attached hereto as Exhibit "A" and iiicolporated
herein by this reference) concerning the providing of professional architectural services
for the Palm DeserC Aquatic Coi�nplex project("the Project").
Initially, Palm Desert aufihorized aild directed Ruhnau to prepare a Project site
plan and related documei�ts foz• a site located at lhc College of the Desert including a 25
meter pool with related water features; and in due course Ruhnau appropriately
performed these services.
Subsequently, Palm Desert authorized and clirected Ruhnau to prepa.re Project site
plans and related documents for a 50 meter pool with different related features, and then
for an entirely different site generally referred to as the Date Grove site; and in due
course Ruhnau appropxiately performed these services.
On or about November 1$, 2009, Falm Desert terminated the Agreement by
sending Ruhnau a formal Termination of Contract (a copy of which is attached hereto as
Exhibit"B"and incorporated herein by this reference).
On or about November 20, 20�9, Rt�hnau submitted to Palm Desert a Final
Invoice for services rendered and costs advanced pursu�nt to the Agreement (a copy of
which is attached hereto as Exhibit"C" and incorporated herein by this reference).
As of this date, Ruhnau has fully performed all of its unexcused obligations
pursuant to the Agreement; and Palm Desert has breached the Agreement by terminating
the Agreement without cause in viola�ion of the provisions of the Agreement Section 15,
and by failing and refusing to pay for services rendered and costs advanced pursuant to
the Agreement.
2. Indebtedness,obli ations. dama�es claimed is as follows:
Scheme 1-Colle e Desert Site $18,000.00
Date Grove Site $10,000.00
Breach of Contract Dama es $99,450.00
Prejudgment Interest frorn $3,450.00
November 18, 2009 to Payment $34.00/day from 12/20/09
of Claim
Attorney Fees and Cost pursuant $2,500.b0
to Paragraph 18 of the Agreement
. (estimated initial fees and
costs, and continuin
441975_3 Governmental Claim by Ruhnau, Ruhnau, &Clarke, Page 1 of 2
3• Participants in or Witnesses to Transaction or Dama�e
Roger Clarke, Ruhnau, Ruhnau & Cla.rke to be contacted through counsel of record,
Michael Murtaugh, Murtai.tgh Meyer Nelson & Treglia, LLP 2603 Main Street, 9`h Floor,
Irvine, California 92614. 949-794-4Q00.
Bryan Dunaj, Ruhnau, Ruhnau & Clarke to be contacted through couns.el of record,
Michael Murtaugh, Murtaugh Meyer Nelson &Treglia, LLP 2603 Main Street, 9`h Floor,
Irvine, Califoriiia 92614. 9A�9-794-4000.
Jinn Ferguson,Chairman of Palm Desert Redevelopment Agency �
Rachelle D. Klassen, Secretary of Palm Desert Redevelopment Agency
Janis Steele,Parks &Recreation Service Manager, City of Pa1m Desert
�. Comnutation of Damages•
Darnages were determined as follows:
• Additional Service fees pursuant to Agreement§5.2.
• Breach of Coritract darnages calculated based upon a 20%profit margin on the
fees remaining pursuant to the Agreement at the time of termination.
• Prejudgment Interest from December 20, 2409,calculated at 10% simple interest.
• Attorney fees pursuant to attorneys' fee schedule.
5. Unlimited Civil Turisdiction• Pursuant to Governmental Code § 910(�,if the
claim is not paid, the case will be filed as an Unlimited Civil Case. �
441975_3 Governmental Claim by Ruhnau,Ruhnau,&Clazke,Page 2 of 2
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CVL1t�IT A �
�� Contract No.R23750A
AGREEMENT FOR PROFESSIONAL SER'VICES
This AGREEMENT is made and entered into this 23'�day of March, 2006("EPfective
Date")by and between the PALM DESERT.REDEVELOPMENT AGENCY("Agency")and
RtIHNAU,RUHNAU&CLAI2FCE, a California corporation,("Architect")(sometimes referred
to individually or collectively as"Party"or"Parties'°),
WITNESSETH �
WHEREAS, Agency desires to retain Architect as an independent contractor to perform
certain te�hnical and professional consulting and design services in coruiection with the
• AQUATIC CEIVTER DESIGN&CONSTRUCTION SLTPPORT PROJECT,subject to the terms
aud conditioris specified below,in the documents attached an incorporated i�erein,and applicable
federal,state and local law. �
NOW,THEREFOR.E,in consideration of performance by the,parties af the mutual
promises covenants, and conditions herein contained,the Parties hereto agree�as follows:
1• Archftect's Services
1.1 �Tature of Services: Architect shall provide professional and technical
services on a non-exclusive basis,as more particularly described in Section 3 below.
1.2 Personnel: Arclutect represents that it has,or will secure at its own
expense,all personnel required to perform khe services under this Agreement. All of the
services required under this Agreement will be performed by Architect or under its direct
supervision, and a11 personnel engaged in the work shaIl be qualified, and shall be
authorized or permitted under state and local law to perform such services.
1,3 Standard ofPerfa„�,,,rmance: Architect shali perform a11 services under
this Agreement in accordance with the standard of care genexally exercised by like
professionals under similar circwnstances and in a manner rcasonably satisfactory ta
' Agency. �
1.4 �►rchitect Renresentative: For the purpose of this Agreament,the
registered architect, who will serve as the qrchitect Representative shall be
Roger Claxke {"Architect'�.
�
I,5 Time of Commencement: The execution of this Ag,recment by tho
Parties does nat constitute an authorization to procaed. A sepazate,written Notice to
Proceed shall be issued by the Agency Representativo,and Architect shall not commence
work un�il raceipt of such written Notice(s)to Proceed,as'fiu-ther set forth in Section 2
and 3 below.
1.6 Time of Performance/Time is of the Essence; Architect shall
comrnence the services contemplated under this Agreement immediately upon receipt of
RMBUS�U&RW1N1267975.2
5/31/06
a written Notice to Proceed from the Agency, and shall prasecute to completion each task
listed in Section 3 in a timely and diligettt manner.
2. Services by Agency:
2.1 A�encv Representative: For the purposes of this Agreement, the Agency
Representative shall be or such other person designated by the
Agency's Exeautive Director("Agency Representative").
2.2 Provision of Data: All information,data,reports and records and maps as are
existing and available from the Agency and necessary for the carryings out of the work outlined
sh,a.11 be fiunished to Aschitect without charge by Agency,ancl Agency shall cooperate in every
way reasonable in the carrying out of the work without delay. Architect shall obtain,if
necessary,a survey of the property at the expense of Agency.
�. Architect's Scope of Work: Upon delivery by Agency to Architect of a written Notice
to Proceed,Bngineer shall irnmediately commence work pursaant to this Agreement. Engineer's
scope of work shalZ consist of the 8ervices in Exhibit A and Eachibit B appended to this
Agreement.
3.1 Re�ortin�d Record Kee�in�: To assist Agency in the perfarmance of its
planning,reporting and financial administration abligations,Architect sha11,throughout the term
of this Agreement,keep Agency reasonably informed of progress on w4rk require�urider this
Agreement, and of any problems or delays,anticipated or otheiwise, associated with,each aspect
of the work. Architect shall pramptly re.spond to any request by Agency for information,
progress reports,or riocumentation. Architect shall maintain accurate records of all work
perfornied for ea.ch Assignmant under this Agreement,incl�ding but not limited to originals or
copies; as applicable,of all deliverable documents described in Exhibit A and Exhibif B. Upon
the completion of work,and if requested by the Agency,Architect shall deliver to Agency the
ariginals of all renderings;madels,or documentation produced,and may retain copies of such
documentation,at Axchitect's election.
3.2 Gornpliance v�n�'.h Laws: Architect shall at aIl tirnes possess�nny and all
licenses and perrnits necessary ta provi,de the services here�n,and sha11 comply with applicable
federal;state and local laws,ordinances,cades and regul�tions in t1�e performance of this
Agreeihent,and with all app�licable with any applicable City of Palm Desert policies and
guidelines.
4. Not Used
5. Compensa�ion: Agency shall pay Aschitect for the Services providad under this
Agreement on the following basis:
5.1 Not to Ex�ed Fee; Agancy shall pay to Axchitect a total amount not to exc�ed
$552,Sn0.00 for the basic serviccs described in Exhibit A and Exhibit B. Payment shall be made
in a manner set forth in Architect's proposal for a project with estimated cost of$6,500,000.00.
The not-to-exceed fee shall not be exceeded without written agreement between the parties.
2
RMH USIDBRW IN�267975.2
S/3 t/06
5.2 Additional Services: Additional services beyond those described in Exhibit A
and Exhibit B shall be reimbursed on a time-spent basis at the hourly rates described in Exhibit
C. Agency shall not be obligated to compensate Architect for additional services performed
without advance authorization from the Agency Representative.
5.3 1Zeimbursable Expenses: No additional compensation will be paid for
reimbursable expenses or d}sbursement recovery chaxges which are subsumed within Seetion
5.1, except as follows: �
(a) Expense of tt-avel and other related expenses in connection with out-of-town
travel authQrized by Agency.
(b) Reproductions,postage and handling of Drawings and Specifications as requested
by Agency.
(c) Renderings and models requested by Agency.
(d) Other expense related to project authorized by Agency.
5.4 Extraordinary Expenses/Costs: Na clauns for additional services,expenses
or costs incurred by Architect will be allowed unless such additional services,expenses or costs
are authorized by Agency in writing prior to the performance or incurrence of such services,
expenses or costs. Any additional services,expenses or costs authorized by Agency shall be
compensated at rates mutually agreed upon by the Parties in writing.
G. „ Method af Payment
6.1 Invoices: Architect shall submit to Agency invoices each month for a11
services,if any,completed during the preceding month, The invoices shall describe the services
rendered during the period and any milestone achievements. Agericy shall review such invoices
and notify Architect in writing within fifteen(15)calendar days of any disputed amounts.
b.2 Paym�nt: Agency shall pay all undisputed portions of the ittvoioe within
thirty(30)calendar days after receipt af the invoice up ta the maximum amounts set forth in
Section S.
�6.3 Audit of Records. At any time during regular working�ours,a11 records,
invoices,time cards,cost.control sheets a.nd other records maintained by Architect shall be
available for review and,audit by the Agency.
7. Ownership of Work Product '
7.1 Pronertv of A encv: All documents including but not limited to.plans,bids,
proposals,correspondence,permits,certificates,contracts,change orders,invoices,receipts,
reports, analyses or athe�written material developed or obtained by Architect iri the performa,nce
of this Agreement,("Work Product"), shall be and rernain the property of Agency only for use
for this project. Promptly upon the completion of oach Assignment, or at any other.time upon
3 �
RMBUS\DERWIN12679�5,2
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reasonable notice to Architect by Agency,Architect shall deliver alI Work Product to Agency.
Architect shall retain all corrimon law and statutory rights,including copyright. '
7.2 Re-Use of Work Product: Agency and Architect agree that all docurnents,
other than invoices,prepared by Arclvtect pursuant to this Agreement shall be used exclusively
for the subject project, and shall not be used for any other work without the mutual agreement of
the Parties. Such rna#erial shall nnt be the subject of a copyright application by Architect, In the
event Architect permits the re-use or other use of such Work Product,Agency shall required the
party using them to inder�nify and hold harmless Agency and Architect regarding such re-use or
other use,and Agency shall require the party using them to eliminate any and alI references to
� Archilect from such Work Product.
8. Contlict of InterestlProhfbfted Conduct aud Interests ' �
8.1 Confliet of Interest: Architect and its officers,employees associates and sub .
Architects,if any,will comply with all conflict of interest statutes of the State of California
applicable to Architect's services under this Agreernent,including,but not timited to,the
Political Reform Act(Government Code�ections 81000,et seq.).and,Government Code Section
1090. During the term of this Agreernent,Architect shatl retain t1�e right to perform similaz
services for other clients,but Architect and its of�icens,employees,associates and sub
cnnsultants sha11 not,perform work that would required.Architect or one of its officers,
employees,associates or sub consultants to violate a conflict of interest statute.
� 8.2 No Solicitation: Architect,an behalf of i�self and its afficers,employees,
agents and representatives,wairants that it has not employed or retained any company or person,
other than a banaf'ide employee workin�solely for Architect to solicit or secure this Agteemant,
and that it has not paid or agreed to pay any company or person,other than a bon�de employee
worldng solely for Architect any fee,cammission,percentage,brokerage fee, gifts,or any other
consideratiott, contingent upon or resulting from the award or making of this Agreement. For
breach or violation of this warranty,Agency shall have the right to terminate this Agreemettt .
without notice or liability,or in its discretion ta deduct fram the contract price or cansiderarion,
or otherwise recover tha full amount of such fee, commission,percentage,brokerage fee, gift or
contirigent fee.
8.3 l�o Financial Tn#erest—A�y: No officer,member or emplayee of Agency
during his or her ten�are or one year thereafter shall have any interest,direct or indirect,in this
Agreement or the proceeds thereof. The Parties hezeto covenant and agree that t4 their
knowledge no rnernber of the Agency Board,or officer,ar employee of Agency,has any interest,
whether contractual,financial or otherwise,in tYus Agreement or the subject matter thereof,nor
any business or financial relatianship with Architect and that if such interest comes to the
lrnowl�dge of either Party at any time a full and complete disclosure of all such information will
be made in writing to the other Party or Parties, even if such interest would not be considered a
conflict of interest under applicable law.
8.4 No Financial Interest—Arctutect: Architect hereby covenants,on behalf o f
itself and its officers, employees, agents and representatives,that at the time of executing this
Agreement it has no interest and that it shall not acquire any interest in the future,direct or
4
RMBUS1pERWINi267975,2
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indirect,which would conflicfi in any manner or degree with the performance of services required
to be performed pursuant to this Agreement,no person having any such interest shall be
employed by Architect. At no time during the term of this Agreement,and for one(1)year
thereafler,shall Architect or anyone acting on Architect's behalf, accept anything of value from
any contractor or subcontractor performing services itt connection with the project.
9. Indemnification Other th;an in the performance of prafessional services and to the
fullest extent.permitted by law,Architect sha11 indemnify defend and hold the City,Agency, and
City's and Agency's elected officials,officers, employees, agents a.nd volunteers free and �
-harmless from.and against all tort liability,including liability for claims,suits,actions,expenses
� or costs of any kirid,actual attorney's faes,court costs,and expert witnass fees incurred by City
or Agency,the extent caused by,the negligent acts or omissions of Architect's officers,agents,
employees or sub.consultants,in the performance of this Agreement,including but not Iimited to,
claims,suits and liabilities for bodily injury,death or property damage to any individual or
entity,including employees or officials or death or properiy damage to any individual or entiiy,
including employees or officials of Architect. The provisions of this paragraph shatl not apply to
claims arising out of the sole negligence or willful misconduct of City or Agency,any of City's
or Agency's elected officials,officers,employees or agents.
In addition to the foregoing,Architect shall indemnify,protect,defend and hold hazmless
the Agency and the City of Pa1m Desert,their officials,employees,agents and representatives
from and against any and a111osses, liabilities,damages, costs and expenses,including attorney's
fees and costs to the extent saine aze caused in whole or in part by any negligcnt or wrongful act,
error or omission of the Architect,its officers,agents,employees or sub Consultants(or any
entity or individual that the Architect shall bear the legal liability thereo fl in performance of
professional services under this Agreemettt,
10. Insucance Architect will maintain insuranoo in conformance with the requirements
set forth below. If,Architect's existing coverage does not meet the requirements set forth here, it
will be amended to do so, Architect acknowledges that the insurance coverage and policy limits
set forth in this sectian constitute the manimum amount of coverage required. Any insurance
proceeds.available to Agency in excess of the limits and coverege required in this agreement and
wluch is applicable to a given lass,will be available to Agency. � .
. 10.1 Worker's Camnensation an�Emplaver's Liabilitv: Architoct shaIl provide
Worker's Co�pensahon and Employer's Liability Tnsurance on an approved policy from
providing benefits as required by law with employer's liabitity limits no less than One Million
($1,000,000)per accident or disease.
` 10,2 Professiot�al Liability or Errors and Omissio�s: Professional Liability or
Errors and Omissions insuranco as appropriate shall.be written on a policy form cbverage
specifically designed to protect against acts, errors ar omissions of the Architect and"Covered
Professional Services"as designated in the policy. The policy limit shall be no less than One
Million($1,00,000)per claim and in the aggregate. The policy rnust"pay on behalf of'the
insured and must contain a provision establistung the insurer's duty to defend in which you are
obligated to pay. The policy retroactive date must be on or before the effective date of this
Agreoment.
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• 10.3 Automobile Liabilitv: Architect shall provide auto liability coverage with a limit
of no less than One Million($1,000,000)per accident. If.Architect owns no vehicles, this
requirement may be met through a non-owned auto endorsement to the GGL policy.
10.4 Waiver: IF the Architect daes not cany Worker's Compensatian coverage,
or if the Architect will not operate nay vehicles at any time within the scope of the services in the
agreement,provisions for these coverages may be waived upon review and approval of the
Agency's Risk Manager.
11. • 8tatus as Indepeudant Contractor Architect is and shall at aIl times remain as to
Agency,a wholly independent contractor. Architect sha11 have no pnwer to incur any debt,
obligation,or liability on behalf of Agency. Neither Agency nor any of its officials,emplayees
or agents shall have contro9 over the conduct of ArGhitect or any of Architect's employees,
except as set forth in this Agreement.
12. Non-Assfgnability; Subcontracting Architect shall not assign or subcontract all
ar any portion of this�Agreement without the Agency's prior,written consent. Any attempted or
purported assignment or subcontracting by Architect shall be null,void and of no effect.
13. Non-Discx�mfnation and Equal Employment Opportunity In the performance of
ttus Agreement,Architect shall not discriminate against any employee,subcontractor,or
applicant for employment because of race,color,creed,religion, sex,mari#al,status,natianal
origin, ancestry,age,physical or mental disability�medical condition or sexual orientation.
Architect will take affixmative action to ensure that subcontractors and applicants are employed,
and that employees are treated d'uring employment,without regard to their race,color,creecl,
religion,sex,marital status,national origin,ancestry,age,physical or mental disability,medical
condition or sexual orientation. This clause shall be included in any contract preparec�or
approved by Architect in connection with performance of its services under this Agreement.
14. Cooperation In the event any claim or ac�ion is brought against Agency or City relating
to performance or services rendezed under this Agreement,Architect shall render any reasonaiile
essistance and cooperation,which Agency or City might rec�uire.
15. Termination 1"he ri,ght is reserved by the,�.gency to terminate the Agreernent at any
tim�upon se�en(7)days written notice in the event the project is to be abatydoned or indefiniteiy
postponed,or in the event the services, in the sole judgment of Agency,are t�nsatisfactory�or
�ecause of the failure to prosecute the work with diligence or within the time limits specified or
because of his disability or death. In any such case,the.Architect s.hall be paid the reasonable
value of the services rendered based upon Architect's standard hourly rate,up to t�e time of the
terrnination. The Architect shall keep adequate records to substandate costs arid provide copies
of original tirnecards itt the event of termination or suspensian.
16. Notices Any notices,bills,in�oices,or reports required by this Agreement shall be
given b�first class U.S. Mail or by personal service. Notices shalI be deemed received on 9a)
the day of delivery if delivered by hand or overnight courier services during ArchiteeYs and
Agency's regular business hours or by facsimile before or during regulax business hours; or(b)
on the third business day following deposit in.the United States mail postage prepaid to the
6
[tMBUS1DBAWRJl267975.2 .
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addresses heretofore set forth in the Agreement,or to such other addresses as the Parties may,
fram time to time designate in writing pursuant to the provisions of this section. All notices shall
be delivered to the Farties at the following addresses:
Agency Carlos L. Ortega, Executive Director
With a copy to ,Project Administrator
Palm Desert Redevelopment Agency
73-510 Fred�Jaring Drive
, �'al�Desert,CA 92260-2578
. Phone:(760)341-0611
Fax: (760)341-6372
Architect Rogsr Clarke, Principal
Ruhnau Rutuian Clarke
� 3775 Tenth Street
• �Riverside,CA 92501 � � �
Phone: (951)68�-4664
� Fax; (951)684-�276
17. Non-Wafver of Terms,Rights and Remedies Waiver by either Party of any one or
more o�'the conditians of performance under this Agreement sha�l not be a waiver of any other
condition of perfarmance under this Agreertment, In no event ahall the making by Agency of any
payment to Architect constitute or be construed as a waiver by Agency or any bre�ch of
covenant, or any default which rnay then exist on the part of Architect, and the making of any
such payment by Agency sha.11 in no way impair or prejudice any right or remedy available to
Agency with regard to such breach or default.
18. Attorney's Fees Iri the event that either Party to this Agreement shall commence
any legal action or pmceeding for damages for breach,or to enforce or interpret the provisions of
this Agreement,the prevailing party in such action or proceeding shall be entitled t�rec�ver its
costs of suit, including reasonable attorneys' fees�nd experts'fees.
19. Exhibits;Precedeuce Alt documents reforenced as e�ibits in this Agreement are
hereby incorporat�d in this Agreemen� In the event of an material discrepancy between the
express provisions of this Agreement and the provisions of any document incorporated herein by
reference,the provisions of this Agreement shall prevail.
20. Entire Agreement This Agreement,and any other documents incorporated herein by
specifia reference,represents the entire and integrated agr.eernent between Architect and Agency.
This Agreement supersedes all prior oral or writttn negotiations, representations or agreements,
No prornise or representation,whether oral or written,�xpress or implied, that is not set forth
, herein, shall be bind.ing or have any force or effect, This Agreement may not be amended,or
any provision.waived, except in a writing signed by the Parties which expressly refers to this
Agreement.
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RMBUSIDERWIN�2679752
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21. Partia! Invalidity In case any provision of this Agreement should be deemed by a
court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity,
legality or enforceability of the remaining provision sha.11 not be affected or�rnpaired thereby.
22. Successors This Agreement shall bind and inuxe to the benefit of the respective heirs,
personal representatives, successors and assigns of the Parties to tliis A�reement.
23. Waivers No waiver of any breach or default of any term or provision of this
Agreement shalI be deemed a waiver of anyother term or provision of this Agxeement,and no
waiver shall b valid unless in writing and exece�ted by the waiving party,
24. Construction Section headings in this Agreement are solely for tlie convenience of the
Parties and are not a part of and sha11 not be used to interpret this Agreement. This Agreement
shal]not be constxued as if it had been prepared by one of the partxes,but rather as if both parties
have prepared it. Unless otherwise indicated,all references to Sections are ta this Agreernent.
All exhibits to this Agreement are hereby incorporated by reference.
. 25. In case of conflicts within the contract documents,the document precedence shall be as
� follows:
(a) T'his Agreement;
(b) Exhibit A Request for Proposal for Archectural Services Palm Desert Aquatic
Center;
(c) Exhibit B Architect's Technical Proposal to Provide Professional Services for
Falxn Desart Aquatic Center; �
(d) Exhibit C Architect's Cost Proposal to Provide Professional Services for Palm
Desert Aquatic Center. �
, (REMAINDER�OF PAGE INTENTIONALLY LEFT�BLANK}
8
RMBUSIAER WIM267975.2
5/31/Ob '
Contract No.R23750A
IN WTTNESS WHEREOP, said parties have executed this agreement effective a�af the
effective date above. •
RUHNAU,RUHNAU&CLARKE,Architects .
I
By�
Tts: p�t�� �r ft►�e Y r�` � .
tA , . Do�S��C,�-'"E'
PAL11�1 DESERT REDEVELOPMENT AGENCY
By:
Jim rg o , hairman
ATTEST:
B .
� elle D.Klassen, ecretary
APPROVED AS TO FORM
By; ; '
Dav i ity Attorney
RMBUSW ERWRJ1267975.2
5/31/06
CAtIFORt�EtA AL4PURPOSE ACKNOWLEDGMENT
State Df _(�..ra'�:���f^,,�j,
Ct
County of f�'i y� .�^S,�� ^
On ;J•'r' �: . �• (,, before me, ��i�. r�r"../'7%•l���,,,1 /(�r f ,/,-��
1F" .;r"t� .
Dale ..-J—�, Name end 11Ue ol OBicar(e.y:,'Jane Uoe,No1ary uWic� �
personafly appeared �!�� �. i''" �,���,� ��_
• Namols)of 810ner(s) '
�'personaily known to me—OR—l7 proved t�me on the basis of satisfactory evidence to be the person(�
, whose name(�fs/a�subscribed to the wlthin instrument
and acknowiedged 10 me that he/sk�/tAey executed the
same In hislt�itbeir authortzed capacity(is�-),and that by
� hislf�ar/fl�efrsignature(b�on the instrument the person(8�,
� ��� or the entity upon behatf of which the person(�e�'acted,
camm�sron�t52�ot7' executed the fnstrument. �
� Notary PubAC-CaYtanip
: ; ����W., . y WITNES5 my hand and o�c(al seal. .
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OPTIONA�L
Thouyh the/Mormstfon below Is not requlred by law,It may prove valuabla ta persorls rely�ng on fhe document and could prevent
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Descrip#ion of Attached Document
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Signer(sj Other Than Namect Above:�__��,r�r^.�;,_ „r� S
Capa�cityties) Ciaimed by Sigr�er(s)
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O Guardlan or Conservator D Guardian or Conservetor `
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Signer Is Representing: Signer Is Representing:
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support ,�rvic�s tor rhe P�l� T3�cs�Aquatic C�Ai�r l01� 1oc�Ted ort ths College oY�hr pe�en
Campus. T'his formal termination is �ffective seven d�ys frnm the date nf rhis naucz. Th�
contrsct wc�,•FuActiaxuilly trrmin�te�iu rarly 2UQ.7 whrn thr praject on tht Golle��of the pesert
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F1NAL INVOICE
PROJECT: �PROJECT NO: 9-01-10
Palm Desert College CONTRaCT NO: R23750A
Aquatic Center DATE: November 20, 2009
Janis Steele/Finance Department INVOICE N0:
Palm Desert Redevelopment Agency
73-510 Fred Waring Drive TERMS: Net 30
Palm Desert CA 92260-2578
Fina1 invoice for termination of design and construction support services of Contract No. R23750A.
ARCHI7ECT FE�: NTE $552,50U.40
10% Termination Fee $55,250.00
5cheme 1 College Desert Site (Additional Services) $18,000.00
City of Palm Desert Date Grove (Additional Services) $10,000.00
TOTAL AMOUNT DUE THIS INVOICE $83,250.00
Ruhnau Ruhnau Clarke 3775 Tenth Street Riverside CA 92501 T951-684-4664 F951-684-6276
www.rrcarch.com Riverside ■ Carlsbad