HomeMy WebLinkAboutSR - R23210B - Freedom Park Const. Observation/Proposal/R23210BContract No. R23210B
PALM DESERT REDEVELOPMENT AGENCY
DEVELOPMENT SERVICES
STAFF REPORT
REQUEST: Award of Construction Observation Contract for Freedom Park —
Project No. 713-00.
SUBMITTED BY: Jay Niemczak, Parks Maintenance Supervisor
DATE: April 27, 2006
CONTENTS: 1. David Evans and Associates Construction Observation Proposal
2. Freedom Park Construction Observation Contract
Recommendation:
By Minute Motion:
1. Authorize the Executive Director to enter into a contract with David
Evans and Associates Inc., Ontario, California, in an amount not -to -
exceed $93,650.00 for construction observation services for Freedom
Park.
2. Allocate $93,650 from Freedom Park Construction Fund Account No.
854-4670-454-4001 for construction observation services.
Executive Summary:
The City of Palm Desert Redevelopment Agency purchased land for a regional park
(Freedom Park) on the north side of Palm Desert on Country Club Drive. In July of
2003, the Agency entered into an agreement with David Evans and Associates with the
scope of services to include completion of the park master plan, identify construction
cost estimates, and to develop construction documents for Freedom Park. This contract
ended with the development of construction documents.
Staff has asked for and received a construction observation proposal for Freedom Park
from David Evans and Associates and their consultants in the amount not to exceed
$93,650.00.
Discussion:
On July 10, 2003, the Palm Desert Redevelopment Agency and David Evans and
Associates entered into an agreement for development of the Freedom Park Master
Plan, to identify cost estimates, and for completion of construction documents. The
Staff Report
Award of Contract for Construction Observation
April 27, 2006
Page 2of2
David Evans and Associates contract ended at the completion of the construction
document phase.
On March 9, 2006, the City Council awarded the construction contract for Freedom Park
to James E. Simon Company in the amount not to exceed $9,769,276.00, plus a five
percent (5%) contingency to complete the construction of Freedom Park.
Due to the extended overall development of the project, and the complexity of the
design features in Freedom Park, Staff has asked for and received a proposal from
David Evans and Associates in the amount not to exceed $93,650.00 for their continued
professional services in the completion and close out of Freedom Park. These services
would include submittal reviews, request for information reviews (RFI's), site visits and
other design and engineering services related to Freedom Park.
After careful review of the proposal, staff feels that the continued involvement of the
original design team is critical to the successful development of Freedom Park. Funds
are available in the Freedom Park Construction Fund Account Number 854-4670-454-
4001.
Submitted By:
mczak
arks Maintenance Supervisor
Approv
Homer Croy
ACM for Development Services
Da e Yrigg(ye
Director of development/Housing
Carlos L. Orteg
City Manager
Department Head:
J nis Steele
arks and Recreation Services Manager
Paul S. Gibson
Director of Finance
Contract No. R23210B
April 12, 2006 D AV I D E VA N S
ANDASSOCIATES INC.
Ms. Janis Steele
City of Palm Desert
73-510 Fred Waring Road
Palm Desert, CA 92553
SUBJECT: PHASE III— CONSTRUCTION OBSERVATION SERVICES FOR FREEDOM PARK IN
THE CITY OF PALM DESERT
Dear Janis,
On behalf of David Evans and Associates, Inc. (DEA), we are pleased to provide the city with a proposal for
construction observation services for Freedom Park. The proposed fee addresses the need for intermittent site
observations and coordination by the project design team. Our fee is based on an assumed 10 month maximum
construction time frame. We have made assumptions regarding the number of meetings and/or site visits,
submittal reviews, RFI reviews and change order coordination. DEA's hourly rates used when estimating our fee
is attached see Exhibit `A'. Our estimated fee is provided below. Please feel free to contact me with any
questions or suggestions you may have about our scope assumptions. I would be happy to negotiate scope and fee
with you.
PHASE III - CONSTRUCTION OBSERVATION
Task 1: Landscape Architect/ Civil Engineer Pre -Construction Conference - $1,200
The DEA project manager and the project Engineer shall attend the pre -construction conference.
Task 2: Landscape Architect/ Civil Engineer Submittal and Reviews - $3,300
The DEA project manager shall review products and materials submitted to the City for approval and return
within 10 working days. We are assuming a 30 hour effort over the life of the project for submittal reviews
Task 3: Landscape Architect/ Civil Engineer Request for Information - $11,700
The DEA project manager shall respond promptly to contractor's request for information and prepare
supplemental clarification drawings as needed. We are assuming a combined effort of 3 hours per week for the
life of the project for a total of 110 hours for responding to project RFI's.
Task 4: Landscape Architect/ Civil Engineer Construction Observation - $23,760
Observations by the team will be performed by the project Landscape Architect and/or Engineer respectively and
will include the following items - weekly observation, progress reports, quality control of installation and location
of amenities, inspection of plant material at the site prior to installation, inspection of installed material quality,
inspection of construction conformance to design documents, and construction schedule monitoring. It is our
understanding that the city will provide a full-time inspector for the project in addition to necessary building
/engineering inspectors to check forms, steel placement, concrete, plumbing and utilities. DEA is assuming a
combined total of 198 hours over the life of the project for site observation by the project Landscape Architect
and/or the project Civil Engineer.
Task 5: Landscape Architect/ Civil Engineer Change Orders - $3,840
The DEA project manager shall review change order requests submitted to the City for approval. We are
assuming a combined 32 hours for Civil Engineering and Landscape Architecture over the life of the project.
800 [forth Haven Avenue Suite 300 Ontario California 91764 Telephone: 909.481.5750 Facsimile: 909.481.5757
April 12, 2006 L7 17
Ms. Janis Steele
City of Palm Desert � Q
Freedom Park
Construction Observation Services
Page 2
Task 6: Landscape Architect/ Civil Engineer Reimbursable - $2,100
Government fees, mileage, delivery costs such as Federal Express charges and plotting / reproduction services are
considered reimbursable fees and shall be billed to you at our direct cost.
LANDSCAPE ARCHITECT/ CIVIL ENGINEER FEE TOTAL: $45,900
Task 7: Architectural Services Proposal: $45,740
DEA's Architectural consultant has provided fees for the Construction Administration phase. See exhibit'B'
attached.
Task 8: Architectural Services Reimbursable $2,010.
Government fees, mileage, delivery costs such as Federal Express charges and plotting / reproduction services are
considered reimbursable fees and shall be billed to you at our direct cost.
ARCHITECTURAL SERVICES FEE TONAL: $47,750
Total Combined Fee: $93,650 - Time and Materials - Not To Exceed
DEA proposes to complete the above tasks for the fees noted. Invoices will be due and payable within 30 days
and will be sent monthly based upon the percentage of work completed. Any service requested which does not
fall within the scope of services listed or the assumed time estimated for that service, or any duplication of work
due to changes desired by the owner will be performed on an "Extra Services" basis and negotiated accordingly.
DEA would be pleased to continue our working relationship with the City of Palm Desert and thank you once
again for your consideration of our qualifications. We look forward to discussing this proposal with you.
INC. City of Palm Desert
=Sini, L.A. 4287 Approval:
Date:
0marketing/proposaWP/City of Palm DesertWegional Park -Revised
Exhibit "A"
TOT
S
Schedule of Hourly Billing Rates
Rates Effective through June 30, 2006
Office
Principal $175.00
Project Manager $135.00
Professional Engineer $135.00
Professional Land Surveyor $135.00
Professional Landscape Architect $125.00
Professional Architect $125.00
Professional Planner $125.00
Civil Designer $115.00
Survey Analyst $120.00
Landscape Designer $95.00
Land/Environmental Planner $95.00
CADD Designer $95.00
CADD Drafter $80.00'
Clerical $65.00
Note: Authorized overtime will be charged at 1.5 times the above rate.
Field
2-Person Survey Crew $215.00
3-Person Survey Crew $275.00
Note: Per union agreement, there is a 4, 6 and 8-hour minimum charge for field survey work.
ReimbursableExpenses:
Client shall pay the costs, plus 15%, for any applicable governmental fees, title company charges,
subconsultant fees, outside vendor reproduction costs, in-house reproduction costs, mileage, and delivery or
messenger services incurred on Client's behalf.
800 North Haver Avenue, Suite 300 v^ntaric, California 91764 909.481.5750 fax 909.481.5757
PBAIRSONARCHITECTS, INC. Exhibit "8"
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November 11, 2005
To: David Evans & Associates, Inc.
Attn: Chris Giannini, Project Manager
800 North Haven Ave., Suite 300
Ontario, CA 91764
Fr: Craig R. Pearson
Pearson Architects, Inc.
74-040 Hwy. 111, Suite 232
Palm Desert, CA 92260
Re: Architectural Services Proposal for the Construction Administration Phase
of the Palm Desert Freedom Park Project, Palm Desert, California
1.0 GENERAL PROJECT DESCRIPTION
A. The Project consists of a new 34-acre park at the eastern edge of the City of Palm Desert off of
Country Club Drive (west of Washington St.). The master plan has been revised to include 2
lighted baseball fields, covered picnic shelters, a playground area, a Restroom/Concession/Storage
Building, a freestanding Restroom Building and walking trails with Information Kiosks along the
way through the large open landscaped areas. The project will be adjacent to a new Desert Sands
Unified School District school which is scheduled to open Fall of 2004.
2.0 SPECIFIC BUILDINGS AND STRUCTURES IDENTIFIED FOR CONSTRUCTION
ADMINISTRATION SERVICES
A. Specific buildings and structures which will be referenced in this proposal for Construction
Administration are as follows:
1. Structure No.1: A new single -story +/-1,200 SF freestanding Park Restroom Facility to
be centrally located with in the Park. This structure will be constructed using CMU
construction and will have a standing seam metal roof. Extent of work is 5-feet out from
the building footprint.
2. Structure No.2: A new +/- 2,500 SF "Concession/Restroom/Storage Building" which will
be located adjacent to the 2 baseball fields. This structure will contain a 1,000 SF snack
bar concession area, as well as public restrooms and +/- 500 SF of storage. Extent of
work is 5-feet out from the building footprint.
3. Structure No.3: There will be various "Information Kiosks" spread out the park's
concrete walking paths. These kiosks will be a source of information for activities and/or
historical information within the park. Extent of work is 5-feet out from the structure's
footprint.
74-040 HWY.111. SUITE 232. PALM DESERT, CA 92Z60- TEL 760.779.1937' FAX 760.779-8744
NORTHERN CALIFORNIA: 1204 HAWKINS WAY. PEBBLE BEACH, CA 93953—TEL/FAX 406.375-6336
PEA1180N ARCHITECTS, INC.
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Palm Desert Freedom Park Construction Administration Phase
Proposal Issued to DEA November 11, 2005
Page 2 of 6
3.0 BASIC SERVICES (SCOPE OF WORKI
A. Construction Administration Phase to include the following Construction Administration work to
be conducted by the Architect, Structural Engineering, Mechanical, Electrical and Plumbing
Engineers along with the Food Service consultant (FSC):
Site visitations for Construction Meetings (estimated maximum 8 construction meetings to be
held over a 10 month period with each meeting taking 2 hours).
a. Architect:
8 meetings (2 people will be representing PAI at these meetings)
b. Structural:
2 meetings
c. Mechanical:
2 meetings
d. Electrical:
2 meetings
e. Plumbing:
2 meetings
f. FSC:
1 meeting
Answer RFI issued from the Construction Management firm to be selected by the City at a
future date.
a. Architect will figure one man spending 10 hours per week (maximum) for 4 months
on the administration of RFI responses and generation of response bulletins.
b. Structural engineer will figure 2 hours per week during the first 3 months of
construction.
c. MEP design consultants will each figure 3 hours per week during the first 3 months
for RFI response work and drawing revisions.
3. Review work in progress and Scheduling of work.
a. Architect will observe work in progress for 1 hour per month plus 1 hour per month
report write up after each visit.
b. Structural Engineer will observe work on 3 occasions during the course of
construction each consisting of 2 hours.
c. MEP design consultants will observe work in progress 3 times during course of
construction for 2 hours each visit.
4. Check Shop Drawings issued by the CM firm and reissue to the CM firm.
a. Architect will check Shop Drawings 4 hours per week maximum for the first 3
months.
b. Structural will check Shop Drawings 1 hour per week maximum for the first 2
months.
c. MEP engineers will check Shop Drawings 2 hours per week maximum for the first 2
months.
d. FSC will coordinate Shop Drawings for a total of 8 hours during the course of
construction.
5. Prepare Punch List and issue Certificate of Substantial and Final Completion.
a. Architect will provide one Punch List review and write up and one return trip to sign
off on completed items for a total of 12 hours of work.
74-040 HWX 111, SUITE 232, PALM DESERT, CA 92260' TEL 760.779-1937 -FAX 760.779-8T44
NORTHERN CALIFORNIA: 12N HAWKINS WAY. PEBBLE BEACH. CA 93963" TEL/FAX 408.375-6336
PBAVIN0K ARCHITECTS, INC.
N "
Palm Desert Freedom Park Construction Administration Phase
Proposal Issued to DEA November 11, 2005
Page 3 of 6
4.0 ADDITIONAL SERVICES:
A. Additional Services are as follows:
l . Any work resulting from substandard conditions that may be uncovered during the
demolition.
2. Any work that is not listed under the Basic Services.
3. Any time beyond what is specified in the Basic Services which might be required due to
excessive CM paperwork in the generation of RFIs and changes and substitutions requested
by the GC through the CM. Excessive time would be described as additional time required to
complete the CA Phase of Work once the Basic CA fees have been exhausted as a direct result
of excessive time required to be administered on the project initiated and caused by the
Construction Management firm.
4. Any work required by the governing agencies to upgrade the existing building hence requiring
additional work beyond what is described in Basic Services.
5. Any variance applications due to deviations from local ordnances done with/or without the
City's knowledge resulting in rework from the denial of such requests.
6. City initiated changes of work previously agreed upon or approved by the City resulting in
additional work.
7. Any interior design work or procurement regarding such work as the selection of carpets,
color of tile, selection of paint colors, furniture, etc., or the preparation time required to
construct material color boards.
5.0 FEE DATA:
A. Fee Data as follows:
1. Site visitations for Construction Meetings (estimated maximum 8 construction meetings to be
held over a 8 month period with each meeting taking 2 hours).
a. Architect: 8 meetings (Sr. PM & CAD Mgr. attending meetings) ......... S2,880
b. Structural: 2 meetings............................................................... 600
c. Mechanical: 2 meetings................................................................ 600
d. Electrical: 2 meetings................................................................ 600
e. Plumbing: 2 meetings................................................................ 600
f. FSC: 1 meeting................................................................. 300
Sub -total for meetings...............................................................$5,580
74-040 HWY.111, SUITE 232, PALM DESERT. CA 92260- TEL 760.779-1937' FAX 760.779-8744
NORTHERN CALIFORNIA-. 1204 HAWKINS WAY, PEBBLE BEACH, CA 93953-TEL/FAX 408.375-6336
ISEAVISON ARCHITFCTS, INC.
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Palm Desert Freedom Park Construction Administration Phase
Proposal Issued to DEA November 11, 2005
Page 4 of 6
2. Answer RFI issued from the Construction Management firm to be selected by the City at a
future date.
a. Architect will figure Sr. PM spending 10 hours per week (maximum) for 4 months
on the administration of RFI responses and generation of responses ........ $15,200
b. Structural engineer will figure 2 hours per week during the first 3 months of
construction............................................................................. 3,600
c. MEP design consultants will each figure 3 hours per week during the first 3 months
for RFI response work and drawing revisions ..................................... 5,400
Sub -total for RFI responses..................................................... $24,200
Site Review of Work in Progress.
a. Architect will observe work in progress once a month for an hour with an additional
1 hour per visit for report write-up plus Admin. Support ....................... $3,000
b. Structural Engineer will observe work on 3 occasions during the course of
construction each consisting of 2 hours ................................................ 900
c. MEP design consultants will observe work in progress 3 times during course of
construction for 2 hours each visit ...................................................... 900
Sub -total for Site Reviews........................................................... 4,800
Check Shop Drawings issued by the CM firm and reissue to the CM firm by Architect.
a. Architect will figure Sr. PM to check Shop Drawings 4 hours per week maximum for
thefirst 3 months........................................................................ $4,560
b. Structural will check Shop Drawings I hour per week maximum for the first 2
months.................................................................................... 1,200
c. MEP engineers will check Shop Drawings 2 hours per week maximum for the first 2
months.................................................................................... 2,400
d. FSC will coordinate Shop Drawings for a total of 8 hours during the course of
construction.............................................................................. 1,200
Sub -total for Shop Drawing Review ............................................. $9,360
5. Prepare Punch List and issue Certificate of Substantial and Final Completion.
a. Architect will provide one Punch List review and write up and one return trip to sign
off on completed items for a total of 12 hours of work .......................... $1,800
Sub -total for Project Close -Out .................................................. $1,800
B. Grand Total (including all consultant fees for CA Phase):
1. Total Cost for Construction Administration for Architectural, Structural, MEP engineering and
Food Service Designer shall be $45,740.00 plus reimbursable expenses estimated at $2,010.00
for a grand total of $47.500.00 (forty-seven thousand five hundred dollars).
74-040 HWY.111, SUITE 232. PALM DESERT, CA 92260- TEL 760.779.1937 -FAX 760.779.6744
NORTHERN CALIFORNIA: 1204 HAWKINS WAY. PEBBLE BEACH, CA 93963—TEL/FAX 406.375-6336
PIBAIRSON ARCHITECTS, INC.
RESQFIS • CRf C1IW5 • CW&Si i:CtflQS • RECREttgk9 • CtltA54t
Palm Desert Freedom Park Construction Administration Phase
Proposal Issued to DEA November 11, 2005
Page 5 of 6
C. Breakdown per discipline as follows:
1. Architectural CA Fee: $27,440
2. Structural CA Fee: $6,300
3. MEP CA Fee: $10,500
4. FSC CA Fee: $1.500
$45,740 plus $2,010 (reimbursable expenses) _ $47,500.00 ✓
D. PAI will pay the above directly once payment is received from DEA.
6.0 2005 HOURLY RATES
A. Additional services, and noted hourly rates, will be billed out at the following 2005 rates:
Principal Architect .............................
$150/hour
Principal Structural Engineer ................
$150/hour
MEP Principal Engineer ......................
$150/hour
Associate Architect ............................
$110/hour
Associate Engineers............................$110/hour
Sr. CAD Manager ...............................
$95/hour
CAD Manager/ PM ..............................
$85/hour
CAD Drafting ....................................
$65/hour
Administrative Support ........................
$35/hour
Clerical ...........................................
$25/hour
7.0 REIMBURSABLE COSTS
A. The following are reimbursable expenses, which are in addition to the basis compensation:
1. Fees, permits or licenses paid to jurisdictions in securing approvals for the project.
2. All printing and plotting charges.
3. Postage and special handling of documents.
4. Long distant telecommunications.
5. Travel and lodging expenses if required outside the Coachella Valley,
8.0 CONDITIONS ATTACHED TO THIS PROPOSAL
A. The Client understands that the Design Professional owes a duty of care not only to the Client but
also to the public and to persons who may later own or use the facilities associated with this
project. The Client grants to the Design Professional an absolute right to terminate this Agreement
when the Design Professional believes the Client's action or inaction or the Design Professional's
fulfillment of the Client's requests or directives will expose the Design Professional to claims or
other charges filed by persons to whom the Design Professional owes a duty of care.
74-040 HWY.111, SUITE 232, PALM DESERT, CA 92260- TEL 760.779-1937 "FAX 760.779-8744
NORTHERN CALIFORNIA: 1204 HAWKINS WAY. PEBBLE BEACH. CA 93M-TEL/FAX 408.375-6336
PEA111190N ARCHrFECTS. INC.
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Palm Desert Freedom Park Construction Administration Phase
Proposal Issued to DEA November 112005
Page 6 of 6
B. The Design Professional makes no warranty, either expressed or implied, as to his or her findings,
recommendations, plans, specifications, or professional advice. The Design Professional has
endeavored to perform the services pursuant to generally accepted standards of practice in effect at
the time of performance.
C. The Design Professional acknowledges the importance to the Client of the Client's project
schedule and agrees to put forth reasonable efforts in performing the services with due diligence
under this Agreement in a manner consistent with that schedule. The Client understands, however,
that the Design Professional's performance must be governed by sound professional practices.
D. In an effort to resolve any conflicts that arise during the design or construction of the project or
following the completion of the project, the Client and the Design Professional agree that all
disputes between them arising out of or relating to this Agreement shall be submitted to non-
binding mediation unless the parties mutually agree otherwise. The Client and the Design
Professional further agree to include a similar mediation provision in all agreements with
independent contractors and consultants retained for the project and to require all independent
contractors and consultants also to include a similar mediation provision in all agreements with
subcontractors, sub consultants, suppliers or fabricators so retained, thereby providing for
mediation as the primary method for dispute resolution between the parties to those agreements.
E. The Design Professional shall not be required to execute any documents subsequent to the signing
of this Agreement that in any way might, in the sole judgment of the Design Professional, increase
the Design Professional's risk or the availability or cost of professional or general liability
insurance. The Client acknowledges the Design Professional's construction documents as
instruments of professional service. Nevertheless, the plans and specifications prepared under this
Agreement shall become the property of the Client upon completion of the work and payment in
full of all moneys due to the Design Professional. The Client shall not reuse or make any
modification to the plans and specifications without the prior written authorization of the Design
Professional. The Client agrees, to the fullest extent permitted by law, to indemnify and hold the
Design Professional harmless from any claim, liability or cost (including reasonable attorneys' fees
and defense costs) arising or allegedly arising out of any unauthorized reuse or modification of the
construction documents by the Client or any person or entity that acquires or obtains the plans and
specifications from or through the Client without the written authorization of the Design
Professional.
End of Proposal
Please call if there are any questions regarding this proposal.
Sincerely,
Craire) rz. pearsow
Craig Pearson Accepted By:
Title: Date:
74-040 HWY.111, SUITE 232. PALM DESERT. CA 92260' TEL 760.779-1937'FAX 760.779-8744
NORTHERN CALIFORNIA: 1204 HAWKINS WAY. PEBBLE BEACH, CA 93953—TEL/FFAX 406.375.6336
AGREEMENT FOR PROFESSIONAL SERVICES
This AGREEMENT is made and entered into this 27th day of April, 2006, by and
between the PALM DESERT REDEVELOPMENT AGENCY ("Agency") and David
Evans and Associates, a California Corporation ("Consultant" - sometimes referred to
individually or collectively as "Party" or "Parties").
WITNESSETH
WHEREAS, Agency desires to retain Consultant as an independent contractor to
perform certain technical and professional consulting services in connection with the
freedom Park project, subject to the terms and conditions specified below, in the
documents attached and incorporated herein, and applicable federal, state and local
law.
NOW, THEREFORE, in consideration of performance by the Parties of the
mutual promises, covenants, and conditions herein contained, the Parties hereto agree
as follows:
1. Consultant's Services.
1.1 Nature of Services. Consultant shall provide professional and
technical services on a non-exclusive basis, as more particularly described in Section 3,
below, and in the attached proposal provided by David Evans and Associates.
1.2 Personnel. Consultant represents that it has, or will secure at its
own expense, all personnel required to perform the services under this Agreement. All
of the services required under this Agreement will be performed by Consultant or under
its direct supervision, and all personnel engaged in the work shall be qualified, and shall
be authorized or permitted under state and local law to perform such services.
1.3 Standard of Performance,. Consultant shall perform all services
under this Agreement in accordance with the standard of care generally exercised by
like professionals under similar circumstances and in a manner reasonably satisfactory
to Agency.
1.4 Consultant Representative. For the purposes of this Agreement,
the registered architect, engineer, or landscape architect who will serve as the
Consultant Representative shall be Chris Giannini ("Consultant Representative").
1.5 Time of Commencement. The execution of this Agreement by the
Parties does not constitute an authorization to proceed. A separate written Notice to
Proceed shall be issued ..by the Agency Representative, and Consultant shall not
commence work until receipt of such written Notice(s) to Proceed, as further set forth in
Sections 2 and 3, below.
1.6 Time of Performance/Time is of the Essence,. Consultant shall
commence the services contemplated under this Agreement immediately upon receipt
of a written Notice to Proceed from the Agency, and shall prosecute to completion each
task listed in Section 3 in a timely and diligent manner.
2. Services by Agency:
2.1 Aaencv Representative. For the purposes of this Agreement, the
Agency Representative shall be Jay Niemczak, or such other person designated by the
Agency's Executive 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 in the attached proposal hereof shall be furnished to Consultant
without charge by Agency, and Agency shall cooperate in every way reasonable in the
carrying out of the work without delay.
2.3 Protect Budqet. The Agency shall provide a budget for the project
that shall include contingencies for bidding, changes during construction, and other
costs which are the responsibility of the Agency.
2.4 Tests and Inspection. The Agency shall furnish structural,
mechanical, chemical, and other laboratory tests, inspections, and reports as required
by law or the contract documents.
3. Consultant's Scope of Work. Upon delivery by Agency to Consultant of
a written Notice to Proceed, Consultant shall immediately commence work pursuant to
this Agreement. Consultant's scope of work shall consist of the services in the attached
proposal appended to this Agreement.
3.1 Reoortina & Record Keepina. To assist Agency in the performance
of its planning, reporting, and financial administration obligations, Consultant shall,
throughout the term of this Agreement, keep Agency reasonably informed of progress
on work required under this Agreement, and of any problems or delays, anticipated or
otherwise, associated with each aspect of the work. Consultant shall promptly respond
to any request by Agency for information, progress reports, or documentation.
Consultant shall maintain accurate records of all work performed for each Assignment
under this Agreement, including but not limited to originals or copies, as applicable, of
all deliverable documents. Upon the completion of work, and if requested by the
Agency, Consultant shall deliver to Agency the originals of all renderings, models, or
documentation produced, and may retain copies of such documentation, at Consultant's
election.
3. 2 Compliance with Laws. Consultant shall at all times possess any
and all licenses and permits necessary to provide the services herein, and shall comply
with applicable federal, state and local laws, ordinances, codes and regulations in the
performance of this Agreement, and with all applicable with any applicable City of Palm
Desert policies and guidelines.
3.3 Confidentiality. Except as otherwise permitted or required by law,
Consultant shall maintain as confidential and shall not disclose any and/or all
information received in the course of performing pursuant to this Agreement.
Consultant shall promptly inform the Agency in the event Consultant receives a
subpoena or court order requiring disclosure of confidential information.
4. Compensation. Agency shall pay Consultant for the Services provided
under this Agreement on the following basis.
4.1 Not -to -Exceed Fee: Agency shall pay to Consultant a total amount
not to exceed $93,650.00 for the basic services described in the attached proposal
provided by David Evans and Associates. Payment shall be made on a monthly basis,
based upon the hourly rates defined in the attached schedule of hourly billing, multiplied
by the number of hours worked by each classification of personnel assigned to the
project during the previous calendar month. The not -to -exceed fee shall not be
exceeded without written agreement between the parties.
5.2 Additional Services: Additional services beyond those described in
the proposal shall be reimbursed on a time -spent basis at the hourly rates described in
attached schedule of hourly billing. Agency shall not be obligated to compensate
Consultant for additional services performed without advance authorization from the
Agency Representative.
5.3 Reimbursable Expenses: Agency shall pay to Consultant actual
costs plus ten percent (10%), subject to the limitation given below, for expenses
incurred on behalf of the project for long distance telephone calls, reproduction, express
delivery and courier services, postage, out-of-town travel if pre -approved in writing by
the Agency Representative, and other expenses directly attributable to the project and
expressly approved by the Agency Representative. Reimbursable expenses, including
Consultant's mark-up, shall not exceed $ 4,110.00 for this project.
5.4 Extraordinary Expenses/Costs. No claims for additional services,
expenses or costs incurred by Consultant 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.
6. Method of Payment.
6.1 Invoices. Consultant shall submit to Agency invoices each month
for all services, if any, completed, and all expenses or costs incurred pursuant to this
Agreement during the preceding month. The invoices shall describe the services
rendered during the period and shall show the number of hours worked, the hourly rates
charged, and any milestone achievements. Copies of receipts for expenses or costs
shall be submitted with each invoice. Agency shall review such invoices and notify
Consultant in writing within fifteen (15) calendar days of any disputed amounts.
6.2 Pavment. Agency shall pay all undisputed portions of the invoice
within thirty (30) calendar days after receipt of the invoice up to the maximum amounts
set forth in Section 5.
6.3 Audit of Records. At any time during regular working hours, all
records, invoices, time cards, cost control sheets and other records maintained by
Consultant shall be available for review and audit by the Agency.
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7. Ownership of Work Product.
7.1 Property of Aaencv. All documents including but not limited to
plans, bids, proposals, correspondence, permits, certificates, contracts, change orders,
invoices, receipts, reports, analyses or other written material developed or obtained by
Consultant in the performance of this Agreement, including any and all intellectual
property rights arising therefrom ("Work Product"), shall be and remain the property of
Agency without restriction or limitation upon its use or dissemination by Agency.
Promptly upon the completion of each Assignment, or at any other time upon
reasonable notice to Consultant by Agency, Consultant shall deliver all Work Product to
Agency.
7.2 Re -Use of Work Product. Agency and Consultant agree that all
documents, other than invoices, prepared by Consultant 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 material shall not be the subject
of a copyright application by Consultant. In the event Consultant permits the re -use or
other use of such Work Product, Agency shall require the party using them to indemnify
and hold harmless Agency and Consultant regarding such re -use or other use, and
Agency shall require the party using them to eliminate any and all references to
Consultant from such Work Product. In the event Agency re -uses such Work Product
on any project other than the project for which they were prepared, such re -use shall be
at the sole risk of Agency unless Agency compensates Consultant for such reuse.
8. Conflict of Interest/Prohibited Conduct and Interests
8.1 Conflict of Interest. Consultant and its officers, employees,
associates and sub consultants, if any, will comply with all conflict of interest statutes of
the State of California applicable to Consultant's services under this Agreement,
including, but not limited to, the Political Reform Act (Government Code Sections
81000, et seq.) and Government Code Section 1090. During the term of this
Agreement, Consultant shall retain the right to perform similar services for other clients,
but Consultant and its officers, employees, associates and sub consultants shall not,
without the prior written approval of the Agency Executive Director, perform work for
another person or entity for whom Consultant is not currently performing work that
would require Consultant or one of its officers, employees, associates or sub
consultants to abstain from a decision under this Agreement pursuant to a conflict of
interest statute.
8.2 No Solicitation. Consultant, on behalf of itself and its officers,
employees, agents and representatives, warrants that it has not employed or retained
any company or person, other than a bona fide employee working solely for Consultant,
to solicit or secure this Agreement, and that it has not paid or agreed to pay any
company or person, other than a bona fide employee working solely for Consultant, any
fee, commission, percentage, brokerage fee, gifts, or any other consideration,
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 Agreement
without notice or liability, or in its discretion to deduct from the contract price or
consideration, or otherwise recover, the full amount of such fee, commission,
percentage, brokerage fee, gift or contingent fee.
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8.3 No Financial Interest - Agencv. No officer, member or employee of
Agency during his or her tenure or one year thereafter shall have any interest, direct or
indirect, in this Agreement or the proceeds thereof. The Parties hereto covenant and
agree that to their knowledge no member of the Agency Board, or officer or employee of
Agency, has any interest, whether contractual, non -contractual, financial or otherwise, in
this Agreement, or the subject matter thereof, nor any business or financial relationship
with Consultant, and that if any such interest comes to the knowledge 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 laws.
8.4 No Financial Interest — Consultant. Consultant hereby covenants,
on behalf of 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 indirect, which would conflict in any manner or degree
with the performance of services required to be performed pursuant to this Agreement.
Consultant further covenants that in the performance of this Agreement, no person
having any such interest shall be employed by Consultant. At no time during the term of
this Agreement, and for one (1) year thereafter, shall Consultant or anyone acting on
Consultant's behalf, accept anything of value from any contractor or subcontractor
performing services in connection with the HIP.
9. Indemnification. Other than in the performance of professional services
and to the fullest extent permitted by law, Consultant shall indemnify, defend and hold
the City, Agency, and City's and Agency's elected officials, officers, employees, agents
and volunteers free and harmless from and against all tort liability, including liability for
claims, suits, actions, expenses or costs of any kind, whether actual, alleged or
threatened, actual attorney's fees, court costs, and expert witness fees incurred by City
or Agency, arising out of or in any way connected with, in whole or in part, the acts or
omissions of Consultant, or any of Consultant's officers, agents, employees or
contractors, in the performance of this Agreement, including but not limited to, claims,
suits and liabilities for bodily injury, death or property damage to any individual or entity,
including employees or officials of Consultant. The provisions of this paragraph shall
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, Consultant shall indemnify, protect, defend and
hold harmless the Agency and the City of Palm Desert, their officials, employees,
agents and representatives from and against any and all losses, liabilities, damages,
costs, and expenses, including attorney's fees and costs to the extent same are caused
in whole or in part by any negligent or wrongful act, error, or omission of the Consultant,
its officers, agents, employees or Sub -Consultants (or any entity or individual that the
Consultant shall bear the legal liability thereof) in the performance of professional
services under this agreement.
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10. Insurance.
Consultant will maintain insurance in conformance with the requirements set forth
below. If Consultant's existing coverage does not meet the requirements set forth here,
it will be amended to do so. Consultant acknowledges that the insurance coverage and
policy limits set forth in this section constitute the minimum amount of coverage
required. Any insurance proceeds available to Agency in excess of the limits and
coverage required in this agreement and which is applicable to a given loss, will be
available to Agency.
10.1 Workers' compensation and employer's liability. Consultant
shall provide Workers Compensation and Employer's Liability Insurance on an
approved policy form providing benefits as required by law with employer's liability limits
no less that $1,000,000 per accident or disease.
10.2 Professional Liabilitv or Errors and Omissions. Professional
Liability or Errors and Omissions insurance as appropriate shall be written on a policy
form coverage specifically designed to protect against acts, errors or omissions of the
Consultant and "Covered Professional Services" as designated in the policy must
specifically include work performed under this agreement. The policy limit shall be no
less than $1,000,000 per claim and in the aggregate. The policy must "pay on behalf
of the insured and must contain a provision establishing the insurer's duty to defend.
The policy retroactive date must be on or before the effective date of this agreement.
10.3 Automobile liabilitv. Consultant shall provide auto liability
coverage with a limit of no less than $1,000,000 per accident. If Consultant owns no
vehicles, this requirement may be met through a non -owned auto endorsement to the
CGL policy.
10.4 Waiver. If the Consultant does not carry Worker's
compensation coverage, or if the Consultant will not operate any 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. Status as Independent Contractor. Consultant is, and shall at all times
remain as to Agency, a wholly independent contractor. Consultant shall have no power
to incur any debt, obligation, or liability on behalf of Agency. Neither Agency nor any of
its officials, employees or agents shall have control over the conduct of Consultant or
any of Consultant's employees, except as set forth in this Agreement.
12. Non -Assignability; Subcontracting. Consultant shall not assign or
subcontract all or any portion of this Agreement without the Agency's prior, written
consent. Any attempted or purported assignment or sub -contracting by Consultant shall
be null, void and of no effect.
13. Non -Discrimination and Equal Employment Opportunity. In the
performance of this Agreement, Consultant shall not discriminate against any employee,
subcontractor, or applicant for employment because of race, color, creed, religion, sex,
marital status, national origin, ancestry, age, physical or mental disability, medical
condition, or sexual orientation. Consultant will take affirmative action to ensure that
subcontractors and applicants are employed, and that employees are treated during
employment, without regard to their race, color, creed, 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 prepared or approved by
Consultant in connection with performance of its services under this Agreement.
14. Cooperation. In the event any claim or action is brought against Agency
or City relating to Consultant's performance or services rendered under this Agreement,
Consultant shall render any reasonable assistance and cooperation which Agency or
City might require.
15. Termination. The right is reserved by the Agency to terminate the
Agreement at any time upon seven (7) days written notice, in the event the project is to
be abandoned or indefinitely postponed, or in the event the Consultant's services, in the
sole judgment of Agency, are unsatisfactory or because of the Consultant's 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 Consultant shall be paid the reasonable value
of the services rendered, based upon Consultant's standard hourly rates, up to the time
of the termination. The Consultant shall keep adequate records to substantiate costs
and provide copies of original time -cards in the event of termination or suspension.
16. Notices. Any notices, bills, invoices, or reports required by this
Agreement shall be given by first class U.S. mail or by personal service. Notices shall
be deemed received on (a) the day of delivery if delivered by hand or overnight courier
service during Consultant's and Agency's regular business hours or by facsimile before
or during Consultant's regular business hours; or (b) on the third business day following
deposit in the United States mail, postage prepaid, to the addresses heretofore set forth
in the Agreement, or to such other addresses as the Parties may, from time to time,
designate in writing pursuant to the provisions of this section. All notices shall be
delivered to the Parties at the following addresses:
Agency: Carlos L. Ortega, Executive Director
Palm Desert Redevelopment Agency
73-510 Fred Waring Drive
Palm Desert, California 92260-2578
Tel: (760) 346-0611 Fax: (760) 341-6372
With a copy to: Jay Niemczak, Parks Supervisor
Palm Desert Redevelopment Agency
73-510 Fred Waring Drive
Palm Desert, California 92260-2578
Tel: (760) 346-0611 Fax: (760) 341-6372
Consultant: Chris Giannini, Associate Landscape Architect
David Evans and Associates
800 North Haven Avenue, Suite 300
Ontario, California 91764
Tel: (909) 481-5750 Fax: (909) 481-5757
17. Non -Waiver of Terms, Rights and Remedies. Waiver by either Party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall
the making by Agency of any payment to Consultant constitute or be construed as a
waiver by Agency of any breach of covenant, or any default which may then exist on the
part of Consultant, and the making of any such payment by Agency shall in no way
impair or prejudice any right or remedy available to Agency with regard to such breach
or default.
18. Attorney's Fees. In the event that either Party to this Agreement shall
commence any legal action or proceeding 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 to recover its costs of suit, including reasonable attorney's
fees and experts' costs.
19. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represents the entire and integrated
agreement between Consultant and Agency. This Agreement supersedes all prior oral
or written negotiations, representations or agreements. No promise or representation,
whether oral or written, express or implied, that is not set forth herein, shall be binding'
or have any force or effect. This Agreement may not be amended, nor any provision
waived, except in a writing signed by the Parties which expressly refers to this
Agreement.
20. Partial 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 provisions shall not be
affected or impaired thereby.
21. Successors. This Agreement shall bind and inure to the benefit of the
respective heirs, personal representatives, successors and assigns of the parties to this
Agreement.
22. Waivers. No waiver of any breach or default of any term or provision of
this Agreement shall be deemed a waiver of any other term or provision of this
agreement, and no waiver shall be valid unless in writing and executed by the waiving
party.
23. Construction. Section headings in this Agreement are solely for the
convenience of the parties and are not a part of and shall not be used to interpret this
Agreement. This Agreement shall not be construed as if it had been prepared by one of
the parties, but rather as if both parties have prepared it. Unless otherwise indicated, all
references to Sections ace to this Agreement. All exhibits to this Agreement are hereby
incorporated by reference.
s
IN WITNESS WHEREOF, said parties have executed this Agreement effective
as of the Effective Date above.
CONSULTANT
By:
Its:
CONSULTANT
By:
Its:
PALM DESERT REDEVELOPMENT AGENCY
Chairman
ATTEST:
Rachelle D. Klassen, Secretary
APPROVED AS TO FORM
Dave Erwin, City Attorney
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