Carpet Empire Plus / Art Gallery & Lobby Carpet 17CuQa�Kra
— GEN9 ofthe DESERT —
MEMORANDUM
TO: Frank J. Spevacek, City Manager
FROM: Steve Howlett, Facilities Director
DATE: August 30, 2017
RE: Carpet Empire Plus, Project No. 2017-13 City Hall Art Gallery Carpet,
Remove and Replace Carpet in the City Hall Lobby, Art Gallery and Study
Session Room.
Attached for your signature is the contract withCarpet Empire Plus to remove and replace
carpet in the City Hall lobby, art gallery and Study Session room.
Please sign the attached agreement(s) and return to the City Clerk for processing and
distribution.
Requesting department shall check and attach the items below as appropriate
X Contract payments will be charged to account number: 501-0000-71103
X Amount of Agreement, Amendment, Change Order, etc.: $18,346
NA A Conflict of Interest Form 700 Statement of Economic Interests from Consultant(s) is attached with
no reportable interests in LQ or reportable interests
NA A Conflict of Interest Form 700 Statement of Economic Interests is not required because this Consultant
does not meet the definition in FPPC regulation 18701(2).
Authority to execute this agreement is based upon:
NA Approved by the City Council on
X City Manager's signature authority provided under Resolution No. 2015-045 for budgeted expenditures
of $50,000 or less. This expenditure is $18,346 and authorized by contract approved by Steve Howlett,
Facilities Director.
SH Initial to certify that 3 written informal bids or proposals were received and considered in selection
The following required documents are attached to the agreement:
X Insurance certificates as required by the agreement (approved by Risk Manager on date)
NA Performance bonds as required by the agreement (originals)
X City of La Quinta Business License number 765150, expiration 08/31/2018
X A requisition for a Purchase Order has been prepared (amounts over $5,000)
X A copy of this Cover Memo has been emailed to Finance (Sandra)
Revised May 2017
AGREEMENT FOR CONTRACT SERVICES
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and
entered into by and between the CITY OF LA QUINTA, ("City"), a California municipal
corporation, and Carpet Empire Plus, an S Corporation ("Contracting Party"). The
parties hereto agree as follows:
1. SERVICES OF CONTRACTING PARTY.
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, Contracting Party shall provide those services related to City Hall Art
Gallery Carpeting Project No. 2017-13, as specified in the "Scope of Services" attached
hereto as "Exhibit A" and incorporated herein by this reference (the "Services").
Contracting Party represents and warrants that Contracting Party is a provider of first-
class work and/or services and Contracting Party is experienced in performing the
Services contemplated herein and, in light of such status and experience, Contracting
Party covenants that it shall follow industry standards in performing the Services
required hereunder, and that all materials, if any, will be of good quality, fit for the
purpose intended. For, purposes of this Agreement, the phrase "industry standards"
shall mean those standards of practice recognized by one or more first-class firms
performing similar services under similar circumstances.
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 and any Federal, State, or local governmental agency of competent
jurisdiction.
1.3 Wageand Hour Compliance,Contracting Party shall comply with
applicable Federal, State, and local wage and hour laws.
1.4 Licenses, Permits, Fees and Assessments. Except as otherwise specified
herein, Contracting Party 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, including a City of La Quinta business license. Contracting
Party and its employees, agents, and subcontractors shall, at their sole cost and
expense, keep in effect at all times during the term of this Agreement any licenses,
permits, and approvals that are legally required for the performance of the Services
required by this Agreement. Contracting Party 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, and shall indemnify, defend (with counsel selected by
City), and hold City, its elected officials, officers, employees, and agents, free and
harmless against any such fees, assessments, taxes, penalties, or interest levied,
assessed, or imposed against City hereunder. Contracting Party shall be responsible
for all subcontractors' compliance with this Section.
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1.5 Familiarity with Work. By executing this Agreement, Contracting Party
warrants that (a) it has thoroughly investigated and considered the Services to be
performed, (b) it has investigated the site where the Services are to be performed, if
any, and fully acquainted itself with the conditions there existing, (c) it has carefully
considered how the Services should be performed, and (d) it fully understands the
facilities, difficulties, and restrictions attending performance of the Services under this
Agreement. Should Contracting Party discover any latent or unknown conditions
materially differing from those inherent in the Services or as represented by City,
Contracting Party shall immediately inform City of such fact and shall not proceed
except at Contracting Party's risk until written instructions are received from the
Contract Officer (as defined in Section 4.2 hereof).
1.6 Standard of Care. Contracting Party acknowledges and understands that
the Services contracted for under this Agreement require specialized skills and abilities
and that, consistent with this understanding, Contracting Party's work will be held to
an industry standard of quality and workmanship. Consistent with Section 1.5
hereinabove, Contracting Party represents to City that it holds the necessary skills and
abilities to satisfy the industry standard of quality as set forth in this Agreement.
Contracting Party shall adopt reasonable methods during the life of this Agreement to
furnish continuous protection to the Services performed by Contracting Party, 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 Services by City, except such losses or damages as may be caused
by City's own negligence. The performance of Services by Contracting Party shall not
relieve Contracting Party 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 Contracting Party.
1.7 Additional Services. In accordance with the terms and conditions of this
Agreement, Contracting Party shall perform services in addition to those specified in
the Scope of Services ("Additional Services") only when directed to do so by the
Contract Officer, provided that Contracting Party shall not be required to perform any
Additional Services without compensation. Contracting Party shall not perform any
Additional Services until receiving prior written authorization (in the form of a written
change order if Contracting Party is a contractor performing the Services) from the
Contract Officer, incorporating therein any adjustment in (i) the Contract Sum, and/or
(ii) the time to perform this Agreement, which said adjustments are subject to the
written approval of Contracting Party. It is expressly understood by Contracting Party
that the provisions of this Section shall not apply to the Services specifically set forth
in the Scope of Services or reasonably contemplated therein. It is specifically
understood and agreed that oral requests and/or approvals of Additional Services
shall be barred and are unenforceable. Failure of Contracting Party to secure the
Contract Officer's written authorization for Additional Services shall constitute a
waiver of any and all right to adjustment of the Contract Sum or time to perform this
Agreement, whether by way of compensation, restitution, quantum meruit, or the like,
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for Additional Services provided without the appropriate authorization from the
Contract Officer. Compensation for properly authorized Additional Services shall be
made in accordance with Section 2.3 of this Agreement.
1.8 Special Requirements. Additional terms and conditions of this
Agreement, if any, which are made a part hereof 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. COMPENSATION.
2.1 Contract Sum. For the Services rendered pursuant to this Agreement,
Contracting Party shall be compensated in accordance with "Exhibit B" (the "Schedule
of Compensation") in a total amount not to exceed eighteen thousand, three hundred
forty six Dollars ($18,346) (the "Contract Sum"), except as provided in Section 1.7. 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 Contracting
Party's rate schedule, but not exceeding the Contract Sum, or such other reasonable
methods as may be specified in the Schedule of Compensation. The Contract Sum
shall include the attendance of Contracting Party at all project meetings reasonably
deemed necessary by City; Contracting Party shall not be entitled to any additional
compensation for attending said meetings. 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. Regardless of the method of
compensation set forth in the Schedule,of Compensation, Contracting Party's overall
compensation shall not exceed the Contract Sum, except as provided in Section 1.7 of
this Agreement.
2.2 Method of Billing & Payment. Any month in which Contracting Party
wishes to receive payment, Contracting Party 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 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 Contracting Party specifying that the payment requested is for
Services performed in accordance with the terms of this Agreement. Upon approval in
writing by the Contract Officer and subject to retention pursuant to Section 8.3, City
will pay Contracting Party for all items 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.
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2.3 Compensation for Additional Services. Additional Services approved in
advance by the Contract Officer pursuant to Section 1.7 of this Agreement shall be
paid for in an amount agreed to in writing by both City and Contracting Party in
advance of the Additional Services being rendered by Contracting Party. Any
compensation for Additional Services amounting to five percent (5%) or less of the
Contract Sum may be approved by the Contract Officer. Any greater amount of
compensation for Additional Services must be approved by the La Quinta City Council,
the City Manager, or Department Director, depending upon City laws, regulations, rules
and procedures concerning public contracting. Under no circumstances shall
Contracting Party receive compensation for any Additional Services unless prior
written approval for the Additional Services is obtained from the Contract Officer
pursuant to Section 1.7 of this Agreement.
3. PERFORMANCE SCHEDULE.
3.1 Time of Essence. Time is of the essence in the performance of this
Agreement. If the Services not completed in accordance with the Schedule of
Performance, as set forth in Section 3.2 and "Exhibit C", it is understood that the City
will suffer damage.
3.2 Scheduleof 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 Contracting Party, 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 Contracting Party 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 the Contract Officer's judgment such delay is justified, and the
Contract Officer's determination shall be final and conclusive upon the parties to this
Agreement. Extensions to time period in the Schedule of Performance which are
determined by the Contract Officer to be justified pursuant to this Section shall not
entitle the Contracting Party to additional compensation in excess of the Contract
Sum.
3.4 Term. Unless earlier terminated in accordance with the provisions in
Article 8.0 of this Agreement, the term of this agreement shall commence on
September 15, 2017 and terminate on completion of the carpet installation ("Initial
Term"). This Agreement may be extended for -0- additional year(s) upon mutual
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agreement by both parties ("Extended Term"). The extended term shall commence
automatically, with no further action or amendment to this Agreement required,
unless, with or without cause, and upon no less than thirty (30) days' written notice to
Consultant ("notice of non -renewal"), City notifies Consultant that this Agreement
shall expire prior to the commencement of the applicable extended term.
4. COORDINATION OF WORK.
4.1 Representative of Contracting Party. The following principals of
Contracting Party ("Principals") are hereby designated as being the principals and
representatives of Contracting Party authorized to act in its behalf with respect to the
Services specified herein and make all decisions in connection therewith:
(a) Mike Tomlinson
E-mail: miketomlinsonfloorin @gmail,com
(b) Michael Balian
E-mail: carpetempireplus@gmail.com
(c) Chip Ray
E-mail: carpetempireplus@gmail.com
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 Contracting Party and
devoting sufficient time to personally supervise the Services hereunder. For purposes
of this Agreement, the foregoing Principals may not be changed by Contracting Party
and no other personnel may be assigned to perform the Services required hereunder
without the express written approval of City.
4.2 Contract Officer. The "Contract Officer" shall be Alfred Beruman or such
other person as may be designated in writing by the Facilities Director of City. It shall
be Contracting Party's responsibility to assure that the Contract Officer is kept
informed of the progress of the performance of the Services, and Contracting Party
shall refer any decisions, that 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. The Contract Officer shall have authority to sign all
documents on behalf of City required hereunder to carry out the terms of this
Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The experience,
knowledge, capability, and reputation of Contracting Party, its principals, and its
employees were a substantial inducement for City to enter into this Agreement.
Except as set forth in this Agreement, Contracting Party shall not contract or
subcontract with any other entity to perform in whole or in part the Services required
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hereunder without the express written approval of City. In addition, neither this
Agreement nor any interest herein may be transferred, assigned, conveyed,
hypothecated, or encumbered, voluntarily or by operation of law, without the prior
written approval of City. Transfers restricted hereunder shall include the transfer to
any person or group of persons acting in concert of more than twenty five percent
(25%) of the present ownership and/or control of Contracting Party, taking all
transfers into account on a cumulative basis. Any attempted or purported assignment
or contracting or subcontracting by Contracting Party without City's express written
approval shall be null, void, and of no effect. No approved transfer shall release
Contracting Party of any liability hereunder without the express consent of City.
4.4 Independent Contractor. Neither City nor any of its employees shall
have any control over the manner, mode, or means by which Contracting Party, its
agents, or its employees, perform the Services required herein, except as otherwise set
forth herein. City shall have no voice in the selection, discharge, supervision, or control
of Contracting Party's employees, servants, representatives, or agents, or in fixing their
number or hours of service. Contracting Party 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. Contracting Party 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. City shall not in any way
or for any purpose become or be deemed to be a partner of Contracting Party in its
business or otherwise or a joint venture or a member of any joint enterprise with
Contracting Party. Contracting Party shall have no power to incur any debt, obligation,
or liability on behalf of City. Contracting Party 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.
Except for the Contract Sum paid to Contracting Party as provided in this Agreement,
City shall not pay salaries, wages, or other compensation to Contracting Party for
performing the Services hereunder for City. City shall not be liable for compensation
or indemnification to Contracting Party for injury or sickness arising out of performing
the Services hereunder. Notwithstanding any other City, state, or federal policy, rule,
regulation, law, or ordinance to the contrary, Contracting Party and any of its
employees, agents, and subcontractors providing services under this Agreement shall
not qualify for or become entitled to any compensation, benefit, or any incident of
employment by City, including but not limited to eligibility to enroll in the California
Public Employees Retirement System ("PERS") as an employee of City and entitlement
to any contribution to be paid by City for employer contributions and/or employee
contributions for PERS benefits. Contracting Party agrees to pay all required taxes on
amounts paid to Contracting Party 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. Contracting Party shall fully comply with the workers' compensation laws
regarding Contracting Party and Contracting Party's employees. Contracting Party
further agrees to indemnify and hold City harmless from any failure of Contracting
Party to comply with applicable workers' compensation laws. City shall have the right
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to offset against the amount of any payment due to Contracting Party under this
Agreement any amount due to City from Contracting Party as a result of Contracting
Party's failure to promptly pay to City any reimbursement or indemnification arising
under this Section.
4.5 Identity of Persons Performing Work. Contracting Party represents that it
employs or will employ at its own expense all personnel required for the satisfactory
performance of any and all of the Services set forth herein. Contracting Party
represents that the Services required herein will be performed by Contracting Party or
under its direct supervision, and that all personnel engaged in such work shall be fully
qualified and shall be authorized and permitted under applicable State and local law
to perform such tasks and services.
4.6 City Cooperation. City shall provide Contracting Party with any plans,
publications, reports, statistics, records, or other data or information pertinent to the
Services to be performed hereunder which are reasonably available to Contracting
Party only from or through action by City.
5. INSURANCE.
5.1 Insurance. Prior to the beginning of any Services under this Agreement
and throughout the duration of the term of this Agreement, Contracting Party shall
procure and maintain, at its sole cost and expense, and submit concurrently with its
execution of this Agreement, policies of insurance as set forth in "Exhibit E" (the
"Insurance Requirements") which is incorporated herein by this reference and
expressly made a part hereof.
5.2 Proof of Insurance. Contracting Party shall provide Certificate of
Insurance to Agency along with all required endorsements. Certificate of Insurance
and endorsements must be approved by Agency's Risk Manager prior to
commencement of performance.
6. INDEMNIFICATION.
6.1 I_ndemnification. To the fullest extent permitted by law, Contracting
Party shall indemnify, protect, defend (with counsel selected by City), and hold
harmless City and any and all of its officers, employees, agents, and volunteers as set
forth in "Exhibit F" ("Indemnification") which is incorporated herein by this reference
and expressly made a part hereof.
7. RECORDS AND REPORTS.
7.1 Reports. Contracting Party shall periodically prepare and submit to the
Contract Officer such reports concerning Contracting Party's performance of the
Services required by this Agreement as the Contract Officer shall require. Contracting
Party hereby acknowledges that City is greatly concerned about the cost of the
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Services to be performed pursuant to this Agreement. For this reason, Contracting
Party agrees that if Contracting Party becomes aware of any facts, circumstances,
techniques, or events that may or will materially increase or decrease the cost of the
Services contemplated herein or, if Contracting Party is providing design services, the
cost of the project being designed, Contracting Party shall promptly notify the
Contract Officer of said fact, circumstance, technique, or event and the estimated
increased or decreased cost related thereto and, if Contracting Party is providing
design services, the estimated increased or decreased cost estimate for the project
being designed.
7.2 Records. Contracting Party shall keep, and require any subcontractors to
keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports
(including but not limited to payroll reports), studies, or other documents relating to
the disbursements charged to City and the Services performed hereunder (the "Books
and Records"), as shall be necessary to perform the Services required by this
Agreement and enable the Contract Officer to evaluate the performance of such
Services. Any and all such Books and Records shall be maintained in accordance with
generally accepted accounting principles and shall be complete and detailed. The
Contract Officer shall have full and free access to such Books and Records at all times
during normal business hours of City, including the right to inspect, copy, audit, and
make records and transcripts from such Books and Records. Such Books and Records
shall be maintained for a period of three (3) years following completion of the Services
hereunder, and City shall have access to such Books and Records in the event any
audit is required. In the event of dissolution of Contracting Party's business, custody
of the Books and Records may be given to City, and access shall be provided by
Contracting Party's successor in interest. Under California Government Code
Section 8546.7, if the amount of public funds expended under this Agreement exceeds
Ten Thousand Dollars ($10,000.00), this Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any
audit of City, for a period of three (3) years after final payment under this Agreement.
7.3 Ownership of Documents. All drawings, specifications, maps, designs,
photographs, studies, surveys, data, notes, computer files, reports, records,
documents, and other materials plans, drawings, estimates, test data, survey results,
models, renderings, and other documents or works of authorship fixed in any tangible
medium of expression, including but not limited to, physical drawings, digital
renderings, or data stored digitally, magnetically, or in any other medium prepared or
caused to be prepared by Contracting Party, its employees, subcontractors, and
agents in the performance of this Agreement (the "Documents and Materials") shall
be the property of City and shall be delivered to City upon request of the Contract
Officer or upon the expiration or termination of this Agreement, and Contracting Party
shall have no claim for further employment or additional compensation as a result of
the exercise by City of its full rights of ownership use, reuse, or assignment of the
Documents and Materials hereunder. Any use, reuse or assignment of such
completed Documents and Materials for other projects and/or use of uncompleted
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documents without specific written authorization by Contracting Party will be at City's
sole risk and without liability to Contracting Party, and Contracting Party's guarantee
and warranties shall not extend to such use, revise, or assignment. Contracting Party
may retain copies of such Documents and Materials for its own use. Contracting Party
shall have an unrestricted right to use the concepts embodied therein. All
subcontractors shall provide for assignment to City of any Documents and Materials
prepared by them, and in the event Contracting Party fails to secure such assignment,
Contracting Party shall indemnify City for all damages resulting therefrom.
7.4 In the event City or any person, firm, or corporation authorized by City
reuses said Documents and Materials without written verification or adaptation by
Contracting Party 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 Contracting Party from liability resulting from said change.
The provisions of this clause shall survive the termination or expiration of this
Agreement and shall thereafter remain in full force and effect.
7.5 Licensing of Intellectual Property. This Agreement creates a non-
exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any
and all copyrights, designs, rights of reproduction, and other intellectual property
embodied in the Documents and Materials. Contracting Party shall require all
subcontractors, if any, to agree in writing that City is granted a non-exclusive and
perpetual license for the Documents and Materials the subcontractor prepares under
this Agreement. Contracting Party represents and warrants that Contracting Party has
the legal right to license any and all of the Documents and Materials. Contracting
Party makes no such representation and warranty in regard to the Documents and
Materials which were prepared by design professionals other than Contracting Party or
provided to Contracting Party by City. City shall not be limited in any way in its use of
the Documents and Materials at any time, provided that any such use not within the
purposes intended by this Agreement shall be at City's sole risk.
7.6 Release of Documents. The Documents and Materials shall not be
released publicly without the prior written approval of the Contract Officer or as
required by law. Contracting Party 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.
7.7 Confidential or Personal Ident �irjg information. Contracting Party
covenants that all City data, data lists, trade secrets, documents with personal
identifying information, documents that are not public records, draft documents,
discussion notes, or other information, if any, developed or received by Contracting
Party or provided for performance of this Agreement are deemed confidential and
shall not be disclosed by Contracting Party to any person or entity without prior
written authorization by City or unless required by law. City shall grant authorization
for disclosure if required by any lawful administrative or legal proceeding, court order,
or similar directive with the force of law. All City data, data lists, trade secrets,
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documents with personal identifying information, documents that are not public
records, draft documents, discussions, or other information shall be returned to City
upon the termination or expiration of this Agreement. Contracting Party's covenant
under this section shall survive the termination or expiration of this Agreement.
8. ENFORCEMENT OF AGREEMENT.
8.1 California Law. This Agreement shall be interpreted, construed, and
governed both as to validity and to performance of the parties in accordance with the
laws of the State of 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 Contracting Party covenants and agrees to submit to the personal
jurisdiction of such court in the event of such action.
8.2 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, or 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 this Article 8. During the
period of time that Contracting Party is in default, City shall hold all invoices and shall,
when the default is cured, proceed with payment on the invoices. In the alternative,
City may, in its sole discretion, elect to pay some or all of the outstanding invoices
during any period of default.
8.3 Retention of Funds. City may withhold from any monies payable to
Contracting Party sufficient funds to compensate City for any losses, costs, liabilities,
or damages it reasonably believes were suffered by City due to the default of
Contracting Party in the performance of the Services required by this Agreement.
8.4 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 Contracting Party 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 Contracting Party. 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.
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8.5 Bights 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.
8.6 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 declaratory or injunctive relief, or to obtain any other remedy consistent with
the purposes of this Agreement.
8.7 Termination Prior To Expiration Of Term. This Section shall govern any
termination of this Agreement, except as specifically provided in the following Section
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 Contracting Party.
Upon receipt of any notice of termination, Contracting Party shall immediately cease
all Services hereunder except such as may be specifically approved by the Contract
Officer. Contracting Party shall be entitled to compensation for all Services rendered
prior to receipt of the notice of termination and 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 amounts held as a retention
pursuant to this Agreement.
8.8 Termination for Default of Contracting Party. If termination is due to the
failure of Contracting Party to fulfill its obligations under this Agreement, Contracting
Party shall vacate any City -owned property which Contracting Party is permitted to
occupy hereunder and City may, after compliance with the provisions of Section 8.2,
take over the Services and prosecute the same to completion by contract or otherwise,
and Contracting Party 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 Contracting Party for the purpose of setoff or partial
payment of the amounts owed City.
8.9 Attorneys' Fees. If either party to this Agreement is required to initiate
or defend or made a party to any action or proceeding in any way connected with this
Agreement, the prevailing party in such action or proceeding, in addition to any other
relief which may be granted, whether legal or equitable, shall be entitled to
reasonable attorneys' fees; provided, however, that the attorneys' fees awarded
pursuant to this Section shall not exceed the hourly rate paid by City for legal services
multiplied by the reasonable number of hours spent by the prevailing party in the
conduct of the litigation. Attorneys' fees shall include attorneys' fees on any appeal,
and in addition a party entitled to attorneys' fees shall be entitled to all other
reasonable costs for investigating such action, taking depositions and discovery, and
698/015610-0002-
11222891.1 a08/31/17
all other necessary costs the court allows which are incurred in such litigation. All
such fees shall be deemed to have accrued on commencement of such action and
shall be enforceable whether or not such action is prosecuted to judgment. The court
may set such fees in the same action or in a separate action brought for that purpose.
9. CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
9.1 Non -liability of City Officers and Employees. No officer, official,
employee, agent, representative, or volunteer of City shall be personally liable to
Contracting Party, or any successor in interest, in the event or any default or breach by
City or for any amount which may become due to Contracting Party or to its successor,
or for breach of any obligation of the terms of this Agreement.
9.2 Conflict of Interest. Contracting Party covenants that neither it, nor any
officer or principal of it, has or shall acquire any interest, directly or indirectly, which
would conflict in any manner with the interests of City or which would in any way
hinder Contracting Party's performance of the Services under this Agreement.
Contracting Party further covenants that in the performance of this Agreement, no
person having any such interest shall be employed by it as an officer, employee,
agent, or subcontractor without the express written consent of the Contract Officer.
Contracting Party agrees to at all times avoid conflicts of interest or the appearance of
any conflicts of interest with the interests of City in the performance of this
Agreement.
No officer or employee of City shall have any financial interest, direct or
indirect, in this Agreement nor shall any such officer or employee participate in any
decision relating to this Agreement which effects his financial interest or the financial
interest of any corporation, partnership or association in which he is, directly or
indirectly, interested, in violation of any State statute or regulation. Contracting Party
warrants that it has not paid or given and will not pay or give any third party any
money or other consideration for obtaining this Agreement.
9.3 Covenant against Discrimination. Contracting Party 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 any impermissible classification including, but not
limited to, race, color, creed, religion, sex, marital status, sexual orientation, national
origin, or ancestry in the performance of this Agreement. Contracting Party 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, sexual orientation, national origin, or ancestry.
10. MISCELLANEOUS PROVISIONS.
10.1 Notice. Any notice, demand, request, consent, approval, or
communication either party desires or is required to give the other party or any other
698/015610-0002
11222891.1 a08/31/17 -1 2-
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.
To City:
CITY OF LA QUINTA
Attention: Steve Howlett
Facilities Director
78-495 Calle Tampico
La Quinta, California 92253
To Contracting Party:
CARPET EMPIRE PLUS
Attention: Michael Balian
68307-E. Palm Canyon Drive
10.2 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of this Agreement or any other rule of
construction which might otherwise apply.
10.3 Section Headings and Subheadincis. The section headings and
subheadings contained in this Agreement are included for convenience only and shall
not limit or otherwise affect the terms of this Agreement.
10.4 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, and such counterparts shall constitute one
and the same instrument
10.5 Integrated Agreement. This Agreement including the exhibits hereto is
the entire, complete, and exclusive expression of the understanding of the parties. It
is understood that there are no oral agreements between the parties hereto affecting
this Agreement and this Agreement supersedes and cancels any and all previous
negotiations, arrangements, agreements, and understandings, if any, between the
parties, and none shall be used to interpret this Agreement.
10.6 Amendment. No amendment to or modification of this Agreement shall
be valid unless made in writing and approved by Contracting Party and by the City
Council of City. The parties agree that this requirement for written modifications
cannot be waived and that any attempted waiver shall be void.
10.7 Severability. In the event that any one or more of the articles, phrases,
sentences, clauses, paragraphs, or sections contained in this Agreement shall be
declared invalid or unenforceable, such invalidity or unenforceability shall not affect
any of the remaining articles, 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 unless the invalid provision is so material
698/015610-0002
11222891.1 a08/31/17 -1 3-
that its invalidity deprives either party of the basic benefit of their bargain or renders
this Agreement meaningless.
10.8 Unfair Business Practices Claims. In entering into this Agreement,
Contracting Party offers and agrees to assign to City all rights, title, and interest in and
to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15)
or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of
Division 7 of the Business and Professions Code), arising from purchases of goods,
services, or materials related to this Agreement. This assignment shall be made and
become effective at the time City renders final payment to Contracting Party without
further acknowledgment of the parties.
10.9 No Third Party Beneficiaries. With the exception of the specific provisions
set forth in this Agreement, there are no intended third -party beneficiaries under this
Agreement and no such other third parties shall have any rights or obligations
hereunder.
10.10 Authoritv. The persons executing this Agreement on behalf of each of
the parties hereto represent and warrant that (i) such party is duly organized and
existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf
of said party, (iii) by so executing this Agreement, such party is formally bound to the
provisions of this Agreement, and (iv) that entering into this Agreement does not
violate any provision of any other Agreement to which said party is bound. This
Agreement shall be binding upon the heirs, executors, administrators, successors, and
assigns of the parties.
[SIGNATURES ON FOLLOWING PAGE]
698/015610-0002
11222891 1 a08/31 /17 - 1 4-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
stated below.
CITY OF LA QUINTA,
a California Municipal Corporation
Digitally signed by Frank Spevacek
DN: serialNunnber=3fffgcd7gnjs38w1,
c=US, st=California, I=La Quinta, o=Frank
J. Spevacek, cn=Frank Spevacek
Date: 2017.09.01 15:03:08-07'00'
FRANK J. SPEVACEK, City Manager
Dated:
ATTEST:
SUSAN MAYSELS, City Clerk
La Quinta, California
APPROVED AS TO FORM:
WILLIA H. IHRKE, Cif Attorr+ey
City of La Quinta, California
CONTRACTING PARTY:
By: Chip Rov.
Name:.
Title: —Manager
By:
Name:
Title:
698/015610-0002
11222891.1 a08l31I17 5'
Exhibit A
Scope of Services
1. Services to be Provided: Removal of existing carpet, skim coat in the area
depicted below and installation of Kraus Dimension Sandscript 20" x 20"
carpet squares.
Project No. 2017-13 City Hall Art Gallery Carpet
2. Performance Standards:
Work is to be performed in a professional manner to with quality commercial
grade products.
Exhibit A
698/015610-0002
11222891.1 a08/31/17 Page 1 of 5 Last revised summer 2017
ADDENDUM TO AGREEMENT
Re: Scope of Services
If the Scope of Services includes construction, alteration, demolition,
installation, repair, or maintenance affecting real property or structures or
improvements of any kind appurtenant to real property, the following apply:
1. Prevailing Wage Compliance. If Contracting Party is a contractor
performing public works and maintenance projects, as described in this Section 1.3,
Contracting Party shall comply with applicable Federal, State, and local laws.
Contracting Party is aware of the requirements of California Labor Code Sections 1720,
et seq., and 1770, et seq., as well as California Code of Regulations, Title 8,
Sections 16000, et seq., (collectively, the "Prevailing Wage Laws"), and La Quinta
Municipal Code Section 3.12.040, which require the payment of prevailing wage rates
and the performance of other requirements on "Public works" and "Maintenance"
projects. If the Services are being performed as part of an applicable "Public works" or
"Maintenance" project, as defined by the Prevailing Wage Laws, and if construction
work over twenty-five thousand dollars ($25,000.00) and/or alterations, demolition,
repair or maintenance work over fifteen thousand dollars ($15,000.00) is entered into
or extended on or after January 1, 2015 by this Agreement„ Contracting Party agrees
to fully comply with such Prevailing Wage Laws including, but not limited to,
requirements related to the maintenance of payroll records and the employment of
apprentices. Pursuant to California Labor Code Section 1725.5, no contractor or
subcontractor may be awarded a contract for public work on a "Public works" project
unless registered with the California Department of Industrial Relations ("DIR") at the
time the contract is awarded. If the Services are being performed as part of an
applicable "Public works" or "Maintenance" project, as defined by the Prevailing Wage
Laws, this project is subject to compliance monitoring and enforcement by the DIR.
Contracting Party will maintain and will require all subcontractors to maintain valid
and current DIR Public Works contractor registration during the term of this
Agreement. Contracting Party shall notify City in writing immediately, and in no case
more than twenty-four (24) hours, after receiving any information that Contracting
Party's or any of its subcontractor's DIR registration status has been suspended,
revoked, expired, or otherwise changed. It is understood that it is the responsibility of
Contracting Party to determine the correct salary scale. Contracting Party shall make
copies of the prevailing rates of per diem wages for each craft, classification, or type of
worker needed to execute the Services available to interested parties upon request,
and shall post copies at Contracting Party's principal place of business and at the
project site, if any. The statutory penalties for failure to pay prevailing wage or to
comply with State wage and hour laws will be enforced. Contracting Party must
forfeit to City TWENTY FIVE DOLLARS ($25.00) per day for each worker who works in
excess of the minimum working hours when Contracting Party does not pay overtime.
In accordance with the provisions of Labor Code Sections 1810 et seq., eight (8) hours
is the legal working day. Contracting Party also shall comply with State law
requirements to maintain payroll records and shall provide for certified records and
Exhibit A
698/015610-0002
11222891 1 a08/31/17 Page 2 of 5
inspection of records as required by California Labor Code Section 1770 et seq.,
including Section 1776. In addition to the other indemnities provided under this
Agreement, Contracting Party shall defend (with counsel selected by City), indemnify,
and hold City, its elected officials, officers, employees, and agents free and harmless
from any claim or liability arising out of any failure or alleged failure to comply with
the Prevailing Wage Laws. It is agreed by the parties that, in connection with
performance of the Services, including, without limitation, any and all "Public works"
(as defined by the Prevailing Wage Laws), Contracting Party shall bear all risks of
payment or non-payment of prevailing wages under California law and/or the
implementation of Labor Code Section 1781, as the same may be amended from time
to time, and/or any other similar law. Contracting Party acknowledges and agrees
that it shall be independently responsible for reviewing the applicable laws and
regulations and effectuating compliance with such laws. Contracting Party shall
require the same of all subcontractors.
2. Retention. Payments shall be made in accordance with the provisions of
Article 2.0 of the Agreement. In accordance with said Sections, City shall pay
Contracting Party a sum based upon ninety-five percent (95%) of the Contract Sum
apportionment of the labor and materials incorporated into the Services under this
Agreement during the month covered by said invoice. The remaining five percent
(5%) thereof shall be retained as performance security to be paid to Contracting Party
within sixty (60) days after final acceptance of the Services by the City Council of City,
after Contracting Party has furnished City with a full release of all undisputed
payments under this Agreement, if required by City. In the event there are any claims
specifically excluded by Contracting Party from the operation of the release, City may
retain proceeds (per Public Contract Code § 7107) of up to one hundred fifty percent
(150%) of the amount in dispute. City's failure to deduct or withhold shall not affect
Contracting Party's obligations under the Agreement.
3. Utility Relocation. City is responsible for removal, relocation, or
protection of existing main or trunkline utilities to the extent such utilities were not
identified in the invitation for bids or specifications. City shall reimburse Contracting
Party for any costs incurred in locating, repairing damage not caused by Contracting
Party, and removing or relocating such unidentified utility facilities. Contracting Party
shall not be assessed liquidated damages for delay arising from the removal or
relocation of such unidentified utility facilities.
4. Trenches or Excavations. Pursuant to California Public Contract Code
Section 7104, in the event the work included in this Agreement requires excavations
more than four (4) feet in depth, the following shall apply:
(a) Contracting Party shall promptly, and before the following
conditions are disturbed, notify City, in writing, of any: (1) material that Contracting
Party believes may be material that is hazardous waste, as defined in Section 25117 of
the Health and Safety Code, that is required to be removed to a Class I, Class II, or
Exhibit A
698/015610-0002 Page 3 Of 5
11222891.1 a08/31/17 g
Class III disposal site in accordance with provisions of existing law; (2) subsurface or
latent physical conditions at the site different from those indicated by information
about the site made available to bidders prior to the deadline for submitting bids; or
(3) unknown physical conditions at the site of any unusual nature, different materially
from those ordinarily encountered and generally recognized as inherent in work of the
character provided for in the Agreement.
(b) City shall promptly investigate the conditions, and if it finds that
the conditions do materially so differ, or do involve hazardous waste, and cause a
decrease or increase in Contracting Party's cost of, or the time required for,
performance of any part of the work shall issue a change order per Section 1.8 of the
Agreement.
(c) in the event that a dispute arises between City and Contracting
Party whether the conditions materially differ, or involve hazardous waste, or cause a
decrease or increase in Contracting Party's cost of, or time required for, performance
of any part of the work, Contracting Party shall not be excused from any scheduled
completion date provided for by this Agreement, but shall proceed with all work to be
performed under this Agreement. Contracting Party shall retain any and all rights
provided either by contract or by law which pertain to the resolution of disputes and
protests between the contracting Parties.
5. Safety. Contracting Party shall execute and maintain its work so as to
avoid injury or damage to any person or property. In carrying out the Services,
Contracting Party shall at all times be in compliance with all applicable local, state,
and federal laws, rules and regulations, and shall exercise all necessary precautions
for the safety of employees appropriate to the nature of the work and the conditions
under which the work is to be performed. Safety precautions as applicable shall
include, but shall not be limited to: (A) adequate life protection and lifesaving
equipment and procedures; (B) instructions in accident prevention for all employees
and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges,
gang planks, confined space procedures, trenching and shoring, equipment and other
safety devices, equipment and wearing apparel as are necessary or lawfully required
to prevent accidents or injuries; and (C) adequate facilities for the proper inspection
and maintenance of all safety measures.
6. Liquidated Damages. Since the determination of actual damages for any
delay in performance of the Agreement would be extremely difficult or impractical to
determine in the event of a breach of this Agreement, Contracting Party shall be liable
for and shall pay to City the sum of One Thousand dollars ($1,000.00) as liquidated
damages for each working day of delay in the performance of any of the Services
required hereunder, as specified in the Schedule of Performance. In addition,
liquidated damages may be assessed for failure to comply with the emergency call
out requirements, if any, described in the Scope of Services. City may withhold from
Exhibit A
698/015610-0002
11222891.1 a08/31/17 Page 4 of 5
any moneys payable on account of the Services performed by Contracting Party any
accrued liquidated damages.
Exhibit A
698/015610-0002 Page 5 of 5
11222891.1 a08/31/17 g
Exhibit B
Schedule of Compensation
With the exception of compensation for Additional Services, provided for in
Section 2.3 of this Agreement, the maximum total compensation to be paid to
Contracting Party under this Agreement is eighteen thousand, three hundred and
forty six dollars ($18,346) ("Contract Sum"). The Contract Sum shall be paid to
Contracting Party in two installments in an amount identified in Contracting Party's
schedule of compensation attached hereto for the work tasks performed and properly
invoiced by Contracting Party in conformance with Section 2.2 of this Agreement.
Installment one: 50% down ($9,173)
Installment two: Balance due on completion of carpet installation ($9,173)
Exhibit B
698/015610-0002 Page 1 of 1
11222891.1 a08/31/17 g
Exhibit C
Schedule of Performance
Contracting Party shall complete all services identified in the Scope of Services,
Exhibit A of this Agreement, in accordance with the Project Schedule below:
Work to be performed may begin on Friday, September 15, at 8:00 a.m. with carpet
removal and floor prep in the Study Session room. Work can continue into the Art
Gallery provided there are no fumes. After 5:00 p.m., work may begin in the main
lobby. The remainder of the work will be done and completed September 16 -17.
Exhibit C
698/015610-0002
11222891.1 a08/31/17 Page 1 of 1
Exhibit D
Special Requirements
None
Exhibit D
698/015610-0002 Page 1 of 1
11222891.1 a08/31/17 g
Exhibit E
Insurance Requirements
E.1 Insurance. Prior to the beginning of and throughout the duration of this
Agreement, the following policies shall be maintained and kept in full force and effect
providing insurance with minimum limits as indicated below and issued by insurers
with A.M. Best ratings of no less than A -VI:
Commercial General Liability (at least as broad as ISO CG 0001)
$1,000,000 (per occurrence)
$2,000,000 (general aggregate)
Must include the following endorsements:
General Liability Additional Insured
General Liability Primary and Noncontributory
Commercial Auto Liability (at least as broad as ISO CA 0001)
$1,000,000 (per accident)
Personal Auto Declaration Page if applicable
Errors and Omissions Liability
$1,000,000 (per claim and aggregate)
Workers' Compensation
(per statutory requirements)
Must include the following endorsements:
Workers Compensation Waiver of Subrogation
Workers Compensation Declaration of Sole Proprietor if applicable
Contracting Party shall procure and maintain, at its cost, and submit
concurrently with its execution of this Agreement, Commercial General Liability
insurance against all claims for injuries against persons or damages to property
resulting from Contracting Party's acts or omissions rising out of or related to
Contracting Party's performance under this Agreement. The insurance policy shall
contain a severability of interest clause providing that the coverage shall be primary
for losses arising out of Contracting Party's performance hereunder and neither City
nor its insurers shall be required to contribute to any such loss. An endorsement
evidencing the foregoing and naming the City and its officers and employees as
additional insured (on the Commercial General Liability policy only) must be submitted
concurrently with the execution of this Agreement and approved by City prior to
commencement of the services hereunder.
Contracting Party shall carry automobile liability insurance of $1,000,000
per accident against all claims for injuries against persons or damages to property
arising out of the use of any automobile by Contracting Party, its officers, any person
directly or indirectly employed by Contracting Party, any subcontractor or agent, or
Exhibit E
698/015610-0002
11222891.1 a08/31/17 Page 1 of 6
anyone for whose acts any of them may be liable, arising directly or indirectly out of or
related to Contracting Party's performance under this Agreement. If Contracting Party
or Contracting Party's employees will use personal autos in any way on this project,
Contracting Party shall provide evidence of personal auto liability coverage for each
such person. The term "automobile" includes, but is not limited to, a land motor
vehicle, trailer or semi -trailer designed for travel on public roads. The automobile
insurance policy shall contain a severability of interest clause providing that coverage
shall be primary for losses arising out of Contracting Party's performance hereunder
and neither City nor its insurers shall be required to contribute to such loss.
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 Contracting Party 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 include a
provision establishing the insurer's duty to defend. The policy retroactive date shall be
on or before the effective date of this agreement.
Contracting Party shall carry Workers' Compensation Insurance in
accordance with State Worker's Compensation laws with employer's liability limits no
less than $1,000,000 per accident or disease.
Contracting Party shall provide written notice to City within ten
(10) working days if. (1) any of the required insurance policies is terminated; (2) the
limits of any of the required polices are reduced; or (3) the deductible or self -insured
retention is increased. In the event any of said policies of insurance are cancelled,
Contracting Party shall, prior to the cancellation date, submit new evidence of
insurance in conformance with this Exhibit to the Contract Officer. The procuring of
such insurance or the delivery of policies or certificates evidencing the same shall not
be construed as a limitation of Contracting Party's obligation to indemnify City, its
officers, employees, contractors, subcontractors, or agents.
E.2 Remedies. In addition to any other remedies City may have if Contracting
Party 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 Contracting Party to stop work under this Agreement and/or
withhold any payment(s) which become due to Contracting Party hereunder until
Contracting Party demonstrates compliance with the requirements hereof.
C. Terminate this Agreement.
Exhibit E
698/015610-0002
11222891.1 a08/31/17 Page 2 of 6
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
Contracting Party'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 Contracting Party may be held responsible for payments of damages to persons
or property resulting from Contracting Party's or its subcontractors' performance of
work under this Agreement.
E.3 General Conditions Pertaining to Provisions of Insurance Coverage by
Contracting Party. Contracting Party and City agree to the following with respect to
insurance provided by Contracting Party:
1. Contracting Party agrees to have its insurer endorse the third party
general liability coverage required herein to include as additional insureds City, its
officials, employees, and agents, using standard ISO endorsement No. CG 2010 with
an edition prior to 1992. Contracting Party also agrees to require all contractors, and
subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement
shall prohibit Contracting Party, or Contracting Party's employees, or agents, from
waiving the right of subrogation prior to a loss. Contracting Party agrees to waive
subrogation rights against City regardless of the applicability of any insurance
proceeds, and to require all contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contracting Party and
available or applicable to this Agreement are intended to apply to the full extent of
the policies. Nothing contained in this Agreement or any other agreement relating to
City or its operations limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been
first submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that would
serve to eliminate so-called "third party action over" claims, including any exclusion
for bodily injury to an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval,
modification and additional requirements by the City, as the need arises. Contracting
Party shall not make any reductions in scope of coverage (e.g. elimination of
contractual liability or reduction of discovery period) that may affect City's protection
without City's prior written consent.
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all of the coverages required and an additional
insured endorsement to Contracting Party's general liability policy, shall be delivered
Exhibit E
698/015610-0002
11222891.1 a08/31/17 Page 3 of 6
to City at or prior to the execution of this Agreement. In the event such proof of any
insurance is not delivered as required, or in the event such insurance is canceled at
any time and no replacement coverage is provided, City has the right, but not the
duty, to obtain any insurance it deems necessary to protect its interests under this or
any other agreement and to pay the premium. Any premium so paid by City shall be
charged to and promptly paid by Contracting Party or deducted from sums due
Contracting Party, at City option.
8. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Contracting Party or any subcontractor, is
intended to apply first and on a primary, non-contributing basis in relation to any
other insurance or self-insurance available to City.
9. Contracting Party agrees to ensure that subcontractors, and any other
party involved with the project that is brought onto or involved in the project by
Contracting Party, provide the same minimum insurance coverage required of
Contracting Party. Contracting Party agrees to monitor and review all such coverage
and assumes all responsibility for ensuring that such coverage is provided in
conformity with the requirements of this section. Contracting Party agrees that upon
request, all agreements with subcontractors and others engaged in the project will be
submitted to City for review.
10. Contracting Party agrees not to self -insure or to use any self -insured
retentions or deductibles on any portion of the insurance required herein (with the
exception of professional liability coverage, if required) and further agrees that it will
not allow any contractor, subcontractor, Architect, Engineer or other entity or person
in any way involved in the performance of work on the project contemplated by this
agreement to self -insure its obligations to City. If Contracting Party's existing
coverage includes a deductible or self -insured retention, the deductible or self -insured
retention must be declared to the City. At that time the City shall review options with
the Contracting Party, which may include reduction or elimination of the deductible or
self -insured retention, substitution of other coverage, or other solutions.
11. The City reserves the right at any time during the term of this Agreement
to change the amounts and types of insurance required by giving the Contracting
Party ninety (90) days advance written notice of such change. If such change results
in substantial additional cost to the Contracting Party, the City will negotiate
additional compensation proportional to the increased benefit to City.
12. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any steps
that can be deemed to be in furtherance of or towards performance of this
Agreement.
13. Contracting Party acknowledges and agrees that any actual or alleged
failure on the part of City to inform Contracting Party of non-compliance with any
Exhibit E
698/015610-0002
11222891.1 a08/31/17 Page 4 of 6
insurance requirement in no way imposes any additional obligations on City nor does
it waive any rights hereunder in this or any other regard.
14. Contracting Party will renew the required coverage annually as long as
City, or its employees or agents face an exposure from operations of any type
pursuant to this agreement. This obligation applies whether or not the agreement is
canceled or terminated for any reason. Termination of this obligation is not effective
until City executes a written statement to that effect.
15. Contracting Party shall provide proof that policies of insurance required
herein expiring during the term of this Agreement have been renewed or replaced
with other policies providing at least the same coverage. Proof that such coverage
has been ordered shall be submitted prior to expiration. A coverage binder or letter
from Contracting Party's insurance agent to this effect is acceptable. A certificate of
insurance and/or additional insured endorsement as required in these specifications
applicable to the renewing or new coverage must be provided to City within five
(5) days of the expiration of coverages.
16. The provisions of any workers' compensation or similar act will not limit
the obligations of Contracting Party under this agreement. Contracting Party
expressly agrees not to use any statutory immunity defenses under such laws with
respect to City, its employees, officials, and agents.
17. Requirements of specific coverage features or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor
as a waiver of any coverage normally provided by any given policy. Specific reference
to a given coverage feature is for purposes of clarification only as it pertains to a given
issue, and is not intended by any party or insured to be limiting or all-inclusive.
18. These insurance requirements are intended to be separate and distinct
from any other provision in this Agreement and are intended by the parties here to be
interpreted as such.
19. The requirements in this Exhibit supersede all other sections and
provisions of this Agreement to the extent that any other section or provision conflicts
with or impairs the provisions of this Exhibit.
20. Contracting Party agrees to be responsible for ensuring that no contract
used by any party involved in any way with the project reserves the right to charge
City or Contracting Party for the cost of additional insurance coverage required by this
agreement. Any such provisions are to be deleted with reference to City. It is not the
intent of City to reimburse any third party for the cost of complying with these
requirements. There shall be no recourse against City for payment of premiums or
other amounts with respect thereto.
Exhibit E
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21. Contracting Party agrees to provide immediate notice to City of any
claim or loss against Contracting Party 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.
Exhibit E
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11222891.1 a08/31/17 Page 6 of 6
Exhibit F
Indemnification
F.1 Indemnity for the Benefit of City.
a. Indemnification for Professional Liability. When the law establishes a
professional standard of care for Contracting Party's Services, to the fullest extent
permitted by law, Contracting Party shall indemnify, protect, defend (with counsel
selected by City), and hold harmless City and any and all of its officials, employees,
and agents ("Indemnified Parties") from and against any and all claims, losses,
liabilities of every kind, nature, and description, damages, injury (including, without
limitation, injury to or death of an employee of Contracting Party or of any
subcontractor), costs and expenses of any kind, whether actual, alleged or threatened,
including, without limitation, incidental and consequential damages, court costs,
attorneys' fees, litigation expenses, and fees of expert consultants or expert witnesses
incurred in connection therewith and costs of investigation, to the extent same are
caused in whole or in part by any negligent or wrongful act, error or omission of
Contracting Party, its officers, agents, employees or subcontractors (or any entity or
individual that Contracting Party shall bear the legal liability thereof) in the
performance of professional services under this agreement. With respect to the
design of public improvements, the Contracting Party 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 A without the written consent of the Contracting Party.
b. Indemnification for Other Than Professional Liability. Other than in
the performance of professional services and to the full extent permitted by law,
Contracting Party shall indemnify, defend (with counsel selected by City), and hold
harmless the Indemnified Parties from and against any liability (including liability for
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,
court costs, attorneys' fees, litigation expenses, and fees of expert consultants or
expert witnesses) incurred in connection therewith and costs of investigation, where
the same arise out of, are a consequence of, or are in any way attributable to, in whole
or in part, the performance of this Agreement by Contracting Party or by any individual
or entity for which Contracting Party is legally liable, including but not limited to
officers, agents, employees, or subcontractors of Contracting Party.
C. Indemnity Provisions for Contracts Related to Construction (Limitation
on Indemnity). Without affecting the rights of City under any provision of this
agreement, Contracting Party shall not be required to indemnify and hold harmless
City for liability attributable to the active negligence of City, provided such active
negligence is determined by agreement between the parties or by the findings of a
court of competent jurisdiction. In instances where City is shown to have been
actively negligent and where City's active negligence accounts for only a percentage
Exhibit F
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11222891.1 a08/31/17 9
of the liability involved, the obligation of Contracting Party will be for that entire
portion or percentage of liability not attributable to the active negligence of City.
d. Indemnification Provision for Design Professionals.
1. Applicability of this Section F.1 d . Notwithstanding
Section F.1(a) hereinabove, the following indemnification provision shall apply to a
Contracting Party who constitutes a "design professional" as the term is defined in
paragraph 3 below.
2. Scope of Indemnification. When the law establishes a
professional standard of care for Contracting Party's Services, to the fullest extent
permitted by law, Contracting Party shall indemnify and hold harmless City and any
and all of its officials, employees, and agents ("Indemnified Parties") from and against
any and all losses, liabilities of every kind, nature, and description, damages, injury
(including, without limitation, injury to or death of an employee of Contracting Party or
of any subcontractor), costs and expenses, including, without limitation, incidental
and consequential damages, court costs, reimbursement of attorneys' fees, litigation
expenses, and fees of expert consultants or expert witnesses incurred in connection
therewith and costs of investigation, to the extent same are caused by any negligent
or wrongful act, error or omission of Contracting Party, its officers, agents, employees
or subcontractors (or any entity or individual that Contracting Party shall bear the
legal liability thereof) in the performance of professional services under this
agreement. With respect to the design of public improvements, the Contracting Party
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 A without the written consent
of the Contracting Party..
3. Design Professional Defined. As used in this Section F.1(d), the
term "design professional" shall be limited to licensed architects, registered
professional engineers, licensed professional land surveyors and landscape architects,
all as defined under current law, and as may be amended from time to time by Civil
Code § 2782.8.
F.2 Obligation to Secure Indemnification Provisions. Contracting Party
agrees to obtain executed indemnity agreements with provisions identical to those set
forth herein this Exhibit F, as applicable to the Contracting Party, from each and every
subcontractor or any other person or entity involved by, for, with or on behalf of
Contracting Party in the performance of this Agreement. In the event Contracting
Party fails to obtain such indemnity obligations from others as required herein,
Contracting Party agrees to be fully responsible according to the terms of this Exhibit.
Failure of City to monitor compliance with these requirements imposes no additional
obligations on City and will in no way act as a waiver of any rights hereunder. This
obligations to indemnify and defend City as set forth in this Agreement are binding on
the successors, assigns or heirs of Contracting Party and shall survive the termination
of this Agreement.
Exhibit F
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11222891.1 a08/31/17 g
Exhibit F
698/015610-0002
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