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PW Construction/Museum Expansion 06PROFESSIONAL SERVICES AGREEMENT 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 PW CONSTRUCTION ("Consultant"). The parties hereto agree as follows: 1.0 SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services related to Construction Management for the Museum Expansion, Project No. 2006-10, as specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference (the "services" or "work"). Consultant 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, Consultant 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. Consultant 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, Consultant 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 Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, Consultant shall immediately inform City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the Contract Officer (as defined in Section 4.2 hereof). 1.5 Care of Work. Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work performed by Consultant, 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 Consultant shall not relieve Consultant 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 Consultant. 1.6 Additional Services. In accordance with the terms and conditions of this Agreement, Consultant shall perform services in addition to those specified in the Scope of Services when directed to do so by the Contract Officer, provided that Consultant 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, which are made a part hereof are set forth in Exhibit "D" (the "Special Requirements"). 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, Consultant shall be compensated in accordance with Exhibit "B" (the "Schedule of Compensation") in a total amount not to exceed One Hundred Fifty Seven Thousand Five Hundred Dollars 0157,5001 (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 Consultant'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 Consultant wishes to receive payment, Consultant 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 Consultant specifying that the payment requested is for work performed in accordance with the terms of this Agreement. City will pay Consultant for all expenses stated thereon which are approved by City pursuant to this Agreement no later than the last working day of the month. 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 Maieure. 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 Consultant, 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 Consultant 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. The term of this agreement shall commence on September 19, 2006 and terminate on December 19, 2007 (initial term). This agreement may be extended upon mutual agreement by both parties (extended term). 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 Consultant. The following principals of Consultant are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: a. Paul G. Marshall, Jr., President b. Dan E. Silverman, Senior Director, Project Manager 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 Consultant and devoting sufficient time to personally supervise the services hereunder. The foregoing principals may not be changed by Consultant 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 Thomas P. Genovese or such other person as may be designated by the City Manager of City. It shall be Consultant's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and Consultant 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 Consultant, its principals and employees were a substantial inducement for City to enter into this Agreement. Except as set forth in this Agreement, Consultant shall not contract 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. 4.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth. Consultant 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. Consultant 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. 4.5 City Cooperation. City shall provide Consultant with any plans, publications, reports, statistics, records or other data or information pertinent to services to be performed hereunder which are reasonably available to Consultant only from or through action by City. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. Prior to the beginning of and throughout the duration of the Work performed under this Agreement, Consultant shall procure and maintain, at its cost, and submit concurrently with its execution of this Agreement, personal and public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Consultant's acts or omissions rising out of or related to Consultant'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 Consultant's performance hereunder and neither City nor its insurers shall be required to contribute to any such loss. A certificate evidencing the foregoing and naming City and its officers and employees as additional insured shall be delivered to and approved by City prior to commencement of the services hereunder. The amount of insurance required hereunder shall be determined by the Contract Sum in accordance with the following table: Contract Sum Personal Injury/Property Damage Coverage Less than $50,000 $100,000 per individual; $300,000 per occurrence $50,000 - $300,000 $250,000 per individual; $500,000 per occurrence Over $300,000 $500,000 per individual; $1,000,000 per occurrence Consultant 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 Consultant, its officers, any person directly or indirectly employed by Consultant, any subcontractor or agent, or anyone for whose acts any of them may be liable, arising directly or indirectly out of or related to Consultant's performance under this Agreement. If Consultant or Consultant's employees will use personal autos in any way on this project, Consultant 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 Consultant's performance hereunder and neither City nor its insurers shall be required to contribute to such loss. A certificate evidencing the foregoing and naming City and its officers and employees as additional insured shall be delivered to and approved by City prior to commencement of the services hereunder. Consultant 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. Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the consultant and "Covered Professional Services" as designated in the policy must specifically include work performed under this agreement. The policy limit shall be no less than $1,000,000 per claim and in the aggregate. The policy must "pay on behalf of" the insured and must 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. Insurance procured pursuant to these requirements shall be written by insurers that are admitted carriers in the State of California and with an A.M. Bests rating of "A" or better and a minimum financial size VII. All insurance required by this Section shall be kept in effect during the term of this Agreement and shall not be cancelable without thirty (30) days written notice to City of proposed cancellation. The procuring of such insurance or the delivery of policies or certificates evidencing the same shall not be construed as a limitation of Consultant's obligation to indemnify City, its officers, employees, contractors, subcontractors, or agents. 5.2 Indemnification. a. Indemnification for Professional Liability. When the law establishes a professional standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant 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 losses, liabilities, damages, costs and expenses, including attorney's fees and costs to the extent same are cause in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subconsultants (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this agreement. With respect to the design of public improvements, the Consultant 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 Consultant. b. Indemnification for Other Than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend and hold harmless City, and any and all of its employees, officials and agents 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 attorney's fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise our of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subconsultants of Consultant. C. General Indemnification Provisions. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subconsultant or any other person or entity involved by, for with or on behalf of Consultant in the performance of this agreement. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. 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 obligation to indemnify and defend City as set forth here is binding on the successors, assigns or heirs of Consultant and shall survive the termination of this agreement or this section. d. Indemnity Provisions for Contracts Related to Construction. Without affecting the rights of City under any provision of this agreement, Consultant 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 of the liability involved, the obligation of Consultant will be for that entire portion or percentage of liability not attributable to the active negligence of City. 5.3 Remedies. In addition to any other remedies City may have if Consultant 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 Consultant to stop work under this Agreement and/or withhold any payment(s) which become due to Consultant hereunder until Consultant 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 Consultant'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 Consultant may be held responsible for payments of damages to persons or property resulting from Consultant's or its subcontractors' performance of work under this Agreement. 5.4 General Conditions pertaining to provisions of insurance coverage by Consultant. Consultant and City agree to the following with respect to insurance provided by Consultant: 1. Consultant 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. Consultant also agrees to require all contractors, and subcontractors to do likewise. 2. No liability insurance coverage provided to comply with this Agreement shall prohibit Consultant, or Consultant's employees, or agents, from waiving the right of subrogation prior to a loss. Consultant 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 Contractor 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 the 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. Consultant 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 Consultant's general liability policy, shall be delivered 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 Consultant or deducted from sums due Consultant, at City option. 8. Certificate(s) are to reflect that the insurer will provide thirty (30) days notice to City of any cancellation of coverage. Consultant agrees to require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the certificate. 9. It is acknowledged by the parties of this agreement that all insurance coverage required to be provided by Consultant 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. 10. Consultant agrees to ensure that subcontractors, and any other party involved with the project who is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage required of Consultant. Consultant 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. Consultant agrees that upon request, all agreements with subcontractors and others engaged in the project will be submitted to City for review. 11. Consultant agrees not to self -insure or to use any self -insured retentions or deductibles on any portion of the insurance required herein 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 Consultant'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 Consultant, which may include reduction or elimination of the deductible or self -insured retention, substitution of other coverage, or other solutions. 12. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City will negotiate additional compensation proportional to the increased benefit to City. 13. 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. 14. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any insurance requirement in no way imposes any additional obligations on City nor does it waive any rights hereunder in this or any other regard. 15. Consultant 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. 16. Consultant 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 Consultant'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. 17. The provisions of any workers' compensation or similar act will not limit the obligations of Consultant under this agreement. Consultant expressly agrees not to use any statutory immunity defenses under such laws with respect to City, its employees, officials and agents. 18. 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. 19. 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. 20. The requirements in this Section 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 Section. 21. Consultant 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 Consultant 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. Consultant agrees to provide immediate notice to City of any claim or loss against Consultant 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. 6.0 RECORDS AND REPORTS 6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning Consultant's performance of the services required by this Agreement as the Contract Officer shall require. 6.2 Records. Consultant 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 Consultant, 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 Consultant 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. Consultant shall cause all subcontractors to assign to City any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant 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 Consultant 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 Consultant 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 Consultant 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. Consultant 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. 7.0 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 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 Consultant 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 Consultant sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably believes were suffered by City due to the default of Consultant 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 Consultant 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 Consultant. 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 Consultant. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Consultant 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 as provided in Section 7.3. 7.8 Termination for Default of Consultant. If termination is due to the failure of Consultant 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 Consultant 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 Consultant 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 Consultant, or any successor in interest, in the event or any default or breach by City or for any amount which may become due to Consultant 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. Consultant 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. Consultant 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. Consultant 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. To City: CITY OF LA QUINTA Attention: Thomas P. Genovese City Manager 78-495 Calle Tampico P.O. Box 1504 La Quinta, California 92247-1504 To Consultant: PW Construction, Inc. Attention: Paul G. Marshall, Jr. 1905 E. Route 66, Suite 200 Glendora, CA 91740 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 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. 9.4 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. 9.5 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. 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 ATTEST: Deborah H. Powell, Interim City Clerk APPROVED AS TO FORM: M a_tb;brine Jenson, City Attornef /1' CONSULTANT: 4 �*r%14T/0j P�W, CONSTRUCTION, INC. By: Name: -WUL— E L�ALA P U � {FSAALL, JR-.-- Title: � f rr4ev% Date: Date Exhibit A Scope of Services Project Understanding The City of La Quinta is seeking a firm to provide Professional Construction Management services to support Capital Improvement Project Number 2006-10, the City of La Quinta Museum Expansion. The Construction Manager (CM) shall serve as the Owner's principal agent in providing the services described in the RFP. The Owner shall ultimately enter into a separate contract with one or more Contractors for the construction of the Project. The CM shall endeavor to maintain, on behalf of the Owner, a working relationship with the Contractor(s) and Architect/Designer. It is of greatest importance that the Construction Manager provides the leadership, planning, team -collaboration and negotiating skills to deliver the project on time and within the budget. The CM must continuously be anticipating future barriers and identifying practical solutions to achieve these goals. The City should rely on the CM to ensure that it avoids any unpleasant "surprises", in particular relative to disparities between cost estimates, bids, contracts and change orders. Planning ahead, with a thorough knowledge and commitment to leveraging constructability issues and value engineering opportunities, will be of critical importance in the design phase in particular. We will be sure to avoid the City having to experience the unfortunate, but all too prevalent situation, that owner's experience when bids are submitted in substantial excess of the planning/construction estimate. Project Approach Outlined below is our approach to successfully fulfilling our obligation as Construction Manager for the City of La Quinta Museum Expansion project. Our overall approach to construction management focuses on knowledgeable and careful attention to planning, review, organizational and control issues. PW's general mindset is to implement methods and managerial skills to accomplish the work in a highly collaborative and participatory environment. Open- mindedness, cooperation, integrity and clarity are values that are emphasized and instilled by PW throughout the project team. Recognizing that a number of different entities, many of which are new to one another, we will place a great deal of emphasis on team and relationship building, especially in the early stages of the project. A number of specific activities are described later in this section to get "everyone on the same page" so to speak from the start. Individual team members are given substantial opportunities to discuss their specific needs, concerns and ideas. Problem solving and problem avoidance will be a collaborative team -wide effort (as much as possible) in order to facilitate synergy and harmonious working relationships by all. At the same time- and when necessary- PW Construction as Construction Manager will provide tough-minded leadership and decision -making in order to achieve the City of La Quinta's goals and expectations. Our project approach is also heavily reliant on implementing our proven systems, processes and procedures that are required to run an efficient, well-oiled construction project. We utilize state-of-the-art management information and effective project planning software as the technological, logistical, operational and financial "backbone" for the Museum Expansion project. The Construction Manager's responsibility for the entire project will be broken into four sequential phases: • Design (three months) • Bidding/Awarding (two months) • Construction (nine months) • Close-out (one months) Specific scope of work and deliverables for each phase are detailed in the following section. Basic Services Provided Outlined below are the general services that would be provided to the City of La Quinta: • Integrated Project Management • Individual Project On -Site Construction Supervision • Construction Monitoring and Inspection • Project Team Communications and Coordination • Safety Program Development and Implementation • Construction Cost Estimating Constructability Reviews and Value Engineering • Budget Management and Cost Control • Bidding, Evaluating and Awarding Contracts • Project Scheduling and Monitoring • Contract Administration • Contractor Requisition and Payment System administration • Labor Compliance and Monitoring • Post -Construction Close -Out Activities • Assist City with evaluation and selection of specialty professional services (e.g. inspection services, environmental, materials testing, geological, etc.) • Host and plan an all day full project team kick-off meeting • Prepare a comprehensive Project Management and Procedures Manual • Install live web cams on the project site • Provide professional trained mediation services to resolve any disputes in a positive, equitable and efficient manner • Publish a monthly Executive Summary Report Detailed Scope of Deliverables Provided Outlined below is a more detailed and comprehensive description of the deliverables that PW will provide to the City of La Quinta (broken down by phase). Phase One: Design • Construction Management Plan: The CM shall prepare a Construction Management Plan for the Project and shall make recommendations to the plan throughout the duration of the Project as appropriate. In preparing the Construction Management Plan, the CM shall consider the Owner's schedule, budget and general design requirements for the Project. The CM shall then develop various alternatives for the scheduling and management of the Project and shall make recommendations to the Owner. • Constructability Review: Perform a complete constructability review of the project bid documents, specifications, plans and estimates prior to bidding the project and identify potential problems that need correction before the project is bid. • Project and Construction Budget: Based on the Construction Management Plan the CM shall prepare a Project and Construction Budget based on the separate divisions of the work required for the Project and shall identify contingencies for design and construction. The CM shall review the budget with the Owner and Designer and the CM shall submit the Project and Construction Budget to the Owner for acceptance. The Project and Construction Budget shall be revised by the CM as directed by the Owner. • Preliminary Estimate and Budget Analysis: The CM shall analyze and report to the Owner and the Designer the estimated cost of various design and construction alternatives, including CM's assumptions in preparing its analysis, a variance analysis between budget and preliminary estimate, and recommendations for any adjustments to the budget. 0 Review contract documents and coordinate permit requirements. • Schedule and attend a field walk with the Inspector, Project Architect, Design Team Members and City representatives. • Revisions to the Construction Management Plan: During the Design Phase the CM shall make recommendations to the Owner regarding revisions to the Construction Management Plan. The Construction Management Plan shall include a description of the various bid packages recommended for the Project. Revisions approved by the Owner shall be incorporated into the Construction Management Plan. • Progress Meetings: The CM shall conduct periodic progress meetings attended by the Owner, Designer and others. Such meetings shall serve as a forum for the exchange of information concerning the Project and the review of design progress. The CM shall prepare and distribute minutes of these meetings to the Owner, Designer and others as necessary. • Review of Design Documents: The CM shall review the design documents and make recommendations to the Owner and Designer as to constructability, scheduling and time of construction; as to clarity, consistency, and coordination of documentation among Contractors; and as to the separation of the Project into contracts for various categories of the Work. • Cost Control: The CM shall prepare an estimate of the construction cost for each submittal of design drawings and specifications from the Designer. This estimate shall include a contingency acceptable to the Owner, CM and the Designer for construction costs appropriate for the type and location of the Project and the extent to which the design has progressed. • Project and Construction Budget Revision: The CM shall make recommendations to the Owner concerning revisions to the Project and Construction Budget that may result from design changes. • Value Engineering Studies: The CM -shall provide value engineering recommendations to the Owner and Designer on major construction components, including cost evaluations of alternative materials and systems. • Design Phase Change Report: The CM shall prepare and distribute Design Phase Change Reports that shall list all Owner -approved changes as of the date of the report and shall state the effect of the changes on the Project and Construction Budget and the Master Schedule. • Approvals by Regulatory Agencies: The CM shall coordinate transmittal of documents to regulatory agencies for review and shall advise the Owner of potential problems resulting from such reviews and suggested solutions regarding completion of such reviews. 9 Construction Delivery Method Recommendation: Provide a thorough and comprehensive analysis that compares various construction delivery method options. This evaluation would primarily focus on the benefits/drawbacks to the City by utilizing a single general contractor delivery method vs. a multi -prime trade delivery method (i.e. that does not include a general contractor). The CM would also provide a recommendation to the City regarding which methodology serves the City's best interests. Upon approval of one method or the other by the City, the CM would implement an effective means of developing bid packages, soliciting bids, reviewing bids and awarding contracts on their behalf. Phase Two: Contractor Bidding and Awarding • Pre -qualifying Bidders: The CM shall assist the Owner in developing lists of possible bidders and in pre -qualifying bidders. This service shall include preparation and distribution of questionnaires, receiving and analyzing completed questionnaires, interviewing possible bidders, bonding agents and financial institutions, and preparing recommendations for the Owner. The CM shall prepare a list of bidders for each bid package and transmit to the Owner for approval. • Bidder's Interest Campaign: The CM shall conduct a telephone and correspondence campaign to attempt to increase interest among qualified bidders. • Notices and Advertisements: The CM shall assist the Owner in preparing and placing notices and advertisements to solicit bids for the project. • Delivery of Bid Documents: The CM shall expedite the delivery of Bid Documents to the bidders. The CM shall obtain the documents from the Designer and arrange for printing, binding, wrapping and delivery to the bidders. The CM shall maintain a list of bidders receiving Bid Documents. • Pre -Bid Conference: In conjunction with the Owner and Designer, the CM shall conduct pre -bid conferences. • Information to Bidders: The CM shall develop and coordinate procedures to provide answers to bidder's questions. All answers shall be in the form of addenda. • Addenda: The CM shall receive from the Designer a copy of all addenda. The CM shall review addenda for constructability, its impact on the Project and Construction. Budget, scheduling and time of construction, and for consistency with the related provisions as documented in the Bid Documents. The CM shall distribute a copy of all addenda to each bidder receiving Bid Documents. • Bid Opening and Recommendations: The CM shall assist the Owner in the bid opening and shall evaluate the bids for responsiveness and price. The CM shall make recommendations to the Owner concerning the acceptance or rejection of bids. • Analyzing Bids: Upon receipt of the bids, the CM shall evaluate the bids, including alternate bid prices and unit prices, and shall make a recommendation to the Owner regarding the award of the Construction Contract. • Construction Contracts: The CM shall assist the Owner in the assembly, delivery and execution of the Contract Documents. The CM shall issue to the Contractor(s) on behalf of the Owner the Notice of Award and the Notice to Proceed. Phase Three: Construction • Schedule and facilitate a Partnering Session kick off meeting with the City and all of the other project team members. This all -day session would be facilitated by the firm Win Win, Seattle.. • Provide a pre -construction agenda to the City for concurrence, schedule a pre - construction meeting and notify attendees. • Provide coordination of project activities and prepare reports and documents, as necessary, for City review and action. • Maintain at the project site, on a current basis, a record copy of all contracts, drawings, specifications, addenda, change orders and other modifications, in good order and marked to record all changes made during construction, shop drawings, product data, samples, submittal, purchases, materials, equipment, applicable handbooks, maintenance and operating manuals and instructions, and other related documents and revisions which are relevant to the contract work. • Provide weekly status reports to the City. • Review laboratory, shop and mill test reports of materials and equipment, and coordinate as required with the Project Design Team. • Prepare and send a Weekly Statement of Working Days to the Contractor. • Monitor Contractor and Sub -Contractor certified payroll. • Monitor and document any underground electrical improvements for compliance with the project plans specifications and for requirements from the Imperial Irrigation District. • Monitor and document domestic water or sanitary sewer improvements for compliance with the project plans and specifications and for any requirements from the Coachella Valley Water District. • Administer the construction contract in conformance with the requirements set forth in the Plans and Specifications. • Conduct weekly construction progress meetings with the Design Team, Contractor(s), City Staff, affected outside agencies, general public, business owners, other consultants, etc. to discuss matters such as procedures, progress, problems and scheduling. Prepare and distribute meeting agenda and minutes. • Monitor all inspection activities, both City provided and any consulted out inspections. • Coordinate submittal review with the Design Team. • Coordinate with the City Engineer and other City Departments. • Document all claims and maintain for account records. • Coordinate and schedule construction surveying. • Coordinate testing requirements and scheduling of material testing • Review and analyze the Contractor's schedule (monthly) including activity sequences and duration, schedule of submittal and schedule of delivery for products with long lead times. Work with the Contractor to maintain the project schedule to show current conditions and suggest revisions as required. • Recommend necessary or desirable changes in the Construction Contractor(s) scope of work. Review and evaluate Contractor(s) request for changes. Negotiate with Contractor and submit recommendations to the City supported by field data related to any additional work. If change orders are accepted by the City, prepare change orders for signature and authorization by the City. Maintain a log of change requests. • Create and maintain "As -Built" project schedule. • Review pay requests and provide recommendation for contractor payments. • Coordinate the transition of the project to the City. • Provide construction management files to the City. • Review contract documents, plans and permits. • Attend field walks and kick off meetings. 0 Monitor and enforce construction noticing requirements. • Maintain field diaries (bound workbooks) during construction, including a cumulative record of quantities constructed, daily and weekly reports, working day reports, change order documentation, photographs and other documentation. • Monitor the Contractor's fugitive dust control plan and ensure the Contractor is using approved haul routes and they are kept clean. • Ensure compliance with the construction contract by continuously monitoring, evaluating, approving or rejecting the Contactor's work in accordance'with the approved construction contract documents. • Determine that the Contractor's work is being performed in accordance with the requirements of the contract documents. Endeavor to guard the City against defects and deficiencies in the work. As appropriate, require special inspection of testing, or make recommendations to the City regarding special inspection or testing or work not in accordance with the provisions of the contract document whether or not such work is fabricated, installed or completed. • Provide and maintain a digital photographic history of the project. Photos will also be taken of the following: a. Showing existing conditions prior to construction b. Disputed work items C. Work that has to be duplicated replaced or removed d. Completed work e. Extra work • Record the progress of the project. Provide daily inspection reports; submit written daily progress reports to the City, including information on the Contractors and the entire project, showing percentages of completion. Keep daily logs containing a record of weather, the Contractor's work on site, number of workers, work accomplished, problems encountered and other relevant data. • During the course of construction, maintain one set of plans with markings and dimensions in red ink to denote field changes or other corrections. • Maintain copies of all permits needed to construct the project and enforce special requirements of each. ENGINEERING SUPPORT • Provide an initial review and one re -submittal of shop drawings and product data for conformance to the construction documents. • Provide plan revisions as required to interpret, clarify or modify the construction documents as required by the City Engineer. Phase Four: Close -Out • Calculate the amount of final payment due prime Contractor. • Obtain evidence of certification of all lien releases. • Assist the City with filing the project "Notice of Completion." • Secure and transmit to the City required guarantees. • Issue the Notice of Substantial Completion and process the Notice of Completion. • Coordinate any startup requirements. • Deliver all equipment manuals, special equipment, spare parts, catalogs, and other materials required by specifications. • Collect As -Built data from Contractor(s) or design consultants. • Make recommendation for the release of retention. Exhibit B Schedule of Compensation Payment shall be made on a monthly Lump Sum Fixed Fee Basis, in accordance with the Consultant's Cost Proposal Sheet, attached herewith and made part of hereof, in conformance with Section 2.2 of the Agreement. Total base compensation for all work under this contract (Construction Management with General Contractor) shall not exceed One Hundred Fifty Seven Thousand Five Hundred dollars ($157,500) except as specified in Section 1.6 - Additional Services of the Agreement. Delays in the project completion shall not entitle Consultant to additional compensation, unless the delays are caused by actions taken by the City. Exhibit C Schedule of Performance Consultant shall complete all services within 15 months of the date of this Agreement. If the Project extends beyond this time frame through no fault of the consultant, the consultant will not be deemed to be in violation of this Agreement as it pertains to this Exhibit, but shall not be entitled to additional compensation unless the delay is caused by actions taken by the City. Exhibit D Special Requirements None.