Swan, Bruce & Sandy/Veterans Ack Expansion 10CONTRACT SERVICES AGREEMENT
THIS CONTRACT SERVICES AGREEMENT (the "Agreement") is made and entered into by
and between the CITY OF LA QUINTA, a California municipal corporation ("City"), and
BRUCE AND SANDY SWAN, Artists ("Contractor").
RECITALS
WHEREAS, City desires to utilize the services of Contractor as an independent contractor
to provide the City with the expansion of the Veterans Acknowledgement Area art piece.
Contractor represents that it is fully qualified to perform such services by virtue of its
experience and the training, education and expertise of its principals and employees.
City desires to retain Contractor, and Contractor desires to serve City to perform these
services subject to the terms contained herein and all applicable local, state and federal
laws and regulations.
NOW, THEREFORE, in consideration of the performance by the parties of the mutual
promises, covenants, and conditions contained herein, the parties agree as follows:
1.0 SERVICES OF CONTRACTOR
1.1. Scope of Services. In compliance with all terms and conditions of this Agreement,
Contractor shall provide those services related to the design, construction, and installation
of three new panels for the Veterans Acknowledgement Area art piece that is consistent
with the original artists' vision as specified in the "Scope of Services" attached hereto as
Exhibit "A" and incorporated herein by this reference (the "services" or "work").
Contractor warrants that all services will be performed in a competent, professional and
satisfactory manner in accordance with the standards prevalent in the industry for such
services.
1.2. Compliance with Law. All services rendered hereunder shall be provided in
accordance with all ordinances, resolutions, statutes, rules, regulations and laws of the
City of La Quinta and any Federal, State or local governmental agency of competent
jurisdiction.
1.3. Licenses Permits, Fees and Assessments. Except as otherwise specified herein,
Contractor shall obtain at its sole cost and expense such licenses, permits and approvals
as may be required by law for the performance of the services required by this Agreement.
Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus
applicable penalties and interest, which may be imposed by law and arise from or are
necessary for the performance of the services required by this Agreement.
1.4. Familiarity with Work. By executing this Agreement, Contractor warrants that (a) it
has thoroughly investigated and considered the work to be performed, (b) it has
investigated the site of the work and fully acquainted itself with the conditions there
existing, (c) it has carefully considered how the work should be performed, and (d) it fully
understands the facilities, difficulties and restrictions attending performance of the work
under this Agreement. Should Contractor discover any latent or unknown conditions
Revised 05/12!10 Page 1 of 17
materially differing from those inherent in the work or as represented by City, it shall
immediately inform City of such fact and shall not proceed except at Contractor's risk until
written instructions are received from the Contract Officer (as defined in Section 4.2
hereof).
1.5. Standard of Care. Contractor acknowledges and understands that the services and
work contracted for under this Agreement require specialized skills and abilities and that,
consistent with this understanding, Contractor's services and work will be held to a
heightened standard of quality and workmanship. Consistent with Section 1.4
hereinabove, Contractor represents to City that it holds the necessary skills and abilities to
satisfy the heightened standard of work as set forth in this Agreement. Contractor shall
adopt reasonable methods during the life of the Agreement to furnish continuous
protection to the work performed by Contractor, and the equipment, materials, papers and
other components thereof to prevent losses or damages, and shall be responsible for all
such damages, to persons or property, until acceptance of the work by City, except such
losses or damages as may be caused by City's own negligence. The performance of
services by Contractor shall not relieve Contractor from any obligation to correct any
incomplete, inaccurate or defective work at no further cost to City, when such
inaccuracies are due to the negligence of Contractor.
1.6. Additional Services. In accordance with the terms and conditions of this
Agreement, Contractor shall perform services in addition to those specified in the Scope of
Services only when directed to do so by the Contract Officer, provided that Contractor
shall not be required to perform any additional services without compensation. Any
addition in compensation not exceeding five percent (5%) of the Contract Sum may be
approved by the Contract Officer. Any greater increase must be approved by the City
Council.
1.7. Special Requirements. Additional terms and conditions of this Agreement, if any,
are set forth in Exhibit "D" (the "Special Requirements") which is incorporated herein by
this reference and expressly made a part hereof. In the event of a conflict between the
provisions of the Special Requirements and any other provisions of this Agreement, the
provisions of the Special Requirements shall govern.
2.0 COMPENSATION
2.1. Contract Sum. For the services rendered pursuant to this Agreement, Contractor
shall be compensated in accordance with Exhibit "B" (the "Schedule of Compensation") in
a total amount not to exceed Thirty -Seven Thousand, One Hundred Three Dollars and Zero
Cents ($37,103.00) (the "Contract Sum"), except as provided in Section 1.6. The method
of compensation set forth in the Schedule of Compensation may include a lump sum
payment upon completion, payment in accordance with the percentage of completion of
the services, payment for time and materials based upon Contractor's rate schedule, but
not exceeding the Contract Sum, or such other methods as may be specified in the
Schedule of Compensation. Compensation may include reimbursement for actual and
necessary expenditures for reproduction costs, transportation expense, telephone expense,
and similar costs and expenses when and if specified in the Schedule of Compensation.
2.2. Method of Payment. Any month in which Contractor wishes to receive payment,
Contractor shall submit to City no later than the tenth (10th) working day of such month,
in the form approved by City's Finance Director, an invoice for services rendered prior to
Revised 05;12110 Page 2 of 17
the date of the invoice. Such invoice shall (1) describe in detail the services provided,
including time and materials, and (2) specify each staff member who has provided services
and the number of hours assigned to each such staff member. Such invoice shall contain a
certification by a principal member of Contractor specifying that the payment requested is
for work performed in accordance with the terms of this Agreement. City will pay
Contractor for all expenses stated thereon which are approved by City pursuant to this
Agreement no later than thirty (30) days after invoices are received by the City's Finance
Department.
3.0 PERFORMANCE SCHEDULE
3.1. Time of Essence. Time is of the essence in the performance of this Agreement
3.2. Schedule of Performance. All services rendered pursuant to this Agreement shall be
performed diligently and within the time period established in Exhibit "C" (the "Schedule of
Performance"). Extensions to the time period specified in the Schedule of Performance
may be approved in writing by the Contract Officer.
3.3. Force Majeure. The time period specified in the Schedule of Performance for
performance of the services rendered pursuant to this Agreement shall be extended
because of any delays due to unforeseeable causes beyond the control and without the
fault or negligence of Contractor, including, but not restricted to, acts of God or of the
public enemy, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes,
freight embargoes, acts of any governmental agency other than City, and unusually severe
weather, if Contractor shall within ten (10) days of the commencement of such delay
notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall
ascertain the facts and the extent of delay, and extend the time for performing the services
for the period of the forced delay when and if in his or her judgment such delay is justified,
and the Contract Officer's determination shall be final and conclusive upon the parties to
this Agreement.
3.4. Term. This Agreement shall commence on July 1, 2010 and terminate on October
15, 2010. Unless earlier terminated in accordance with Sections 7.7 or 7.8 of this
Agreement, this Agreement shall continue in full force and effect until completion of the
services, except as otherwise provided in the Schedule of Performance.
4.0 COORDINATION OF WORK
4.1. Representative of Contractor. The following principals of Contractor are hereby
designated as being the principals and representatives of Contractor authorized to act in its
behalf with respect to the work specified herein and make all decisions in connection
therewith:
a. Bruce Swan, Licensed Contractor
b. Sandy Swan, Artist
It is expressly understood that the experience, knowledge, capability, and reputation of the
foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement
for directing all activities of Contractor and devoting sufficient time to personally supervise
the services hereunder.
Revised 0512'10 Page 3 of 17
The foregoing principals may not be changed by Contractor and no other personnel may be
assigned to perform the service required hereunder without the express written approval of
City.
4.2. Contract Officer. The Contract Officer shall be Steve Howlett, Golf & Parks
Manager or such other person as may be designated in writing by the City Manager of
City. It shall be Contractor's responsibility to assure that the Contract Officer is kept
informed of the progress of the performance of the services and Contractor shall refer any
decisions which must be made by City to the Contract Officer. Unless otherwise specified
herein, any approval of City required hereunder shall mean the approval of the Contract
Officer.
4.3. Prohibition Against Subcontracting or Assignment. The experience, knowledge,
capability and reputation of Contractor, its principals and employees were a substantial
inducement for City to enter into this Agreement. Except as set forth in this Agreement,
Contractor shall not subcontract with any other entity to perform in whole or in part the
services required hereunder without the express written approval of City. In addition,
neither this Agreement nor any interest herein may be assigned or transferred, voluntarily
or by operation of law, without the prior written approval of City. Any attempted or
purported assignment or sub -contracting by Contractor without the City's express written
approval shall be null, void and of no effect.
4.4. Independent Contractor. Neither City nor any of its employees shall have any
control over the manner, mode or means by which Contractor, its agents or employees,
perform the services required herein, except as otherwise set forth. Contractor shall
perform all services required herein as an independent contractor of City and shall remain
at all times as to City a wholly independent contractor with only such obligations as are
consistent with that role. Contractor shall have no power to incur any debt, obligation, or
liability on behalf of City. Contractor shall not at any time or in any manner represent that
it or any of its agents or employees are agents or employees of City. Contractor agrees to
pay all required taxes on amounts paid to Contractor under this Agreement, and to
indemnify and hold City harmless from any and all taxes, assessments, penalties, and
interest asserted against City by reason of the independent contractor relationship created
by this Agreement. Contractor shall fully comply with the workers' compensation laws
regarding Contractor and Contractor's employees. Contractor further agrees to indemnify
and hold City harmless from any failure of Contractor to comply with applicable workers'
compensation laws. City shall have the right to offset against the amount of any fees due
to Contractor under this Agreement any amount due to City from Contractor as a result of
Contractor's failure to promptly pay to City any reimbursement or indemnification arising
under this Section 4.4.
4.5. City Cooperation. City shall provide Contractor with any plans, publications,
reports, statistics, records or other data or information pertinent to services to be
performed hereunder which are reasonably available to Contractor only from or through
action by City.
5.0 INSURANCE AND INDEMNIFICATION
5.1. Insurance. Prior to the beginning any Work under this Agreement and throughout
the duration of the term of this Agreement, Contractor shall procure and maintain, at its
sole cost, and submit concurrently with its execution of this Agreement, insurance as
Revised 05 12110 Page 4 of 17
described herein. All insurance coverage required by this Agreement shall be placed with
insurers authorized to do business in the State of California with an A,M, Best and
Company rating level of A- or better, Class VI or better, unless otherwise approved by the
City's Risk Manager in writing.
5.1.1. Minimum Coverage. Insurance shall include the following (or broader)
coverage:
a. Insurance Services Office Commercial General Liability coverage
"occurrence" form CG 00 01 or its equivalent with an edition date prior to
2004 and with minimum limits of $1,000,000 per occurrence and
$2,000,000 in the aggregate.
b. Insurance Services Office form number CA 0001 or equivalent
covering Automobile Liability, including hired and non -owned automobile
liability with a minimum limit of $1,000,000 per accident. If Contractor
owns no vehicles, this requirement may be satisfied by a non -owned and
hired auto endorsement to Contractor's commercial general liability policy.
C. Contractor shall carry Workers' Compensation Insurance complying
with California's worker's compensation laws, including statutory limits for
workers' compensation and an Employer's Liability limit no less than
$1,000,000 per accident or disease.
5.1.2. Required Endorsements. Liability insurance policies required to be provided
by Contractor hereunder shall contain or be endorsed to contain the following
provisions:
a. City, its employees, officials, agents and member agencies shall be
covered as additional insureds. Coverage shall apply to any and all liability
arising out of the Work or related to the Contract. Additional insured status
under the general liability requirement shall be provided on Insurance
Services Office Form CG 20 10 with an edition date prior to 2004, or its
equivalent. Additional insured status for completed operations shall be
provided either in the additional insured form or through another
endorsement such as CG 20 37 with an edition date prior to 2004.
b. General and automobile liability insurance shall apply separately to
each insured against whom a claim is made or suit is brought, except with
respect to the limits of the insurer's liability. Coverage will not be limited to
City's vicarious liability.
C. Liability coverage shall be primary and non-contributing with any
insurance maintained by the City.
d. Each policy required hereunder, and the associated evidence of
coverage (including the workers' compensation and employer's liability
policies), shall provide that coverage shall not be suspended, voided,
canceled or reduced in coverage or in limits except after 30 days' prior
written notice has been given to City. Such provision shall not include any
limitation of liability of the insurer for failure to provide such notice.
Revised 05/121 10 Page 5 of 17
e. No liability insurance coverage provided to comply with this
Agreement shall prohibit Contractor, or Contractor's employees, or agents,
from waiving the right of recovery prior to a loss. Contractor waives its right
of recovery against City.
5.1.3. Verification of Coverage. Contractor shall deposit with City within fifteen
(15) days of Notice to Proceed of the Contract certificates of insurance evidencing
the coverage required hereunder and all required endorsements.
5.1.4. No Waiver or Obligation. There shall be no recourse against City for
payment of premiums or other amounts with respect to the insurance required to be
provided by Contractor hereunder. Any failure, actual or alleged, on the part of City
to monitor compliance with these requirements will not be deemed as a waiver of
any rights on the part of City. City has no additional obligations by virtue of
requiring the insurance set forth herein. In the event any policy of insurance
required under this Agreement does not comply with these requirements 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 Contractor or City will withhold amounts sufficient to pay premium
from Contractor payments.
5.1.5. Prompt Notice. Contractor agrees to provide immediate notice to City of any
claim or loss against Contractor arising out of the work performed under this
agreement. City assumes no obligation or liability by such notice, but has the right
(but not the duty) to monitor the handling of any such claim or claims if they are
likely to involve City.
5.1.6. Subcontractors. Contractor shall include all subcontractors, if any, as
insureds under its policies or shall furnish separate certificates and endorsements
for each subcontractor approved by City. All coverages for subcontractors, if any,
shall be subject to all of the requirements stated herein unless otherwise approved
in advance in writing by City's Risk Manager.
5.2. Indemnification.
5.2.1. Indemnification. To the fullest extent permitted by law, Contractor shall
indemnify, protect, defend and hold harmless City and any and all of its officials,
employees and agents ("Indemnified Parties") from and against any and all liability,
claims, suits, actions arbitration proceedings, administrative proceedings, regulatory
proceedings, losses, expenses or costs of any kind, whether actual, alleged or
threatened, including, without limitation, incidental and consequential damages,
actual attorney fees incurred by City, court costs, interest, defense costs including
fees of expert Contractors or expert witnesses incurred in connection therewith and
any other costs or expenses of any kind whatsoever incurred in relation to, as a
consequence of or arising out of or in any way attributable in whole or in part to the
performance of this agreement. All obligations under this provision are to be paid
by Contractor as the City incurs them. With respect to the design of public
improvements, the Contractor shall not be liable for any injuries or property damage
resulting from the reuse of the design at a location other than that specified in
Exhibit C without the written consent of the Contractor.
Revised 05/12/10 Page 6 of 17
5.2.2. Exception to Contractor's Obligation to Indemnify. Without affecting the
rights of City under any provision of this agreement or this section, Contractor shall
not be required to indemnify and hold harmless City as set forth above for liability
attributable to the sole fault of City, provided such sole fault is determined by
agreement between the parties or by the findings of a court of competent
jurisdiction. This exception will apply only in instances where City is shown to have
been solely at fault and not in instances where Contractor is solely or partially at
fault or in instances where City's fault accounts for only a percentage of the liability
involved. In those instances, the obligation of Contractor will be all-inclusive and
City will be indemnified for all liability incurred, even though a percentage of the
liability is attributable to conduct of the City.
5.2.3. Contractor Acknowledgment. Contractor acknowledges that its obligation
pursuant to this section extends to liability attributable to City, if that liability is less
than the sole fault of City.
5.2.4. Indemnity Provisions for Subcontractors. Contractor agrees to obtain
executed indemnity agreements with provisions identical to those set forth here in
this section from each and every subcontractor, sub tier contractor or any other
person or entity involved by, for, with or on behalf of Contractor in the performance
of this Agreement. In the event Contractor fails to obtain such indemnity
obligations from others as required here, Contractor agrees to be fully responsible
according to the terms of this section.
5.2.5. No Waiver; Survival. Failure of City to monitor compliance with the
requirements of this Section 5.2 imposes no additional obligations on City and will
in no way act as a waiver of any rights hereunder. Contractor's obligation to
indemnify and defend City as a set forth herein is binding on the successors,
assigns, or heirs of Contractor and shall survive the termination of this Agreement
or this section.
5.3. Remedies. In addition to any other remedies City may have if Contractor fails to
provide or maintain any insurance policies or policy endorsements to the extent and within
the time herein required, City may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the premiums for
such insurance from any sums due under this Agreement.
b. Order Contractor to stop work under this Agreement and/or withhold any
payment(s) which become due to Contractor hereunder until Contractor
demonstrates compliance with the requirements hereof.
C. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any other remedies
City may have. The above remedies are not the exclusive remedies for Contractor's failure
to maintain or secure appropriate policies or endorsements. Nothing herein contained shall
be construed as limiting in any way the extent to which Contractor may be held
responsible for payments of damages to persons or property resulting from Contractor's or
its subcontractors' performance of work under this Agreement.
Revised 05/12/10 Page 7 of 17
6.0 RECORDS AND REPORTS
6.1. Reports. Contractor shall periodically prepare and submit to the Contract Officer
such reports concerning Contractor's performance of the services required by this
Agreement as the Contract Officer shall require.
6.2. Records. Contractor shall keep such books and records as shall be necessary to
perform the services required by this Agreement and enable the Contract Officer to
evaluate the cost and the performance of such services. Books and records pertaining to
costs shall be kept and prepared in accordance with generally accepted accounting
principals. The Contract Officer shall have full and free access to such books and records
at all reasonable times, including the right to inspect, copy, audit, and make records and
transcripts from such records.
6.3. Ownership of Documents. Originals of all drawings, specifications, reports, records,
documents and other materials, whether in hard copy or electronic form, which are
prepared by Contractor, its employees, subcontractors and agents in the performance of
this Agreement, shall be the property of City and shall be delivered to City upon
termination of this Agreement or upon the earlier request of the Contract Officer, and
Contractor shall have no claim for further employment or additional compensation as a
result of the exercise by City of its full rights of ownership of the documents and materials
hereunder. Contractor shall cause all subcontractors to assign to City any documents or
materials prepared by them, and in the event Contractor fails to secure such assignment,
Contractor shall indemnify City for all damages suffered thereby.
In the event City or any person, firm or corporation authorized by City reuses said
documents and materials without written verification or adaptation by Contractor for the
specific purpose intended and causes to be made or makes any changes or alterations in
said documents and materials, City hereby releases, discharges, and exonerates Contractor
from liability resulting from said change. The provisions of this clause shall survive the
completion of this Contract and shall thereafter remain in full force and effect.
6.4. Release of Documents. The drawings, specifications, reports, records, documents
and other materials prepared by Contractor in the performance of services under this
Agreement shall not be released publicly without the prior written approval of the Contract
Officer or as required by law. Contractor shall not disclose to any other entity or person
any information regarding the activities of City, except as required by law or as authorized
by City.
6.5. Confidentiality. Contractor covenants that all data, documents, discussion, or other
information, if any, developed or received by Contractor or provided for performance of
this Agreement are deemed confidential and shall not be disclosed by Contractor to any
person or entity without prior written authorization by City. City shall grant such
authorization if disclosure is required by law. All City data shall be returned to City upon
the termination of this Agreement. Contractor's covenant under this section shall survive
the termination of this Agreement.
7.0 ENFORCEMENT OF AGREEMENT
7.1. California Law. This Agreement shall be construed and interpreted both as to
validity and to performance of the parties in accordance with the laws of the State of
Revised 05.12'10 Page 8 of 17
California. Legal actions concerning any dispute, claim or matter arising out of or in
relation to this Agreement shall be instituted in the Superior Court of the County of
Riverside, State of California, or any other appropriate court in such county, and
Contractor covenants and agrees to submit to the personal jurisdiction of such court in the
event of such action.
7.2. Disputes. In the event of any dispute arising under this Agreement, the injured
party shall notify the injuring party in writing of its contentions by submitting a claim
therefore. The injured party shall continue performing its obligations hereunder so long as
the injuring party commences to cure such default within ten (10) days of service of such
notice and completes the cure of such default within forty-five (45) days after service of
the notice, or such longer period as may be permitted by the Contract Officer; provided
that if the default is an immediate danger to the health, safety and general welfare, City
may take such immediate action as City deems warranted. Compliance with the provisions
of this section shall be a condition precedent to termination of this Agreement for cause
and to any legal action, and such compliance shall not be a waiver of any party's right to
take legal action in the event that the dispute is not cured, provided that nothing herein
shall limit City's right to terminate this Agreement without cause pursuant to Section 7.8.
7.3. Retention of Funds. City may withhold from any monies payable to Contractor
sufficient funds to compensate City for any losses, costs, liabilities, or damages it
reasonably believes were suffered by City due to the default of Contractor in the
performance of the services required by this Agreement.
7.4. Waiver. No delay or omission in the exercise of any right or remedy of a non
defaulting party on any default shall impair such right or remedy or be construed as a
waiver. City's consent or approval of any act by Contractor requiring City's consent or
approval shall not be deemed to waive or render unnecessary City's consent to or approval
of any subsequent act of Contractor. Any waiver by either party of any default must be in
writing and shall not be a waiver of any other default concerning the same or any other
provision of this Agreement.
7.5. Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the parties
are cumulative and the exercise by either party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other rights or
remedies for the same default or any other default by the other party.
7.6. Legal Action. In addition to any other rights or remedies, either party may take
legal action, at law or at equity, to cure, correct or remedy any default, to recover
damages for any default, to compel specific performance of this Agreement, to obtain
injunctive relief, or to obtain any other remedy consistent with the purposes of this
Agreement.
7.7. Termination Prior to Expiration of Term. This section shall govern any termination
of this Agreement, except as specifically provided in the following Section 7.8 for
termination for cause. City reserves the right to terminate this Agreement at any time,
with or without cause, upon thirty (30) days' written notice to Contractor. Upon receipt of
any notice of termination, Contractor shall immediately cease all services hereunder except
such as may be specifically approved by the Contract Officer. Contractor shall be entitled
to compensation for all services rendered prior to receipt of the notice of termination and
Revised 051210 Page 9 of 17
for any services authorized by the Contract Officer thereafter in accordance with the
Schedule of Compensation or such as may be approved by the Contract Officer, except as
provided in Section 7.3.
7.8. Termination for Default of Contractor. If termination is due to the failure of
Contractor to fulfill its obligations under this Agreement, City may, after compliance with
the provisions of Section 7.2, take over work and prosecute the same to completion by
contract or otherwise, and Contractor shall be liable to the extent that the total cost for
completion of the services required hereunder exceeds the compensation herein stipulated
(provided that City shall use reasonable efforts to mitigate such damages), and City may
withhold any payments to Contractor for the purpose of setoff or partial payment of the
amounts owed City as previously stated in Section 7.3.
7.9. Attorneys' Fees. If either party commences an action against the other party
arising out of or in connection with this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs of suit from the losing party.
8.0 CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION
8.1. Non -liability of City Officers and Employees. No officer or employee of City shall be
personally liable to Contractor, or any successor in interest, in the event or any default or
breach by City or for any amount which may become due to Contractor or to its
successor, or for breach of any obligation of the terms of this Agreement.
8.2. Conflict of Interest. No officer or employee of City shall have any personal interest,
direct or indirect, in this Agreement nor shall any such officer or employee participate in
any decision relating to the Agreement which affects his or her personal interest or the
interest of any corporation, partnership or association in which she or he is, directly or
indirectly, interested, in violation of any State statute or regulation. Contractor warrants
that it has not paid or given and will not pay or give any third party any money or general
consideration for obtaining this Agreement.
8.3. Covenant Against Discrimination. Contractor covenants that, by and for itself, its
heirs, executors, assigns, and all persons claiming under or through them, that there shall
be no discrimination against or segregation of, any person or group of persons on account
of race, color, creed, religion, sex, marital status, national origin or ancestry in the
performance of this Agreement. Contractor shall take affirmative action to insure that
applicants are employed and that employees are treated during employment without regard
to their race, color, creed, religion, sex, marital status, national origin or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1. Notice. Any notice, demand, request, consent, approval, communication either
party desires or is required to give the other party or any other person shall be in writing
and either served personally or sent by prepaid, first-class mail to the address set forth
below. Either party may change its address by notifying the other party of the change of
address in writing. Notice shall be deemed communicated forty-eight (48) hours from the
time of mailing if mailed as provided in this section.
Revised 05; 12'10 Page 10 of 17
To City:
CITY OF LA QUINTA
Attn: Steve Howlett
78495 Calle Tampico
P.O. Box 1504
La Quinta, CA 92247-1504
To Contractor:
BRUCE & SANDY SWAN
51382 Calle Paloma
La Quinta, CA 92253
9.2. Integrated Agreement. This Agreement contains all of the agreements of the
parties and all previous understanding, negotiations and agreements are integrated into and
superseded by this Agreement.
9.3. Exhibits; Precedence. All documents referenced as exhibits in this Agreement are
hereby incorporated in this Agreement. In the event of any 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 except as otherwise
provided in Section 1.7.
9.4. Amendment. This Agreement may be amended at any time by the mutual consent
of the parties by an instrument in writing signed by both parties.
9.5. Severability. In the event that any one or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall be declared invalid or
unenforceable by a valid judgment or decree of a court of competent jurisdiction, such
invalidity or unenforceability shall not affect any of the remaining phrases, sentences,
clauses, paragraphs, or sections of this Agreement which are hereby declared as severable
and shall be interpreted to carry out the intent of the parties hereunder.
9.6. Authority. The persons executing this Agreement on behalf of the parties hereto
warrant that they are duly authorized to execute this Agreement on behalf of said parties
and that by so executing this Agreement the parties hereto are formally bound to the
provisions of this Agreement.
Revised 05712i10 Page 11 of 17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated
below.
CITY OF LA QUINTA
a California municipal corporation
THOMAS P. GENOVESE, City Manager
Dated: `� !�mX0
ATTEST:
VERONICA J. I1 NTECINO, CMC
City Clerk, La Quinta, California
APPROVED AS TO FORM:
M. K6THERINqq4 NSON, City Attorney
City of La Q iirijA, California
CONTRACTOR:
Revised 05i 12 10 Page 12 of 17
Exhibit A
Scope of Services
1. Services to be Provided:
Design, produce, and install three additional bronze sculpture pieces with depth and name
plates. The existing three mountain sculptures will be moved and relocated toward the
outer edge of the concrete base to create room in the center for the three new sculptures.
The new pieces will be positioned and installed for best visibility, to allow access to the
bolts, and to permit cleaning and sculpture maintenance.
Meet with Park Manager to discuss project requirements. Take measurements and
photographs of existing mountain sculpture pieces and base. Create 3-dimensional scale
mockette of existing pieces, and diagram of current placement on base.
Design three new mountain sculptures with depth and name plates in the style of existing
sculpture. Create 3-dimensional scale mockette models of new pieces. Create new
footprint for the 3 existing and 3 new sculpture elements. Coordinate fabrication of the 3
new bronze mountain sculptures including cutting, welding, bracket and base plate design
and assembly, attachment of depth and name plates, and patina application. Transport to
Civic Center site. Relocate and reinstall 3 existing sculpture pieces. Install 3 new bronze
sculptures.
2. Specifics:
Bronze panels will be "Naval Grade" or better.
Bronze thickness is 1 /8" for main and depth panels, and 1 /16" for the name plates, per
existing sculpture.
Each of the 3 new mountain sculptures will consist of a main panel and a side wing panel.
Name plates will be on the main panels only, for optimum visibility.
Each main panel will have 2 or 3 name plates, depending on available viewing space
between the relocated existing panels.
Largest panel will be 4'w x 8'h; wing panels 2 '/4'w x 5'h.
Patina color to match existing as closely as possible.
Mounting screws for name panels will be star -pattern head, to reduce possibility of theft.
Sculptures will be attached to concrete base per existing.
Revised 05/12'10 Page 13 of 17
Not Included:
Sales Tax, City fees or permits, inspection fees, engineering fees.
Water jet cutting of names.
Repainting of base after sculpture installation/relocation
Anti -graffiti coating.
Revised 05/12I10 Page 14 of 17
Exhibit B
Schedule of Compensation
Total compensation for all work performed under the Agreement shall not exceed Thirty
Seven Thousand One Hundred Three Dollars and Zero Cents ($37,103.00) except as
specified in Section 1.6 - Additional Services of the Agreement.
Payment Schedule:
Deposit due upon executed Agreement (50%) $18,551.50
Progress payment due upon completion of assembly and patina (25%) $9,275.75
Final payment due upon completion of contract (25%) $9,275.75
Revised 05/12/10 Pape 15 of 17
Exhibit C
Schedule of Performance
Contractor shall complete all services within the term of this agreement, which term is July
1, 2010 to October 15, 2010.
Revised 05i12/10 Page 16 of 17
Exhibit D
Special Requirements
Done.
Revised 05/12/10 Page 17 of 17
AC-0-RD,., CERTIFICATE OF LIABILITY INSURANCE I
DATE(MM/DONYYYI
PRODUCER 1 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
PSA REALTY 6e INSURANCE SERVICE ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
LICENSE #0589324 / WW.PSAINSURANCH ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
PO BOX 2410
FALLBROOX, CA 92088-2410 INSURERS AFFORDING COVERAGE NAIC#
INSURED BETTER BUILDING COMPANY INSURER A: COLONY INS CO 39993
FAX: 760-564-2651 INSURER B:
51382 CALLS PALOMA INSURER c:
LA QUINTA, CA 92253 INSURER D:
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR
Lm
WD*L
INS
TYPE OF INSURANCE
POLICY NUMBER
PoUCYffFECTNE
POUCYEXPIRATION
LIMITS
A
GENERAL
LIABILITY
COMMERCIAL GENERAL LIABILITY
CLAIMSMADE ®OCCUR
G 876624
-
0612312010
0612312011
EACH OCCURRENCE
4 1000000
X
DAMAGE TO RENTED
PREMISES
4 50000
MED EXP(Am one Pelson)
4 1000
PERSONAL S ROY INJURY
4 1000000
GENERAL AGGREGATE
4 2000000
GEN'L
X
AGGREGATE
POLICY 0
LIMIT APPLIES
jPFCT El
PER:
LOC
PRODUCTS - COMP/OP AGG
4 1000000
AUTOMOBILEUABIUTY
ANY AUTO
ALL OWNED AUTOS
SCHEDULED AUTOS
HIRED AUTOS
NON-OWNEDAUTOS
COMBINED dSINGLE LIMIT
lEa acddei.. N
4
BODILYINJURY4
(Per pereon)
BODILY INJURY
(PaeMdeM1
4
PROPERTY DAMAGE
(Peracadentl
4
GARAGE LIABILITY
ANYAUTO
AUTO ONLY -EA ACCIDENT
9
OTHER THAN EAACC
AUTO ONLY: AGO
e
4
EXCESSNMBRELA UABIUTY
OCCUR F—ICILAIMSMADE
DEDUCTIBLE
RETENTION 4
EACH OCCURRENCE
4
AGGREGATE
4
4
9
9
WORKERSCOMPENSATIONAND
EMRAYERS' UABIUIY
ANY PROMIETOR/PARTNER/EXECUTIVE
OFFICERRAEMSER EXCLUDED?
SYee,AL PROVISIO
SPECIAL PROVSIONS below
WC STATU- OTH-
E.L.EACH ACCIDENT
4
E.L DISEASE - EA EMPLOYEE
4
E.L. DISEASE -POLICY LIMIT
9
OTHER
DESCRIPNON OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDEDBY ENDORSEMENT /SPECIAL PROVISIONS
CERTIFICATE HOLDER IS NAMED AS ADDITIONAL INSURED PER COMPANY FORM U156-0310 ATTACHED.
CERTIFICATE HOLDER CANCELLATION 10-DAY NOTTCE POR NON-PAYMENT OF PREM
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
CITY OF LA QUIRTA
DATE THEREOF,TON
INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN
PAR: 760-777-1231 STSVE
NOTICE TO THEOLDER
NAMED TO THE LEFT, Blfl' FAILURE TO DO $O SHALL
PO BOA' 1504
IMPOSE NO OB
OF ANY XIND UPON THE INSURER. ITS AGENTS OR
LA QUINTA, CA 92047-1504
REPASSENTATIVAUTHORRED
R®
HH
ACORD25(2001/08) `/ 1 N / 0ACORD CORPORATION 1988
Z00/I00 'd LD I-KL-090N NJ 00u'2dnsuI VSd Wd H 10 CHA/010UH/0
-" THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED -
OWNERS, LESSEES OR CONTRACTORS - SCHEDULED
PERSON OR ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
PERSONS OR ORGANIZATIONS AS REQUIRED BY
TTEN CONTRACT WITH INSURED.
SCHEDULE
of Covered
PER SCHEDULE ON FILE WITH THE COMPANY
A. SECTION 11—WHO IS AN INSURED is amended to include as an additional insured the person(s) or organization(s)
shown in the Schedule for whom you are performing operations when you and such person or organization have
agreed in writing in a contract or agreement that such parson or organization be added as an additional insured on
your policy. Such person or organization Is an additional insured only with respect to liability for `bodily injury,
.property damage' or'personal and advertising injury caused, in whole or in part, by--
1. Your acts or omissions; or
2. The acts oromissions of those acting on your b~,,
in the performance of your ongoing operations for the additional insureds) at the locations) designated above.
A persons or organ¢ailows status as an additional Insured under this endorsement ends when your operations for
thateddilional insured are completed.
B. VTM respectto the insurance afforded to these additional insureds, the following additional exclusions apply:
This insurance does not apply to:
Additional Insured Contractual Liability
'Bodily injury or `property damage for which the additional insured(s) are obligated to pay damages by reason of the
assumption of Ilabil ly in a contract or agreement.
Finished Operations at Work
'BodilylnjuT ar'properlydamage occurring after.
1. All work, including materials, parts or equipment fumishad in connection with such work, on the project (other
than service, maintenance or repairs) to be performed by or an behalf of the additional insured(s) at the
location of the covered operations has been completed- or
2. That portion of 'your work' out of which the injury or damage arlses has been put to its intended use by any
person or organization.
Negligence of Additional Insured
'Bodily injury or'propertydamage' ansing direc* or indirectly out of the negligence of the additional insured(s).
ALL OTHER TERMS AND CONDITIONS OF THE POLICY REMAIN UNCHANGED.
U156-0310 Includes copyrighted material of ISO Properties, Inc., Page 1 of 1
with its permission.
Z00/Z00 'd L06I-EL-09L 'ON NJ ;)OUPInsul VSd Wd W M 9HV0I0Z/K/NIlf
AMENDMENT NO. 1 TO THE AGREEMENT WITH BRUCE AND SANDY
SWAN, ARTISTS FOR THE EXPANSION OF THE VETERANS
ACKNOWLEDGEMENT AREA ART PIECE
THIS AMENDMENT NO. 1 TO THE AGREEMENT WITH BRUCE AND SANDY
SWAN, ARTISTS, FOR THE EXPANSION OF THE VETERANS
ACKNOWLEDGEMENT AREA ART PIECE ("Amendment No. 1") is made and
entered into as of the 15 'day of SEP-rCM l 6jz_. , 2010 ("Effective Date"),
by and between the CITY OF LA QUINTA, ("City"), a California municipal
corporation, and BRUCE AND SANDY SWAN, ARTISTS, dba BETTER BUILDING
COMPANY ("Contractor").
RECITALS
A. On or about June 16, 2010, the City and Contractor entered into a
Contract Services Agreement for the expansion of the veteran's acknowledgement
area art piece.
B. Contractor and City now wish to amend the original Agreement to
reflect the business name of the Contractor.
AMENDMENT:
In consideration of the foregoing Recitals and the covenants and promises
hereinafter contained, and for good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties hereto agree as follows:
Amend Paragraph 1 to read: "THIS CONTRACT SERVICES AGREEMENT (the
"Agreement") is made and entered into by and between the CITY OF LA QUINTA,
a California municipal corporation ("City"), and BRUCE AND SANDY SWAN,
Artists, dba BETTER BUILDING COMPANY ("Contractor").
Except as expressly amended or superseded by Amendment No. 1, the terms and
conditions of the original agreement shall remain in effect.
IN WITNESS WHEREOF, the City and Contractor have executed this
Amendment No. 1 to the Agreement with Bruce and Sandy Swan, Artists, dba
Better Building Company on the respective dates set forth below.
CITY: CITY OF LA QUINTA, a California municipal corporation
( z dl. 15• 2-61a
Thomas P. Genovese, City Manager Date
ATTES
Veronica J. IWntecino, CIVIC, City Clerk
APPROVED AS TO FORM:
M. ath 'ne Jenso City Attorney
CONTRACTOR: BRUCE AND SANDY SWAN
dba BETTER BUILDING COMPANY
51382 Calle Paloma
La Quinta, CA 92253
Bruce Swan
Sandy Swan
Date
Date
9--/-cb