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PB Americas/Maintenance Yard 07PROFESSIONAL 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 PB Americas, Inc. (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 master planning services, 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 applicable 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). r 1.5 Care of Work and Standard of Work. a. 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. b. Standard of Work. Consultant acknowledges and understands that the services and work contracted for under this Agreement require specialized skills and abilities and that, consistent with this understanding, services provided by Consultant will be performed in a manner consistent with that level of care and skill ordinarily exercised by members of the Consultant's profession currently practicing in the same industry under similar conditions. 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 Eighty seven thousand nine hundred twenty-three dollars ($87,923) (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 r 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 thirty (30) days from the date the invoice is received by the City. 3.0 PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. To the extent delays are caused by delays in city review, time periods are extended. 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 amended agreement shall commence on March 5, 2007 and terminate August 31, 2007. Unless earlier terminated in accordance with Sections 7.7 or 7.8 of this Agreement, this Agreement shall continue in full T 1 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: Mark J. Probst a. 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 Timothy Jonasson, Public Works Director/City Engineer 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 Iniury/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 negligent 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. General Indemnification Provision. 1. 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 claims, losses, liabilities of every kind, nature and description, damages, injury (including, without limitation, injury to or death of an employee of Consultant or subconsultants), 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 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. 2. 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, 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 negligent 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. 3. Standard Indemnification Provisions. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth herein 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 herein, 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 herein is binding on the successors, assigns or heirs of Consultant and shall survive the termination of this agreement or this section. 4. 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 due to negligence of Consultant, its employees, officers, agents, subcontractors, or anyone acting on behalf of or under the control or direction of Consultants.. r b. Indemnification Provision for Design Professionals. 1. Applicability of Section 5.2(b). Notwithstanding Section 5.2(a) hereinabove, the following indemnification provision shall apply to Consultants who constitute "design professionals" as the term is defined in paragraph 3 below. 2. Scope of Indemnification. To the fullest extent permitted by law, Consultant shall indemnify, defend, and hold harmless City and City's agents, officers, officials, employees, representatives, and departments ("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 Consultant or subconsultants), 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, that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of Consultant, any subconsultant, anyone directly or indirectly employed by them or anyone that they control. 3. Design Professional Defined. As used in this Section 5.2(b), 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. 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 require aasblFe 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, except that the parties agree to waive the right to recover their consequential damages or lost profits from each other. 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: PB Americas, Inc. Attention: Mark J. Probst, RA 11757 Katy Freeway, Suite 600 Houston, Texas 77079 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: APPROVED AS TO FORM: Date Z�2 �/7 CONSULTANT: PB pAmericas, Inc. By:,w,x.��� J SZ Name: Khalil Saba`' Title: Assistant Vice President Date: Exhibit A Scope of Services As directed by City staff, PB Americas, Inc. shall provide master planning services for the City as outlined in the attached Exhibit A - Scope of Services dated February 20, 2007. Exhibit A Scope of Services February 20, 2007 The following is a detailed outline of the PB Team's technical approach to developing a state-of-the-art Maintenance Yard Facility to support La Quinta's current and future needs. The approach is divided into tasks with each task being described with an objective, the work elements to be accomplished, the deliverables, and estimated out-of-town travel. Note that only services related to Master Planning are addressed here. After approval of the master plan and estimated construction cost budget, the PB Team can develop detailed construction documents and provide assistance through bidding and construction. The specific scope and fees for these services can be developed based on the approved layouts and budget. AssamutionstUnderstandlIM The following are mutually understood between the PB Team and the City: 1. The City will provide available information on the site showing boundaries, topography, utility locations, easements, and any other restrictions. The PB Team can rely on the accuracy of this information, which will be used to create a base map of the site for use in developing the master plan. It is understood that an accurate survey will be required for detailed design and that discrepancies, if any, between the site information provided by the City and the detailed survey could impact the master plan layout and construction cost estimate. 2. Schedule for the study will be as shown in the project schedule in this proposal. 3. An Environmental Assessment has not been included in the scope of this project. If, however, it becomes necessary, the PB team can provide these services as an additional service. Per the City, any required environmental work will be part of detailed design in the future. It is understood that the construction cost estimate developed as part of this master planning effort will not include remediation of any hazardous materials or other conditions that may be identified as a result of an environmental assessment conducted in the future. 4. Geotechnical investigation is not required. Per the City, this work will be done in conjunction with the detailed design in the future. It is understood that the results of a future geotechnical investigation may adversely impact the construction cost estimate developed as part of this master planning effort. 5. The maintenance yard and amenities must meet all applicable local, state, and federal laws, rules, and regulations including hazardous materials handling & storage, equipment wash pad, and Americans with Disabilities Act Guidelines. 6. The master plan will consider future development within the City's existing boundaries and is not intended to include the annexation of Vista Santa Rosa. 7. Information regarding future staffing levels will be provided by the City. Exhibit A — Scope of Services (February 20, 2007) Page 1 8. Information on the existing and projected vehicle and equipment fleet will be provided by the City. 9. Phasing options will be considered to accommodate projected funding availability. 10. The master plan / conceptual design will include site and floor plans. Building elevations, building sections, and renderings are not included, but can be provided as an additional service. TASK 1• Project Management (PB) Objective: To provide a high quality maintenance yard master plan that will meet the City of La Quinta's current and projected needs. Work Elements: 1. Conduct a project kick-off meeting with the PB Team and key La Quinta staff who will participate in the project. The purpose of the meeting will be to: • Establish clear lines of communication. • Review the scope of work and project schedule. • Clearly define project goals and objectives. • Identify the staff to be involved in the interview process. 2. Develop and maintain a project schedule listing all tasks and parties involved in the project with estimated start and completion dates. The schedule will be updated on a regular basis. 3. Schedule and coordinate periodic project status meetings including: • Identifying appropriate participants for each meeting. • Developing (with appropriate City input) and distributing agenda prior to meetings. • Developing and distributing minutes for each meeting. 4. Prepare and submit monthly progress reports. Each report shall include an updated schedule, summary of tasks in progress and completed, and projected tasks to be accomplished in the next month. 5. Coordinate with various groups responsible for review at specific stages. 6. Provide deliverables in digital format where appropriate. Deliverables (Task 1): • Project Schedule • Meeting Agendas • Meeting Minutes • Monthly Progress Reports Estimate Travel (Task 1): Included in Task 2 Exhibit A — Scope of Services (February 20, 2007) Page 2 TASK 2: Needs Assessment Objective: To review and evaluate the functional requirements of the Maintenance Yard as input into the planning/design process which will ensure a facility that responds to the current and future needs of the City of La Quinta. Work Elements: Operational Requirements The first step in the planning/design process is to identify the functional requirements and operational characteristics of the proposed facility. This will involve active participation of the City staff in a series of in-depth interviews over a two to three day period. The PB Team will: 1. Develop a questionnaire to be completed by the City staff prior to the interviews. 2. Assist in identifying the staff to be involved in the interview process. The RFP identified the following people that would be interviewed: • Public Works Director • Maintenance Services Division Manager and key staff • Engineering Services / CIP Division Manager and Project Manager • Other Stakeholders (including Community Services Department, Building & Safety Department, and Code Enforcement). 3. Interview key staff personnel to determine functional requirements and operational characteristics for the functions to be located at the new Maintenance Yard. Examples of topics to be addressed during the interviews include: a. Service requirements including projected growth. b. Review the projected use of alternative fuels. Note: This does not include a detailed evaluation of alternative fuels and their impact on facility design. c. Review requirements for repair bays, shops, material storage, and other maintenance functions. d. Review vendor contracted activities and requirements. e. Review fueling, interior cleaning, and exterior cleaning requirements, if any on -site. f. Review existing preventive maintenance program to determine frequency of inspections and average time required for each. g. Review requirements for radio and electronics repairs. h. Review existing inventory control policies, procedures, and techniques to determine parts storage requirements. This will include a review of various storage systems available for parts storage. i. Review facility maintenance requirements that may affect material selection, plumbing, electrical, heating, ventilation, and air conditioning. 4. Review site and building security requirements. Exhibit A — Scope of Services (February 20, 2007) Page 3 5. Review relationships between functional areas. 6. Review fleet size, mix, and projected growth. 7. Review current and projected staffing plans and labor agreement(s). 8. Research regulatory requirements surrounding street sweeping operations and gather information from other city street sweeping operations regarding design, cost, and ongoing maintenance. Review of Similar Facilities 9. The PB Team can organize a two-day field trip with the design team and the client to visit similar facilities and identify characteristics to be included in the new facility. These visits will help establish a common frame of reference for the client and design team. Note that the cost for this field trip is not included in the fee proposal. Space Program Based on the interviews, a detailed space program will be developed which will: 10. Identify functional areas to be located at the new Maintenance Yard. 11. Identify space requirements for all administrative, maintenance, and operations functions in the project including: a. Requirements for offices, mechanic areas, and crew areas. b. Quantity, size, and type of repair bays. c. Requirements for all shops. d. Requirements for parts storage and warehousing. e. Storage requirements for tool boxes and portable equipment. f. Requirements for mechanical and electrical support space. 12. Identify parking requirements for client vehicles (enclosed, canopy covered, outdoor), employee, visitor, and delivery vehicles. Draft Design Criteria Document The criteria to be used in the design of the new Maintenance Yard must be developed for the City's approval. The PB Team will: 13. Prepare Draft Design Criteria Document to include space program and criteria resulting from client interviews, on -site observations, and the design team's extensive experience in the design of Maintenance Yards. The Design Criteria Document will include information on staffing levels, current and projected operations, a narrative of daily operations, site requirements, and specific requirements for each functional area. The Design Criteria Document will also identify preliminary functional requirements for building systems including architectural, structural, mechanical, electrical, and plumbing such as: a. Clearance requirements (doors, aisle widths, overhead) throughout the project. b. Floor, wall, and ceiling finishes. c. Functional areas and equipment items within each area to be included on an emergency power system. Exhibit A — Scope of Services (February 20, 2007) Page 4 d. Lighting levels and type of lighting for all exterior areas and each functional area within the maintenance building. e. Lubrication and compressed air system requirements. f. Ventilation requirements for each functional area including offices, repair bays, maintenance shops, welding, battery, paint areas, chassis wash/component clean, pits, and storage areas. g. Drainage requirements for floor washdown, waste oil, waste coolant, and spill containment. h. Minimum design temperatures for heating and cooling for each functional area. 14. Establish functional area relationships both between areas and between workstations within areas. Primary considerations to be industrial work flow, supervision, and safety. Diagrams showing these relationships will be included in the Design Criteria Document. 15. Identify major maintenance equipment items to be located in each functional area. 16. Assemble data on vehicles to be maintained. Include make and models, dimensions and weights, quantities, and operating characteristics. 17. Submit draft Design Criteria Document for the City's review and approval. The document will be finalized during Task 3. Maintenance Equipment 18. A major cost element in a Maintenance Yard is shop equipment. An inventory of equipment will be taken to identify equipment that can be reused in the new facilities. The inventory will be by functional area and will include description, quantity, manufacturer, model number, utility requirements and condition. Indicate which items are recommended for reuse. 19. Develop Preliminary Maintenance Equipment List based on the draft Design Criteria. Equipment shall be listed by functional area and include a description, price, quantity, dimensions, and general utility requirements for each equipment item. Incorporate equipment items identified as reusable on the Equipment Inventory. The Preliminary Equipment List will be reviewed with the client at the design session in Task 3. Programming Level Construction Cost Estimate 20. Based on the space program and preliminary equipment list, a preliminary estimate of construction cost will be developed and reviewed with the City to assure that the projected facilities can be developed within the City's budget constraints. Deliverables (Task 2): • Draft Design Criteria Document, 12 copies. • Maintenance Equipment Inventory, 12 copies. • Preliminary Maintenance Equipment List & Cost Estimate, 12 copies. Estimated Travel (Task 2): Two people, 3-days for interviews and inventory. Exhibit A — Scope of Services (February 20, 2007) Page 5 TASK 3: Master Plan / Conceptual Desion Objective: To ensure that the functional requirements, including circulation and proximity relationships, are appropriately addressed in the Master Plan / Conceptual Design. Work Elements: Alternative Conceptual Plans 1. Identify potential alternatives to meet the requirements established in the previous task. 2. Conduct a three day on -site design charrette working directly with the design team and the City to develop alternatives for site configuration and general building design. During this on -site process, alternatives will be reviewed by the user staff. Based on review comments, selected alternatives will be refined and presented for review. A final review meeting will result in a selected Conceptual Plan(s). The site layouts will be developed with emphasis on: a. Circulation patterns for vehicles, equipment, materials and personnel that will provide the most efficient, cost effective, and safest maintenance operation. b. Ingress and egress routes that maximize safety and security and minimize vehicular and pedestrian conflict on and off the site. c. Site area relationships. Include mechanic and crew facilities, fuel and wash, maintenance facilities, vehicle parking, bad order (or down vehicle) parking, employee and visitor parking, and shipping and receiving. d. Coordination with Public Safety functional requirements and circulation needs. The facility layouts will emphasize: a. Circulation patterns for vehicles, equipment, materials and personnel and their relation to site circulation patterns. b. Functional area relationships both between the various areas and between workstations within each area. c. Efficient industrial workflow, supervision, and safety. d. Develop an initial cost estimate based on the selected Conceptual Plan. Maintenance Equipment 5. Update the Preliminary Maintenance Equipment List based on the Conceptual Design. The updated list will be included in the draft Final Report in Task 4. 6. Update preliminary cost estimate for maintenance equipment. Final Design Criteria Document 7. Review comments from the City on the draft Design Criteria Document. 8. Incorporate comments received from the staff and modifications that resulted from the on -site design process. 9. Update the space program to be consistent with the Master Plan / Concept Design. Exhibit A — Scope of Services (February 20, 2007) Page 6 10. The final design criteria and master plan (site and floor plans) will be included in the draft Final Report in Task 4. Master Plan / Concept Design Quality Control 11. Coordinate operational and equipment related functional requirements during development of the Master Plan / Concept Design. Items to be addressed include: a. Clearances shown in building sections. b. Modifications to the design due to structural/architectural requirements. c. Turning radius, queuing space, and vehicle circulation. 12. Review the site and facility layouts for compliance with the approved design criteria and operational/maintenance concepts. Deliverables (Task 3): Alternative Site and Facility Sketches. Estimated Travel (Task 3): Three people, 3-days for on -site design session. TASK 4: Final Report and Presentations Objective: To document the master planning process and formally present the master plan recommendations. Work Elements: Reporting 1. Prepare a draft Final Report that documents the master planning process including the design criteria, equipment list and inventory, master plan (site plan and floor plans), and cost estimate. 2. Submit the draft Final Report for City staff review and comment. 3. Revise the draft Final Report based on review comments received from the City staff. 4. Submit the revised draft Final Report to the City Council for review and comment. See presentations below. 5. Finalize the Final report based on comments received from the City Council. 6. Submit the Final Report. 7. Presentations 8. Prepare presentation materials. 9. Make up to two (2) presentations to the La Quinta City Council to present the master plan. Deliverables (Task 4): • Draft Final Report, 12 copies. • Revised Draft Final Report, 20 copies. • Final Report, 20 copies and one PDF file. Estimated Travel (Task 4): Two people, two 1-day trips for presentations to City Council. Exhibit A — Scope of Services (February 20, 2007) Page 7 Exhibit B Schedule of Compensation Payment shall be in full at the rates listed in the attached Exhibit B — Schedule of Compensation for the actual hours submitted in conformance with Section 2.2 of the Agreement. Total compensation for all work under this contract shall not exceed Eighty seven thousand nine hundred twenty-three dollars ($87,923) except as specified in Section 1.6 - Additional Services of the Amended Agreement. fP o o x C) m O m v O x w o o m y a y m m o w 3- m w 10 m A mn tD mm t'3 v1°m E> e O me 3 O le N H m 3 O ui � O Q 2 fRl V A m V II f i m a t N i4 P po m A m IF p A 9 i= a' 3� R { i i i5 rtI om Probst t Manager Manuel Cmil Engineer Rick Donofno Principal 9 'm Pete Puami ui N S N D A Protect = w ArcbitMui H m rn AEminisce"ve = I Anistanf g ToW Hours R ni C Exhibit C Schedule of Performance The Contract period for Master Planning services shall begin March 5, 2007 and end August 31, 2007, unless extended by amendment by the City. m e 2 Exhibit D Special Requirements None.