CITY COUNCIL
AND AS SUCCESSOR AGENCY TO THE
COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF PALM SPRINGS, CALIFORNIA
Council Chamber, City Hall
3200 E. Tahquitz Canyon Way, Palm Springs, CA 92262
www.palmspringsca.gov
REGULAR MEETING AGENDA
OCTOBER 10, 2024
12:30 PM CLOSED SESSION
5:30 PM REGULAR MEETING
Jeffrey Bernstein, Mayor
Ron deHarte, Mayor Pro Tem
Grace Elena Garner, Councilmember
Christy Gilbert Holstege, Councilmember
Lisa Middleton, Councilmember
Scott Stiles, City Manager
City of Palm Springs Mission Statement: Palm Springs is an inclusive world-class city dedicated to providing excellent and responsive public services to enhance the quality of life for current and future generations.
Pursuant to Assembly Bill 557 -
Pursuant to Assembly Bill 557 -
To view/listen/participate in the meeting live, please contact the City Clerk at [email protected] or the following telephone number (760) 323-8204 to register for the Zoom meeting. There will be an email with Zoom credentials sent after registration is complete, in order to access the meeting and offer public comment. Any person who wishes to provide public testimony for an item on the agenda is requested to file a speaker card before the Public Testimony portion of the meeting.
You may submit your public comment to the City Council electronically. Materials may be emailed to [email protected]. Transmittal prior to the start of the meeting will help ensure that your correspondence is fully considered. Any correspondence received during or after the meeting will be distributed to the City Council and retained for the official record. View the City Council meeting live at the City’s website www.palmspringsca.gov/psctv, YouTube, or Channel 17 (Spectrum).
Please note any agenda item which has not been initiated by 11:00 p.m. may be continued to a subsequent meeting.
At approximately 10:00 p.m., the City Council will determine the number of speakers who wish to address the City Council during Public Comment for non-Agenda Items and determine which agenda items will be considered before the 11:00 p.m. Adjournment time.
AGENDA EN ESPAÑOL DISPONIBLE EL LUNES - HAGA CLIC AQUÍ
12:30 P.M. CLOSED SESSION
CALL TO ORDER (Council Chamber):
PUBLIC COMMENT FOR CLOSED SESSION ITEMS ONLY (Council Chamber): The City Council welcomes public input. Members of the public may address the City Council on Closed Session items by contacting the City Clerk's Office at 760-323-8204. Pursuant to State Law, the City Council may not discuss or take action on issues not on the meeting agenda (Government Code Section 54954.2). If you are compensated to communicate with City officials, you may be required to register and/or make certain disclosures as a lobbyist. Please see the City Clerk for additional information.
RECESS TO CLOSED SESSION (Large Conference Room): See Closed Session Agenda.
October 10, 2024 City Council Regular Meeting Agenda 2
5:30 P.M. REGULAR MEETING
CALL TO ORDER:
PLEDGE OF ALLEGIANCE:
ROLL CALL:
PRESENTATIONS:
A. HUNGER ACTION MONTH BY FIND FOOD BANK
ACCEPTANCE OF THE AGENDA: The City Council will discuss the order of the agenda, may amend the order, add urgency items, note abstentions or "no" votes on Consent Calendar items, and request Consent Calendar items be removed from the Consent Calendar for discussion.
The City Council may also remove items from the Consent Calendar prior to that portion of the Agenda.
REPORT OF CLOSED SESSION:
PUBLIC TESTIMONY: (Non-Public Hearing Agenda Items ONLY) This time has been set aside for members of the public to address the City Council only on agenda items. Two (2) minutes will be assigned to each speaker. Testimony for Public Hearings will only be taken at the time of the hearing, and General Public Comments, non-agenda items, will be taken later in the meeting.
1. CONSENT CALENDAR:
The following routine matters may be acted upon by one motion. Individual items may be removed by the Council for separate discussion at this time or under Acceptance of the Agenda. The ordinance title is deemed to be read in its entirety and further reading waived on any ordinance listed on the Consent Calendar.
A. APPROVAL OF MINUTES: SEPTEMBER 12 AND SEPTEMBER 26, 2024 RECOMMENDATION:
Approve the City Council Meeting Minutes of September 12 and September 26, 2024.
B. AUTHORIZE A TASK ORDER WITH CAROLLO ENGINEERS, INC. IN THE October 10, 2024 City Council Regular Meeting Agenda 3
B. AUTHORIZE A TASK ORDER WITH CAROLLO ENGINEERS, INC. IN THE AMOUNT OF $151,250 PURSUANT TO AGREEMENT A8563 FOR ADDITIONAL
PROFESSIONAL SERVICES FOR ELECTRICAL MODIFICATIONS
ASSOCIATED WITH THE WASTERWATER TREATMENT PLANT ODER
CONTROL IMPROVEMENTS, CITY PROJECT NO. 23-16
RECOMMENDATION:
Authorize the City Manager to approve a Task Order in the amount of $151,250 for additional professional services of odor control improvement with Carollo Engineers, Inc., an ‘on-call’ firm for wastewater services, during design;
1. 2. Appropriate $151,250 from the Wastewater Fund Balance; and Authorize the City Manager or his designee to execute all necessary documents.
3. C. REJECT ALL BIDS RECEIVED FOR THE HIGHWAY SAFETY IMPROVEMENT PROGRAM (HSIP) CYCLE 9 TRAFFIC SIGNAL IMPROVEMENTS, FEDERAL AID PROJECT NO. HSIPL-5282 (049), CITY PROJECT NO. 18-05 RECOMMENDATION:
Reject the construction bids received on August 8, 2024, for the HSIP Cycle 9 Traffic Signal Improvements, Federal Aid Project No. HSIPL-5282(049), City Project No. 18-05; and
1. 2. Authorize Staff to re-bid the Project.
D. APPROVE INSTALLATION OF NEW CIRCUITS FOR EAST TAHQUITZ CANYON WAY MEDIAN ART PADS IN THE AMOUNT OF $32,606.19
RECOMMENDATION:
Appropriate $32,606.19 of Public Art Funds from the Public Art Fund Balance to the Fiscal Year 2025 Public Arts Fund Repairs and Maintenance account.
1. Approve expenditure of $32,606.19 of Public Art Funds for new electrical circuits for the East Tahquitz Canyon Way Median art pads in an amount not to exceed $32,606.19.
2. October 10, 2024 City Council Regular Meeting Agenda 4 E. APPROVE CONTRACT SERVICE AGREEMENTS NO. 24B235 WITH CAT CITY AUTO BODY INC., AND 24B236 WITH MARVIN’S AUTO PAINT INC., DBA FOR
AUTO BODY REPAIR SERVICES
RECOMMENDATION:
Approve Contract Services Agreement 24B235 with Cat City Auto Body, Inc., to provide auto body repair services in an amount not to exceed $722,050 for the initial three-year term beginning October 14, 2024, through October 13, 2027, with two one-year extension options at the City’s sole discretion; and
1. Approve Contract Services Agreement 24B236 with Marvin’s Auto Paint, Inc., to provide auto body repair services in an amount not to exceed $309,450 for the initial three-year term beginning October 14, 2024, through October 13, 2027, with two one-year extension options at the City’s sole discretion; and
2. Authorize the City Manager or their designee to execute all necessary documents.
3. F. APPROVE CONSTRUCTION CONTRACT NO. 24C242 WITH MIRACLE RECREATION EQUIPMENT COMPANY AND CONSTRUCTION CONTRACT NO. 24C248 WITH SHADE STRUCTURES, INC., DBA USA SHADE & FABRIC
STRUCTURES FOR THE PURCHASE AND INSTALLATION OF PLAYGROUND
EQUIPMENT AND SHADE STRUCTURES AT RUTH HARDY PARK
RECOMMENDATION:
Approve Construction Contract 24C242 with Miracle Recreation Equipment Company to purchase and install playground equipment at Ruth Hardy Park, for an amount of $956,214.76;
1. Approve Construction Contract 24C248 with Shade Structures, Inc., dba USA Shade & Fabric Structures, to purchase and install shade structure equipment at Ruth Hardy Park, for an amount of $486,028.66;
2. 3. Authorize the City Manager or designee to execute all necessary documents.
G. APPROVE CONTRACT SERVICES AGREEMENT NO. 24P239 WITH ON DUTY
HEALTH, PC FOR PALM SPRINGS POLICE DEPARTMENT ANNUAL PHYSICAL
AND WELLNESS ASSESSMENTS
RECOMMENDATION:
Approve Contract Services Agreement No. 24P239 with On Duty Health, PC to provide Palm Springs Police Department annual physical and wellness assessments for a three-year term in an amount not to exceed $146,775 beginning October 14, 2024 through October 13, 2027, with two one-year extension options at the City’s sole discretion; and
1. 2. Authorize the City Manager or designee to execute all necessary documents.
H. APPROVE CONTRACT SERVICES AGREEMENT NO. 24P238 WITH ON DUTY October 10, 2024 City Council Regular Meeting Agenda 5
H. APPROVE CONTRACT SERVICES AGREEMENT NO. 24P238 WITH ON DUTY
HEALTH, PC FOR NFPA COMPLIANT ANNUAL PHYSICAL AND WELLNESS
ASSESSMENTS
RECOMMENDATION:
Approve Contract Services Agreement No. 24P238 with On Duty Health, PC to provide NFPA compliant annual physical and wellness assessments for a three-year term in an amount not to exceed $413,895.60 beginning October 14, 2024 through October 13, 2027, with two one-year extension options at the City’s sole discretion; and
1. 2. Authorize the City Manager or designee to execute all necessary documents.
I. APPROVE CONTRACT SERVICES AGREEMENT NO. 24B240 WITH MPG
CONSTRUCTION, LLC FOR ON-CALL BUILDING REPAIR AND RENOVATION
SERVICES FOR PALM SPRINGS INTERNATIONAL AIRPORT
RECOMMENDATION:
Approve Contract Services Agreement No. 24B240 with MPG Construction, LLC to provide on-call building repair and renovation services for the Palm Springs International Airport in an amount not to exceed $980,000 for the initial three-year term beginning October 14, 2024 through October 13, 2027, with two one-year extension options at the City’s sole discretion.
1. 2. Authorize the City Manager or designee to execute all necessary documents.
J. ACCEPTANCE OF AIRPORT COMMON USE PODIUMS – BONO CONCOURSE, CITY PROJECT 21-28
RECOMMENDATION:
Accept the public works improvement identified as the Airport Common Use Podiums – Bono Concourse, City Project 21-28 (“Project”), as completed in accordance with the plans and specifications;
1. Authorize the City Engineer to execute and file for recordation with the Riverside County Recorder a Notice of Completion for the Airport Common Use Podiums – Bono Concourse, City Project 21-28; and
2. 3. Appropriate $30,252.15 from the Airport Special Capital Projects fund balance.
October 10, 2024 City Council Regular Meeting Agenda 6
K. AWARD OF A CONSTRUCTION CONTRACT TO RIVERSIDE CONSTRUCTION, INC., IN THE AMOUNT OF $10,510,913; APPROVAL OF A PROFESSIONAL SERVICES AGREEMENT WITH HARRIS AND ASSOCIATES, INC., FOR
CONSTRUCTION MANAGEMENT SERVICES, INSPECTION AND MATERIALS TESTING SERVICES IN THE AMOUNT OF $2,133,897.20; AND APPROVAL OF A TASK ORDER UNDER ON-CALL AGREEMENT NO. 23PO41 WITH TSG ENTERPRISES, INC., DBA THE SOLIS GROUP, TO PROVIDE COMMUNITY WORKFORCE AGREEMENT ADMINISTRATION IN THE AMOUNT OF $67,826
FOR THE SOUTH PALM CANYON BRIDGE REPLACEMENT AT TAHQUITZ CREEK CHANNEL, CITY PROJECT NO. 12-02, FEDERAL AID PROJECT NO.
BRLS-5282(042)
RECOMMENDATION:
Award a construction contract to Riverside Construction, Inc., a California corporation, in the amount of $10,510,913;
1. Delegate authority to the City Manager or designee to approve and execute construction contract change orders up to a total amount of $1,600,000 with all change orders reported to the City Council;
2. Approve a Professional Services Agreement with Harris and Associates, Inc., a California corporation, contingent on Caltrans approval of the contract rates in the amount of $2,133,897.20 as may be modified based on the final approved rates, for construction management, inspection and materials testing services;
3. Authorize the City Manager to approve a task order for Community Workforce Agreement (CWA) administration services from an on-call CWA firm, TSG Enterprises, Inc., dba The Solis Group, in an amount of $67,826.00;
4. 5. Appropriate $650,000.00 from the Measure A fund balance; and Authorize the City Manager or his designee to execute all necessary documents.
6. L. AUTHORIZE AN INCREASE OF $182,960.40 TO PURCHASE ORDER 18000472 ISSUED TO VEOLIA WATER OPERATING SERVICES, INC. RELATED TO
ADDITIONAL PROFESSIONAL SERVICES REQUIRED TO COMPLY WITH THE CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD ORDER.
RECOMMENDATION:
Authorize an increase to Purchase Order 18000742 in the amount of $182,960.40 with Veolia Water West Operating Services, Inc., pursuant to Agreement No. 6084 to include a groundwater monitoring network technical report, a nitrogen control strategy technical report, nitrogen effluent limit feasibility study and a TDS source control program technical report as required by the California Regional Water Quality Control Board Order;
1. 2. Appropriate $182,960.40 from the Wastewater Fund Balance; and Authorize the City Manager or his designee to execute all necessary documents.
3. M. A REQUEST BY THE OWNERS OF TWO HISTORIC PROPERTIES FOR October 10, 2024 City Council Regular Meeting Agenda 7
M. A REQUEST BY THE OWNERS OF TWO HISTORIC PROPERTIES FOR
APPROVAL OF MILLS ACT HISTORIC PROPERTY PRESERVATION
AGREEMENTS, INCLUDING ONE UNIT WITHIN THE OCOTILLO LODGE HISTORIC DISTRICT (HD-11) AT 1111 EAST PALM CANYON DRIVE, UNIT 382; AND THE HARRIET VAN HORN RESIDENCE, A CLASS 1 HISTORIC SITE (HSPB 157) LOCATED AT 1121 LINDA VISTA ROAD
RECOMMENDATION:
1. Approve a Mills Act Historic Property Preservation Agreement between the City of Palm Springs and the owners of the following list of properties:
A. 1111 E. Palm Canyon, Unit 382 (Ocotillo Lodge), APN: 511-035-122.
B. 1121 Linda Vista Road (Harriet Van Horn Residence), APN:
507-132-001.
2. Authorize the City Manager to execute the Agreements.
3. Direct the City Clerk to record the Agreements with the County of Riverside.
N. AUTHORIZE STAFF TO ISSUE A REQUEST FOR PROPOSALS FOR
CONVENTION CENTER AND RELATED TOURISM FACILITIES OPERATION
AND MANAGEMENT SERVICES
RECOMMENDATION:
Authorize Staff to issue a Request for Proposals (RFP) for operation and management services for the Palm Springs Convention Center and related tourism facilities.
EXCLUDED CONSENT CALENDAR: Items removed from the Consent Calendar for separate discussion are considered at this time.
2. PUBLIC HEARINGS:
A. AN APPLICATION BY CHARLES E. BENTALL AND JULIE BENTALL,
REPRESENTED BY THE PALM SPRINGS PRESERVATION FOUNDATION,
FOR HISTORIC SITE DESIGNATION OF THE BURNHAM-WELLS RESIDENCE LOCATED AT 1850 SMOKE TREE LANE (APN 510-172-001), CASE HSPB #159 RECOMMENDATION:
1. Open the Public Hearing and receive public testimony.
Close the public hearing and adopt Resolution entitled, “A RESOLUTION OF
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, DESIGNATING THE BURNHAM-WELLS RESIDENCE LOCATED AT 1850 SMOKE TREE LANE, AS A CLASS 1 (LANDMARK) HISTORIC RESOURCE HSPB #159, SUBJECT TO CONDITIONS (APN 510-172-001).”
2. B. APPEALS BY THE NEW MESQUITE HOMEOWNERS’ ASSOCIATION AND October 10, 2024 City Council Regular Meeting Agenda 8
B. APPEALS BY THE NEW MESQUITE HOMEOWNERS’ ASSOCIATION AND
DESERT CHAPEL OF THE PLANNING COMMISSION DECISION TO APPROVE A MINOR AMENDMENT TO PLANNED DEVELOPMENT DISTRICT (PDD 153) TO ALLOW THE RESTORATION OF APPROXIMATELY 90 ACRES OF THE 120-ACRE FORMER MESQUITE GOLF COURSE AND COUNTRY CLUB SITE
INTO A NATIVE DESERT HABITAT AND NATURE PRESERVE (CASE
5.0303-PD 153).
RECOMMENDATION:
1. Open the appeal hearing and receive testimony; and
Reject the appeals and accept the Planning Commission’s decision by adopting a Resolution entitled, “ A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF PALM SPRINGS, CALIFORNIA, DENYING THE APPEALS
BY THE NEW MESQUITE HOMEOWNERS ASSOCIATION AND DESERT
CHAPEL AND UPHOLDING THE DECISION OF THE PLANNING
COMMISSION TO APPROVE A PROPOSED MINOR AMENDMENT TO
PLANNED DEVELOPMENT DISTRICT 153 (PDD-153) BY THE OSWIT LAND TRUST TO ALLOW THE RESTORATION OF APPROXIMATELY 90 ACRES OF THE 120-ACRE FORMER GOLF COURSE AND COUNTRY
CLUB SITE INTO A NATIVE DESERT HABITAT AND NATURE PRESERVE
FOR THE SITE LOCATED BETWEEN SUNRISE WAY AND EL CIELO
ROAD, NORTH OF MESQUITE AVENUE, ZONE PDD 153, SECTION 24 (CASE 5.0303-PDD-153).”
2. 3. BUSINESS & LEGISLATIVE: NONE
PUBLIC COMMENT: (Non-Agenda Items) This time has been set aside for members of the public to address the City Council on items of general interest within the subject matter jurisdiction of the City. Although the City Council values your comments, pursuant to the Brown Act, it generally cannot take any action on items not listed on the posted agenda. Two (2) minutes will be assigned to each speaker.
CITY COUNCIL AND CITY MANAGER COMMENTS, REPORTS, & AGENDA DEVELOPMENT: This time is set aside for the City Council and City Manager to provide additional general comments and reports. Additionally, the City Council and City Manager may briefly discuss items of concern and prioritize agenda items for future meeting dates.
ADJOURNMENT:
October 10, 2024 City Council Regular Meeting Agenda 9
AFFIDAVIT OF POSTING
State of California )
County of Riverside ) ss.
City of Palm Springs )
I, Brenda Pree, City Clerk of the City of Palm Springs, California, hereby certify this Agenda was delivered to each member of the City Council, provided to all parties who have requested such notice, posted at City Hall before 5:00 p.m., on October 4, 2024, and posted on the City’s website as required by established policies and procedures.
____________________________
Brenda Pree, MMC, CERA
City Clerk
P U B L I C N O T I C E S
Pursuant to G.C. Section 54957.5(b)(2) the designated office for inspection of records in connection with the meeting is the Office of the City Clerk, City Hall, 3200 E. Tahquitz Canyon Way. Complete Agenda Packets are available for public inspection at: City Hall Office of the City Clerk. Agenda and staff reports are available on the City’s website www.palmspringsca.gov. If you would like additional information on any item appearing on this agenda, please contact the Office of the City Clerk at
(760) 323-8204.
It is the intention of the City of Palm Springs to comply with the Americans with Disabilities Act (ADA) in all respects. If, as an attendee or a participant at this meeting, or in meetings on a regular basis, you will need special assistance beyond what is normally provided, the City will attempt to accommodate you in every reasonable manner. Please contact the Office of the City Clerk, (760) 323-8204, at least 48 hours prior to the meeting to inform us of your particular needs and to determine if accommodation is feasible.
October 10, 2024 City Council Regular Meeting Agenda 10 City of Palm Springs DRAFT Page 1
Thursday, September 12, 2024
Minutes of the Regular Meeting of the City Council
of the City of Palm Springs
CALL TO ORDER:
A Regular Meeting of the Palm Springs City Council was called to order by Mayor Bernstein on Thursday, September 12, 2024, at 5:34 p.m.
PLEDGE OF ALLEGIANCE:
Josiah Villa, a middle school student, led the Pledge of Allegiance.
ROLL CALL:
Present: Councilmembers Christy Holstege, Grace Elena Garner, and Lisa Middleton; Mayor Pro Tem Ron deHarte; and Mayor Jeffrey Bernstein.
Absent: None.
City Staff
Present: Scott Stiles, City Manager; Teresa Gallavan, Assistant City Manager; Flinn Fagg, Deputy City Manager; Jeremy Hammond, Deputy City Manager; Jeff Ballinger, City Attorney; Andrew Mills, Chief of Police; and Brenda Pree, City Clerk, were present at Roll Call. Other staff members presented reports or responded to questions as indicated in the minutes.
PRESENTATIONS: None.
ACCEPTANCE OF THE AGENDA:
MOTION BY MAYOR PRO TEM DEHARTE, SECOND BY COUNCILMEMBER HOLSTEGE, CARRIED 5-0, to accept the agenda with continuance of Public Hearing Item No. 2B.
REPORT OF CLOSED SESSION:
The Closed Session of the City Council of September 12, 2024, was called to order by Mayor Bernstein at 4:04 p.m.
The meeting convened into Closed Session to discuss the following items as listed on the Closed Session Meeting Agenda, with no reportable action.
CONFERENCE WITH LEGAL COUNSEL—EXISTING LITIGATION, Pursuant to Government Code Section 54956.9(d)(1):
Item 1A - Page 1
City Council Minutes September 12, 2024
City of Palm Springs DRAFT Page 2
City of Palm Springs v. Desert Community College District. Riv. Sup. Ct. No. CVPS2203916 CONFERENCE WITH LEGAL COUNSEL – INITIATION OF TO LITIGATION, Pursuant to Government Code Section 54956.9(d)(4):
Under existing facts and circumstances, there were two (2) matters.
CONFERENCE WITH REAL PROPERTY NEGOTIATOR, Pursuant to Government Code Section 54956.8:
Property:
City Negotiator:
Negotiating parties:
Under negotiation:
119.4 acres of real property, located on the Northwest Corner of Indian Canyon Dr. and Tramview Road.
Scott Stiles, City Manager; Flinn Fagg, Dep. City Manager; Jeffrey Ballinger, City Attorney.
Desert Community College District
Price and Terms
PUBLIC TESTIMONY:
Bill Mitchell provided oral testimony.
1. CONSENT CALENDAR:
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve the consent calendar
A. AWARD OF A CONSTRUCTION CONTRACT TO PAVEMENT COATINGS CO., CALIFORNIA CORPORATION, IN THE AMOUNT OF $3,460,758; APPROVAL OF A TASK ORDER UNDER ON-CALL AGREEMENT NO. A8566 WITH DUDEK, INC., IN AN AMOUNT NOT TO EXCEED $303,000 FOR CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES; AND APPROVAL OF A TASK ORDER UNDER ONCALL AGREEMENT NO. 23PO41 WITH TSG ENTERPRISES, INC., DBA THE SOLIS GROUP, IN AN AMOUNT NOT TO EXCEED $13,936 TO PROVIDE COMMUNITY
WORKFORCE AGREEMENT ADMINISTRATION FOR CITY-WIDE SLURRY SEAL, CITY PROJECT 24-02
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Award a construction contract to Pavement Coatings Co., in the amount of $3,460,758 for the City-Wide Slurry Seal, City Project No. 24-02 (“the Project”);
2. Delegate authority to the City Manager or designee to approve and execute construction contract change orders up to a total amount of $400,000 with all change orders reported to the City Council;
3. Authorize the City Manager or designee to approve a task order for project management and inspection services from an on-call engineering services firm, Dudek, Inc., in an amount not to exceed $303,000;
4. Authorize the City Manager or designee to approve a task order for Community Workforce Agreement (CWA) administration services from an on-call CWA firm, TSG Enterprises, Inc., dba The Solis Group, in an amount not to exceed $13,936; and Item 1A - Page 2
City Council Minutes September 12, 2024
City of Palm Springs DRAFT Page 3
5. Authorize the City Manager or designee to execute all necessary documents.
B. APPROVAL OF MINUTES
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve the City Council Minutes of June 13, 2024.
C. APPROVAL OF PAYROLL WARRANTS, CLAIMS AND DEMANDS:
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to adopt Resolution No. 25244, entitled "A RESOLUTION OF
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING
PAYMENT OF PAYROLL WARRANTS/DISBURSEMENTS FOR THE PERIOD ENDING 06-22-24, 07-06-24, 07-20-24, 08-03-24, AND 08-17-24 TOTALING $12,768,804.92 AND ACCOUNTS PAYABLE WARRANTS DATED 06-18-24, 07-03-24, 07-18-24, 08-01-24, 08- 13-24, AND 08-15-24 TOTALING $42,468,013.66, IN THE AGGREGATE AMOUNT OF $55,236,818.58 DRAWN ON BANK OF AMERICA."
D. STAFF AUTHORIZED AGREEMENTS AND PURCHASE ORDERS FOR THE PERIOD OF JULY 1 THROUGH JULY 31, 2024
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to receive and file the report of Staff Authorized Agreements and Purchase Orders for the period of July 1 through July 31, 2024.
E. AUTHORIZATION TO ACCEPT ANTICIPATED FEDERAL AVIATION ADMINISTRATION ZERO EMISSION VEHICLE GRANT TOTALING $503,212.54
FOR PALM SPRINGS INTERNATIONAL AIRPORT
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to authorize the City Manager to accept a Federal Aviation Administration grant up to $503,212.54 for Palm Springs International Airport; and authorize the City Manager or designee to execute all necessary documents when the grant is received.
F. ACCEPTANCE OF $120,000 IN GRANT FUNDING FROM THE CALIFORNIA
OFFICE OF TRAFFIC SAFETY FOR A SELECTIVE TRAFFIC ENFORCEMENT
PROGRAM TO BE USED TO ENFORCE, EDUCATE, AND BRING AWARENESS TO
THE PUBLIC
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to accept $120,000 in grant funding from the California Office of Traffic Safety for a Selective Traffic Enforcement Program for 2024/2025; and authorize the City Manager to execute all necessary documents.
G. APPROVE CONTRACT SERVICES AGREEMENT NO. 24B189 WITH MANSFIELD
POWER AND GAS, LLC FOR THE PURCHASE OF NATURAL GAS
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve Contract Services Agreement No. 24B189 with Item 1A - Page 3
City Council Minutes September 12, 2024
City of Palm Springs DRAFT Page 4
Mansfield Power and Gas, LLC, to provide natural gas for an amount not to exceed $447,185 beginning January 1, 2025, through December 31, 2025; and authorize the City Manager or designee to execute all necessary documents.
H. APPROVE CONTRACT SERVICE AGREEMENT NO. 24B186 WITH MPG CONSTRUCTION, LLC AND CANCEL CONTRACT SERVICE AGREEMENT NO. 24B144 WITH TED CONSTRUCTION, LLC FOR ON-CALL BUILDING REPAIR
AND RENOVATION SERVICES
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Approve Contract Services Agreement 24B186 with MPG Construction, LLC to provide on-call building repair and renovation services in an amount not to exceed $750,000 for the initial three-year term beginning September 16, 2024, through September 15, 2027, with two one-year extension options at the City’s sole discretion; and
2. Approve cancellation of Contract Services Agreement 24B144 with Ted Construction, LLC to provide on-call building repair and renovation services in an amount not to exceed $750,000 for the initial three-year term beginning July 15, 2024, through July 14, 2027, with two one-year extension options at the City’s sole discretion;
3. Authorize the City Manager or designee to execute all necessary documents.
I. APPROVE A GOODS PURCHASE AGREEMENT (24B206) WITH RIDE MOBILITY
LLC FOR THREE ELECTRIC TRANSIT BUSES FOR PALM SPRINGS
INTERNATIONAL AIRPORT
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Approve Goods Purchase Agreement 24B206 with RIDE Mobility LLC. to provide three electric transit buses for Palm Springs International Airport in an amount not to exceed $3,146,635.07, inclusive of a 10% contingency;
2. Approval of this action includes an appropriation of $1,146,635.07 from the Airport Capital Projects Fund Balance Account 4167065-60020 in Fiscal Year 2024-2025.
3. Authorize the City Manager or his designee to execute all necessary documents.
J. APPROVE A CONTRACT SERVICES AGREEMENT FOR LEGAL AID FOR
HOUSING ASSISTANCE
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Approve Contract Services Agreement No. 24P158 with Public Service Law Corp of the Riverside County Bar Association, dba Riverside Legal Aid, to provide legal aid as needed for an amount not to exceed $51,700 for a one-year term with two one-year options to renew at the City’s sole discretion.
2. Authorize the City Manager or designee to execute all necessary documents.
K. APPROVE RESPONSE TO CIVIL GRAND JURY RESPONSE
Item 1A - Page 4
City Council Minutes September 12, 2024
City of Palm Springs DRAFT Page 5
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve the response, and authorize the City Manager to deliver the City’s written response to the Grand Jury Report.
L. APPROVAL OF AMENDMENT NO. 3 TO CONTRACT SERVICES AGREEMENT WITH ALLIED UNIVERSAL, INC. FOR UNARMED SECURITY SERVICES (AGREEMENT NO. 8358), AND TO RATIFY EMERGENCY PURCHASE OF
UNARMED SECURITY SERVICES
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Approve Amendment No. 3 to Agreement No. A8358, with Allied Universal Inc. for unarmed uniformed security guard and patrol services for various City facilities and locations.
2. Ratify the emergency purchase of unarmed security services from Allied Universal Inc. for a total amount of $220,000.
3. Authorize the City Manager or designee to execute Amendment No. 3 to the contract services agreement with Allied Universal Inc. for unarmed security services throughout the City.
M. APPROVE SUCCESSOR AGENCY LAST AND FINAL RECOGNIZED
OBLIGATION PAYMENT SCHEDULE
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to adopt Resolution No. 25245, entitled, “A RESOLUTION OF
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, ACTING
SOLELY IN ITS CAPACITY AS THE SUCCESSOR AGENCY TO THE PALM SPRINGS
COMMUNITY REDEVELOPMENT AGENCY, APPROVING THE LAST AND FINAL RECOGNIZED OBLIGATION PAYMENT SCHEDULE (“ROPS”) PURSUANT TO HEALTH AND SAFETY CODE SECTION 34191.6.”
N. APPROVE CONTRACT SERVICE AGREEMENTS NO. 24B203 WITH VETERANS COMMUNICATION SERVICES, INCORPORATED AND 24B204 WITH
DATASTREAM TECHNOLOGY CONSULTING FOR ON-CALL LOW VOLTAGE
CABLING SERVICES
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Approve Contract Services Agreement 24B203 with Veterans Communication Services, Incorporated to provide on-call low voltage cabling services in an amount not to exceed $700,000 for the initial three-year term beginning September 16, 2024, through September 15, 2027, with two one-year extension options at the City’s sole discretion; and
2. Approve Contract Services Agreement 24B204 with Datastream Technology Consulting to provide on-call low voltage cabling services in an amount not to exceed $300,000 for the initial three-year term beginning September 16, 2024, through September 15, 2027, with two one-year extension options at the City’s sole discretion; and
3. Authorize the City Manager or his designee to execute all necessary documents.
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O. ACCEPTANCE OF WASTEWATER TREATMENT PLANT SLUDGE DRYING BEDS REHABILITATION, CITY PROJECT 21-05
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Accept the public works improvement identified as the Wastewater Treatment Plant Sludge Drying Beds Rehabilitation, City Project 21-05 (“Project”), as completed in accordance with the plans and specifications; and
2. Authorize the City Engineer to execute and file for recordation with the Riverside County Recorder a Notice of Completion for the Wastewater Treatment Plant Sludge Drying Beds Rehabilitation, City Project 21-05; and
3. Appropriate $92,869.87 from the Wastewater Fund balance.
P. SECOND READING AND ADOPTION OF ORDINANCE NO. 2101, ENTITLED “AN
ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, DELETING SECTION 10.20.060 “OWNER’S RIGHT TO REDEEM ANIMAL FROM
PURCHASER” AND SECTION 10.20.070 “OWNER’S LIABILITY TO CITY WHEN REDEEMING ANIMAL FROM PURCHASER”, AND AMENDING SECTION
10.20.030 REGARDING “DISPOSITION OF UNCLAIMED ANIMALS.”
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to conduct the second reading by title only, and adopt Ordinance No. 2101, entitled “AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, DELETING SECTION 10.20.060 “OWNER’S RIGHT TO REDEEM ANIMAL FROM PURCHASER” AND SECTION 10.20.070 “OWNER’S LIABILITY TO CITY WHEN REDEEMING ANIMAL FROM PURCHASER”, AND AMENDING SECTION 10.20.030 REGARDING “DISPOSITION OF UNCLAIMED ANIMALS.” Q. APPROVE AMENDMENT TO CONTRACT SERVICES AGREEMENT NO. 23P188 WITH NEIGHBORHOOD PARTNERSHIP HOUSING SERVICES, INC., FOR CDBG
HOME REHABILITATION PROGRAM
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Approve Amendment No. 1 to Contract Services Agreement No. 23P188 with Neighborhood Partnership Housing Services, Inc. to add $112,873.19 for project rehabilitation costs, for a new not to exceed amount of $525,139.19; clarify the term has options to extend for two additional one-year terms; and to incorporate the CDBG Federal Provisions.
2. Approve the revised CDBG Owner Occupied Home Rehabilitation Program Guidelines.
3. Authorize the City Manager or his designee to make minor non-substantive changes and to execute all necessary documents.
R. APPROVE THE DESIGNS “PEOPLE CROSSWALK” AND “FLOWER
CROSSWALK” BY ARTIST MARCONI CALINDAS-CAFEGE FOR THE ASPHALT
ART PROJECT AT THE INTERSECTION OF WEST TRAMVIEW ROAD AND
NORTH GRANADA AVENUE
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MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve the designs “People Crosswalk” and “Flower Crosswalk” by Artist Marconi Calindas-Cafege for the Asphalt Art Project at the intersection of West Tramview Road and North Granada Avenue.
S. APPROVAL OF AMENDMENT NO. 3 TO PROFESSIONAL SERVICES AGREEMENT A8577 WITH BUREAU VERITAS NORTH AMERICA, INC., FOR ONCALL BUILDING OFFICIAL AND BUILDING INSPECTION SERVICES
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve the proposed Agreement Amendment with Bureau Veritas North America, Inc., a Delaware corporation, for on-call Building Official and inspection services through November 30, 2024, for a not-to-exceed amount of $98,600; and authorize the City Manager or designee to execute all necessary documents.
T. APPROVE AN AMENDMENT TO EXTEND AN EXISTING AGREEMENT WITH
UKG KRONOS SYSTEMS, LLC FOR ONE ADDITIONAL YEAR TO PROVIDE
TIMEKEEPING SOFTWARE AND SERVICES FOR THE FIRE DEPARTMENT
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve an amendment to extend an existing agreement with UKG Kronos Systems, LLC to provide timekeeping software and services for Fire Department personnel for an additional year in an amount not to exceed $29,063 and for a revised contract amount not to exceed $85,438.34; and authorize the City Manager or designee to sign all associated documents.
U. APPROVAL OF A REQUEST FOR EARLY CONSTRUCTION START TIMES
MONDAY THROUGH FRIDAY FOR CONSTRUCTION ACTIVITIES AT THE THOMPSON HOTEL DEVELOPMENT, LOCATED AT 414 NORTH PALM
CANYON DRIVE
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve the requested early construction start time of 5:00 am, Monday through Friday, between the dates of September 13, 2024, and November 1, 2024, subject to continuous monitoring of noise complaints and impacts to adjacent properties and businesses.
V. INTRODUCE AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
SPRINGS, CALIFORNIA, AMENDING PALM SPRINGS MUNICIPAL CODE SECTION 6.10.082 REGARDING SMOKING PROHIBITIONS AT THE PALM
SPRINGS INTERNATIONAL AIRPORT
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to waive the reading of the ordinance text in its entirety, read by title only, and introduce Ordinance No. 2102, entitled “AN ORDINANCE OF THE CITY
COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING PALM SPRINGS MUNICIPAL CODE SECTION 6.10.082 REGARDING SMOKING PROHIBITIONS AT THE PALM SPRINGS INTERNATIONAL AIRPORT.” Item 1A - Page 7
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W. APPROVE CONTRACT SERVICES AGREEMENT NO. 24P194 WITH CERAGON NETWORKS, INC. FOR FIRE RADIO BACKHAUL NETWORK INSTALLATION
SERVICES
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Approve Contract Services Agreement No. 24P194 with Ceragon Networks, Inc. to provide fire radio backhaul network installation services and ongoing maintenance for a five-year term in an amount of $412,082 beginning September 16, 2024 through September 15, 2029; and
2. Approve a contingency of $82,416 for unanticipated costs and authorize the City Manager to approve changes orders as needed up to this contingency amount.
3. Authorize the City Manager or designee to execute all necessary documents.
X. APPROVE AN AMENDMENT TO THE AGREEMENT WITH LIEBERT CASSIDY
WHITMORE TO PROVIDE EMPLOYMENT AND LABOR RELATIONS LEGAL
SERVICES
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve an Amendment to the Agreement for Special Services with Liebert Cassidy Whitmore to provide consulting, representational and legal services pertaining to employment relations matters.
Y. APPROVAL OF A REQUEST FOR NIGHT WORK CONSTRUCTION BETWEEN OCTOBER 1, 2024, TO NOVEMBER 30, 2024, FOR THE BARISTO SEWER LINE REHABILITATION, CITY PROJECT NO. 23-15
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve the requested night work construction time of 7:00 pm to 5:00 am for the dates between October 1, 2024, to November 30, 2024, for the Baristo Sewer Line Rehabilitation, City Project No. 23-15 (“Project”), subject to continuous monitoring of noise complaints and impacts to adjacent properties and businesses.
Z. APPROVE CONTRACT SERVICES AGREEMENT NO. 24B177 WITH BUBBLES
CARPET CLEANING LLC FOR ON-CALL FLOOR CARE SERVICES FOR PALM
SPRINGS INTERNATIONAL AIRPORT
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Approve Contract Services Agreement No. 24B177 with Bubbles Carpet Cleaning LLC to provide on-call floor care services for the Palm Springs International Airport in an amount not to exceed $900,000 for the initial three-year term beginning September 16, 2024, through September 15, 2027, with two one-year extension options at the City’s sole discretion.
2. Authorize the City Manager or designee to execute all necessary documents.
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AA.APPROVE CONTRACT SERVICES AGREEMENT NO. 24X212 WITH DESERT ARC
DBA DESERT ARC LANDSCAPING FOR GROUND MAINTENANCE,
LANDSCAPING, AND TRASH REMOVAL SERVICES FOR PALM SPRINGS
INTERNATIONAL AIRPORT
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve Contract Services Agreement No. 24X212 with Desert Arc dba Desert Arc Landscaping to provide ground maintenance, landscaping, and trash removal services for the Palm Springs International Airport in an amount not to exceed $1,600,000 for a five -year term beginning September 15, 2024 through September 14, 2029; and authorize the City Manager or designee to execute all necessary documents.
BB. APPROVE AMENDMENT NO. 1 TO CONTRACT SERVICES AGREEMENT NO. 23E228 WITH UNIVERSAL PROTECTION SERVICE, LP DBA ALLIED
UNIVERSAL SECURITY SERVICES FOR AVIATION WORKER AND INBOUND
CARGO SCREENING FOR PALM SPRINGS INTERNATIONAL AIRPORT
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Approve Amendment No. 1 to Contract Services Agreement No. 23E228 with Universal Protection Service, LP dba Allied Universal Security Services, in an additional amount of $71,904.56 for a total revised contract amount not to exceed $338,978.64 to extend the provision of aviation worker and inbound cargo screening services for the Palm Springs International Airport, and to extend the term for an additional three months for a new term of September 25, 2023, to December 31, 2024.
2. Authorize the City Manager or designee to execute all necessary documents.
EXCLUDED CONSENT CALENDAR: None.
2. PUBLIC HEARINGS:
A. ADOPTION OF A RESOLUTION AMENDING THE CITY'S COMPREHENSIVE FEE SCHEDULE, MODIFYING THE PROVISIONS OF THE CITY’S COMPREHENSIVE
FEE SCHEDULE RELATED TO PALM SPRINGS INTERNATIONAL AIRPORT
PUBLIC PARKING FEES AND LEAVING ALL OTHER FEES UNCHANGED The item was continued.
B. APPEALS BY THE NEW MESQUITE HOMEOWNERS’ ASSOCIATION AND
DESERT CHAPEL OF THE PLANNING COMMISSION DECISION TO APPROVE A MINOR AMENDMENT TO PLANNED DEVELOPMENT DISTRICT (PDD 153) TO ALLOW THE RESTORATION OF APPROXIMATELY 90 ACRES OF THE 120-
ACRE FORMER MESQUITE GOLF COURSE AND COUNTRY CLUB SITE INTO A NATIVE DESERT HABITAT AND NATURE PRESERVE (CASE 5.0303-PD 153) The item was continued.
3. BUSINESS & LEGISLATIVE:
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A. AUTHORIZE REFINANCING OF SUCCESSOR AGENCY 2014 TAX ALLOCATION BONDS
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to adopt Resolution No. 25246, entitled “ A RESOLUTION OF
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, ACTING
SOLELY IN ITS CAPACITY AS THE SUCCESSOR AGENCY TO THE PALM SPRINGS COMMUNITY REDEVELOPMENT AGENCY APPROVING THE ISSUANCE OF 2024
TAX ALLOCATION REFUNDING PARITY BONDS TO REFUND CERTAIN
OUTSTANDING OBLIGATIONS OF THE SUCCESSOR AGENCY TO THE PALM
SPRINGS COMMUNITY REDEVELOPMENT AGENCY, APPROVING THE
EXECUTION AND DELIVERY OF A THIRD SUPPLEMENT TO INDENTURE OF
TRUST, ESCROW AGREEMENT, BOND PURCHASE AGREEMENT AND A
PRELIMINARY AND FINAL OFFICIAL STATEMENT AND PROVIDING OTHER MATTERS RELATING TO THE ISSUANCE OF THE REFUNDING BONDS.” B. UPDATING PROCESSES AND PROCEDURES FOR CITY GRANT MANAGEMENT
AND FUNDS DISBURSEMENT
No action taken.
PUBLIC COMMENT:
Belinda Salgado, Pearl Devers, Gloria Holland Thompson, Sharon Hendricks, Wendell Crawford Sr., Kenneth Monteiro, Eric Baker, Willie Moore, Gloria Gonzales, Tomeeka Grizzell, Charles Metcalf Jr, Reverend Dan Kline, Michael Murrell, Robert D. Jiles, Steve Walton, Samantha Smith Nix, Mickey Brown Freney, Deiter Crawford, Oreva Martin, Stephanie Brown, Cheryl Taylor, Charlie Johnson, LaSonta Patton, Bart Davis, Michael Joseph Pitkin, Dr. Jesse Neimeyer-Romero, Abraham Ishaq, and David Wiener provided non-agenda oral testimony.
CITY COUNCIL AND CITY MANAGER COMMENTS, REPORTS, & AGENDA DEVELOPMENT:
City Manager Stiles and the City Council discussed the tentative upcoming meeting schedule and agenda items.
ADJOURNMENT:
The City Council adjourned the meeting of Thursday, September 12, 2024, at 7:58 p.m.
Respectfully submitted,
______________________________
Brenda Pree, MMC, CERA
City Clerk
APPROVED BY CITY COUNCIL:
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Thursday, September 26, 2024
Minutes of the Regular Meeting of the City Council
of the City of Palm Springs
CALL TO ORDER:
A Regular Meeting of the Palm Springs City Council was called to order by Mayor Bernstein on Thursday, September 26, 2024, at 5:33 p.m.
PLEDGE OF ALLEGIANCE:
Brent Francisco, a high school student, led the Pledge of Allegiance.
ROLL CALL:
Present: Councilmembers Christy Holstege, Grace Elena Garner, and Lisa Middleton; Mayor Pro Tem Ron deHarte; and Mayor Jeffrey Bernstein.
Absent: None.
City Staff
Present: Scott Stiles, City Manager; Teresa Gallavan, Assistant City Manager; Flinn Fagg, Deputy City Manager; Jeremy Hammond, Deputy City Manager; Jeff Ballinger, City Attorney; Kyle Stjerne, Police Sergeant III; and Brenda Pree, City Clerk were present at Roll Call. Other staff members presented reports or responded to questions as indicated in the minutes.
PRESENTATIONS: None.
ACCEPTANCE OF THE AGENDA:
MOTION BY MAYOR BERNSTEIN, SECOND BY COUNCIL MEMBER GARNER, CARRIED 5-0, to accept the agenda.
REPORT OF CLOSED SESSION:
The Closed Session of the City Council of September 26, 2024, was called to order by Mayor Bernstein at 4:01 p.m.
The meeting convened into Closed Session to discuss the following items as listed on the Closed Session Meeting Agenda, with no reportable action.
CONFERENCE WITH LEGAL COUNSEL—SIGNIFICANT EXPOSURE, Pursuant to Government Code Section 54956.9(d)(2):
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Under existing facts and circumstances, there was one (1) matter.
CONFERENCE WITH REAL PROPERTY NEGOTIATOR, Pursuant to Government Code Section 54956.8:
Property:
City Negotiator:
Negotiating parties:
Under negotiation:
124 S. Palm Canyon Drive. Palm Springs, CA 92262
Scott Stiles, City Manager; Teresa Gallavan, Assistant City Manager; and Jeff Ballinger, City Attorney
Grit Development, LLC; Kalura Trattoria, Inc.
Price and Terms
PUBLIC TESTIMONY:
Jocelyn Kane and Scott Rusczyk provided oral testimony.
1. CONSENT CALENDAR:
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve the consent calendar
A. APPROVAL OF MINUTES: JUNE 27, JULY 9, AND JULY 25, 2024.
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve the City Council Meeting Minutes of June 27, July 9, and July 25, 2024.
B. A RESOLUTION ADOPTING AN AMENDED CONFLICT OF INTEREST CODE PURSUANT TO THE POLITICAL REFORM ACT OF 1974
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to adopt a Resolution No. 25247, entitled, “A RESOLUTION OF
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, ADOPTING AN
AMENDED CONFLICT OF INTEREST CODE PURSUANT TO THE POLITICAL REFORM ACT OF 1974.”
C. STAFF AUTHORIZED AGREEMENTS AND PURCHASE ORDERS FOR THE PERIOD OF AUGUST 1 THROUGH AUGUST 31, 2024.
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to receive and file the report of Staff Authorized Agreements and Purchase Orders for the period of August 1 through August 31, 2024.
D. APPROVE GOODS PURCHASE AGREEMENT 24B217 WITH VOGEL TRAFFIC SERVICES, INC. FOR TRUCK MOUNTED STRIPING MACHINE FOR PALM
SPRINGS INTERNATIONAL AIRPORT
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve Contract Services Agreement 24B217 with Vogel Traffic Service, Inc. to provide Truck Mounted Striping Machine for Palm Springs International Item 1A - Page 12
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Airport in an amount not to exceed $421,557; and authorize the City Manager or designee to execute all necessary documents.
E. APPROVE GOODS PURCHASE AGREEMENT NO. 24B215 WITH 8540527 CANADA INC., DBA NIU TOILET FOR RESTROOM TRAILERS FOR PALM SPRINGS
INTERNATIONAL AIRPORT
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve Goods Purchase Agreement 24B215 with 8540527 Canada Inc. / D.B.A. NIU Toilet to provide two (2) multi-station and two (2) single-station restroom trailers for Palm Springs International Airport in an amount not to exceed $213,600; and authorize the City Manager or designee to execute all necessary documents.
F. ACCEPTANCE OF PLAYGROUND AND SHADE STRUCTURE EQUIPMENT
INSTALLATION AT DEMUTH AND VICTORIA PARKS
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to Accept the public works improvement identified as purchase of playground and shade structures and installation for Demuth and Victoria Parks, as completed in accordance with the Construction Contract; and authorize the Director of Public Works to execute and file for recordation with the Riverside County Recorder a Notice of Completion for purchase of playground and shade structures and installation for Demuth and Victoria Parks.
G. APPROVE CONTRACT SERVICES AGREEMENT NO. 24B211 WITH DÉCOR IQ,
LLC FOR HOLIDAY DECORATIONS FOR PALM SPRINGS INTERNATIONAL
AIRPORT
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Approve Contract Services Agreement No. 24B211 with Décor IQ, LLC to provide holiday decorations, installation, and storage services for the Palm Springs International Airport in an amount not to exceed $118,632.37 for the initial three-year term beginning September 30, 2024, through September 29, 2027, with two one-year extension options at the City’s sole discretion.
2. Authorize the City Manager or designee to execute all necessary documents.
H. APPROVAL OF AMENDMENT NO. 3 TO CONTRACT SERVICES AGREEMENT NO.
A8535 WITH ABM AVIATION, INC. FOR PARKING MANAGEMENT SERVICES AT
THE PALM SPRINGS INTERNATIONAL AIRPORT
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Approve Amendment No. 3 to Contract Services Agreement A8535 with ABM Aviation, Inc., for year-round parking lot shuttle services, to increase parking staff, and to extend the Agreement term for one year, June 1, 2025 to May 31, 2026, for an additional amount of $2,674,475 and a total revised contract amount not to exceed $6,945,271.
2. Authorize the City Manager or designee to execute all necessary documents.
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I. APPROVE AMENDMENT NO. 2 TO MAINTENANCE AGREEMENT NO. A8310 WITH SIGNATURE TECHNOLOGIES, INC. DBA COM-NET SOFTWARE TO
PROVIDE SOFTWARE, MAINTENANCE, AND SERVICES FOR FLIGHT
INFORMATION SYSTEMS DISPLAY SOFTWARE AT THE PALM SPRINGS
INTERNATIONAL AIRPORT
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Approve Amendment No. 2 to Maintenance Agreement No. A8310 (Agreement) with Signature Technologies, Inc. dba Com-Net Software (Com-Net) to reflect a name change; to allow the City to terminate the Agreement upon 30 days prior written notice; to retroactively remove the yearly automatic renewal of the Agreement as of June 30, 2024; to extend the term for one year for July 1, 2024, to June 30, 2025; and to increase the compensation for a month-to-month subscription pricing structure, for an additional amount of $38,304, for a total revised Agreement amount not to exceed $136,704.
2. Authorize the City Manager or designee to sign all necessary documents.
J. APPROVAL OF A PROFESSIONAL SERVICES AGREEMENT WITH KIMLEYHORN AND ASSOCIATES, INC., A NORTH CAROLINA CORPORATION, IN THE AMOUNT OF $312,591.26 FOR THE HIGHWAY SAFETY IMPROVEMENT PROJECT (CYCLE 11), FEDERAL-AID PROJECT NO. HSIPL-5282(051), CITY PROJECT NO. 23-12
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Approve Professional Services Agreement with Kimley-Horn and Associates, Inc., a North Carolina corporation, in the amount of $312,591.26 for environmental and engineering design services for the Highway Safety Improvement Program (HSIP) Cycle 11 Traffic Safety Enhancements at nine (9) Intersections, Federal-Aid Project No. HSIPL-5282 (051), City Project No. 23-12;
2. Appropriate $150,000 from the Capital fund balance; and,
3. Authorize the City Manager to execute all necessary documents.
K. SECOND READING AND ADOPTION OF ORDINANCE NO. 2102 AMENDING PALM SPRINGS MUNICIPAL CODE SECTION 6.10.082 REGARDING SMOKING
PROHIBITIONS AT THE PALM SPRINGS INTERNATIONAL AIRPORT
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to waive the second reading of the ordinance text in its entirety, read by title only, and adopt Ordinance No. 2102, entitled, “AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTION 6.10.082 OF THE
PALM SPRINGS MUNICIPAL CODE REGARDING SMOKING PROHIBITIONS AT THE PALM SPRINGS INTERNATIONAL AIRPORT.”
L. APPROVAL OF AN ALL-WAY STOP INTERSECTION WITHIN THE PALM
SPRINGS INTERNATIONAL AIRPORT PROPERTY
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to adopt Resolution No. 25248, entitled “A RESOLUTION OF Item 1A - Page 14
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THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AUTHORIZING
THE CITY ENGINEER TO ESTABLISH AN ALL-WAY STOP CONTROLLED
INTERSECTION AT KIRK DOUGLAS WAY AND THE PARK AND CALL LOT DRIVEWAY ENTRANCE, IN ACCORDANCE WITH SECTION 12.16.030 OF THE PALM SPRINGS MUNICIPAL CODE.”
M. APPROVE AMENDMENT NO. 3 TO PROFESSIONAL SERVICES AGREEMENT NO.
A9173 IN THE AMOUNT OF $89,313 FOR ADDITIONAL CONSTRUCTION
ADMINISTRATION SERVICES WITH ARCHITECTURAL RESOURCES GROUP, INC., FOR PLAZA THEATRE DESIGN SERVICES
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Approve Amendment No. 3 for additional construction administrative support to Professional Services Agreement No. A9173 – Plaza Theatre Design Services in the amount of $89,313 for a new not to exceed amount of $1,179,187.
2. Authorize the City Manager or their designee to execute all necessary documents.
N. A REQUEST BY THE OWNERS OF FOUR HISTORIC PROPERTIES FOR
APPROVAL OF MILLS ACT HISTORIC PROPERTY PRESERVATION
AGREEMENTS, INCLUDING THREE UNITS WITHIN THE OCOTILLO LODGE HISTORIC DISTRICT (HD-11) AT 1111 EAST PALM CANYON DRIVE, UNITS 301, 344, AND 353; AND THE ALVAH AND TERESA HICKS RESIDENCE, A CLASS 2 HISTORIC SITE (HSPB 155) LOCATED AT 701 NORTH PATENCIO ROAD
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to:
1. Approve a Mills Act Historic Property Preservation Agreement between the City of Palm Springs and the owners of the following list of properties:
a) 1111 E. Palm Canyon, Unit 301 (Ocotillo Lodge), APN: 511-035-046. b) 1111 E. Palm Canyon, Unit 344 (Ocotillo Lodge), APN: 511-035-086. c) 1111 E. Palm Canyon, Unit 353 (Ocotillo Lodge), APN: 511-035-095. d) 701 N. Patencio Road (Koerner Residence), APN: 505-291-005.
2. Authorize the City Manager to execute the Agreements.
3. Direct the City Clerk to record the Agreements with the County of Riverside.
O. APPROVE CONTRACT SERVICES AGREEMENT NO. 24B132 WITH ADAM A.
CAMPOS DBA GRAPHICS MFG FOR ROADWAY POLE BANNERS,
REPLACEMENT PARTS, AND SERVICES FOR PALM SPRINGS INTERNATIONAL
AIRPORT
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve Contract Services Agreement No. 24B132 with Adam A. Campos, dba Graphics MFG, to provide roadway pole banners, replacement parts and services for the Palm Springs International Airport in an amount not to exceed $329,250 for the initial three-year term beginning September 30, 2024, through September 29, 2027, with two one-year extension options at the City’s sole discretion; and authorize the City Manager or designee to execute all necessary documents.
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P. APPROVE CONTRACT SERVICES AGREEMENT NO. 24B230 WITH WGJ ENTERPRISES INC., DBA PCI FOR ON-CALL AIRPORT RUBBER AND PAINT
REMOVAL AND APPLICATION SERVICES FOR PALM SPRINGS
INTERNATIONAL AIRPORT
MOTION BY COUNCIL MEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0, to approve Contract Services Agreement 24B230 with WGJ Enterprises Inc., dba PCI to provide on-call Airport rubber and paint removal and application services for the Palm Springs International Airport in an amount not to exceed $4,500,000 for the initial three-year term beginning October 1, 2024, through September 30, 2027, with two oneyear extension options at the City’s sole discretion; and authorize the City Manager, or designee, to execute all necessary documents.
EXCLUDED CONSENT CALENDAR: None.
2. PUBLIC HEARINGS: None.
3. BUSINESS & LEGISLATIVE:
A. INTRODUCTION OF ORDINANCE NO. 2103, ENTITLED “AN ORDINANCE OF
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, ADDING SECTION 12.20.030 TO THE PALM SPRINGS MUNICIPAL CODE,
RELATING TO THE ESTABLISHMENT OF PRIMA FACIE SPEED LIMITS AT THE PALM SPRINGS INTERNATIONAL AIRPORT”
MOTION BY MAYOR BERNSTEIN, SECOND BY COUNCIL MEMBER HOLSTEGE, CARRIED 3-2 (COUNCIL MEMBER MIDDLETON AND MAYOR PRO TEM DEHARTE VOTING NO), to waive the reading of the Ordinance text in its entirety and read by title only; and introduce first reading Ordinance No. 2103, entitled, “AN
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, ADDING SECTION 12.20.030 TO THE PALM SPRINGS MUNICIPAL
CODE, RELATING TO THE ESTABLISHMENT OF PRIMA FACIE SPEED LIMITS AT THE PALM SPRINGS INTERNATIONAL AIRPORT.”
B. DISCUSSION REGARDING CANNABIS TEMPORARY EVENTS
No action was taken; the City Council provided direction to staff.
C. WATER CONSERVATION AND HISTORIC LANDSCAPE RESTORATION OPPORTUNITY AT THE PALM SPRINGS CITY HALL, (CLASS 1 HISTORIC SITE #HSPB 33B), ON A 9.74-ACRE PARCEL LOCATED AT 3200 E. TAHQUITZ CANYON WAY, ZONE “CU” (CIVIC USES), (APN 502-150-005) (PLANNING CASE #HSPB 33D)
MOTION BY MAYOR BERNSTEIN, SECOND BY COUNCIL MEMBER HOLSTEGE, CARRIED 5-0, to approve the project.
Item 1A - Page 16
City Council Minutes September 26, 2024
City of Palm Springs DRAFT Page 7
PUBLIC COMMENT:
Phyllis Burgess, Cheryl Taylor, Areva Martin, Tomeeka Grizzell, Pearl Devers, Steven Wijatyk, Mickey Brown, Michael Joseph Pitkin, Linda Reagins, Sharon Hendricks, Diane Johnson, Gloria Gonzales, Sarena Nelson, Stephanie Brown, Abdul Salaam, Dr. Jesse Neimeyer-Romero, Abraham Ishaq, Alejandro De La Cruz, Donald Roy, Jacqueline Nevils, Milton Roy, Kimberly Esse, Lawrence Williams, Karen Sylvester, Charles Metcalf, Lawanda Roy, and Gloria Holland-Thompson provided non-agenda oral testimony.
CITY COUNCIL AND CITY MANAGER COMMENTS, REPORTS, & AGENDA DEVELOPMENT:
City Manager Stiles and the City Council discussed the tentative upcoming meeting schedule and agenda items.
ADJOURNMENT:
The City Council adjourned the meeting of Thursday, September 26, 2024, at 8:34 p.m.
Respectfully submitted,
______________________________
Brenda Pree, MMC, CERA
City Clerk
APPROVED BY CITY COUNCIL:
Item 1A - Page 17
CITY COUNCIL STAFF REPORT
DATE: OCTOBER 10, 2024 CONSENT CALENDAR
SUBJECT: AUTHORIZE A TASK ORDER WITH CAROLLO ENGINEERS, INC. IN THE AMOUNT OF $151,250 PURSUANT TO AGREEMENT A8563 FOR
ADDITIONAL PROFESSIONAL SERVICES FOR ELECTRICAL
MODIFICATIONS ASSOCIATED WITH THE WASTERWATER
TREATMENT PLANT ODER CONTROL IMPROVEMENTS, CITY
PROJECT NO. 23-16
FROM: Scott C. Stiles, City Manager
BY: Engineering Services Department
SUMMARY:
This is a request to approve a task order with Carollo Engineers, Inc. for City Project 23- 16 (“Project”), Wastewater Treatment Plant (WWTP) Odor Control Improvements, to incorporate electrical modifications to the existing facilities as part of the design of covers for the primary clarifiers at the City of Palm Springs Wastewater Treatment Plant.
RECOMMENDATION:
1. Authorize the City Manager to approve a Task Order in the amount of $151,250 for additional professional services of odor control improvement with Carollo Engineers, Inc., an ‘on-call’ firm for wastewater services, during design;
2. Appropriate $151,250 from the Wastewater Fund Balance; and
3. Authorize the City Manager or his designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
The Public Integrity Disclosure Form from Carollo Engineers, Inc. is included as Attachment A.
BACKGROUND:
The City of Palm Springs operates a wastewater treatment plant (WWTP) at 4375 E.
Mesquite Avenue, adjacent to Demuth Park with an average daily flow of 4.1 million gallons per day. Due to the biological nature of the wastewater treatment process, Item 1B - Page 1
City Council Staff Report
October 10, 2024 -- Page 2
Task Order – Carollo Engineers, Inc. – Wastewater Treatment Plant Odor Control odorous compounds are produced, becoming a nuisance for residents of the surrounding area. Visitors to Demuth Park, residents, and pickleball players have reported very unpleasant odors emanating from the WWTP.
On September 26, 2023, the City Council approved the issuance of a purchase order to Carollo Engineers, Inc. (“Carollo”) for design services of odor control improvements. The scope of work is to provide preliminary and final design services, and support services during bid period and construction phase.
On April 11, 2024, the City Council approved a $73,907 task order for Carollo to assess odor sources at the WWTP using sampling, analysis, odor emissions inventory, and provide a final study report. The study was completed in August 2024 and it revealed that the primary clarifiers are the source of roughly 56% of objectionable odors emanating from the WWTP, as illustrated in Figure 1. Other sources were dispersed throughout the facility.
Figure 1
STAFF ANALYSIS:
Based on the report, it was determined that aluminum flat covers would be the preferred alternative to mitigate odors emanating from the primary clarifiers; however, additional design services would be needed to complete the Project construction documents with the new cover selected.
The proposed task order will cover additional electrical design modifications, project management, and construction support services as this would also increase the original working days anticipated. The scope of work consists of replacing light poles and Item 1B - Page 2
City Council Staff Report
October 10, 2024 -- Page 3
Task Order – Carollo Engineers, Inc. – Wastewater Treatment Plant Odor Control receptacles because of the required demolition of the clarifier bridges. Extending and rerouting of existing conduits will ensure adequate power supply to the lights, receptacle, and the clarifier drive motor. The scope also encompasses the addition of combustible gas monitoring to the interior of the clarifier as a safety measure. These modifications collectively address the electrical needs and safety requirements associated with covering the clarifiers as a solution to reduce odors from the WWTP.
Engineering Staff has reviewed the proposal and determined the design services and costs are reasonable and necessary and recommends the approval of the task order. A copy of the proposal is included as Attachment B. The electrical modifications for City Project 23-16 will be carried out concurrently with the existing scope of work.
ENVIRONMENTAL ASSESSMENT:
In accordance with the California Environmental Quality Act (“CEQA”) Guidelines Section 15301 “Existing Facilities”, Class 1 projects consist of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public structures, facilities, mechanical equipment or topographical features involving negligible or no expansion of existing or former use. The Project includes no expansion of use. Therefore, Staff has determined that the WWTP Odor Control Improvements, City Project No. 23-16, is considered categorically exempt from CEQA.
FISCAL IMPACT:
Sufficient funds are available in the Wastewater Fund Balance to cover the appropriation for this task order with Carollo Engineers, Inc., in the amount of $151,250.
REVIEWED BY:
City Engineer: Joel Montalvo
Deputy City Manager: Flinn Fagg
City Manager Scott Stiles
ATTACHMENTS:
A. Public Integrity Disclosure Form
B. Carollo Proposed dated September 18, 2024
Item 1B - Page 3
Attachment A
Item 1B - Page 4
B:\Pursuits\Client20(OCO)\PalmSprings\On-CallWWEng2020\Qual0520\Indd\Required.Forms.indd City of Palm Springs | On-Call Wastewater Engineering Design Services
REQUIRED FORMS
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
1. Name of Entity
2. Address of Entity (Principle Place of Business)
3. Local or California Address (if different than #2)
4. State where Entity is Registered with Secretary of State If other than California, is the Entity also registered in California? F Yes F No
5. Type of Entity
F Corporation F Limited Liability Company F Partnership F Trust F Other (please specify)
6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust or other entity _ __________________ F Officer F Director F Member F Manager [name]
F General Partner F Limited Partner
F Other _______________________________
_______________________________________________ F Officer F Director F Member F Manager [name]
F General Partner F Limited Partner
F Other _________________________________
[name]
F General Partner F Limited Partner
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Item 1B - Page 5
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REQUIRED FORMS
F Other _______________________________
7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity
EXAMPLE
JANE DOE
[name of owner/investor]
50%, ABC COMPANY, Inc.
[percentage of beneficial interest in entity
and name of entity]
A.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
B.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
C.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
D.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
E.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
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Attachment B
Item 1B - Page 7
PROPOSAL FOR AMENDMENT 2 – ELECTRICAL MODIFICATIONS
CAPITAL PROJECT 23-16 WWTP ODOR CONTROL IMPROVEMENTS
Submitted by:
Carollo Engineers, Inc. (Carollo)
September 18, 2024
Description
The purpose of the amendment is to provide electrical modifications in association with Project 23-16 design services at the City of Palm Springs Wastewater Treatment Plant. The original scope of work for the project did not include electrical modifications because it was assumed that the existing electrical system could remain for the covered primary clarifiers.
However, during evaluation of cover alternatives, Carollo identified necessary electrical modifications associated with the recommended alternative of flat, truss-supported covers.
Accordingly, Carollo proposes to modify the scope of work for the following electrical system modifications:
• Replace two light poles and one receptacle that are mounted to the existing bridge and central platform, because the existing bridge will be demolished for the recommended flat cover alternative.
• Intercept/extend four existing conduits associated with the bridge/central platform, including conduits serving the lights, receptacle, and clarifier drive motor/torque switches/local control panel. These conduits will be extended/routed along the new cover truss supports. The clarifier local control panel will be remounted/reconnected as required.
• Add combustible gas monitoring for the interior of the clarifier. • Use available spare conduit for the new combustible gas sensor, if available. If suitable conduit is not available, provide new conduit as required.
Electrical modifications will be completed in parallel with the original scope of work for Project 23-16, including all final design phase services, bid phase services, and construction phase services. The electrical scope of work will be added to each subtask of each of these phases for a comprehensive project with the electrical modifications described above.
Construction Phase Quantity Assumptions
To establish a basis for estimating the cost of construction support services, the original scope of work provided estimated quantities of contractor requests for information, change orders, and shop drawing submittals. Carollo proposes to revise those estimated quantities to support the additional electrical modifications of this amendment as follows:
1. Requests for Information (RFIs): Add 12 RFI interpretations and clarifications of contract documents for a total of up to 42.
2. Change Orders: Add preparation of an additional 2 change orders for a total of up to 6.
3. Shop Drawing Submittals: Add review of an additional 12 submittals for a total of up to 72.
Item 1B - Page 8
Amendment 2 Fee
Carollo will complete the Amendment 2 scope of work in accordance with the attached fee table, Exhibit A. Exhibit A is based on the City implementing the recommended alternative of flat, truss-supported covers for the primary clarifiers and the electrical modifications identified herein.
Item 1B - Page 9
Task No. Description
Senior
Professional
Lead Project
Professional
Project
Professional Professional
Assistant
Professional
Senior
Techs Techs
Support
Staff
Total
Hours
Labor
Cost Expense Subs Total Cost
Hourly Rate $318 $307 $296 $263 $219 $232 $171 $152
1 Preliminary Design Services
(No additional scope) 0 0 0 0 0 0 0 0 0 $0 $0
Subtotal 0 0 0 0 0 0 0 0 0 $0 $0 $0 $0
2 Final Design Services
2.1 Project Management 0 0 0 0 0 0 0 0 0 $0 $0
2.2 Meetings 0 8 10 0 0 0 0 0 18 $5,414 $360 $5,774
2.3 Design Submittals
2.3.1 30% Design Submittal 3 7 11 0 0 5 16 5 47 $11,004 $120 $11,124
2.3.2 60% Design Submittal 3 8 13 0 0 6 19 6 55 $12,799 $120 $12,919
2.3.3 90% Design Submittal 5 14 23 0 0 10 33 10 95 $22,157 $120 $22,277
2.3.4 Conduit to Combustible Gas Sensor 2 10 18 0 0 8 20 4 62 $14,905 $95 $15,000
2.3.5 Final Design Submittal 3 8 13 0 0 6 19 6 55 $12,799 $12,799
2.4 Construction Cost Estimates 2 8 20 0 0 0 0 0 30 $9,009 $9,009
2.5 Quality Assurance/Quality Control 4 16 16 0 0 0 0 0 36 $10,916 $10,916 Subtotal 22 79 124 0 0 35 107 31 398 $99,003 $815 $0 $99,818 3 Bidding
3.1 Pre-bid Meeting 0 4 0 0 0 0 0 0 4 $1,228 $120 $1,348
3.2 Respond to RFI’s / Assist with Addenda 4 4 2 0 0 3 3 2 18 $4,602 $4,602
3.3 Bid Review 0 2 0 0 0 0 0 0 2 $614 $614
Subtotal 4 10 2 0 0 3 3 2 24 $6,444 $120 $0 $6,564
4 Construction Phase Services
4.1 Project Management 0 0 0 0 0 0 0 0 0 $0 $0
4.2 Meetings 0 4 8 0 0 0 0 0 12 $3,595 $840 $4,435
4.3 Requests for Information 2 20 26 0 0 0 0 0 48 $14,467 $14,467
4.4 Change Orders 2 8 6 0 0 4 0 0 20 $5,795 $5,795
4.5 Shop Drawing Submittals 2 8 38 0 0 0 0 0 48 $14,335 $14,335
4.6 As-Built Drawings 0 4 5 0 0 4 5 0 18 $4,488 $4,488
4.7 Commissioning 0 4 0 0 0 0 0 0 4 $1,228 $120 $1,348
Subtotal 6 48 83 0 0 8 5 0 150 $43,908 $960 $0 $44,868
TOTAL 32 137 209 0 0 46 115 33 572 $149,355 $1,895 $0 $151,250 Notes:
1. If spare conduit is available for the new combustible gas sensor, Task 2.3.4 will be eliminated and the Final Design Services budget will be reduced by $15,000.
Hours Budget
Exhibit A
Estimated Work Effort - Amendment 2 Electrical Modifications Capital Project 23-16 WWTP Odor Control Improvements
City of Palm Springs
Item 1B - Page 10
CITY COUNCIL STAFF REPORT
DATE: OCTOBER 10, 2024 CONSENT CALENDAR
SUBJECT: REJECT ALL BIDS RECEIVED FOR THE HIGHWAY SAFETY IMPROVEMENT PROGRAM (HSIP) CYCLE 9 TRAFFIC SIGNAL
IMPROVEMENTS, FEDERAL AID PROJECT NO. HSIPL-5282 (049), CITY PROJECT NO. 18-05
FROM: Scott C. Stiles, City Manager
BY: Engineering Services Department
SUMMARY:
This action will reject all construction bids received on August 8, 2024, for the HSIP Cycle 9 Traffic Signal Improvements, Federal Aid Project No. HSIPL-5282(049), City Project No. 18-05 (“the Project”), because the lowest bid exceeded the available grant funding.
The Project was initially funded through a California Department of Transportation (Caltrans) HSIP Cycle 9 grant for $1,702,700, but the lowest bid came in at $3,019,315.64. Given the significant difference between the bid amount and available funding, Staff recommends reevaluating the Project scope and requesting a scope/cost change to Caltrans to ensure that the Project can be properly funded.
RECOMMENDATION:
1. Reject the construction bids received on August 8, 2024, for the HSIP Cycle 9 Traffic Signal Improvements, Federal Aid Project No. HSIPL-5282(049), City Project No. 18-05; and
2. Authorize Staff to re-bid the Project.
BACKGROUND:
In 2018, Caltrans released a call for projects funded through Cycle 9 of the Federal Highway Safety Improvement Program (HSIP). Staff evaluated traffic collision data and coordinated with the Palm Springs Police Department to identify intersections with the highest number of collisions. Nine intersections were selected for traffic signal improvements aimed at enhancing road safety. The proposed improvements included the installation of advanced dilemma zone detection, full left-turn protected phasing, upgraded battery backup systems, video vehicle detection, upgraded curb ramps, and other related improvements. A map of locations is included as Attachment A.
Item 1C - Page 1
City Council Staff Report
October 10, 2024 -- Page 2
Reject Bids for HSIP Cycle 9 Traffic Signal Improvements On December 27, 2018, Caltrans selected the Project and awarded the City a grant in the amount of $1,702,700 to cover the design, construction, and management of the Project.
On December 18, 2019, the City Council approved Program Supplement Agreement No.
F049 to facilitate the use of $303,500 in federal funds toward the environmental and engineering design phase (Preliminary Engineering) for the Project.
On November 12, 2020, the City Council awarded a Professional Services Agreement to Kimley-Horn and Associates, Inc. to conduct the required engineering studies, design, and preparation of the construction documents for the Project.
On July 22, 2021, the City Council approved Amendment No. 1 to the Professional Services Agreement to Kimley-Horn and Associates, Inc. to provide additional cultural studies as required by Caltrans for the Historic Properties Survey Report, Archaeological Survey Report, and Area of Potential Effects Map. Please note that around this time there were significant delays in the Project design progress caused by the Covid-19 pandemic.
On December 14, 2023, the City Council approved the plans, specifications, and engineer’s estimate for the Project and authorized Staff to advertise and solicit bids.
Shortly after approval, the City was contacted by the Coachella Valley Association of Governments (CVAG) regarding potential conflicts with their CV-Sync Project which was in the initial phases of construction. After resolving conflicts between both projects, Staff advertised the Project for construction and requests for qualifications for construction management and inspection services through the City’s on-line procurement program, PlanetBids™ to allow the submission of bids electronically.
STAFF ANALYSIS:
On August 8, 2024, the Engineering Services Department received four (4) construction bids from the contractors listed in Table 1.
Company Location Bid Amount
Alfaro Communications Construction, Inc. Compton, CA $3,019,315.64 Elecnor Belco Electric, Inc. Chino, CA $3,085,877.00
Crosstown Electrical & Data, Inc. Irwindale, CA $3,455,869.00 Select Electric, Inc. Vista, CA $3,565,100.00
TABLE 1
The lowest construction bid received for the Project was $3,019,315.64 from Alfaro Communications Construction, Inc., which significantly exceeded the total available HSIP grant funding of $1,702,700.
On August 8, 2024, the City also received seven proposals from Z&K Consultants, Inc., Fountainhead Consultants, KOA Corporation, Southstar Engineering, TKE Engineering, Item 1C - Page 2
City Council Staff Report
October 10, 2024 -- Page 3
Reject Bids for HSIP Cycle 9 Traffic Signal Improvements Transtech Engineers, and Dudek for construction management and inspection services for the Project.
An evaluation committee reviewed the proposals following the federal process for consultant selection entirely based on qualifications and experience per criteria specified in the RFP.
Based on this review, Staff recommended Z&K Consultants as the most qualified consultant for these services. Z&K prepared a fee proposal, and their total cost was $398,379.71.
The grant was intended to cover construction (up to $1,216,700), design and environmental services (up to $303,500), and construction management & inspection services (up to $182,500) for a total not to exceed amount of $1,702,700. Given the extensive discrepancy, Staff recommends rejecting all bids. This decision is driven by the need to align the Project costs with the limited funding, especially considering that the bids received reflect current market conditions which have seen substantial increases in construction and material costs over the past six years since the grant application.
To address the funding challenge, Staff recommends refining the Project scope to focus on fewer, yet more critical intersections. This approach aims to improve the Project's Benefit Cost Ratio (BCR), which currently stands at 9.75. To revise the grant application and qualify for additional federal funding, the Project will need to achieve a minimum BCR of 12.5, which is the average BCR of the three most recent HSIP cycles as required by Caltrans. This targeted strategy enhances the ability to meet the necessary criteria for further funding consideration.
Discussions with Caltrans will also be initiated to explore the possibility of revising the grant allocation or securing additional funding to ensure that all components of the Project can be adequately funded without compromising the Project's goals.
ENVIRONMENTAL ASSESSMENT:
Construction of the Project is subject to environmental review pursuant to the California Environmental Quality Act (“CEQA”), and the National Environmental Policy Act (“NEPA”). Kimley-Horn has completed all technical and environmental analysis associated with the Project. It was determined that HSIP Cycle 9 Traffic Signal Modifications Federal-Aid Project No. HSIPLN-5282(049), City Project No. 18-05, does not individually or cumulatively have a significant impact on the environment as defined by NEPA. Caltrans has determined that the Project falls under Categorical Exclusion under 23 CFR 771.117©: Activity (c)(4).
ALIGNMENT WITH STRATEGIC PLANNING:
This Project aligns with City Council Priority 2B – 5-Year Capital Improvement Plan, 5- year CIP with specific action.
Item 1C - Page 3
City Council Staff Report
October 10, 2024 -- Page 4
Reject Bids for HSIP Cycle 9 Traffic Signal Improvements FISCAL IMPACT:
Construction costs have escalated since the City submitted its original grant application to Caltrans in 2018. Although Caltrans funded this Project at the 100% rate, the maximum amount the grant awarded is $1,702,700, and cannot increase without special approval from Caltrans.
Based on recent bids and fee proposals, the total Project cost is currently $4,067,700.
This includes design and environmental services ($302,245.81), construction ($3,019,315.64), construction management and inspection ($398,379.71), a 10% construction contingency ($302,000), community workforce agreement administration ($13,936), and administrative project management ($31,822.84). As a result, an additional $2,365,000 is required to fully fund the Project. As noted in the Staff Analysis above, Staff will prioritize revising the Project scope to better align with criteria for additional HSIP funding consideration.
REVIEWED BY:
City Engineer: Joel Montalvo
Deputy City Manager: Flinn Fagg
City Manager: Scott Stiles
ATTACHMENTS:
A. Project Location Map
Item 1C - Page 4
Attachment A
Item 1C - Page 5
Project Location Map
Item 1C - Page 6
CITY COUNCIL STAFF REPORT
DATE: OCTOBER 10, 2024 CONSENT CALENDAR
SUBJECT: APPROVE INSTALLATION OF NEW CIRCUITS FOR EAST TAHQUITZ CANYON WAY MEDIAN ART PADS IN THE AMOUNT OF $32,606.19
FROM: Scott C. Stiles, City Manager
BY: Housing & Community Development Department
SUMMARY:
This action approves installation of new electrical circuits on the East Tahquitz Canyon Way median to enable lighting and other features associated with artworks installed on the East Tahquitz Canyon Way medians between Sunrise Way and El Cielo Road.
RECOMMENDATION:
1. Appropriate $32,606.19 of Public Art Funds from the Public Art Fund Balance to the Fiscal Year 2025 Public Arts Fund Repairs and Maintenance account (1502550 50105).
2. Approve expenditure of $32,606.19 of Public Art Funds for new electrical circuits for the East Tahquitz Canyon Way Median art pads in an amount not to exceed $32,606.19.
BACKGROUND:
On August 8, 2024, at a Public Arts Commission meeting, the Public Arts Commission voted unanimously to recommend using up to $35,000 of Public Arts Funds to increase the electrical capacity on the East Tahquitz Canyon Way medians.
STAFF ANALYSIS:
In April 2024, the Pillars of Palm Springs were installed on the East Tahquitz Canyon Way medians and features six new sculptures along one of the City’s main corridors. The sculptures represent core values for the City of Palm Springs: (1) Creativity, (2) Equality, (3) Serenity, (4) Diversity, (5) Civility, and (6) Community. Each of the sculptures was produced at a cost of approximately $50,000 each – a $300,000 investment by the City.
Item 1D - Page 1
City Council Staff Report
October 10, 2024 – Page 2
Tahquitz Median Electrical Upgrades
While installing the artwork, it was discovered that the current electrical circuits serving this median are not able to support electrified artwork in the median. The existing electrical circuits are sufficient to power the existing up-lights; however, they do not provide enough power for various types of outdoor artistic lighting such as neon, high intensity discharge, and light emitting diodes. Staff has received an estimate in the amount of $32,606.19 for upgrading the electrical system for the art pads and is recommending use of up to $32,606.19 of Public Arts Funds for the electrical upgrades. The electrical work will be performed by the City’s on-call contractor.
ENVIRONMENTAL ASSESSMENT:
Section 21084 of the California Public Resources Code requires Guidelines for Implementation of the California Environmental Quality Act ("CEQA"). The Guidelines are required to include a list of classes of projects which have been determined not to have a significant effect on the environment and which are exempt from the provisions of CEQA.
In response to that mandate, the Secretary for Resources identified classes of projects that do not have a significant effect on the environment and are declared to be categorically exempt from the requirement for the preparation of environmental documents. In accordance with Section 15304 "Minor Alterations to Land," Class 4 projects consist of "minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry and agricultural purposes" and approval of this item is considered categorically exempt from CEQA.
ALIGNMENT WITH STRATEGIC PLANNING:
Section 2.24.050 of the Palm Springs Municipal Code requires the Public Arts Commission to, “Be responsible for a Palm Springs public arts program including policies and guidelines, oversight of development of art projects and maintenance of art collection.”
FISCAL IMPACT:
Approval of this action would appropriate and allocate $32,606.19 of Public Art Funds to the Public Arts Fund Repairs and Maintenance account (1502550 50105) for the proposed expenditure.
REVIEWED BY:
Department Director: Jay Virata
Deputy City Manager: Flinn Fagg
City Manager: Scott Stiles
ATTACHMENTS:
A. Proposal – MBE Construction
Item 1D - Page 2
ATTACHMENT A
Item 1D - Page 3
408 Elm Ave.
Beaumont, CA 92223
CSLB #581224 DIR #1000005926
Bid Proposal
June 26,2024
To:
Reference:
Subject:
Attention:
City of Palm Springs
425 N. Civic Drive
Palm Springs, CA 92262
Center Statues
Tahquitz Canyon Way
Palm Springs, CA 92262
New circuits for median statues Revision 1
Aaron Bergeson, Project Manager Maintenance and Facilities Mr. Bergeson:
• Pick up no fee permit at City Building Department
• Furnish and install new wire for new circuits in existing conduits at 8 locations on Tahquitz Canyon Way between El Cielo and Sunrise
• Circuits to be terminated in existing junction box nearest each statue • Terminate circuits on new breakers in existing pedestals • Safe circuits in existing pull boxes
• Site cleanup
Exclusions and Clarifications:
• Work performed during normal business hours
• Will provide a delivery date after purchase order
• The floor is to be clear of workers, materials, etc. and broom clean prior to start date. • No other trade work once the project is started.
• Engineering excluded
• Permits excluded (Unless Otherwise Noted )
• Bond fees excluded
• All concrete work excluded (unless otherwise noted)
MBE Construction is pleased to propose on the above subject. This proposal includes the following:
Item 1D - Page 4
MBE
CONSTRUCTION
Beaumont, CA
408 Elm Ave.
Beaumont, CA 92223
CSLB #581224 DIR #1000005926
• All Fees of any type excluded
• asphalt work excluded (unless otherwise noted)
• Seismic calculations excluded
• All structural supports excluded
• Plans excluded
• Third party testing excluded
• Electrical utility fees and charges excluded
• Underground conduit is PVC Schedule 40
• Trenching and backfill excluded (unless otherwise noted) • Conduit only for alarm and door controls
• Control and alarm work excluded
• Landscape and irrigation repairs excluded
• All labor will be compliant with California labor laws as applicable to public works projects (prevailing wage, etc.).
Total: $32,606.19
Sincerely,
John Magill
MBE Construction Inc.
Item 1D - Page 5
MBE
CONSTRUCTION
Beaumont, CA
CITY COUNCIL STAFF REPORT
DATE: OCTOBER 10, 2024 CONSENT CALENDAR
SUBJECT: APPROVE CONTRACT SERVICE AGREEMENTS NO. 24B235 WITH CAT CITY AUTO BODY INC., AND 24B236 WITH MARVIN’S AUTO PAINT INC., DBA FOR AUTO BODY REPAIR SERVICES
FROM: Scott C. Stiles, City Manager
BY: David McAbee, Director of Public Works
SUMMARY:
This action will approve two Service Agreements, No. 24B235 with Cat City Auto Body, Inc., in an amount not to exceed $722,050, and Agreement No. 24B236 with Marvin’s Auto Paint Inc., in an amount not to exceed $309,450, for auto body repair services.
RECOMMENDATION:
1. Approve Contract Services Agreement 24B235 (Attachment A) with Cat City Auto Body, Inc., to provide auto body repair services in an amount not to exceed $722,050 for the initial three-year term beginning October 14, 2024, through October 13, 2027, with two one-year extension options at the City’s sole discretion; and
2. Approve Contract Services Agreement 24B236 (Attachment B) with Marvin’s Auto Paint, Inc., to provide auto body repair services in an amount not to exceed $309,450 for the initial three-year term beginning October 14, 2024, through October 13, 2027, with two one-year extension options at the City’s sole discretion; and
3. Authorize the City Manager or their designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure forms submitted on September 3, 2024, Cat City Auto Body, Inc. (Attachment C) and Marvin’s Auto Paint Inc (Attachment D) are both registered in the state of California.
Item 1E - Page 1
City Council Staff Report
October 10, 2024, 2024 -- Page 2
Award Auto Body Repair Services Contracts
BACKGROUND:
The City of Palm Springs requires the services of a contractor to provide on-call auto body repair work for its Fleet Operations division. Due to the extent of services needed and in order to make necessary repairs to the existing and expanding fleet, staff opted to resolicit bids prior to the conclusion of the current contract, as all available contract funds will be expended prior to the expiration date.
Due to the success of the initial on-call contract, awarded in 2022, staff has pursued and is recommending approval of two contract services agreements to address the current and expanding fleet. Therefore, staff is recommending award of two contracts to the two lowest responsive, responsible bidders. Cat City Auto Body, Inc., as the primary contract and Marvin’s Auto Paint Inc., as the secondary contract.
STAFF ANALYSIS:
The contracts with Cat City Auto Body, Inc. and Marvin’s Auto Paint, Inc. are on-call, asneeded type contracts. The bids were used to determine the lowest, responsive, responsible bidders and to set the unit rates for the contracts; however, the actual amount of the contracts is based on the budgeted amount set by the Department and will therefore not match the bid amounts.
An Invitation for Bids (IFB 24-23) was initiated by the City’s Procurement and Contracting Department on July 29, 2024, based on the Department of Public Works specifications.
Bids were solicited directly via the City’s procurement vendor portal, PlanetBids. In addition, the IFB was advertised in The Desert Sun. Four bids were received by the September 3, 2024, deadline as follows:
Vendor Bid
Cat City Auto Body, Inc. – Cathedral City, CA $643,000.00 Marvin’s Auto Paint Inc. – Palm Springs, CA $659,500.00 J & L Auto Body Inc. – West Covina, CA $659,500.00
Fiesta Ford – Indio, CA $786,000.00
The department recommends award of two contracts to the two lowest responsive, responsible bidders. Cat City Auto Body, Inc. will be the primary contract and Marvin’s Auto Paint Inc. will be the secondary. Although the second and third bidders were tied, the City’s local preference ordinance requires award in a tie situation to the local vendor.
The department will reach out to the primary contract holder first to perform the work needed. If the primary Contractor is unable to perform the work due to schedule constraints, the department will reach out to the secondary contract holder to perform the work.
The unit pricing is fixed for the first year and subject to CPI increase in the following years.
Staff recommends approval of Contract Services Agreement No. 24B235 with Cat City Item 1E - Page 2
City Council Staff Report
October 10, 2024, 2024 -- Page 3
Award Auto Body Repair Services Contracts
Auto Body, Inc. for the initial three-year term in the amount not to exceed $722,050 as the primary vendor, effective October 14, 2024 through October 13, 2027, subject to two one-year optional renewals at the sole discretion of the City; and Contract Services Agreement No. 24B236 with Marvin’s Auto Paint, Inc. for the initial three-year term in the amount not to exceed $309,450 as the secondary vendor, effective October 14, 2024 through October 13, 2027, subject to two one-year optional renewals at the sole discretion of the City.
ENVIRONMENTAL ASSESSMENT:
The requested City Council action is not a “Project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The requested action is to approve contracts for the above-mentioned services, and is exempt from CEQA pursuant to Section 15378(b), in that a “Project” does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
ALIGNMENT WITH STRATEGIC PLANNING:
Approval of this action supports City Council priority 2A, Community Infrastructure.
FISCAL IMPACT:
Sufficient funds are available in Fiscal Year 2024-25 Fleet Account 5106560-40105.
REVIEWED BY:
Assistant Director of Maintenance & Facilities: Daniel Martinez Director of Public Works: David McAbee
Procurement and Contracting Director: Kim Baker
Assistant City Manager: Teresa Gallavan
City Manager: Scott Stiles
ATTACHMENTS:
A. Contract Services Agreement No. 24B235
B. Contract Services Agreement No. 24B236
C. Public Integrity Disclosure – Cat City Auto Body Inc.
D. Public Integrity Disclosure – Marvin’s Auto Paint Inc.
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ATTACHMENT A
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CONTRACT SERVICES AGREEMENT 24B235
AUTO BODY REPAIR SERVICES
THIS AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into on October 14, 2024, by and between the City of Palm Springs, a California charter city and municipal corporation (“City”), and Cat City Auto Body, Inc., a California corporation, (“Contractor”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.
RECITALS
A. City requires the services of a licensed vendor to provide auto body repair services on an as-needed basis, (“Project”).
B. Contractor has submitted to City a quote to provide auto body repair services, to City under the terms of this Agreement.
C. Based on its experience, education, training, and reputation, Contractor is qualified and desires to provide the necessary services to City for the Project.
D. City desires to retain the services of Contractor for the Project.
NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. CONTRACTOR SERVICES
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Contractor shall provide services to City as described in the Scope of Services/Work attached to this Agreement as Exhibit “A” and incorporated herein by reference (the “Services” or “Work”). Exhibit "A" includes the agreed upon schedule of performance and the schedule of fees. Contractor warrants that the Services shall be performed in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced, and well qualified members of the profession currently practicing under similar conditions. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern.
1.2 Compliance with Law. Contractor shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.
1.3 Licenses and Permits. Contractor shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the Services required by this Agreement.
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1.4 Familiarity with Work. By executing this Agreement, Contractor warrants that it has carefully considered how the Work should be performed and fully understands the facilities, difficulties, and restrictions attending performance of the Work under this Agreement.
2. TIME FOR COMPLETION
The time for completion of the Services to be performed by Contractor is an essential condition of this Agreement. Contractor shall prosecute regularly and diligently the work of this Agreement according to the agreed upon schedule of performance set forth in Exhibit “A.” Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non-performing Party. Delays shall not entitle Contractor to any additional compensation regardless of the Party responsible for the delay.
3. COMPENSATION OF CONTRACTOR
3.1 Compensation of Contractor. Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $722,050.00.
3.2 Method of Payment. In any month in which Contractor wishes to receive payment, Contractor shall submit to City an invoice for Services rendered prior to the date of the invoice, no later than the first working day of such month, in the form approved by City’s finance director. Payments shall be based on the schedule of fees set forth in Exhibit “A” for authorized services performed. City shall pay Contractor for all expenses stated in the invoice that are approved by City and consistent with this Agreement, within thirty (30) days of receipt of Contractor’s invoice.
3.3 Changes. In the event any change or changes in the Services is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into:
A. To provide for revisions or modifications to documents, work product, or Work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession.
3.4 Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City.
4. PERFORMANCE SCHEDULE
4.1 Time of Essence. Time is of the essence in the performance of this Agreement.
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4.2 Schedule of Performance. All Services rendered under this Agreement shall be performed under the agreed upon schedule of performance set forth in Exhibit “A.” Any time period extension must be approved in writing by the Contract Officer.
4.3 Force Majeure. The time for performance of Services to be rendered under this Agreement may be extended because of any delays due to a Force Majeure Event, if Contractor notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Contractor’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay and extend the time for performing the Services for the period of the enforced delay when and if, in the Contract Officer’s judgment, such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. The Contractor will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement shall continue in full force and effect for a period of three years, commencing on October 14, 2024, and ending on October 13, 2027, unless extended by mutual written agreement of the Parties. In addition, the term may be extended at the sole discretion of the City upon written notice to the Contractor, for two (2) additional one (1) year terms.
4.5 Termination Prior to Expiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor.
Where termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Contractor shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Contractor's deficiencies and charge the cost thereof to Contractor, who shall be liable for the full cost of the City's corrective action. Contractor may not terminate this Agreement except for cause, upon thirty (30) days written notice to City.
5. COORDINATION OF WORK
5.1 Representative of Contractor. The following principal of Contractor is designated as being the principal and representative of Contractor authorized to act and make all decisions in its behalf with respect to the specified Services: Arthur Avakyan, President. It is expressly understood that the experience, knowledge, education, capability, and reputation of Item 1E - Page 7
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the foregoing principal is a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the Services under this Agreement. The foregoing principal may not be changed by Contractor without prior written approval of the Contract Officer.
5.2 Contract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). Contractor shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the Services. Contractor shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer.
5.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, education, capability, and reputation of Contractor, its principals and employees, were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other individual or entity to perform any Services required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City.
5.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Contractor, its agents or employees, perform the Services required, except as otherwise specified. Contractor shall perform all required Services as an independent contractor of City and shall not be an employee 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; however, City shall have the right to review Contractor’s work product, result, and advice. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Contractor shall pay all wages, salaries, and other amounts due personnel in connection with their performance under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance. Contractor shall not have any authority to bind City in any manner.
5.5 Personnel. Contractor agrees to assign the following individuals to perform the services in this Agreement. Contractor shall not alter the assignment of the following personnel without the prior written approval of the Contract Officer. Acting through the City Manager, the City shall have the unrestricted right to order the removal of any personnel assigned by Contractor by providing written notice to Contractor.
Name: Title:
Arthur Avakyan President
5.6 California Labor Code Requirements.
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A. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
B. If the Services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements.
6. INSURANCE
Contractor shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Exhibit "B", incorporated herein by reference.
7. INDEMNIFICATION.
7.1 Indemnification. To the fullest extent permitted by law, Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (Contractor’s employees included), for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct committed by Contractor, its officers, employees, representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Contractor’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions Item 1E - Page 9
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against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.
7.2 Design Professional Services Indemnification and Reimbursement. If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor in the performance of the Services or this Agreement, and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction, Contractor’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault.
8. RECORDS AND REPORTS
8.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer reports concerning the performance of the Services required by this Agreement, or as the Contract Officer shall require.
8.2 Records. Contractor shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Contractor shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. 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.
8.3 Ownership of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of this Agreement shall be the property of City. Contractor shall deliver all above-referenced documents to City upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials. Contractor may retain copies of such documents for Contractor's own use. Contractor shall have an unrestricted right to use the concepts embodied in such documents.
8.4 Release of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer.
8.5 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, Contractor shall provide City, or other agents of City, such access to Contractor’s books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Contractor’s performance under this Agreement.
Contractor shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder.
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9. ENFORCEMENT OF AGREEMENT
9.1 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 Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
9.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties.
Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs.
9.3 Waiver. No delay or omission in the exercise of any right or remedy of a nondefaulting Party on any default shall impair such right or remedy or be construed as a waiver.
No consent or approval of City shall be deemed to waive or render unnecessary City’s consent to or approval of any subsequent act of Contractor. Any waiver by either Party of any default must be in writing. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement.
9.4 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. 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.
9.5 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in 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, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement.
9.6 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non-judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert contractor fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding.
10. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
10.1 Non-Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Contractor, or any successor-in-interest, in the event of any default or breach by City or for any amount which may become due to the Contractor or its successor, or for breach of any obligation of the terms of this Agreement.
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10.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement, nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.
10.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section
7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting.
11. MISCELLANEOUS PROVISIONS
11.1 Notice. Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person shall be in writing and either served personally or sent by pre-paid, first-class mail to the address set forth below. Notice shall be deemed communicated seventy-two (72) hours from the time of mailing if mailed as provided in this Section. Either Party may change its address by notifying the other Party of the change of address in writing.
To City: City of Palm Springs
Attention: City Manager/ City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
To Contractor: Cat City Auto Body, Inc.
Attention: Arthur Avakyan
68314 Kieley Rd
Cathedral City, CA 92234
11.2 Integrated Agreement. This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement.
11.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement signed by all Parties.
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11.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. 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 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 shall be interpreted to carry out the intent of the Parties.
11.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assignees.
11.6 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement.
11.7 Recitals. The above-referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same.
11.8 Authority. The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement on behalf of Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement.
11.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
11.10 Compliance with Economic Sanctions in Response to Russia's Actions in Ukraine. When funding for the services is provided, in whole or in part, by an agency controlled of the State of California, Consultant shall fully and adequately comply with California Executive Order N-6-22 (“Russian Sanctions Program”). As part of this compliance process, Consultant shall also certify compliance with the Russian Sanctions Program by completing the form located in Exhibit “C” (Russian Sanctions Certification), attached hereto and incorporated herein by reference. Consultant shall also require any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section. [SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND CAT CITY AUTO BODY, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _____________________________ By: _______________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _____________________ Item No. ______________
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________ City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
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EXHIBIT “A”
SCOPE OF SERVICES/WORK
Including,
Schedule of Fees
And
Schedule of Performance
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1.1 Scope of Work:
A. Contractor shall provide auto body repair services (Work) on as as-needed basis for all City of Palm Springs vehicles including sedans, trucks, sport utility vehicles and other fleet equipment.
B. Contractor shall furnish all necessary labor, parts, and services in accordance with the provisions and terms and conditions.
C. Contractor must be able to provide quick turnaround.
D. Contractor must provide certified technicians.
E. Contractor must have a complete body repair facility.
F. The scope of work includes auto body repairs and repair practices to include but is not limited to the following:
1. Body repair and/or replacement of body panels
2. Refinishing
3. Frame Straightening
4. Decal Services
5. Painting
G. Contractor shall follow repair standards that include but are not limited to:
1. Masking, protecting, or removing and re-installing all chrome, glass, lighting equipment (light bars. strobes), winches, etc. and any other vehicle component(s) or accessory(ies) that could be damaged while making repairs.
2. Making all necessary adjustments, aligning doors, hood decks, trucks, fenders, or other body components such as hinges, latches, etc., that are not damaged, but would require such labor to produce a finished job.
3. Aligning front and/ or rear ends (casters, camber, and toe-in, etc.) when collision damage has affected them.
4. Reapplying rust-proofing and under-coating in any repaired areas which originally had this type of protection.
5. Recovering seat(s), arm rest(s), headliner, etc., if so, requested by the Fleet Manager.
6. Where applicable, resetting, repairing, and/or restoring any active or passive restraint systems such as seat and shoulder harnesses, and/or air bag systems to fully functional new original equipment manufacturers (O.E.M.) factory standards.
7. Completing color change for vehicles or equipment must include door jams, hood. truck, and deck jams.
H. Contractor, when installing auto body parts, shall follow repair standards that include but are not limited to:
1. All body parts shall meet the automobile manufacturer's specification requirements.
2. City of Palm Springs does not always require that new body parts be used.
Item 1E - Page 16
Revised 12.21.23 Page 13 of 21
a. Used parts, at the sole discretion of the Fleet Manager, may be installed depending on the age and value of the equipment being repaired.
b. City of Palm Springs reserves the right to provide the used auto body parts when appropriate as determined by the Fleet Manager. c. Contractor, with prior written approval of the City of Palm Springs Fleet Manager, may utilize used body parts provided the used parts equal the materials used in the original body part and match the original contours with regards to fit and alignment of the vehicle being repaired.
I. Contractor shall take the installation of used auto body parts into consideration when issuing an estimate for work that will include such parts.
J. Used auto body parts shall be warranted for one (1) year and shall cover at minimum the completed paint work, affixing of various decals and completed repairs.
K. The warranty for new body parts shall be the manufacturer's standard warranty. New original equipment manufacturers (O.E.M.) body repair parts and new aftermarket repair parts shall carry a manufacturer's warranty.
L. All airbag components and seat belt components shall be replaced with new O.E.M. parts.
M. Contractor shall issue estimates that include but are not limited to the following information:
1. A standard form of estimating, such as the Mitchell Collision Estimating Guide or the applicable industry standard list used by insurance appraisers for estimating repair costs.
2. Repair cost estimates shall be due within two (2) days after calling for estimate of work assignment.
3. Prior to the commencement of repair work, Contractor shall issue a written estimate, indicating the following:
a. Estimated hours of repair required
b. An itemized list of all parts required
c. Anticipated finish date for all repairs
d. Itemized pricing for all labor and materials
N. If additional costs (labor and/or parts) are identified due to hidden damage, Contractor shall notify within two (2) business days after receipt of the vehicle to be repaired.
1. Approved additional costs shall be itemized on an invoice. Separate from the original estimate, and clearly identified as hidden damages.
2. Should the City of Palm Springs not accept Contractor’s estimate of additional charges and/or delivery delay attributable to the hidden damage, the City may, at its sole discretion, require that Contractor return the vehicle within 48 hours to the City without any additional charges.
3. The City's only liability shall be for work already approved and completed.
Item 1E - Page 17
Revised 12.21.23 Page 14 of 21
O. Authorization to Begin Work starts when the designated City official returns a copy of the "Approved" Estimate of Repair Cost form, including Purchase Order Number to the Contractor assigned to the work order.
P. Upon notification of work by Fleet Management, Contractor shall transport the vehicle from the requesting department’s facility and begin work within two (2) business days after notification of award.
Q. Contractor shall be responsible for the safe pickup, transport, and delivery of vehicles.
R. All transportation of vehicles shall be done without additional charge to the City of Palm Springs.
S. Upon return of the finished vehicle, if the fleet manager determines that the vehicle was not properly repaired according to accepted industry standards, the fleet manager will discuss the matter with the Contractor for full resolution in the best interest of the City of Palm Springs.
T. Contractor who provides poor quality repair, excessive hidden damage estimates, excessive delays in completing repairs or who is otherwise not in compliance with the terms and conditions of this RFP may be dropped from the auto body repair service program without notice.
U. Contractor shall be responsible for the security and storage of City vehicle(s) at their repair facility.
V. Contractor shall reimburse the City for all damages to City property in their care, such as unwarranted wear and tear, acts of vandalism and malicious mischief, all physical damages, including acts of commission and/or omission by Contractor’s employees and others.
1.2 Insurance Requirements:
Contractor shall meet all insurance requirements of the City, including but not limited to, the provisions of personal and property liability, including automobile coverage, and Worker's Compensation, in limits acceptable to the City.
1.3 License Requirement:
Be licensed in accordance with the Palm Springs Municipal Code, Chapter 3.40 through
3.96 entitled Business Tax.
1.4 Pricing:
1. The pricing included in this Contract shall be firm for the first year.
2. The unit prices may be adjusted (decreased or increased) once a year to correspond with the most recent annual change to the Consumer Price Index for All Urban Consumers as published by the U.S. Bureaus of Labor Statistics for the RiversideSan Bernardino-Ontario Areas.
3. The City will only pay for the items listed on the bid form. Contractor must incorporate all of its costs in its unit bid prices, including but not limited to labor, supervision, project management, overhead, profit, onboarding training, travel, mileage, truck charges, fuel charges, service call charges, parking, delivery, portalItem 1E - Page 18 Revised 12.21.23 Page 15 of 21
to-portal charges, environmental fees, shop supplies and consumable incidental materials. The City will not pay for subcontractors, rental of equipment/tools, and purchase of materials/supplies unless the City authorized payment of the applicable items.
1.5 Invoicing:
Contractor will submit an itemized invoice monthly. Billings must reference a purchase order number and shall indicate the unit (contract) price. Contractor will be paid for the actual hours worked at the rates shown in the contract. Parts, materials, equipment, and subcontractor costs will be compensated at actual cost with receipts required with allowable markup as outline in the contract. Contractor shall break out the line items on the invoice in accordance with the line items on the bid form. Contractor must provide back-up documentation for materials, subcontractor, rented equipment, permits, disposal and recycling fees. Invoices that are submitted with incorrect prices may be returned for correction before any payments to the contractor are authorized. It shall be the contractor’s responsibility to submit a correct invoice. The City shall not be responsible for payment until a correct invoice is received. The invoice shall be accompanied by receipts, dated, and signed by a City Employee, verifying the work was done. Invoices and receipts will be submitted to the Contract Officer for approval. All invoices are to be sent as one document, per month to: [email protected].
Item 1E - Page 19
Revised 12.21.23 Page 16 of 21
Item 1E - Page 20
ATTACHMENT G
BIO FORM
INVITATION FOR BIDS (IFB 24-23)
AUTO BODY REPAIR SERVICES
Responding to this IFB for Auto Body Repair services, the undersigned bidder proposes and agrees to provide the services and work in accordance with the specifications. Bidder proposes and agrees to furnish all labor, equipment, mate,ials, supe,vision, and service necessary to complete said Work in accordance with the Specifications of the City of Palm Sprinos anrl will ~r.r.P.r,t ~s full payment therefore, the following unit cosl amounts. The City of Palm Springs will not accept any additional charges, fees, etc. that are not already included or incorporated in the below unit costs.
ITCM DESCRIPTION UNIT ESTIMATED UNIT PRICE SUBTOTAL QUANTITY 1 Body Repair Labor HR 2000 $65.00 $130,000.00
2 Paint Labor HR 3000 $65.00 $195,000.00
3 Mechanical I Electrical Labor HR 1200 $1 10.00 $132,000.00 4 rrame Repair Labor HR 900 $·11~.oo $103,500.00
5 Aluminum Repair Labor HR 900 $75.00 $67,500.00
6 Parts & Materials Mark-up % % $150.000 10% $15,000.00 TOTAL (Enter this amount in PlanetBids) $643,000.00
•NOTE: This bid form is to determine the lowestt bidder and will be used to establish the contract unit prices. The contract will be set at the City budget amount. Total budgeted amount for this contract would be split between primary contract (70%) and secondary contract (30%).
Firm Name: Cat City Auto Body, Inc.
Signature of Authorized Person: C Grutv,, ' ""')
Printed Name: Arthur Avakyan
Title: President
Date: _ ____.g~fol-= ~ -~' 7 /42'--=l/i"----------
Revised 12.21.23 Page 17 of 21
EXHIBIT “B”
INSURANCE PROVISIONS
Including
Verification of Coverage,
Sufficiency of Insurers,
Errors and Omissions Coverage,
Minimum Scope of Insurance,
Deductibles and Self-Insured Retentions, and
Severability of Interests (Separation of Insureds)
Item 1E - Page 21
Revised 12.21.23 Page 18 of 21
INSURANCE
1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Contractor’s performance under this Agreement.
Contractor shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of this Agreement.
Contractor shall also carry workers’ compensation insurance in accordance with California workers’ compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers.
2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement shall be as follows:
1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate;
2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence;
3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is:
_________ required
___X_____ is not required;
4. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.
3. Primary Insurance. For any claims related to this Agreement, Contractor’s insurance coverage shall be primary with respect to the City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all rights of subrogation and contribution it may have against City, its elected officials, officers, employees, agents, and volunteers.
Item 1E - Page 22
Revised 12.21.23 Page 19 of 21
4. Errors and Omissions Coverage. If Errors & Omissions Insurance is required, and if Contractor provides claims made professional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Contractor’s services under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor’s services under this Agreement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy.
5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City.
6. Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies.
Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate:
A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
B. "This insurance is primary and non-contributory over any insurance or selfinsurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
C. "Should any of the above-described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out.
D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies.
All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with Item 1E - Page 23
Revised 12.21.23 Page 20 of 21
authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter.
Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor’s obligation to provide them.
7. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Certificates of Insurance must include evidence of the amount of any deductible or self-insured retention under the policy. Contractor guarantees payment of all deductibles and self-insured retentions.
8. Severability of Interests (Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability.
Item 1E - Page 24
Revised 12.21.23 Page 21 of 21
Item 1E - Page 25
ATTACHMENT "F"
EXECUTIVE ORDER N-6-22 CERTIFICATION
INVITATION FOR BIOS (IFB 24-23)
AUTO BODY KEPAIR SERVICES
Executive Order N-6-22 issued by Governor Gavin Newsom on March 4, 2022, directs all agencies and departments that are subject to the Governor's aulhority to (a) terminale any r.nntr::ir.ts with any individuals or entiti9s that are determined to be a target of economic sanctions against Russia and Russian entities and individuals; and (b) refrain from entering inlo any new contracts with such individuals or entities while the aforementioned sanctions are in effect.
1:xecut1ve Order N-6-22 also requires that any contractor that: (1) currently has a contract with the City of Palm Springs funded through grant funds provided by the State of California; and/or (2) submits a bid or proposal or otherwise proposes to or enter into or renew a contract with the City of Palm Springs with State of California grant funds, certify that the person is not the 1,HQP.I of ,my economic sanctions against Rue£ia and RuGtiian entitle:, and ind ividuai~.
The contractor hereby certifies, SUBJECT TO PENALTY FOR PERJURY, that a) the contractor is not a target of any economic sanctions against Russian and Russian entities ,md individuals as discussed in l:xecutive Order N-6-22 ::inn h) the pi;,rson signing below is rluly authorized lo l9gally bind the Contrnclor. This certification is made u11ue1 the laws of the State of California.
Signature: ,- CSi§i + :::>
Printed Namc: Arthur Avakyan
Title: President
Firm N,m1e Cat City Auto Body, Inc.
Date: __ _:is. ==:.L,.;/2fl=.:,l=kxo.#::L-. ____ _
ATTACHMENT B
Item 1E - Page 26
Revised 12.21.23 Page 1 of 21
CONTRACT SERVICES AGREEMENT 24B236
AUTO BODY REPAIR SERVICES
THIS AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into on October 14, 2024, by and between the City of Palm Springs, a California charter city and municipal corporation (“City”), and Marvin’s Auto Paint Inc., a California corporation, (“Contractor”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.
RECITALS
A. City requires the services of a licensed vendor to provide auto body repair services on an as-needed basis, (“Project”).
B. Contractor has submitted to City a quote to provide auto body repair services, to City under the terms of this Agreement.
C. Based on its experience, education, training, and reputation, Contractor is qualified and desires to provide the necessary services to City for the Project.
D. City desires to retain the services of Contractor for the Project.
NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. CONTRACTOR SERVICES
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Contractor shall provide services to City as described in the Scope of Services/Work attached to this Agreement as Exhibit “A” and incorporated herein by reference (the “Services” or “Work”). Exhibit "A" includes the agreed upon schedule of performance and the schedule of fees. Contractor warrants that the Services shall be performed in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced, and well qualified members of the profession currently practicing under similar conditions. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern.
1.2 Compliance with Law. Contractor shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.
1.3 Licenses and Permits. Contractor shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the Services required by this Agreement.
Item 1E - Page 27
Revised 12.21.23 Page 2 of 21
1.4 Familiarity with Work. By executing this Agreement, Contractor warrants that it has carefully considered how the Work should be performed and fully understands the facilities, difficulties, and restrictions attending performance of the Work under this Agreement.
2. TIME FOR COMPLETION
The time for completion of the Services to be performed by Contractor is an essential condition of this Agreement. Contractor shall prosecute regularly and diligently the work of this Agreement according to the agreed upon schedule of performance set forth in Exhibit “A.” Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non-performing Party. Delays shall not entitle Contractor to any additional compensation regardless of the Party responsible for the delay.
3. COMPENSATION OF CONTRACTOR
3.1 Compensation of Contractor. Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $309,450.00.
3.2 Method of Payment. In any month in which Contractor wishes to receive payment, Contractor shall submit to City an invoice for Services rendered prior to the date of the invoice, no later than the first working day of such month, in the form approved by City’s finance director. Payments shall be based on the schedule of fees set forth in Exhibit “A” for authorized services performed. City shall pay Contractor for all expenses stated in the invoice that are approved by City and consistent with this Agreement, within thirty (30) days of receipt of Contractor’s invoice.
3.3 Changes. In the event any change or changes in the Services is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into:
A. To provide for revisions or modifications to documents, work product, or Work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession.
3.4 Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City.
4. PERFORMANCE SCHEDULE
4.1 Time of Essence. Time is of the essence in the performance of this Agreement.
Item 1E - Page 28
Revised 12.21.23 Page 3 of 21
4.2 Schedule of Performance. All Services rendered under this Agreement shall be performed under the agreed upon schedule of performance set forth in Exhibit “A.” Any time period extension must be approved in writing by the Contract Officer.
4.3 Force Majeure. The time for performance of Services to be rendered under this Agreement may be extended because of any delays due to a Force Majeure Event, if Contractor notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Contractor’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay and extend the time for performing the Services for the period of the enforced delay when and if, in the Contract Officer’s judgment, such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. The Contractor will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement shall continue in full force and effect for a period of three years, commencing on October 14, 2024, and ending on October 13, 2027, unless extended by mutual written agreement of the Parties. In addition, the term may be extended at the sole discretion of the City upon written notice to the Contractor, for two (2) additional one (1) year terms.
4.5 Termination Prior to Expiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor.
Where termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Contractor shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Contractor's deficiencies and charge the cost thereof to Contractor, who shall be liable for the full cost of the City's corrective action. Contractor may not terminate this Agreement except for cause, upon thirty (30) days written notice to City.
5. COORDINATION OF WORK
5.1 Representative of Contractor. The following principal of Contractor is designated as being the principal and representative of Contractor authorized to act and make all decisions in its behalf with respect to the specified Services: Marvin R Martinez, Owner. It is expressly understood that the experience, knowledge, education, capability, and reputation of Item 1E - Page 29
Revised 12.21.23 Page 4 of 21
the foregoing principal is a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the Services under this Agreement. The foregoing principal may not be changed by Contractor without prior written approval of the Contract Officer.
5.2 Contract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). Contractor shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the Services. Contractor shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer.
5.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, education, capability, and reputation of Contractor, its principals and employees, were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other individual or entity to perform any Services required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City.
5.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Contractor, its agents or employees, perform the Services required, except as otherwise specified. Contractor shall perform all required Services as an independent contractor of City and shall not be an employee 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; however, City shall have the right to review Contractor’s work product, result, and advice. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Contractor shall pay all wages, salaries, and other amounts due personnel in connection with their performance under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance. Contractor shall not have any authority to bind City in any manner.
5.5 Personnel. Contractor agrees to assign the following individuals to perform the services in this Agreement. Contractor shall not alter the assignment of the following personnel without the prior written approval of the Contract Officer. Acting through the City Manager, the City shall have the unrestricted right to order the removal of any personnel assigned by Contractor by providing written notice to Contractor.
Name: Title:
Marvin R Martinez Owner
Item 1E - Page 30
Revised 12.21.23 Page 5 of 21
5.6 California Labor Code Requirements.
A. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
B. If the Services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements.
6. INSURANCE
Contractor shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Exhibit "B", incorporated herein by reference.
7. INDEMNIFICATION.
7.1 Indemnification. To the fullest extent permitted by law, Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (Contractor’s employees included), for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct committed by Contractor, its officers, employees, representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the Item 1E - Page 31
Revised 12.21.23 Page 6 of 21
insurance requirements and limits set forth in this Agreement be construed to limit Contractor’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.
7.2 Design Professional Services Indemnification and Reimbursement. If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor in the performance of the Services or this Agreement, and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction, Contractor’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault.
8. RECORDS AND REPORTS
8.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer reports concerning the performance of the Services required by this Agreement, or as the Contract Officer shall require.
8.2 Records. Contractor shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Contractor shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. 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.
8.3 Ownership of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of this Agreement shall be the property of City. Contractor shall deliver all above-referenced documents to City upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials. Contractor may retain copies of such documents for Contractor's own use. Contractor shall have an unrestricted right to use the concepts embodied in such documents.
8.4 Release of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer.
8.5 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, Contractor shall provide City, or other agents of City, such access to Contractor’s books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Contractor’s performance under this Agreement.
Contractor shall maintain such books, records, data, and documents in accordance with Item 1E - Page 32
Revised 12.21.23 Page 7 of 21
generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder.
9. ENFORCEMENT OF AGREEMENT
9.1 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 Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
9.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties.
Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs.
9.3 Waiver. No delay or omission in the exercise of any right or remedy of a nondefaulting Party on any default shall impair such right or remedy or be construed as a waiver.
No consent or approval of City shall be deemed to waive or render unnecessary City’s consent to or approval of any subsequent act of Contractor. Any waiver by either Party of any default must be in writing. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement.
9.4 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. 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.
9.5 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in 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, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement.
9.6 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non-judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert contractor fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding.
Item 1E - Page 33
Revised 12.21.23 Page 8 of 21
10. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
10.1 Non-Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Contractor, or any successor-in-interest, in the event of any default or breach by City or for any amount which may become due to the Contractor or its successor, or for breach of any obligation of the terms of this Agreement.
10.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement, nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.
10.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section
7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting.
11. MISCELLANEOUS PROVISIONS
11.1 Notice. Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person shall be in writing and either served personally or sent by pre-paid, first-class mail to the address set forth below. Notice shall be deemed communicated seventy-two (72) hours from the time of mailing if mailed as provided in this Section. Either Party may change its address by notifying the other Party of the change of address in writing.
To City: City of Palm Springs
Attention: City Manager/ City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
To Contractor: Marvin’s Auto Paint Inc.
Attention: Marvin R Martinez
651 S. Oleander Rd
Palm Springs, CA 92264
Item 1E - Page 34
Revised 12.21.23 Page 9 of 21
11.2 Integrated Agreement. This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement.
11.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement signed by all Parties.
11.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. 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 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 shall be interpreted to carry out the intent of the Parties.
11.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assignees.
11.6 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement.
11.7 Recitals. The above-referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same.
11.8 Authority. The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement on behalf of Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement.
11.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
11.10 Compliance with Economic Sanctions in Response to Russia's Actions in Ukraine. When funding for the services is provided, in whole or in part, by an agency controlled of the State of California, Consultant shall fully and adequately comply with California Executive Order N-6-22 (“Russian Sanctions Program”). As part of this compliance process, Consultant shall also certify compliance with the Russian Sanctions Program by completing the form located in Exhibit “C” (Russian Sanctions Certification), attached hereto and incorporated herein by reference. Consultant shall also require any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section. [SIGNATURES ON NEXT PAGE]
Item 1E - Page 35
Revised 12.21.23 Page 10 of 21
SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND MARVIN’S AUTO PAINT INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _____________________________ By: _______________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _____________________ Item No. ______________
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________ City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
Item 1E - Page 36
Revised 12.21.23 Page 11 of 21
EXHIBIT “A”
SCOPE OF SERVICES/WORK
Including,
Schedule of Fees
And
Schedule of Performance
Item 1E - Page 37
Revised 12.21.23 Page 12 of 21
1.1 Scope of Work:
A. Contractor shall provide auto body repair services (Work) on as as-needed basis for all City of Palm Springs vehicles including sedans, trucks, sport utility vehicles and other fleet equipment.
B. Contractor shall furnish all necessary labor, parts, and services in accordance with the provisions and terms and conditions.
C. Contractor must be able to provide quick turnaround.
D. Contractor must provide certified technicians.
E. Contractor must have a complete body repair facility.
F. The scope of work includes auto body repairs and repair practices to include but is not limited to the following:
1. Body repair and/or replacement of body panels
2. Refinishing
3. Frame Straightening
4. Decal Services
5. Painting
G. Contractor shall follow repair standards that include but are not limited to:
1. Masking, protecting, or removing and re-installing all chrome, glass, lighting equipment (light bars. strobes), winches, etc. and any other vehicle component(s) or accessory(ies) that could be damaged while making repairs.
2. Making all necessary adjustments, aligning doors, hood decks, trucks, fenders, or other body components such as hinges, latches, etc., that are not damaged, but would require such labor to produce a finished job.
3. Aligning front and/ or rear ends (casters, camber, and toe-in, etc.) when collision damage has affected them.
4. Reapplying rust-proofing and under-coating in any repaired areas which originally had this type of protection.
5. Recovering seat(s), arm rest(s), headliner, etc., if so, requested by the Fleet Manager.
6. Where applicable, resetting, repairing, and/or restoring any active or passive restraint systems such as seat and shoulder harnesses, and/or air bag systems to fully functional new original equipment manufacturers (O.E.M.) factory standards.
7. Completing color change for vehicles or equipment must include door jams, hood. truck, and deck jams.
H. Contractor, when installing auto body parts, shall follow repair standards that include but are not limited to:
1. All body parts shall meet the automobile manufacturer's specification requirements.
2. City of Palm Springs does not always require that new body parts be used.
Item 1E - Page 38
Revised 12.21.23 Page 13 of 21
a. Used parts, at the sole discretion of the Fleet Manager, may be installed depending on the age and value of the equipment being repaired.
b. City of Palm Springs reserves the right to provide the used auto body parts when appropriate as determined by the Fleet Manager. c. Contractor, with prior written approval of the City of Palm Springs Fleet Manager, may utilize used body parts provided the used parts equal the materials used in the original body part and match the original contours with regards to fit and alignment of the vehicle being repaired.
I. Contractor shall take the installation of used auto body parts into consideration when issuing an estimate for work that will include such parts.
J. Used auto body parts shall be warranted for one (1) year and shall cover at minimum the completed paint work, affixing of various decals and completed repairs.
K. The warranty for new body parts shall be the manufacturer's standard warranty. New original equipment manufacturers (O.E.M.) body repair parts and new aftermarket repair parts shall carry a manufacturer's warranty.
L. All airbag components and seat belt components shall be replaced with new O.E.M. parts.
M. Contractor shall issue estimates that include but are not limited to the following information:
1. A standard form of estimating, such as the Mitchell Collision Estimating Guide or the applicable industry standard list used by insurance appraisers for estimating repair costs.
2. Repair cost estimates shall be due within two (2) days after calling for estimate of work assignment.
3. Prior to the commencement of repair work, Contractor shall issue a written estimate, indicating the following:
a. Estimated hours of repair required
b. An itemized list of all parts required
c. Anticipated finish date for all repairs
d. Itemized pricing for all labor and materials
N. If additional costs (labor and/or parts) are identified due to hidden damage, Contractor shall notify within two (2) business days after receipt of the vehicle to be repaired.
1. Approved additional costs shall be itemized on an invoice. Separate from the original estimate, and clearly identified as hidden damages.
2. Should the City of Palm Springs not accept Contractor’s estimate of additional charges and/or delivery delay attributable to the hidden damage, the City may, at its sole discretion, require that Contractor return the vehicle within 48 hours to the City without any additional charges.
3. The City's only liability shall be for work already approved and completed.
Item 1E - Page 39
Revised 12.21.23 Page 14 of 21
O. Authorization to Begin Work starts when the designated City official returns a copy of the "Approved" Estimate of Repair Cost form, including Purchase Order Number to the Contractor assigned to the work order.
P. Upon notification of work by Fleet Management, Contractor shall transport the vehicle from the requesting department’s facility and begin work within two (2) business days after notification of award.
Q. Contractor shall be responsible for the safe pickup, transport, and delivery of vehicles.
R. All transportation of vehicles shall be done without additional charge to the City of Palm Springs.
S. Upon return of the finished vehicle, if the fleet manager determines that the vehicle was not properly repaired according to accepted industry standards, the fleet manager will discuss the matter with the Contractor for full resolution in the best interest of the City of Palm Springs.
T. Contractor who provides poor quality repair, excessive hidden damage estimates, excessive delays in completing repairs or who is otherwise not in compliance with the terms and conditions of this RFP may be dropped from the auto body repair service program without notice.
U. Contractor shall be responsible for the security and storage of City vehicle(s) at their repair facility.
V. Contractor shall reimburse the City for all damages to City property in their care, such as unwarranted wear and tear, acts of vandalism and malicious mischief, all physical damages, including acts of commission and/or omission by Contractor’s employees and others.
1.2 Insurance Requirements:
Contractor shall meet all insurance requirements of the City, including but not limited to, the provisions of personal and property liability, including automobile coverage, and Worker's Compensation, in limits acceptable to the City.
1.3 License Requirement:
Be licensed in accordance with the Palm Springs Municipal Code, Chapter 3.40 through
3.96 entitled Business Tax.
1.4 Pricing:
1. The pricing included in this Contract shall be firm for the first year.
2. The unit prices may be adjusted (decreased or increased) once a year to correspond with the most recent annual change to the Consumer Price Index for All Urban Consumers as published by the U.S. Bureaus of Labor Statistics for the RiversideSan Bernardino-Ontario Areas.
3. The City will only pay for the items listed on the bid form. Contractor must incorporate all of its costs in its unit bid prices, including but not limited to labor, supervision, project management, overhead, profit, onboarding training, travel, mileage, truck charges, fuel charges, service call charges, parking, delivery, portalItem 1E - Page 40 Revised 12.21.23 Page 15 of 21
to-portal charges, environmental fees, shop supplies and consumable incidental materials. The City will not pay for subcontractors, rental of equipment/tools, and purchase of materials/supplies unless the City authorized payment of the applicable items.
1.5 Invoicing:
Contractor will submit an itemized invoice monthly. Billings must reference a purchase order number and shall indicate the unit (contract) price. Contractor will be paid for the actual hours worked at the rates shown in the contract. Parts, materials, equipment, and subcontractor costs will be compensated at actual cost with receipts required with allowable markup as outline in the contract. Contractor shall break out the line items on the invoice in accordance with the line items on the bid form. Contractor must provide back-up documentation for materials, subcontractor, rented equipment, permits, disposal and recycling fees. Invoices that are submitted with incorrect prices may be returned for correction before any payments to the contractor are authorized. It shall be the contractor’s responsibility to submit a correct invoice. The City shall not be responsible for payment until a correct invoice is received. The invoice shall be accompanied by receipts, dated, and signed by a City Employee, verifying the work was done. Invoices and receipts will be submitted to the Contract Officer for approval. All invoices are to be sent as one document, per month to: [email protected].
Item 1E - Page 41
Revised 12.21.23 Page 16 of 21
Item 1E - Page 42
ATTACHMENT G
BID FORM
INVITATION FOR BIDS (IFB 24-23)
AUTO BODY REPAIR SERVICES
Responding to this IFB for Auto Body Repair services, the undersigned bidder proposes and agrees to provide the services and work in accordance with the specifications. Bidder proposes and agrees to furnish all labor, equipment, materials, supervision, and service necessary to complete said Work in accordance with the Specifications of the City of Palm Springs and will accept as full payment therefore, the following unit cost amounts. The City of Palm Springs will not accept any additional charges, fees, etc. that are not already included or incorporated in the below unit costs.
ITEM DESCRIPTION UNIT ESTIMATED UNIT PRICE SUBTOTAL QUANTITY 1 Body Repair Labor HR 2000 65 130,000
2 Paint Labor HR 3000 65 195,000
3 Mechanical/ Electrical Labor HR 1200 95 114,000
4 Frame Repair Labor HR 900 95 85,500
5 Aluminum Repair Labor HR 900 100 90,000
6 Parts & Materials Mark-up % % $150,000 30%
TOTAL (Enter this amount in PlanetBids) lpll{,500
*NOTE: This bid form is to determine the lowest bidder and will be used to establish the contract unit prices. The contract will be set at the City budget amount. Total budgeted amount for this contract would be split between primary contract (70%) and secondary contract (30%).
Firm Name:M arvin's A uto P ain t Inc
Signature of Authorized Person: _::-,;!~~~b~'-~o;vtP..~-===--------- Printed Name: M._,...,;" i Mc.rl,.;l\e'Z...
TiUe: _ _,O""--'w=-:.... "'-'e'-'--1 _ ____ _ _ ___ ________ _ Date: ----'J4{-=~::....o--1-J_i.._4--_______________ _
Revised 12.21.23 Page 17 of 21
EXHIBIT “B”
INSURANCE PROVISIONS
Including
Verification of Coverage,
Sufficiency of Insurers,
Errors and Omissions Coverage,
Minimum Scope of Insurance,
Deductibles and Self-Insured Retentions, and
Severability of Interests (Separation of Insureds)
Item 1E - Page 43
Revised 12.21.23 Page 18 of 21
INSURANCE
1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Contractor’s performance under this Agreement.
Contractor shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of this Agreement.
Contractor shall also carry workers’ compensation insurance in accordance with California workers’ compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers.
2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement shall be as follows:
1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate;
2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence;
3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is:
_________ required
___X_____ is not required;
4. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.
3. Primary Insurance. For any claims related to this Agreement, Contractor’s insurance coverage shall be primary with respect to the City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all rights of subrogation and contribution it may have against City, its elected officials, officers, employees, agents, and volunteers.
Item 1E - Page 44
Revised 12.21.23 Page 19 of 21
4. Errors and Omissions Coverage. If Errors & Omissions Insurance is required, and if Contractor provides claims made professional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Contractor’s services under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor’s services under this Agreement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy.
5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City.
6. Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies.
Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate:
A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
B. "This insurance is primary and non-contributory over any insurance or selfinsurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
C. "Should any of the above-described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out.
D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies.
All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with Item 1E - Page 45
Revised 12.21.23 Page 20 of 21
authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter.
Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor’s obligation to provide them.
7. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Certificates of Insurance must include evidence of the amount of any deductible or self-insured retention under the policy. Contractor guarantees payment of all deductibles and self-insured retentions.
8. Severability of Interests (Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability.
Item 1E - Page 46
Revised 12.21.23 Page 21 of 21
Item 1E - Page 47
ATTACHMENT "F"
EXECUTIVE ORDER N-6-22 CERTIFICATION
INVITATION FOR BIDS (IFB 24-23)
AUTO BODY REPAIR SERVICES
Executive Order N-6-22 issued by Governor Gavin Newsom on March 4, 2022, directs all agencies and departments that are subject to the Governor's authority to (a) terminate any contracts with any individuals or entities that are determined to be a target of economic sanctions against Russia and Russian entities and individuals; and (b) refrain from entering into any new contracts with such individuals or entities while the aforementioned sanctions are in effect.
Executive Order N-6-22 also requires that any contractor that: (1) currently has a contract with the City of Palm Springs funded through grant funds provided by the State of California; and/or (2) submits a bid or proposal or otherwise proposes to or enter into or renew a contract with the City of Palm Springs with State of California grant funds, certify that the person is not the target of any economic sanctions against Russia and Russian entities and individuals.
The contractor hereby certifies, SUBJECT TO PENAL TY FOR PERJURY, that a) the contractor is not a target of any economic sanctions against Russian and Russian entities and individuals as discussed in Executive Order N-6-22 and b) the person signing below is duly authorized to legally bind the Contractor. This certification is made under the laws of the State of California.
Signature:_:4:3.~!f~~~f'?~::_ _ ____ _ _
Printed Name: M c...c '-' ~ " -0. · l'--'--c:,c '>nl\>Vi..- Title:. _ _;O::....v->=---()-e._C-___ ______ _
Firm Name: ~vin:S ~ po..;f\ )-,-'\r')(....
Date: 7 - 3° · 2. 4---
ATTACHMENT C
Item 1E - Page 48
Item 1E - Page 49
1. Name of Entity
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
Cat City Auto Body, Inc.
2. Address of Entity (Principal Place of Business)
68314 KIELEY RD CATHEDRAL CITY, CA 92234
3. Local or California Address (if different than #2)
4. State where Entity is Registered with Secretary of State CA
If other than California, is the Entity also registered in California? D Yes D No
5. Type of Entity
~ Corporation D Limited Liability Company D Partnership D Trust D Other (please specify)
6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust, or other entity
Arthur Avakyan ~ Officer D Director D Member D Manager
[name] D General Partner D Limited Partner
• Other
D Officer D Director D Member D Manager
[name] D General Partner D Limited Partner
D Other
D Officer D Director D Member D Manager
[name] D General Partner D Limited Partner
D Other
Item 1E - Page 50
7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity
EXAMPLE
JANE DOE 50%, ABC COMPANY, Inc.
[name of owner/investor) [percentage of beneficial interest in entity and name of entity]
A.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
B.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
C.
[name of owner/investor] [percentage of beneficial
name of entity)
interest in entity and
D.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
E.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
Sign
~
ature of Disclosing Party, Printed Name. Title Date
~ <.?~~cQ.~ t
ft<r--'T-\-\L\~ )_\I.bl-<.~ .,c_,J -B4t/t:24
ATTACHMENT D
Item 1E - Page 51
Item 1E - Page 52
1. Name of Entity
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
Marvin's Auto Paint Inc
2. Address of Entity (Principal Place of Business)
651 S Oleander Rd Palm Springs, CA 92264
3. Local or California Address (if different than #2)
4. State where Entity is Registered with Secretary of State California
If other than California, is the Entity also registered in California?~ Yes D No
5. Type of Entity
~ Corporation D Limited Liability Company D Partnership D Trust D Other (please specify)
6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust, or other entity
Marvin R Martinez ~ Officer D Director D Member D Manager [name] D General Partner D Limited Partner
• Other
Martinez R Martinez D Officer ~ Director D Member D Manager [name] D General Partner D Limited Partner
D Other
\1
Marvin R Martinez D Officer D Director D Member ~ Manager [name] D General Partner D Limited Partner
D Other
Item 1E - Page 53
7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity
EXAMPLE
JANE DOE 50%, ABC COMPANY, Inc.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
A.
Marvin R Martinez 100%
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
8. [name of owner/investor] [percentage of beneficial interest in entity and name of entity]
C.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
D.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
E.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
Signature of Disclosing Party, Printed Name, Title . - , .,--p--v " fv'\o,.(v\l\ f M~(+illez_
Date
7-/3v )~+'
CITY COUNCIL STAFF REPORT
DATE: OCTOBER 10, 2024 CONSENT CALENDAR
SUBJECT: APPROVE CONSTRUCTION CONTRACT NO. 24C242 WITH MIRACLE
RECREATION EQUIPMENT COMPANY AND CONSTRUCTION
CONTRACT NO. 24C248 WITH SHADE STRUCTURES, INC., DBA USA
SHADE & FABRIC STRUCTURES FOR THE PURCHASE AND
INSTALLATION OF PLAYGROUND EQUIPMENT AND SHADE
STRUCTURES AT RUTH HARDY PARK
FROM: Scott C. Stiles, City Manager
BY: Lauri Aylaian, Interim Parks and Recreation Director SUMMARY:
This action will approve Construction Contract 24C242 with Miracle Recreation Equipment Company in the amount of $956,214.76 for the purchase and installation of playground equipment, and Construction Contract 24C248 with Shade Structures, Inc., dba USA Shade & Fabric Structures in the amount of $486,028.66 for the purchase and installation of shade structures at Ruth Hardy Park.
RECOMMENDATION:
1. Approve Construction Contract 24C242 (Attachment A) with Miracle Recreation Equipment Company to purchase and install playground equipment at Ruth Hardy Park, for an amount of $956,214.76;
2. Approve Construction Contract 24C248 (Attachment B) with Shade Structures, Inc., dba USA Shade & Fabric Structures, to purchase and install shade structure equipment at Ruth Hardy Park, for an amount of $486,028.66;
3. Authorize the City Manager or designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure form (Attachment C), Miracle Recreation Equipment Company is a corporation formed in the state of Iowa, and Shade Structures, Inc., dba USA Shade & Fabric Structures is a corporation formed in the state of Delaware (Attachment D).
Item 1F - Page 1
BACKGROUND:
The installation of the existing playground equipment at Ruth Hardy Park was completed in 2000. The typical life expectancy for playground equipment is estimated at 15 years.
Staff has identified the playground at Ruth Hardy Park as having reached the end of its useful life, requiring replacement. Public Works staff has worked with Parks & Recreation staff on the layout and playground equipment features. Those plans were then reviewed by the Park Enhancement Ad-Hoc of the Parks & Recreation Commission as well as the Parks & Recreation Commission for additional input and feedback.
On July 22, 2024, the Parks & Recreation Commission received a presentation from representatives of Miracle Recreation Equipment Company and discussed the elements of the playground and shade structure features for Ruth Hardy Park to ensure that there would be a variety of colors and types of play elements for different age groups. At the conclusion, the Parks & Recreation Commission voted to recommend approval of the project to the City Council for consideration. Similar to other park playground projects, the specific colors of the playground equipment and shade structures will be coordinated with staff and the Park Enhancement Ad-Hoc Committee.
STAFF ANALYSIS:
In accordance with City of Palm Springs Municipal Code Section 7.09.010, “Cooperative Purchasing Programs,” the Department of Public Works is proposing to enter into a Construction Contract for the purchase and installation of playground equipment and shade structures at Ruth Hardy Park under Sourcewell Cooperative Contract 010521- LTS, with authorized installers Shade Structures, Inc. dba USA Shade & Fabric Structures, and Miracle Recreation Equipment Company.
The new playground and shade structures will enhance park aesthetics and safety. The new playground equipment is compliant with ADA (Americans with Disabilities Act), ASTM/CPSC (American Society for Testing and Materials/Consumer Product Safety Commission), as well as IPEMA (International Play Equipment Manufacturers Association) Certified to ASTM F1487 Standard Consumer Safety Performance Specification for Playground Equipment for Public Use.
The playground equipment installation includes custom play areas with playground structures designed for youth 2-5 years old and youth 5-12 years old; including a threebay swing set and Chattery for a quiet area for those children with stimulus overload, as shown in the images on the following page.
Item 1F - Page 2
Ruth Hardy Park Playground and Shade Structures
Playground Equipment for youth age group 5-12 years
Item 1F - Page 3
Playground Equipment for youth age group 5-12 years
Playground Equipment for youth age group 2-5 years
As part of this project, integrated joined sail shade structures will be installed over the playground equipment, providing relief from the sun. New playground rubber surfacing will also be installed, allowing for a safe play experience.
Staff has reviewed the cooperative contract pricing and finds that Miracle Recreation Equipment Company and Shade Structures, Inc., dba USA Shade & Fabric Structures pricing is in line with the Sourcewell contract and recommends the approval of the Construction Contract No. 24C242, in the amount of $956,214.76, and Construction Contract No. 24C248, in the amount of $486,028.66.
Item 1F - Page 4
ENVIRONMENTAL ASSESSMENT:
Section 21084 of the California Public Resources Code requires Guidelines for Implementation of the California Environmental Quality Act (“CEQA”). The Guidelines are required to include a list of classes of projects which have been determined not to have a significant effect on the environment and which are exempt from the provisions of CEQA. In response to that mandate, the Secretary for Resources identified classes of projects that do not have a significant effect on the environment and are declared to be categorically exempt from the requirement for the preparation of environmental documents. In accordance with Section 15301 “Existing Facilities”, Class 1 projects consist of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public structures, facilities, mechanical equipment or topographical features involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination. Therefore, in accordance with Section 15301 (b), Staff has determined that replacement of playground equipment is considered categorically exempt from CEQA and a Notice of Exemption will be prepared and filed with the Riverside County Clerk.
ALIGNMENT WITH STRATEGIC PLANNING:
Approval of this action supports City Council priority 2, Community Infrastructure.
FISCAL IMPACT:
Sufficient funds are budgeted and available in Fiscal Year 2024-25 in Capital Projects accounts 2613225-80000 $850,000, and 5206570-50119 $600,000.
REVIEWED BY:
Interim Parks & Recreation Director: Lauri Aylaian
Procurement and Contracting Director: Kim Baker
Assistant City Manager: Teresa Gallavan
City Manager: Scott Stiles
ATTACHMENTS:
A. Construction Contract No. 24C242
B. Construction Contract No. 24C248
C. Miracle Recreation Equipment Company Public Integrity Disclosure Form D. Shade Structures, Inc., dba USA Shade & Fabric Structures Public Integrity Item 1F - Page 5
ATTACHMENT A
Item 1F - Page 6
CITY OF PALM SPRINGS
SHORT FORM CONSTRUCTION CONTRACT 24C242
RUTH HARDY PARK PLAYGROUND EQUIPMENT INSTALLATION
1. PARTIES AND DATE.
This Contract is made and entered into this 14th day of October 2024 by and between the City of Palm Springs, a California charter city and municipal corporation (“City”) and Miracle Recreation Equipment Company, an Iowa corporation (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Contract.
2. RECITALS.
2.1 City. City is a public agency organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.
2.2 Procurement. This contract is made and entered into in reference to the competitively solicited Sourcewell Contract #010521-LTS (“Cooperative Agreement”).
2.3 Contractor. Contractor desires to perform and assume responsibility for the provision of certain construction services required by the City on the terms and conditions set forth in this Contract. Contractor represents that it is duly licensed and experienced in providing removal and replacement of playground equipment and installation of shade structures at Ruth Hardy Par related construction services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the services in the State of California, and that it is familiar with the plans of City. The following license classifications are required for this Project: Class B
2.4 Project. City desires to engage Contractor to render such services for the Ruth Hardy Park Playground and Shade Structure Installation (“Project”) as set forth in this Contract.
2.5 Project Documents & Certifications. Contractor has obtained, and delivers concurrently herewith, payment and performance bonds, and insurance documents as required by the Contract.
3. TERMS
3.1 Compensation and Payment.
3.1.1 Amount of Compensation. As consideration for performance of the Work required herein, City agrees to pay Contractor the Total Contract Price of Nine Hundred Fifty-Six Thousand Two Hundred Fourteen Dollars and Seventy-Six Cents ($956,214.76) (“Total Contract Price”) provided that such amount shall be subject to adjustment pursuant to the applicable terms of this Contract or written change orders approved and signed in advance by the City.
3.1.2 Payment of Compensation. If the Work is scheduled for completion in thirty (30) or less calendar days, City will arrange for payment of the Total Contract Price upon completion and approval by City of the Work. If the Work is scheduled for completion in more than thirty (30) calendar days, City will pay Contractor on a monthly basis as provided for herein.
Item 1F - Page 7
On or before the fifth (5th) day of each month, Contractor shall submit to the City an itemized application for payment in the format supplied by the City indicating the amount of Work completed since commencement of the Work or since the last progress payment. These applications shall be supported by evidence which is required by this Contract and such other documentation as the City may require. The Contractor shall certify that the Work for which payment is requested has been done and that the materials listed are stored where indicated. Contractor may be required to furnish a detailed schedule of values upon request of the City and in such detail and form as the City shall request, showing the quantities, unit prices, overhead, profit, and all other expenses involved in order to provide a basis for determining the amount of progress payments.
3.1.3 Prompt Payment. City shall review and pay all progress payment requests in accordance with the provisions set forth in Section 20104.50 of the California Public Contract Code. However, no progress payments will be made for Work not completed in accordance with this Contract. Contractor shall comply with all applicable laws, rules and regulations relating to the proper payment of its employees, subcontractors, suppliers or others.
3.1.4 Contract Retentions. If this Contract is greater than Five Thousand dollars ($5,000), from each approved progress estimate, five percent (5%) will be deducted and retained by the City, and the remainder will be paid to Contractor. All Contract retention shall be released and paid to Contractor and subcontractors pursuant to California Public Contract Code Section 7107.
3.1.5 Other Retentions. In addition to Contract retentions, the City may deduct from each progress payment an amount necessary to protect City from loss because of:
(1) liquidated damages which have accrued as of the date of the application for payment; (2) any sums expended by the City in performing any of Contractor’s obligations under the Contract which Contractor has failed to perform or has performed inadequately; (3) defective Work not remedied; (4) stop notices as allowed by state law; (5) reasonable doubt that the Work can be completed for the unpaid balance of the Total Contract Price or within the scheduled completion date; (6) unsatisfactory prosecution of the Work by Contractor; (7) unauthorized deviations from the Contract; (8) failure of Contractor to maintain or submit on a timely basis proper and sufficient documentation as required by the Contract or by City during the prosecution of the Work; (9) erroneous or false estimates by Contractor of the value of the Work performed; (10) any sums representing expenses, losses, or damages as determined by the City, incurred by the City for which Contractor is liable under the Contract; and (11) any other sums which the City is entitled to recover from Contractor under the terms of the Contract or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the City to deduct any of these sums from a progress payment shall not constitute a waiver of the City’s right to such sums.
3.1.6 Substitutions for Contract Retentions. Pursuant to California Public Contract Code section 22300, Contractor may substitute securities for any money withheld by the City to ensure the performance under the Contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the City, with the State or a federally chartered bank as the escrow agent, who shall return such securities to Contractor upon satisfactory completion of the Contract. Deposit of securities with an escrow agent shall be subject to a written agreement between the escrow agent and the City, which provides that no portion of the securities shall be paid to Contractor until the City has certified to the escrow agent, in writing, that the Contract has been satisfactorily completed. The City shall certify that the Contract has been satisfactorily completed within sixty (60) days of work "completion" as defined in Section 7107(c) of the California Public Contract Code. Securities eligible for investment under this section shall be limited to those listed in Section 16430 of the Government Code, bank or Item 1F - Page 8
savings & loan certificates of deposit, interest-bearing demand deposit accounts, stand-by letters of credit, or any other security mutually agreed to by Contractor.
3.1.7 Payment to Subcontractors. Contractor shall pay all subcontractors for and on account of work performed by such subcontractors in accordance with the terms of their respective subcontracts and as provided for in Section 7108.5 of the California Business and Professions Code. Such payments to subcontractors shall be based on the measurements and estimates made and progress payments provided to Contractor pursuant to this Contract.
3.1.8 Title to Work. As security for partial, progress, or other payments, title to Work for which such payments are made shall pass to the City at the time of payment. To the extent that title has not previously been vested in the City by reason of payments, full title shall pass to the City at delivery of the Work at the destination and time specified in this Contract. Such transferred title shall in each case be good, free and clear from any and all security interests, liens, or other encumbrances. Contractor promises and agrees that it will not pledge, hypothecate, or otherwise encumber the items in any manner that would result in any lien, security interest, charge, or claim upon or against said items. Such transfer of title shall not imply acceptance by the City, nor relieve Contractor from the responsibility to strictly comply with the Contract, and shall not relieve Contractor of responsibility for any loss of or damage to items.
3.1.9 Labor and Material Releases. Contractor shall furnish City with labor and material releases from all subcontractors performing work on, or furnishing materials for, the Work governed by this Contract prior to final payment by City.
3.2 Incorporation of Documents. This Contract includes and hereby incorporates in full by reference the following documents, including all exhibits, drawings, specifications and documents therein, and attachments and addenda thereto:
• Services/Schedule (Exhibit “A”)
• Schedule of Compensation (Exhibit “B”)
• Special Conditions (Exhibit “C”)
• Contractor’s Certificate Regarding Workers’ Compensation (Exhibit “D”) • Public Works Contractor Registration Certification (Exhibit “E”) • Payment and Performance Bonds (Exhibit “F”)
• Executive Order N-6-22 Certification (Exhibit “G”)
• Change Orders executed by the City
To the extent there is a conflict between any portions of this Contract, the order of precedence shall be as follows: change orders, special conditions, technical specifications, plans/construction drawings, general contract terms, scope of work, standard plans, advertisements for bid/proposals, bids/proposals or other documents submitted by Contractor.
3.3 Contractor’s Basic Obligation; Scope of Work.
3.3.1 Scope of Work. Contractor promises and agrees, at its own cost and expense, to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately complete the Project, including all structures and facilities necessary for the Project or described in the Contract (hereinafter sometimes referred to as the “Work”), for a Total Contract Price as specified pursuant to this Contract. All Work shall be subject to, and performed in accordance with the above referenced documents, as well as the exhibits attached hereto and incorporated herein by reference. The plans and Item 1F - Page 9
specifications for the Work are further described in Exhibit “B” attached hereto and incorporated herein by this reference. Special Conditions, if any, relating to the Work are described in Exhibit “C” attached hereto and incorporated herein by this reference.
3.3.2 Change in Scope of Work. Any change in the scope of the Work, method of performance, nature of materials or price thereof, or any other matter materially affecting the performance or nature of the Work shall not be paid for or accepted unless such change, addition or deletion is approved in advance and in writing by a valid change order executed by the City.
3.3.3 Change Orders. Changes to the Contract Time (as defined in Section
3.3) or Total Contract Price shall be in the form of a written Change Order, either signed by both parties or issued unilaterally by the City. No adjustment shall be made to the Contract Time unless the delay impacts the critical path to completion and the delay was not caused in whole or in part by the Contractor. The City’s liability to Contractor for delays for which the City is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. Failure to timely request a Change Order shall constitute a waiver of any right to adjust the Contract Time or the Total Contract Price. All requests for Change Orders shall be accompanied by detailed supporting documentation, including but not limited to payroll records, invoices, schedules, and any other documentation requested by the City for the purpose of determining the additional costs or the impact of any delay. If the change involves Work bid at a unit price, then the Total Contract Price shall be increased at the unit price. If there is no unit price, then the Total Contract Price shall be adjusted to account for costs actually incurred plus an allowed mark-up of fifteen percent (15%), which shall constitute the entire amount of profit, markups, field or home office overhead costs, including personnel, equipment or office space, any materials, or any costs of equipment idle time for such work. Regardless of ownership, equipment rates shall not exceed the listed prevailing rates at local equipment rental agencies, or distributors, at the time the work is performed. Nothing herein shall prevent the Parties from agreeing to a lump sum cost.
3.3.4 Changes Ordered By City. City may at any time issue a written directive ordering additions, deletions, or changes to the Work. Contractor shall proceed with the work in accordance with the directive. To the extent the directive results in extra work or requires additional Contract Time, Contractor shall request a Change Order within seven (7) days of receiving the Work Directive. If any costs are not capable of being determined within seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined.
3.3.5 Changes Requested By Contractor. With respect to any matter that may involve or require an adjustment to the Contract Time or the Contract Price, Contractor shall provide written notice of the underlying facts and circumstances that gave rise to the potential change within seven (7) days or prior to the alteration of conditions, whichever is earlier. Failure to give notice shall constitute a waiver of Contractor’s right to a change order. If any costs are not capable of being determined within seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined.
3.4 Substitutions/”Or Equal”. Pursuant to Public Contract Code Section 3400(b), the City may make a finding that designates certain products, things, or services by specific brand or trade name. Unless specifically designated in this Contract, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such Specifications shall be deemed to be used for the purpose of facilitating the Item 1F - Page 10
description of the material, process or article desired and shall be deemed to be followed by the words “or equal.”
Contractor may, unless otherwise stated, offer for substitution any material, process or article which shall be substantially equal or better in every respect to that so indicated or specified in this Contract. However, the City may have adopted certain uniform standards for certain materials, processes and articles. Contractor shall submit requests, together with substantiating data, for substitution of any “or equal” material, process or article no later than thirty-five (35) days after award of the Contract. To facilitate the construction schedule and sequencing, some requests may need to be submitted before thirty-five (35) days after award of Contract. Provisions regarding submission of “or equal” requests shall not in any way authorize an extension of time for performance of this Contract. If a proposed “or equal” substitution request is rejected, Contractor shall be responsible for providing the specified material, process or article. The burden of proof as to the equality of any material, process or article shall rest with Contractor.
The City has the complete and sole discretion to determine if a material, process or article is an “or equal” material, process or article that may be substituted. Data required to substantiate requests for substitutions of an “or equal” material, process or article data shall include a signed affidavit from Contractor stating that, and describing how, the substituted “or equal” material, process or article is equivalent to that specified in every way except as listed on the affidavit.
Substantiating data shall include any and all illustrations, specifications, and other relevant data including catalog information which describes the requested substituted “or equal” material, process or article, and substantiates that it is an “or equal” to the material, process or article. The substantiating data must also include information regarding the durability and lifecycle cost of the requested substituted “or equal” material, process or article. Failure to submit all the required substantiating data, including the signed affidavit, to the City in a timely fashion will result in the rejection of the proposed substitution.
Contractor shall bear all of the City’s costs associated with the review of substitution requests. Contractor shall be responsible for all costs related to a substituted “or equal” material, process or article. Contractor is directed to the Special Conditions (if any) to review any findings made pursuant to Public Contract Code section 3400.
3.5 Period of Performance and Liquidated Damages.
3.5.1 Contractor shall perform and complete all Work under this Contract within 160 working days, beginning the effective date of the Notice to Proceed (“Contract Time”).
Contractor shall perform its Work in strict accordance with any completion schedule, construction schedule or project milestones developed by the City. Such schedules or milestones may be included as part of Exhibits “A” or “B” attached hereto, or may be provided separately in writing to Contractor. Contractor agrees that if such Work is not completed within the aforementioned Contract Time and/or pursuant to any such completion schedule, construction schedule or project milestones developed pursuant to provisions of the Contract, it is understood, acknowledged and agreed that the City will suffer damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages the sum of One Thousand Dollars ($1,000) per day for each and every calendar day of delay beyond the Contract Time or beyond any completion schedule, construction schedule or Project milestones established pursuant to the Contract.
3.5.2 If Contractor is delayed in the performance or progress of the Work by a Force Majeure Event (as defined herein), then the Contractor shall be entitled to a time Item 1F - Page 11
extension, as provided herein, when the Work stopped is on the critical path and shall not be charged liquidated damages. Such a non-compensable adjustment shall be Contractor’s sole and exclusive remedy for such delays and the Contractor will not receive an adjustment to the Total Contract Price or any other compensation. Contractor must submit a timely request in accordance with the requirements of the Contract.
3.5.3 A Force Majeure Event shall mean an event that materially affects a party’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the work); (4) pandemics, epidemics or quarantine restrictions; and (5) strikes and other organized labor action occurring at the project site and the effects thereof on the work, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its subcontractors, of every tier, and to the extent the effects thereof cannot be avoided by use of replacement workers. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.
3.6 Standard of Performance; Performance of Employees. Contractor shall perform all Work under this Contract in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Work. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Work assigned to them.
Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Work, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Contract. As provided for in the indemnification provisions of this Contract, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any work necessary to correct errors or omissions which are caused by Contractor’s failure to comply with the standard of care provided for herein. Any employee who is determined by the City to be uncooperative, incompetent, a threat to the safety of persons or the Work, or any employee who fails or refuses to perform the Work in a manner acceptable to the City, shall be promptly removed from the Project by Contractor and shall not be re-employed on the Work.
3.7 Control and Payment of Subordinates; Contractual Relationship. City retains Contractor on an independent contractor basis and Contractor is not an employee of City. Any additional personnel performing the work governed by this Contract on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance under this Contract and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance.
3.8 City’s Basic Obligation. City agrees to engage and does hereby engage Contractor as an independent contractor to furnish all materials and to perform all Work according to the terms and conditions herein contained for the sum set forth above. Except as otherwise provided in the Contract, the City shall pay to Contractor, as full consideration for the satisfactory performance by Contractor of the services and obligations required by this Contract, the belowreferenced compensation in accordance with compensation provisions set forth in the Contract.
Item 1F - Page 12
3.9 Labor.
3.9.1 Prevailing Wages. Contractor is aware of the requirements of California Labor Code Section 1720 et seq., and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. Since the Work is being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Contract. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at Contractor’s principal place of business and at the project site. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Contractor and any subcontractor shall forfeit a penalty of up to $200 per calendar day or portion thereof for each worker paid less than the prevailing wage rates.
3.9.2 Apprenticeable Crafts. When Contractor employs workmen in an apprenticeable craft or trade, Contractor shall comply with the provisions of Section 1777.5 of the California Labor Code with respect to the employment of properly registered apprentices upon public works. The primary responsibility for compliance with said section for all apprenticeable occupations shall be with Contractor. The Contractor or any subcontractor that is determined by the Labor Commissioner to have knowingly violated Section 1777.5 shall forfeit as a civil penalty an amount not exceeding $100 for each full calendar day of noncompliance, or such greater amount as provided by law.
3.9.3 Hours of Work. Contractor is advised that eight (8) hours labor constitutes a legal day’s work. Pursuant to Section 1813 of the California Labor Code, Contractor shall forfeit a penalty of $25.00 per worker for each day that each worker is permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week, except when payment for overtime is made at not less than one and one-half (1-1/2) times the basic rate for that worker.
3.9.4 Payroll Records. Contractor and each subcontractor shall keep an accurate payroll record, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her in connection with the public work. The payroll records shall be certified and shall be available for inspection at all reasonable hours at the principal office of Contractor in the manner provided in Labor Code section 1776. In the event of noncompliance with the requirements of this section, Contractor shall have 10 days in which to comply subsequent to receipt of written notice specifying in what respects such Contractor must comply with this section. Should noncompliance still be evident after such 10-day period, Contractor shall, as a penalty to City, forfeit not more than $100.00 for each calendar day or portion thereof, for each worker, until strict compliance is effectuated. The amount of the forfeiture is to be determined by the Labor Commissioner. A contractor who is found to have violated the provisions of law regarding wages on Public Works with the intent to defraud shall be ineligible to bid on Public Works contracts for a period of one to three years as determined by the Labor Commissioner. Upon the request of the Division of Apprenticeship Item 1F - Page 13
Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payments then due. The responsibility for compliance with this section is on Contractor.
In accordance with Labor Code section 1771.4, the Contractor and each subcontractor shall furnish the certified payroll records directly to the Department of Industrial Relations (“DIR”) on a weekly basis and in the format prescribed by the DIR, which may include electronic submission.
The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
3.9.5 Contractor and Subcontractor Registration. Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the DIR. No bid will be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the DIR to perform public work. Contractor is directed to review, fill out and execute the Public Works Contractor Registration Certification attached hereto as Exhibit “E” prior to contract execution. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
3.9.6 Labor Compliance; Stop Orders. This Project is subject to compliance monitoring and enforcement by the DIR. It shall be the Contractor’s sole responsibility to evaluate and pay the cost of complying with all labor compliance requirements under this Contract and applicable law. Any stop orders issued by the DIR against Contractor or any subcontractor that affect Contractor’s performance of Work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Contractor or any subcontractor.
3.10 Performance of Work; Jobsite Obligations.
3.10.1 Water Quality Management and Compliance.
3.10.1.1 Water Quality Management and Compliance. Contractor shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); local ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State.
3.10.1.2 Compliance with the Statewide Construction General Permit.
Contractor shall comply with all conditions of the most recent iteration of the National Pollutant Discharge Elimination System General Permit for Storm Water Discharges Associated with Construction Activity, issued by the California State Water Resources Control Board (“Permit”). It shall be Contractor’s sole responsibility to file a Notice of Intent and procure coverage under the Permit for all construction activity which results in the disturbance of more than one acre of total Item 1F - Page 14
land area or which is part of a larger common area of development or sale. Prior to initiating work, Contractor shall be solely responsible for preparing and implementing a Storm Water Pollution Prevention Plan (SWPPP) as required by the Permit. Contractor shall be responsible for procuring, implementing and complying with the provisions of the Permit and the SWPPP, including the standard provisions, and monitoring and reporting requirements as required by the Permit. The Permit requires the SWPPP to be a “living document” that changes as necessary to meet the conditions and requirements of the job site as it progresses through difference phases of construction and is subject to different weather conditions. It shall be Contractor’s sole responsibility to update the SWPPP as necessary to address conditions at the project site.
3.10.1.3 Other Water Quality Rules Regulations and Policies. Contractor shall comply with the lawful requirements of any applicable municipality, drainage City, or local agency regarding discharges of storm water to separate storm drain systems or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.
3.10.1.4 Cost of Compliance. Storm, surface, nuisance, or other waters may be encountered at various times during construction of the Work. Therefore, the Contractor, hereby acknowledges that it has investigated the risk arising from such waters and assumes any and all risks and liabilities arising therefrom.
3.10.1.5 Liability for Non-Compliance. Failure to comply with laws, regulations, standards, ordinances, and permits listed in Sections 3.10.1.1, 3.10.1.2, 3.10.1.3, and 3.10.1.4 of the Contract is a violation of federal and state law. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to defend, indemnify and hold harmless the City and its directors, officials, officers, employees, volunteers and agents for any alleged violations. In addition, City may seek damages from Contractor for any delay in completing the Work in accordance with the Contract, if such delay is caused by or related to Contractor’s failure to comply with the Permit.
3.10.1.6 Reservation of Right to Defend. City reserves the right to defend any enforcement action brought against the City for Contractor’s failure to comply with the Permit or any other relevant water quality law, regulation, or policy. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to be bound by, and to reimburse the City for the costs (including the City’s attorney’s fees) associated with, any settlement reached between the City and the relevant enforcement entity.
3.10.1.7 Training. In addition to the standard of performance requirements set forth in this Contract, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies described in paragraph 3.10.1.
Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in paragraph 3.10.1 as they may relate to the Work provided under this Contract. Upon request, City will provide the Contractor with a list of training programs that meet the requirements of this paragraph.
3.10.2 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. Contractor shall comply with the requirements of the specifications relating to safety measures applicable in particular operations or kinds of work. In carrying out its Work, Contractor shall at all times be in compliance with all applicable local, state Item 1F - Page 15
and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the Work and the conditions under which the Work is to be performed. Safety precautions as applicable shall include, but shall not be limited to, adequate life protection and lifesaving equipment; adequate illumination for underground and night operations; instructions in accident prevention for all employees, such as machinery guards, safe walkways, scaffolds, ladders, bridges, gang planks, confined space procedures, trenching and shoring, fall protection and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and adequate facilities for the proper inspection and maintenance of all safety measures. Furthermore, Contractor shall prominently display the names and telephone numbers of at least two medical doctors practicing in the vicinity of the Project, as well as the telephone number of the local ambulance service, adjacent to all telephones at the Project site.
3.10.3 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Contract or the Work, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with the Work. If Contractor observes that the drawings or specifications are at variance with any law, rule or regulation, it shall promptly notify the City in writing. Any necessary changes shall be made by written change order. If Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Contract to the same extent as though set forth herein and will be complied with. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.10.4 Permits and Licenses. Contractor shall be responsible for securing City permits and licenses necessary to perform the Work described herein, including, but not limited to, a City Business License. While Contractor will not be charged a fee for any City permits, Contractor shall pay the City’s applicable business license fee. Any ineligible contractor or subcontractor pursuant to Labor Code Sections 1777.1 and 1777.7 may not perform work on this Project.
3.10.5 Trenching Work. If the Total Contract Price exceeds $25,000 and if the Work governed by this Contract entails excavation of any trench or trenches five (5) feet or more in depth, Contractor shall comply with all applicable provisions of the California Labor Code, including Section 6705. To this end, Contractor shall submit for City’s review and approval a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer.
3.10.6 Hazardous Materials and Differing Conditions. As required by California Public Contract Code Section 7104, if this Contract involves digging trenches or other excavations that extend deeper than four (4) feet below the surface, Contractor shall promptly, and prior to disturbance of any conditions, notify City of: (1) any material discovered in excavation that Contractor believes to be a hazardous waste that is required to be removed to a Class I, Class II Item 1F - Page 16
or Class III disposal site; (2) subsurface or latent physical conditions at the site differing from those indicated by City; and (3) unknown physical conditions of an unusual nature at the site, significantly different from those ordinarily encountered in such contract work. Upon notification, City shall promptly investigate the conditions to determine whether a change order is appropriate.
In the event of a dispute, Contractor shall not be excused from any scheduled completion date and shall proceed with all Work to be performed under the Contract, but shall retain all rights provided by the Contract or by law for making protests and resolving the dispute.
3.10.7 Underground Utility Facilities. To the extent required by Section 4215 of the California Government Code, City shall compensate Contractor for the costs of: (1) locating and repairing damage to underground utility facilities not caused by the failure of Contractor to exercise reasonable care; (2) removing or relocating underground utility facilities not indicated in the construction drawings; and (3) equipment necessarily idled during such work. Contractor shall not be assessed liquidated damages for delay caused by failure of City to provide for removal or relocation of such utility facilities.
3.10.8 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Although CARB limits and requirements are more broad, Contractor shall specifically be aware of their application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify City against any fines or penalties imposed by CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Contract.
3.10.9 State Recycling Mandates. Contractor shall comply with State Recycling Mandates. Any recyclable materials/debris collected by the contractor that can be feasibly diverted via reuse or recycling must be hauled by the appropriate handler for reuse or recycling.
3.10.10 Inspection Of Site. Contractor has visited sites where Work is to be performed and has become acquainted with all conditions affecting the Work. Contractor warrants that it has made such examinations as it deems necessary to determine the condition of the Work sites, its accessibility to materials, workmen and equipment, and to determine the Contractor’s ability to protect existing surface and subsurface improvements. No claim for allowances–time or money–will be allowed as to such matters.
3.10.11 Field Measurements. Contractor shall make field measurements, verify field conditions and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents before commencing activities.
Errors, inconsistencies or omissions discovered shall be reported to the City immediately and prior to performing any work or altering the condition.
3.11 Completion of Work. When Contractor determines that it has completed the Work required herein, Contractor shall so notify City in writing and shall furnish all labor and material releases required by this Contract. City shall thereupon inspect the Work. If the Work is not acceptable to the City, the City shall indicate to Contractor in writing the specific portions or items of Work which are unsatisfactory or incomplete. Once Contractor determines that it has completed the incomplete or unsatisfactory Work, Contractor may request a re-inspection by the Item 1F - Page 17
City. Once the Work is acceptable to City, City shall pay to Contractor the Total Contract Price remaining to be paid, less any amount which City may be authorized or directed by law to retain.
Payment of retention proceeds due to Contractor shall be made in accordance with Section 7107 of the California Public Contract Code.
3.12 Claims; Government Code Claim Compliance.
3.12.1 Intent. Effective January 1, 1991, Section 20104 et seq., of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims.
The intent of this Section is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code. This Section shall be construed to be consistent with said statutes.
3.12.2 Claims. For purposes of this Section, “Claim” means a separate demand by the Contractor, after a change order duly requested in accordance with the terms of this Contract has been denied by the City, for (A) a time extension, (B) payment of money or damages arising from Work done by or on behalf of the Contractor pursuant to the Contract, or (C) an amount the payment of which is disputed by the City. A “Claim” does not include any demand for payment for which the Contractor has failed to provide notice, request a change order, or otherwise failed to follow any procedures contained in the Contract Documents.
3.12.3 Filing Claims. Claims governed by this Section may not be filed unless and until the Contractor completes all procedures for giving notice of delay or change and for the requesting of a time extension or change order, including but not necessarily limited to the change order procedures contained herein, and Contractor’s request for a change has been denied in whole or in part. Claims governed by this Section must be filed no later than fourteen (14) days after a request for change has been denied in whole or in part or after any other event giving rise to the Claim. The Claim shall be submitted in writing to the City and shall include on its first page the following in 16 point capital font: “THIS IS A CLAIM.” Furthermore, the claim shall include the documents necessary to substantiate the claim. Nothing in this Section is intended to extend the time limit or supersede notice requirements otherwise provided by contract for the filing of claims, including all requirements pertaining to compensation or payment for extra Work, disputed Work, and/or changed conditions. Failure to follow such contractual requirements shall bar any claims or subsequent lawsuits for compensation or payment thereon.
3.12.4 Supporting Documentation. The Contractor shall submit all claims in the following format:
3.12.4.1 Summary of claim merit and price, reference Contract Document provisions pursuant to which the claim is made
3.12.4.2 List of documents relating to claim:
(A) Specifications
(B) Drawings
(C) Clarifications (Requests for Information)
Item 1F - Page 18
(D) Schedules
(E) Other
3.12.4.3 Chronology of events and correspondence
3.12.4.4 Analysis of claim merit
3.12.4.5 Analysis of claim cost, including calculations and supporting documents
3.12.4.6 Time impact analysis in CPM format
3.12.5 City’s Response. Upon receipt of a Claim pursuant to this Section, City shall conduct a reasonable review of the Claim and, within a period not to exceed 45 days of receipt of the Claim, or as extended by mutual agreement, shall provide the Contractor a written statement identifying what portion of the Claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of the Claim will be processed and made within 60 days after the City issues its written statement.
3.12.5.1 If City needs approval from its governing body to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the Claim, and the governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a Claim sent by registered mail or certified mail, return receipt requested, City shall have up to three (3) days following the next duly publicly noticed meeting of the governing body after the 45-day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion.
3.12.5.2 Within 30 days of receipt of a Claim, City may request in writing additional documentation supporting the Claim or relating to defenses or claims City may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of City and the Contractor. City’s written response to the Claim, shall be submitted to the Contractor within 30 Days (if the Claim is less than $50,000, within 15 Days) after receipt of the additional documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater.
3.12.6 Meet and Confer. If the Contractor disputes City’s written response, or City fails to respond within the time prescribed, the Contractor may so notify City, in writing, within 15 Days of receipt of City’s response or the City’s failure to respond, and demand an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand, City shall schedule a meet and confer conference within 30 Days for settlement of the dispute.
3.12.7 Mediation. Within 10 business days following the conclusion of the meet and confer conference, if the Claim or any portion of the Claim remains in dispute, City shall provide the Contractor a written statement identifying the portion of the Claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the Claim shall be processed and made within 60 Days after City issues its written statement. Any disputed portion of the Claim, as identified by the Contractor in writing, shall be submitted to nonbinding mediation, with City and the Contractor sharing the associated costs equally. City and Contractor Item 1F - Page 19
shall mutually agree to a mediator within 10 business days after the disputed portion of the Claim has been identified in writing, unless the Parties agree to select a mediator at a later time.
3.12.7.1 If the Parties cannot agree upon a mediator, each Party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each Party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator.
3.12.7.2 For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the Parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this section.
3.12.7.3 Unless otherwise agreed to by City and the Contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.
3.12.7.4 The mediation shall be held no earlier than the date the Contractor completes the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved Claims shall be considered jointly in a single mediation, unless a new unrelated Claim arises after mediation is completed.
3.12.8 Procedures After Mediation. If following the mediation, the Claim or any portion remains in dispute, the Contractor must file a claim pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code. For purposes of those provisions, the running of the period of time within which a claim must be filed shall be tolled from the time the Contractor submits his or her written Claim pursuant to subdivision (a) until the time the Claim is denied, including any period of time utilized by the meet and confer conference or mediation.
3.12.9 Civil Actions. The following procedures are established for all civil actions filed to resolve Claims of $375,000 or less:
3.12.9.1 Within 60 Days, but no earlier than 30 Days, following the filing or responsive pleadings, the court shall submit the matter to non-binding mediation unless waived by mutual stipulation of both Parties or unless mediation was held prior to commencement of the action in accordance with Public Contract Code section 9204 and the terms of these procedures.
The mediation process shall provide for the selection within 15 Days by both Parties of a disinterested third person as mediator, shall be commenced within 30 Days of the submittal, and shall be concluded within 15 Days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court.
3.12.9.2 If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration.
Item 1F - Page 20
3.12.9.3 In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in construction law, and (B) any party appealing an arbitration award who does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, also pay the attorney’s fees on appeal of the other party.
3.12.10 Government Code Claim Procedures.
3.12.10.1 This section does not apply to tort claims and nothing in this section is intended nor shall be construed to change the time periods for filing tort claims or actions specified by Chapter 1 (commending with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.5 of Title 1 of the Government Code.
3.12.10.2 In addition to any and all Contract requirements pertaining to notices of and requests for adjustments to the Contract Time, Contract Price, or compensation or payment for extra work, disputed work, claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City.
3.12.10.3 Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to adjustment of the Contract Time, Contract Price, or compensation or payment for extra work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor may not file any action against the City.
3.12.10.4 A Government Code claim must be filed no earlier than the date the work is completed or the date the Contractor last performs work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved Claims known to the Contractor excepting only new unrelated Claims that arise after the Government Code claim is submitted.
3.12.11 Non-Waiver. City’s failure to respond to a Claim from the Contractor within the time periods described in this section or to otherwise meet the time requirements of this section shall result in the Claim being deemed rejected in its entirety and shall not constitute a waiver of any rights under this section.
3.13 Loss and Damage. Except as may otherwise be limited by law, Contractor shall be responsible for all loss and damage which may arise out of the nature of the Work agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or be encountered in the prosecution of the Work until the same is fully completed and accepted by City. In the event of damage proximately caused by an Act of God, as defined by Section 7105 of the Public Contract Code, the City may terminate this Contract pursuant to the termination provisions in this Contract; provided, however, that the City needs to provide Contractor with only one (1) day advanced written notice.
3.14 Indemnification.
3.14.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its officials, employees, agents and volunteers free and Item 1F - Page 21
harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s services, the Project or this Contract, including without limitation the payment of all expert witness fees, attorneys’ fees and other related costs and expenses.
Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Contractor’s indemnity obligation shall not apply to such loss or damage which is caused by the sole or active negligence or willful misconduct of the City.
3.14.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and authorized volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and authorized volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Contract, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and authorized volunteers.
3.15 Insurance.
3.15.1 Time for Compliance. Contractor shall not commence Work under this Contract until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Contract for cause.
3.15.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder by Contractor, its agents, representatives, employees or subcontractors. Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Contract. Such insurance shall meet at least the following minimum levels of coverage:
3.15.2.1 Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 00 01) OR Insurance Services Office Owners and Contractors Protective Liability Coverage Form (CG 00 09 11 88) (coverage for operations of designated contractor); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 00 01, code 1 (any auto); (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Item 1F - Page 22
Employer’s Liability Insurance; and (4) Builders’/All Risk: Builders’/All Risk insurance covering for all risks of loss, including explosion, collapse, underground excavation and removal of lateral support (and including earthquakes and floods if requested by the City). Policies shall not contain exclusions contrary to this Contract.
3.15.2.2 Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence and $4,000,000 general aggregate for bodily injury, personal injury and property damage; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; (3) Workers’ Compensation and Employer’s Liability: Workers’ compensation limits as required by the Labor Code of the State of California.
Employer’s Liability limits of $1,000,000 each accident, policy limit bodily injury or disease, and each employee bodily injury or disease; and (4) Builders’/All Risk: Completed value of the project.
Defense costs shall be available in addition to the limits. Notwithstanding the minimum limits specified herein, any available coverage shall be provided to the parties required to be named as additional insureds pursuant to this Contract.
3.15.2.3 Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Contract does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Contract.
3.15.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements (amendments) on forms supplied or approved by the City to add the following provisions to the insurance policies:
3.15.3.1 General Liability. (1) Such policy shall give the City, its officials, employees, agents and volunteers additional insured status using ISO endorsements CG20 10 10 01 plus CG20 37 10 01, or endorsements providing the exact same coverage, with respect to the Work or operations performed by or on behalf of Contractor, including materials, parts or equipment furnished in connection with such work; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the City, its officials, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its officials, employees, agents and volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it.
3.15.3.2 Automobile Liability. (1) Such policy shall give the City, its officials, employees, agents and volunteers additional insured status with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Contractor or for which Contractor is responsible; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor Item 1F - Page 23
or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the City, its officials, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its officials, employees, agents and volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it in any way.
3.15.3.3 Workers’ Compensation and Employer’s Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its officials, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by Contractor.
3.15.3.4 All Coverages. Each insurance policy required by this Contract shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its officials, employees, agents and volunteers.
3.15.4 Builders’/All Risk Policy Requirements. The builders’/all risk insurance shall provide that the City be named as loss payee. In addition, the insurer shall waive all rights of subrogation against the City.
3.15.5 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its officials, employees, agents and volunteers.
3.15.6 Professional Liability Insurance. All architects, engineers, consultants or design professionals retained by Contractor shall also procure and maintain, for a period of five (5) years following completion of the Contract, errors and omissions liability insurance with a limit of not less than $1,000,000 per occurrence. This insurance shall name the City, its directors, officials, officers, employees, agents and volunteers as additional and insureds with respect to Work performed, and shall otherwise comply with all requirements of this Section. Defense costs shall be paid in addition to the limits.
3.15.7 Deductibles and Self-Insurance Retentions. Any deductibles or selfinsured retentions must be declared to and approved by the City. Contractor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or selfinsured retentions as respects the City, its officials, employees, agents and authorized volunteers; or (2) the Contractor shall procure a bond or other financial guarantee acceptable to the City guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
3.15.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VII, licensed to do business in California, and satisfactory to the City. Exception may be made for the State Compensation Insurance Fund when not specifically rated.
Item 1F - Page 24
3.15.9 Verification of Coverage. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Contract on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
3.15.10 Subcontractors. All subcontractors shall meet the requirements of this Section before commencing Work. Contractor shall furnish separate certificates and endorsements for each subcontractor. Subcontractor policies of General Liability insurance shall name the City, its officials, employees, agents and authorized volunteers as additional insureds using form ISO 20 38 04 13 or endorsements providing the exact same coverage. All coverages for subcontractors shall be subject to all of the requirements stated herein except as otherwise agreed to by the City in writing.
3.15.11 Reporting of Claims. Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Work under this Contract.
3.16 Bond Requirements.
3.16.1 Payment Bond. If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Contract a Payment Bond in an amount required by the City and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the City.
3.16.2 Performance Bond. If specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Contract a Performance Bond in an amount required by the City and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the City.
3.16.3 Bond Provisions. Should, in City’s sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the effected bond within (ten) 10 days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Contract until any replacement bonds required by this Section are accepted by the City. To the extent, if any, that the Total Contract Price is increased in accordance with the Contract, Contractor shall, upon request of the City, cause the amount of the bond to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. If Contractor fails to furnish any required bond, the City may terminate the Contract for cause.
3.16.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in California Code of Civil Procedure Section 995.120, shall be accepted. If a Item 1F - Page 25
California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.
3.17 Warranty. Contractor warrants all Work under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the Work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the Work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Work or non-conformance of the Work to the Contract, commence and prosecute with due diligence all Work necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the Work (or work of other contractors) damaged by its defective Work or which becomes damaged in the course of repairing or replacing defective Work. For any Work so corrected, Contractor’s obligation hereunder to correct defective Work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected Work.
Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the Work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming Work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense.
Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.
3.18 Employee/Labor Certifications.
3.18.1 Contractor’s Labor Certification. By its signature hereunder, Contractor certifies that he is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Work. A certification form for this purpose, which is attached to this Contract as Exhibit “D” and incorporated herein by reference, shall be executed simultaneously with this Contract.
3.18.2 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
Item 1F - Page 26
3.18.3 Verification of Employment Eligibility. By executing this Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors and sub-subcontractors to comply with the same.
3.19 Termination. This Contract may be terminated by City at any time, either with our without cause, by giving Contractor three (3) days advance written notice. In the event of termination by City for any reason other than the fault of Contractor, City shall pay Contractor for all Work performed up to that time as provided herein. In the event of breach of the Contract by Contractor, City may terminate the Contract immediately without notice, may reduce payment to Contractor in the amount necessary to offset City’s resulting damages, and may pursue any other available recourse against Contractor. Contractor may not terminate this Contract except for cause. In the event this Contract is terminated in whole or in part as provided, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. Further, if this Contract is terminated as provided, City may require Contractor to provide all finished or unfinished documents, data, diagrams, drawings, materials or other matter prepared or built by Contractor in connection with its performance of this Contract. Contractor shall be required to provide such document and other information within fifteen (15) days of the request.
3.20 City Officers and Employees: Non-Discrimination.
3.20.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor-in-interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Contract.
3.20.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Contract nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Contract and for one (1) year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Contract.
3.20.3 Covenant Against Discrimination. In connection with its performance under this Contract, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Contract, and in executing this Contract, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting.
Item 1F - Page 27
3.21 General Provisions.
3.21.1 City’s Representative. The City hereby designates the City Manager, or his or her designee, to act as its representative for the performance of this Contract (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
3.21.2 Contractor’s Representative. Before starting the Work, Contractor shall submit in writing the name, qualifications and experience of its proposed representative who shall be subject to the review and approval of the City (“′Contractor’s Representative”). Following approval by the City, Contractor’s Representative shall have full authority to represent and act on behalf of Contractor for all purposes under this Contract. Contractor’s Representative shall supervise and direct the Work, using his best skill and attention, and shall be responsible for all construction means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work under this Contract. Contractor’s Representative shall devote full time to the Project and either he or his designee, who shall be acceptable to the City, shall be present at the Work site at all times that any Work is in progress and at any time that any employee or subcontractor of Contractor is present at the Work site. Arrangements for responsible supervision, acceptable to the City, shall be made for emergency Work which may be required. Should Contractor desire to change its Contractor’s Representative, Contractor shall provide the information specified above and obtain the City’s written approval.
3.21.3 Contract Interpretation. Should any question arise regarding the meaning or import of any of the provisions of this Contract or written or oral instructions from City, the matter shall be referred to City’s Representative, whose decision shall be binding upon Contractor.
3.21.4 Anti-Trust Claims. This provision shall be operative if this Contract is applicable to California Public Contract Code Section 7103.5. In entering into this Contract to supply goods, services or materials, Contractor hereby offers and agrees to assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Section 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the Contract. This assignment shall be made and become effective at the time the City tender final payment to Contractor, without further acknowledgment by the Parties.
3.21.5 Notices. All notices hereunder and communications regarding interpretation of the terms of the Contract or changes thereto shall be provided by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows:
CONTRACTOR:
MIRACLE RECREATION EQUIPMENT COMPANY
878 HIGHWAY 60
MONETT, MO 65708
ATTN: KEVIN WALKER
Item 1F - Page 28
CITY:
CITY OF PALM SPRINGS
3200 E. TAHQUITZ CANYON WAY
PALM SPRINGS, CA 92262
ATTN: CITY MANAGER & CITY CLERK
Any notice so given shall be considered received by the other Party three (3) days after deposit in the U.S. Mail as stated above and addressed to the Party at the above address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.21.6 Time of Essence. Time is of the essence in the performance of this Contract.
3.21.7 Assignment Forbidden. Contractor shall not, either voluntarily or by action of law, assign or transfer this Contract or any obligation, right, title or interest assumed by Contractor herein without the prior written consent of City. If Contractor attempts an assignment or transfer of this Contract or any obligation, right, title or interest herein, City may, at its option, terminate and revoke the Contract and shall thereupon be relieved from any and all obligations to Contractor or its assignee or transferee.
3.21.8 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.21.9 Laws; Venue. This Contract shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Contract, the action shall be brought in a state or federal court situated in the County of Riverside, State of California.
3.21.10 Attorneys’ Fees. If either Party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Contract, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all other costs of such action.
3.21.11 Counterparts. This Contract may be executed in counterparts, each of which shall constitute an original.
3.21.12 Successors. The Parties do for themselves, their heirs, executors, administrators, successors, and assigns agree to the full performance of all of the provisions contained in this Contract.
3.21.13 Solicitation. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Contract. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, City shall have the right to terminate this Contract without liability.
3.21.14 Certification of License.
Item 1F - Page 29
3.21.14.1 Contractor certifies that as of the date of execution of this Contract, Contractor has a current contractor’s license of the classification indicated below under Contractor’s signature.
3.21.14.2 Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O.
Box 26000, Sacramento, California 95826.
3.21.15 Authority to Enter Contract. Each Party warrants that the individuals who have signed this Contract have the legal power, right and authority to make this Contract and bind each respective Party.
3.21.16 Entire Contract; Modification. This Contract contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Contract may only be modified by a writing signed by both Parties.
3.21.17 Non-Waiver. None of the provisions of this Contract shall be considered waived by either party, unless such waiver is specifically specified in writing.
3.21.18 City’s Right to Employ Other Contractors. City reserves right to employ other contractors in connection with this Project or other projects.
3.22 Compliance with Economic Sanctions in Response to Russia's Actions in Ukraine. When funding for the services is provided, in whole or in part, by an agency controlled of the State of California, Consultant shall fully and adequately comply with California Executive Order N-6-22 (“Russian Sanctions Program”). As part of this compliance process, Consultant shall also certify compliance with the Russian Sanctions Program by completing the form located in Attachment “G” (Russian Sanctions Certification), attached hereto and incorporated herein by reference. Consultant shall also require any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section. [Signatures on Next Page]
Item 1F - Page 30
SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM
SPRINGS AND MIRACLE RECREATION EQUIPMENT COMPANY
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _____________________________________ By: _________________________________________ Signature Signature (2nd signature required for Corporations) Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No.
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By______________________________ City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
Department Director
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
Item 1F - Page 31
EXHIBIT “A”
SERVICES / SCHEDULE
Scope of services shall include the purchase and installation of playground equipment at Ruth Hardy Park as identified in Exhibit B, in accordance with the Cooperative Purchase Pricing identified by Sourcewell Contract #010521-LTS.
Item 1F - Page 32
EXHIBIT “B”
SCHEDULE OF COMPENSATION
Item 1F - Page 33
Item 1F - Page 34
Item 1F - Page 35
Miracle.
Item 1F - Page 36
Item 1F - Page 37
Item 1F - Page 38
N:J!f. ~ Z-ll
e.£\0\TEO PV.Y ACTIVITIES • TOT.<(; 1S
~ TEO PI.AY ACTI\fflES AOCESISLE 8Y TR.<NSFER: l 1£0'0 S ~ TEO PLAY ACTI\.fflES AOCUISLE 8Y R.....,P: l r.EO'O 0 ~LE\ELACTMTYTYAE: S r.EO'O 3
a.AOU«>LE\E LOUM"TIT'r. T2 J'E01) S
MIRACLE PLAYGROUND SALES, INC.
1101 CafifomiaAve
Corona.CA
GROUNO SPACE: 139''6" :r 9N'
PRO'TECTl'VE,',Fi£k 1S1'-S'1r 1~ •
~&v:a-,ce ~
FHON: NO: 951-254-2409
FAXNO: 877 215-3869
Ruth Hardy Park
Palm Springs, CA
R0036_45265359827
COMPLIES TO ASTtNCPSC
COMPLIES TO ADA
Item 1F - Page 39
Payment Address
Miracle PO Box 734154
Dallas TX 753734154
Phone # (800) 264-7225
Fax # (877) 215-3869
[email protected]
www.111i1.:t1,;h::• c c.;rc.:1ti0t1.oo111
Customer I City a Palm Springs
Name Tabitha Richards
Phone 1 (760)323-8202
Email [email protected]
Sales Rep Charbtte Smith
Email [email protected]
I Payment Terms Net 30
Project Name
Ruth Hardy Par1< - City of Palm Springs - Miracle Structure Description Quantity
Miracle Recreation 1
Miracle Recreation 5-7 2 Play
Struct...-e with Custom Integrated
Shade
Miracle Recreation 1
Miracle Recreation 2-5 Play
Struct...-e with Custom Integrated
Shade
Engineering - 6 Days 6
Stamped Engineering and
Calculations for Playground
Estimate Number MREC6776
Estimate Date 07-15-2024
Expiration Date 10-23:io24
Price Discow1t Total
$243,438.00 24 00% $185,012.88
$178,767.00 24 00% $135,862.92
$2,500.00 0.00% $15,000.00
$335,875.80
Item 1F - Page 40
9.25% S ales Tax $31,068.51
Pro duct Total $366,944.31
Description Quantity Price Subtotal
Freight M iracle 1 $23,912.00 $23,912.00
Shipping costs for Miracle Recreation
Equipment. All prices FOB Destination.
Unloading is the responsibility of the
receiver. Parts will arrive loose and/or
palletized. We recommend at least
three people to unload a full play
structure delivery.
Mobilization 3 $ 1,725.00 $5,175.00
MOBILIZE EQUIPMENT AND
MATERIALS. PROVIDE AND SET UP
TEMP FENCE FOR DURATION OF THE
PROJECT.
Demolition 3 $4,792.00 $14,376.00
DEMO AND DISPOSE OF EXISTING
EQUIPMENT
Demolition 1 $ 1,449.00 $1,449.00
DEMO AND DISPOSE OF EXISTING
POUR IN PLACE RUBBER SURFACING.
APPROXIMATELY 180 SOFT.
INCWDING SUB BASE MATERIALS.
Sit e Preparation 8 $4,662.50 $37,300.00
EXCAVATION AND DISPOSE OF
EXISTING SAND.
APPROXIMATELY 12,429 SOFT.
Item 1F - Page 41
Sit e Preparation 1 $4,830.00 $4,830.00
CONSTRUCT CONCRETE LEDGE CURB
ALONG PERIMETER BORDER. (PIP
FASTNER) APPROXIMATELY 460'
LINEAR FEET.
Sit e Preperat ion 6 $6,000.00 $36,000.00
PROVIDE, GRADE AND COMPACT SUB
BASE MATERIALS. APPROXIMATRY
12,609 SQFT.
Installation 1 $187,852.50 $187,852.50
INSTALLATION ONLY OF MIRACLE
RECREATION EQUIPMENT - REFER TO
MREC DRAWING R0036_45265359827
TO BE INSTALLED PER
MANUFACTURER'S SPECIFICATIONS.
ORTCO IS A MREC CERTIFIED
INSTALLER
Surfacing '12 609 $ '19.55 $246,505.95
PROVIDE AND INSTALL POUR IN
PLACE RUBBER SURFACING. 50/50
BLACK AND STANDARD COLOR WITH
AROMATIC BINDER. EXCLUDES
DESIGNS ANO GRAPHICS.
APPROXIMATELY 12,609 SQFT. FOR
AN AVG. CFH OF 8'
Perm it s 1 $4,000.00 $4,000.00
Bond Fee 1 $27,870.00 $27,870.00
$589,270.45
Tax $0.00
Shipping, Handling and Non Taxable Services Total $589,270.45 Item 1F - Page 42
Pricing based on Miracle Recreation's Sourcewell contract #01521-LTS (formerly known as NJPA) I Grand Total 1 $956.2'14 .76
NOTES AND EXCLUSIONS:
This estimate shall not become binding until signed and returned for approval.
A signature indicates acceptance of all terms, conditions, and prices listed.
A signed quote will not substitute for a Purchase Order if one is required by tile Customer. Make rwrchase orders out to Miracle Recreation.
Exclusions: All Unloading, Storage, Installation, Site Work, Fees & Pennits, outside of the quoted above.
Footing calculations for playground equipment can be added for an additional fee if required AJI s igned quotes and/or purchase orders should be emailed to [email protected] or faxed to 877 •215- 3869, Hard copies can be mailed to Miracle Playground Sales 1101 California Ave Suite 209 CoronaJ CA 92881 THIS QUOTE IS LIMITED TO AND GOVERNED BY THE TERMS CONTAINED HEREIN. Miracle objects to any other tenns proposed by lhe customer in writing or othefwise. as materiJI alterations.. and all such terms shall be void. The customer authorizes M'i-acle to ship the equipment and p.3y Mirade lhe total amount specified. Shipping tenns are FOB lhe place of shipment via a convnon carrier de5V\a1ed by Mirade. The customer agrees to p.3y all additional service charges for past due im,,oioes per the terms listed aboYe. The custona rrust provide proper tax exemption or:rtif,cates to Mirade and promptly p.3y and discharge all ae:ipicable taxes, lioense fees.. leyies.. and dismiss other impositions on the equipment at its sotie e:q,ense.
Item 1F - Page 43
Item 1F - Page 44
Miracle brings you the thrills of a lifetime.
Miracle is one of the nation's first and most innovative playground equipment manufacturers. We fwst began shaping the future o f p lay in 1927 when our founder Johnnie Ahrens c,reated the Whirl - a tilting, kid -powered merry-go-round - based on the timeless insight that. " Kids want action.', That same inspiration has driven more than 90 years o f innovation, includ ing the introductions o f the first fiberglass slide (1963), the 25-foot Mega Tower-(2000s). a nd the Ava lane.he Inclusive Slide (2015). Our latest advance, the Extreme Generation adventure playground, delivers challenging p hysical events for kids seeking extreme play. Its design b rings p lay to new heights. w ith innovative, fully-enclosed skyways that provide elaborate ro pe-course-inspired activities far above g round. safely adding an element o f perceived risk to any play space.
This never-ending dedication to innovation is the reason why. even after more than 90 years, the Miracle legacy remains focused on building yours.
The Miracle Advantage
We believe the experience of b uilding a playground should be as intuitive as p laying on it. From design. specification. funding. purchasing a nd installation. vte'II be w ith you every step o f the way. Our customized design p rocess is free because there should nevet" be a cha.rge to dream.
Let's get you started by envisioning a p layground that is meant for your community and right for your budget. It's w hy o ur legacy has always been a.bout b uild ing yours.
VERSALOK"
Our clamp design
elim inates the need for
stack ing multip le clamps
and features a stainless
steel tamper resistant
fastener.
GATOR GRIP'
The 30 textured pattern
makes it easy for kids to
make their next moves.
SAFETY
COMPOUNDED RESIN
Provides superior strength
a nd d urability, advanced'
color fastness and UV
resistance.
MIRA-THERM"'
This textured vinyl
coating for dec.k surfaces
helps prevent rapid
heat transfer, while the
hole pattern keeps little
fingers safe.
We're commrtted to p rovid ing equipment that meets a nd/or exceeds the performance safety specifications established by o rganizations such as ASTM, CPSC. CSA, CPSIA. IPEMA and EN.
To verify prod uct certification. visit www.ipema.org . miracie-recreauon.com 103
Item 1F - Page 45
Color Choices
Rock-ite• Plastic Colors
Roofs, Slides, Big Timber- C:,mponents, Crawl Tubes, Bongos"", Bumpers a.nd' Panels.
Miracle Swing Seat Colors
...
Rod•VO,llow VQ:llow•~nd
I!
·- Pl.im•~
Grocn•S.,,,..d
• COLOR CHOICES
YQllow.Sluo
8).,o•~d
O:itk
erown•Sl!nd
Whrto
I Ught G~
VQ:llow-ID,d: O~ngo·s:md
El!
aio-YGllow Blu,;,•Whl:o
E
Cob:ft+S:ncl
(Roofs "'""' Ont,)
"""'
Mlt;,clo-~tlot"l.com
Item 1F - Page 46
Mira-Cote·· Pow der-Coated Painted Metal Colors
Posts, Arc.hes, Swings and Accents (Railings & Climbers).
W hlt i:t
(Po-l;t s & 0 11mos Only)
Mira-Cote·· Ant im ic robial Painted Metal Colors
This pro prietary treatment helps minimize bacterial mold, algae g rowth and stains.
Mira-Therm·· Textured Colors
Mira-Therm coatings for Deck s, Steps, Ramps, Bridges and Carg o Climbers a re availab le in either orthophtalate-free Mira-Therm 2 (vinyl) o r Mira-Therm PE (polyethylene)-based coatings w ith Antimic,robial enhancements . .w..i.•--.gt>41•1!y-.&IIW-.fl lkefll• ..to111u1119pe,c-.C.-.Sll~ll'ldp,,od,mn~1t:1ed•re-nilm-=-w..s•cip,w;,·~su11a11-npe,11.11t11bsb1CII • P!°.n::r~W•1CIOli0n ..... lf"6e-Mlt.S(IM.o.it•dcel1W1C-'911,s*t."'9• dsail•"'on.•ts•U1•1N~INllUi11'JIU~•-ta~C.pnll'l;011 IOl'II oo,im.s• 'J'M'loacl..,fltiwo1._tlf•bok~!WmmN)'hllp1111.U.,-flll~W~on.
MuiloolllllJoalll=,~•"'fdJ;ie,oi;:.,ClbJffl'°'t~.
COLOR CHOICES •
Item 1F - Page 47
Color Choices
Shade Fabric Colo rs
SMADESURE.'""F"a.bftcs ,._ """"IUJ/1,$'/W.&,f
••• Sunflowo,, Yollow Torr~cott::, Eloctr1 c P1Jrplo R;WI Forost ""'" Roy:il Sluo L119un.:i Bh.10 Chocol:ito SIIYQJ
COLOURSMAO£'"' i:-1re Retardan t F"a.brlCS ,-., Nfl'A1UJ l l,$'/W,,8J4 1()1JF,1rm.E,.
Site Furnishing Colo rs
Amenities receive a durable colo r coating that w ill not rust, crack. peel, or warp . Choose a powdet' coat color for framework and plas'tisol coa:ting for table to ps, seats, and b-acks.
W hlt o
Site Furnishing Patterns Recycled Plastic Colo rs
-~
Slat and Rib pattems (not shown)
available in select site furnishing
products.
Porf0t11tod
• COLOR CHOICES
Cod""
Mlt;,clo•~tlot"l.«IITI
Item 1F - Page 48
Warranty Mirach? Reae-auon Eau1Pment Como.any warrants tts p roducts aga&nst structu ral ralU'e due to detects n materlills and WOtkmanshlP tor the warranty PE<lods and material categoc1es prescl1bed belO'N.
Buyer agrees that products sold by Mirach? Rect e-auon Eau:1Pment comoany carry Only the rollowtng warranties::
l LIMITED WARRANTY !=OR AS LONG AS YOU OWN THE PRODUCT: Aluminum deck oosts. steel deck DOSts.. versa Lok" rastenlng system. cast akmWU'n carts. and staln&ess steel hardware•
2. LIMITED A HEEN (15) VEAR WARRAtflY. All ng1d steel playground com00nents. decks. steDS. and weldments. rotationally molded and sheet Dlastlc comoonents. PQStlc lumber. roor Dane-IS. and stainless steel Slides. except as otherwise specned b elow.
3. LIMITED TEN (10) YEAR WARRAt-lTY: S:abnc shade steet rrames.. and Shadesure- and ColOu rshade J::R rabrtcs (Note Exception:
l.fltted s:1ve CS) Year w arranty on Shadesue"" ra.bncs n cob's Red. Yellow. Electnc Purple, zesty Une. c n namon. and Ol\le.)
4. LIMITED EIGUT (8) YEAR WARRAt-rrY:
• F'lberglass s1gnage. accessible swtng seats. crecast Polyl=lbef'Crete 0t precast concrete products. • Play Terrain synthetJc Turf sarety surrac1ng agaJnSt deter1orau on or SPecmed atten.aauon perrormance and appearance. • In tegrated shade rabr1c and comoonents aganst rot uv detenoratlon and detects in materials and workmanshlP (Note Exception: l.fltted Thee (3) Year w arranty for rabnc In shades or red).
5. LIMITED AVE (5) YEAR WARRANTY:
• Meavy dlJty d iamond bamet mesh and Kldrox"' Cllmbtng Roc:1<s. • MJra-lherni- PVC coatng and PE coat ng aganst crackng o r peel mg. • Park and Site Amenities (le. b enches. tables. trash receptacles. etc.). • Gl=RP (Glass J::lber Rentorced Polymer) Products.
• Steet core cable nets and rope nttllgs and connecuons (Note ExceDUon: w:3nanty does not cover normal wear and tear such as rrayng o r racing 01 ca.ble coatlng).
6. LIMITED THREE (3) YEAR WARRANTY: l=lextble b eltJng, PlastlC bordef trnbers and accessones. and electronic pan,el speakers. sound chlPS. and ClrCUtt boards.
7. LIMITED ONE (1) YEAR WARRANTY.
• S&ashoroot swng seats. 300- Bud<et Tot Swtng seats. and Tl.ITT Net no cllmbrlg mesh. • Pool sllde support structures. sta1rways. 1andngs and ramngs. • AH other products.. components and custom pieces that are not SPeC11'1Caly Usted abo'Ye. 1nc1ud tng. w ithout HmltatJon. all mo\l1ng parts. such as swing hangers and bearings. swl\E'IS, chains. whlrts,, sorngs and flexible comoonents. and al high wear Items. such as trolleys. cables. wheels. and bumper stoos related t o ral and cable nde p roducts.
BUYER'S REMEDY: If any products prove detectM.> or non-contormtng und« nocma.l use and w ithin the at>ove..grescnbed w arranty PE!f10ds and matena.1 categories. euyer tnJSt promptly noury Mrade 1n w ntJng at 878 E. MWy 60, MOnett. MO 65708 USA Miracle does not warrantv that anv partJCUlar color wl l be avallabte ror arrv penod OI time. and reserves the nQht tod1scon.t n ue any coo for a~ reason. w ithout recourse by the Purchaser or o wner 01 the d iscontinued color. Mltae1le may elect to lnSPeCt the a lleged derect at Bvyer'S stte or at M~acle's faclltty. euyer Wtl not return products to Mlracle unless authonzed by Mracle todo so. Authonzed returns must b e prope,rly oackaged and shlDDed prepaid and nsured. at Buye,'s expense, uoon "ermcauon 01 warranty cOYerage. Miracle may etect 1n rts sole d iscretion. to reon defects\'e or non-conrormng products.. o r rE!Pi,lce them by dellverng products o r part(s) OI slmllar nn:tJonal tty rree 01 charge to the stte. Mlracle'S Hm1ted warranues do not COIH$ the cost or labor to remove detective or non -conrormng ciart(s) or to 1nstal repaired or replacement ciart(s).. By use or these Hmlted warran ties. Buy« accepts the~ terms and 11m1tauons. and waives any nghts It would otherwtse ha\le to claim or assert that such warranties fall or the~ essenu a.l DU'POSe. Buyer agrees that \lenue ror any court action to enrorce these 11m1ted warranues shall be in Barry o r Greene counues 1n the state 01 M1ss01St LIMITATIONS: All warranty p eriods begrn on the date 01 MJracle'S Wl\lotce. Repaired and/or replacement part(s) are warranted Ody tor the b alance or the orJgnal 11m1ted warranty period, warranties extend o nly t o the Orlglnal Buy«/end user for products p urchased rrom Mlracle or a Mracle authortzed reseller. and are not transferra.ble. warranties aPPly only to Mltacle products that a re erected and installed Wl conrormance wtth Mlracle's installatlon instructions. and that are manta1ned and n soected 1n con1ormance w ith Miracle maintenance and ooe<auonal instrucuons. warranties SPeC11'1Cally do not cover Miracle p roducts:
• ror cosmeuc d.wnage or naws occu rring und« nocmal use. such as surrace scratches. minor ch lDS. halrlne cracks, dents. marring. emorescence. cotor rade (except ror shade fabnc as noted above). d lscob'atlon. corrosion/rust.. rrayng, o r w a.rpng 01 recycled Plast.lC lu mber.
• that ha\l'e been modified. altered. or reoared by unauthorized third parties:
• that ha\l'e not been used as desrgned o r intended, or mtsused:
• to which non•M~acle parts have been added or sobsUMed; • that ha\l'e been remOYed rrom the~ ongtnal IOc.atJon and re-n stalled elsewhere. wthout pre-aDCfOVal by Miracle:
• or that ha\l'e been damaged d ue t o excessive wear and tear. vandallsm. abnormal use. abuse. negllgence. en\llrormental factors (such as wtnd•blown sand, satt SPray. or airborne emissions rrom 1ndustm1 sou rces), extreme \lo'eather (Sueh as hall. nood1ng. llg htNng. t ornados. sandstorms. earthauakes, o r w ind storms), and acts or God.
Tl-IE S:OREGOING LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY !=OR SELLER'S PROOUCTS. AND IS lN LIEU OF'.
ALL OT MER WARRANTIES. EXPRESS OR IMPLIED, IN LAW OR IN !=ACT. SELLER SPl:Cl l=ICALLY DISCLAIMS ALL OT MER WARRANTIES.
EXPRESS OR IMPLIE:0 , lNCLUOING, W ITMOUT LIMITATION. ALL IMPUED WARRANTIES 0 1= MERCHANTA9lUTY ANO l=ITNESS !=OR A PARTICULAR USE O R PURPOSE. AND ANY lMPUED WARRANTIES ARISCNG OUT OF'. COURSE 01= DEALING OR PERS:ORMANCE OR TRADE USAGE. SELLER SMALL NOT BE LIABLE !=OR ANY lNCCOENTAL. CONSEOIA:lfflAL. EXEMPLARY. SPECIAL, O R PUNITIVE DAMAGES. OR ANY LOSS o i: REVENUE. PROF'.IT OR USE. ARISING OUT o i: A BREACM OF'. TMIS WARRANTY OR IN CONNECTION W ITM Tl-IE SALE. INSTALLATION, MAINTENANCE. USE. OPERATION OR REPAIR 0 1= ANY PRODUCT. IN NO EVENT W ILL SELLER 8£ LIABLE !=OR ANY AMOUl'IT GREATER TMAN Tl-IE PURCMASE PRICE 0 1= A OEl=ECTIVE PRODUCT.
WARRANTY .
Item 1F - Page 49
Certifications
~). ----
lntertek
ISO 9 001 certmcaUo n: The
InternaUonaI standards 0tganIzatton
Is a network o, national standard
institutes trom 146 countries that
work W'I partnershl:P wit h In tematlooal
organtz.at1ons. govetnments. W'ICl1JStry, business, and consumer represen tatives to develop Ll"llversal staodards r0t aua.uty. environmental. and ma nagement processes.
The M ir:,elc n c a-c::itlOn CQv !p,nc,nt
company has been certIned to
14001:201S tOt rts environment.a.I
management system.
~I • canad o n Weld ing B<Keau c ertIned
ERTIFIED
l"JUW'7 1
• CERTIFICATIONS
·~
The space reau1rements 1n this catalog are shown to ASTM standards. Reau:1rements roe other standards may be different
£uro,pean Norm EN-1176. Mr ade" orrers
p laygrounds that have been cermed by TOV
Product service. the recognized testn g house
designated by the E.uropean union. This certrncatJon demonstrates comouance wtth the £uro,pean Marmon1zed St.aodard roe commercial
Play £au:1Pment. EN 1176.
IPEMA Member: M~ac.le" IS a member n good
standing 01 the 1nternat10na1 Play E:au1pment
MarW.rradurer'S Assoc&aUon (IPE.MA). a member--drtven 1nternat10na1 trade orgaruzatIon wNCh represents and promotes an open market r0t
maooracturers OI Play eau:1Pment.
In the n terest of playground safety. the lnterna•
tIooa1 Play E.al.l:Pment Maru:racturers Association
(IPE.MA) provides a Third Party certltlcat>on
setvIce whereby a desIg.nated Indeoendent
laboratory. TOV SOD America IOC .. (TOV).
valldates an equIcment manuradurer'S certrtIcatIon 01 conformance to the ASTM t:1487 standard consu,,er saret y Perrormance soecltlcat>on for
Playground £Qu1Pment roe Pl.bite use. except
sections 7J.l 10. l3JJ, l3J.2, 13.2. and 13.3; to
CAN/CSA Z614 O'llldren·s Playspaces and
£auIpmeri. except clauses to and n: or both. A
ltst ot curreri valldated products may be viewed
at WW'NJpema..Org.
In the Interest or playground safety, the
1nternauonaI Play £au:1Pment ManUracturers
Assoc&atlon (IPE.HA) prOVkles a Third Party
certlkatIon pcogram Whereby a designated
Independent 1a.boratory. r ov SOD America 1ne_
(TOV). valldates a surracng marw.rtadurer'S
certrtlcatJon or conrormaoce to ASTM 1=1292.
standard Specmca Uon roe Imo.act Attenuation
\.Xlder and ArOISld Playgl'OU"ld E.QUlpment Perfor•
mance Ct1terIon. section 4.2; ASTM t:1292,
standard Specmca Uon roe Imo.act Attenuation
\.Xlder and ArOISld Playgl'OU"ld E.QUlpment Perfor•
mance Criterion (In Its entirety); ASTM F'.3351.
standard rest Method roe rmoact Testing tn La.bo+
ratory at Soecmed test Metght; aod for an
engineered wood nber manuractuter its
certrtlcatton or conrormaoce. atso to ASTM
t:2075. standard soecmcatIon tOt Engineered
Wood t:lber roe use as a Playground sa.rety
surface \.Xlder and ArOISld PlaygrOU"ld £QUIP+ ment: ;:ind for :, Loo~ n 11 ll\Jbbcr m.anuJ:>Ct urer Its certIncat10n 01 conrormance, also to ASTM
t:3012, standard Specrtlcatron ror Loose t:111
Rubber ror use as a Playground sarety surrace
under and around Playgr01S1d E.au10rnenl A ISt
of current valldated products, their thld<ne:ss and
cnUcal height may be viewed at www.1Pema.org.
Mlt ;,<:IQ•~tlot"l.con,
EXHIBIT “C”
SPECIAL CONDITIONS
ARTICLE 1. BONDS
Concurrently with this Contract, the Contractor shall deliver to the City four identical counterparts of the Performance Bond and Payment Bond on the forms supplied by the City and included as Exhibit “F” to the Contract. The surety supplying the bond must be an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, authorized to do business as such in the State of California and satisfactory to the City. The Performance Bond and the Payment Bond shall be for one hundred percent (100%) of the Total Contract Price.
Item 1F - Page 50
EXHIBIT “D”
CERTIFICATION
LABOR CODE - SECTION 1861
I, the undersigned Contractor, am aware of the provisions of Section 3700, et seq., of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of the Code, and I, the undersigned Contractor, agree to and will comply with such provisions before commencing the performance of the Work on this Contract.
MIRACLE RECREATION EQUIPMENT COMPANY
By: _________________________
Signature
_________________________
Name (Print)
_________________________
Title (Print)
Item 1F - Page 51
---
EXHIBIT “E”
PUBLIC WORKS CONTRACTOR REGISTRATION CERTIFICATION
Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. See http://www.dir.ca.gov/PublicWorks/PublicWorks.html for additional information.
No bid will be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work.
Contractor hereby certifies that it is aware of the registration requirements set forth in Labor Code sections 1725.5 and 1771.1 and is currently registered as a contractor with the Department of Industrial Relations.1
Name of Contractor:
DIR Registration Number:
DIR Registration Expiration: __________________________ Small Project Exemption: _____ Yes or _____ No
Unless Contractor is exempt pursuant to the small project exemption, Contractor further acknowledges:
1. Contractor shall maintain a current DIR registration for the duration of the project.
2. Contractor shall include the requirements of Labor Code sections 1725.5 and 1771.1 in its contract with subcontractors and ensure that all subcontractors are registered at the time of bid opening and maintain registration status for the duration of the project.
3. Failure to submit this form or comply with any of the above requirements may result in a finding that the bid is non-responsive.
Name of Contractor:____________________
Signature:
Name and Title:
Dated:
1 If the Project is exempt from the contractor registration requirements pursuant to the small project exemption under Labor Code Sections 1725.5 and 1771.1, please mark “Yes” in response to “Small Project Exemption.” Item 1F - Page 52
EXHIBIT “F”
PAYMENT AND PERFORMANCE BONDS
Item 1F - Page 53
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Palm Springs (hereinafter referred to as “City”) has awarded to Miracle Recreation Equipment Company, (hereinafter referred to as the “Contractor”) an agreement for Ruth Hardy Park Playground Equipment Installation (hereinafter referred to as the “Project”).
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated October 14, 2024, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.
NOW, THEREFORE, we, Miracle Recreation Equipment Company, the undersigned Contractor and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of Nine Hundred Fifty-Six Thousand Two Hundred Fourteen DOLLARS and Seventy-Six CENTS, ($956,214.76), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one-year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officers and agents, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship, Surety shall undertake and faithfully fulfill all such obligations. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.
Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:
Item 1F - Page 54
(1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
(2) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
(3) Permit the City to complete the Project in any manner consistent with local, California and federal law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.
Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the City, when declaring the Contractor in default, notifies Surety of the City’s objection to Contractor’s further participation in the completion of the Project.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__).
(Corporate Seal)
Contractor/ Principal
By
Title
Item 1F - Page 55
(Corporate Seal)
Surety
By
Attorney-in-Fact
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)
THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
(Name and Address of Agent or
Representative for service of
process in California, if different
from above)
(Telephone number of Surety
and Agent or Representative for
service of process in California)
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
Item 1F - Page 56
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally
appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
Item 1F - Page 57
I I
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Palm Springs (hereinafter designated as the “City”), by action taken on October 10, 2024 has awarded to Miracle Recreation Equipment Company hereinafter designated as the “Principal,” a contract for the work described as follows:
Ruth Hardy Park Playground Equipment Installation (the “Project”); and WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated October 14, 2024 (“Contract Documents”), the terms and conditions of which are expressly incorporated by reference; and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.
NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of Nine Hundred Fifty-Six Thousand Two Hundred Fourteen Dollars and Seventy-Six Cents ($956,214.76) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.
This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement Item 1F - Page 58
pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal) Surety
By
Attorney-in-Fact
Title
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached. A Power-of-Attorney authorizing the person signing on behalf of the Surety to do so much be attached hereto.
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
Item 1F - Page 59
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally
appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
Item 1F - Page 60
I I
EXHIBIT “G”
EXECUTIVE ORDER N-6-22 CERTIFICATION
Executive Order N-6-22 issued by Governor Gavin Newsom on March 4, 2022, directs all agencies and departments that are subject to the Governor’s authority to (a) terminate any contracts with any individuals or entities that are determined to be a target of economic sanctions against Russia and Russian entities and individuals; and (b) refrain from entering into any new contracts with such individuals or entities while the aforementioned sanctions are in effect.
Executive Order N-6-22 also requires that any contractor that: (1) currently has a contract with the City of Palm Springs funded through grant funds provided by the State of California; and/or (2) submits a bid or proposal or otherwise proposes to or enter into or renew a contract with the City of Palm Springs with State of California grant funds, certify that the person is not the target of any economic sanctions against Russia and Russian entities and individuals.
The contractor hereby certifies, SUBJECT TO PENALTY FOR PERJURY, that a) the contractor is not a target of any economic sanctions against Russian and Russian entities and individuals as discussed in Executive Order N-6-22 and b) the person signing below is duly authorized to legally bind the Contractor. This certification is made under the laws of the State of California.
Signature:
Printed Name:
Title:
Firm Name:
Date:
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ATTACHMENT B
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CITY OF PALM SPRINGS
SHORT FORM CONSTRUCTION CONTRACT 24C248
RUTH HARDY PARK PLAYGROUND SHADE STRUCTURES
1. PARTIES AND DATE.
This Contract is made and entered into this 14th day of October, 2024 by and between the City of Palm Springs, a California charter city and municipal corporation (“City”) and Shade Structures, Inc., dba USA Shade & Fabric Structures, a Texas Corporation, with its principal place of business at 2580 Esters Blvd. Suite 100 DFW Airport, TX 75261 (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Contract.
2. RECITALS.
2.1 City. City is a public agency organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.
2.2 Procurement. This contract is made and entered into in reference to the competitively solicited Sourcewell Contract #010521-LTS (“Cooperative Agreement”).
2.3 Contractor. Contractor desires to perform and assume responsibility for the provision of certain construction services required by the City on the terms and conditions set forth in this Contract. Contractor represents that it is duly licensed and experienced in providing design, engineering, purchase, procurement, and installation of shade structure sails at Ruth Hardy Park playground equipment related construction services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the services in the State of California, and that it is familiar with the plans of City. The following license classifications are required for this Project: CA Class A or B license.
2.4 Project. City desires to engage Contractor to render such services for the Ruth Hardy Park shade structures (“Project”) as set forth in this Contract.
2.5 Project Documents & Certifications. Contractor has obtained, and delivers concurrently herewith, applicable performance bond, payment bond, insurance documents and other certifications as required by the Contract.
3. TERMS
3.1 Compensation and Payment.
3.1.1 Amount of Compensation. As consideration for performance of the Work required herein, City agrees to pay Contractor the Total Contract Price of Four Hundred Eighty-Six Thousand Twenty-Eight Dollars and Sixty-Six Cents ($486,028.66) (“Total Contract Price”) provided that such amount shall be subject to adjustment pursuant to the applicable terms of this Contract or written change orders approved and signed in advance by the City.
3.1.2 Payment of Compensation. If the Work is scheduled for completion in thirty (30) or less calendar days, City will arrange for payment of the Total Contract Price upon completion and approval by City of the Work. If the Work is scheduled for completion in more than thirty (30) calendar days, City will pay Contractor on a monthly basis as provided for herein.
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On or before the fifth (5th) day of each month, Contractor shall submit to the City an itemized application for payment in the format supplied by the City indicating the amount of Work completed since commencement of the Work or since the last progress payment. These applications shall be supported by evidence which is required by this Contract and such other documentation as the City may require. The Contractor shall certify that the Work for which payment is requested has been done and that the materials listed are stored where indicated. Contractor may be required to furnish a detailed schedule of values upon request of the City and in such detail and form as the City shall request, showing the quantities, unit prices, overhead, profit, and all other expenses involved in order to provide a basis for determining the amount of progress payments.
3.1.3 Prompt Payment. City shall review and pay all progress payment requests in accordance with the provisions set forth in Section 20104.50 of the California Public Contract Code. However, no progress payments will be made for Work not completed in accordance with this Contract. Contractor shall comply with all applicable laws, rules and regulations relating to the proper payment of its employees, subcontractors, suppliers or others.
3.1.4 Contract Retentions. If this Contract is greater than Five Thousand dollars ($5,000), from each approved progress estimate, five percent (5%) will be deducted and retained by the City, and the remainder will be paid to Contractor. All Contract retention shall be released and paid to Contractor and subcontractors pursuant to California Public Contract Code Section 7107.
3.1.5 Other Retentions. In addition to Contract retentions, the City may deduct from each progress payment an amount necessary to protect City from loss because of:
(1) liquidated damages which have accrued as of the date of the application for payment; (2) any sums expended by the City in performing any of Contractor’s obligations under the Contract which Contractor has failed to perform or has performed inadequately; (3) defective Work not remedied; (4) stop notices as allowed by state law; (5) reasonable doubt that the Work can be completed for the unpaid balance of the Total Contract Price or within the scheduled completion date; (6) unsatisfactory prosecution of the Work by Contractor; (7) unauthorized deviations from the Contract; (8) failure of Contractor to maintain or submit on a timely basis proper and sufficient documentation as required by the Contract or by City during the prosecution of the Work; (9) erroneous or false estimates by Contractor of the value of the Work performed; (10) any sums representing expenses, losses, or damages as determined by the City, incurred by the City for which Contractor is liable under the Contract; and (11) any other sums which the City is entitled to recover from Contractor under the terms of the Contract or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the City to deduct any of these sums from a progress payment shall not constitute a waiver of the City’s right to such sums.
3.1.6 Substitutions for Contract Retentions. Pursuant to California Public Contract Code section 22300, Contractor may substitute securities for any money withheld by the City to ensure the performance under the Contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the City, with the State or a federally chartered bank as the escrow agent, who shall return such securities to Contractor upon satisfactory completion of the Contract. Deposit of securities with an escrow agent shall be subject to a written agreement between the escrow agent and the City, which provides that no portion of the securities shall be paid to Contractor until the City has certified to the escrow agent, in writing, that the Contract has been satisfactorily completed. The City shall certify that the Contract has been satisfactorily completed within sixty (60) days of work "completion" as defined in Section 7107(c) of the California Public Contract Code. Securities eligible for investment under this section shall be limited to those listed in Section 16430 of the Government Code, bank or Item 1F - Page 64
savings & loan certificates of deposit, interest-bearing demand deposit accounts, stand-by letters of credit, or any other security mutually agreed to by Contractor.
3.1.7 Payment to Subcontractors. Contractor shall pay all subcontractors for and on account of work performed by such subcontractors in accordance with the terms of their respective subcontracts and as provided for in Section 7108.5 of the California Business and Professions Code. Such payments to subcontractors shall be based on the measurements and estimates made and progress payments provided to Contractor pursuant to this Contract.
3.1.8 Title to Work. As security for partial, progress, or other payments, title to Work for which such payments are made shall pass to the City at the time of payment. To the extent that title has not previously been vested in the City by reason of payments, full title shall pass to the City at delivery of the Work at the destination and time specified in this Contract. Such transferred title shall in each case be good, free and clear from any and all security interests, liens, or other encumbrances. Contractor promises and agrees that it will not pledge, hypothecate, or otherwise encumber the items in any manner that would result in any lien, security interest, charge, or claim upon or against said items. Such transfer of title shall not imply acceptance by the City, nor relieve Contractor from the responsibility to strictly comply with the Contract, and shall not relieve Contractor of responsibility for any loss of or damage to items.
3.1.9 Labor and Material Releases. Contractor shall furnish City with labor and material releases from all subcontractors performing work on, or furnishing materials for, the Work governed by this Contract prior to final payment by City.
3.2 Incorporation of Documents. This Contract includes and hereby incorporates in full by reference the following documents, including all exhibits, drawings, specifications and documents therein, and attachments and addenda thereto:
• Services/Schedule (Exhibit “A”)
• Schedule of Compensation (Exhibit “B”)
• Special Conditions (Exhibit “C”)
• Contractor’s Certificate Regarding Workers’ Compensation (Exhibit “D”) • Public Works Contractor Registration Certification (Exhibit “E”) • Payment and Performance Bonds (Exhibit “F”)
• Executive Order N-6-22 Certification (Exhibit “G”)
• Change Orders executed by the City
To the extent there is a conflict between any portions of this Contract, the order of precedence shall be as follows: change orders, special conditions, technical specifications, plans/construction drawings, general contract terms, scope of work, standard plans, advertisements for bid/proposals, bids/proposals or other documents submitted by Contractor.
3.3 Contractor’s Basic Obligation; Scope of Work.
3.3.1 Scope of Work. Contractor promises and agrees, at its own cost and expense, to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately complete the Project, including all structures and facilities necessary for the Project or described in the Contract (hereinafter sometimes referred to as the “Work”), for a Total Contract Price as specified pursuant to this Contract. All Work shall be subject to, and performed in accordance with the above referenced documents, as well as the exhibits attached hereto and incorporated herein by reference. The plans and Item 1F - Page 65
specifications for the Work are further described in Exhibit “B” attached hereto and incorporated herein by this reference. Special Conditions, if any, relating to the Work are described in Exhibit “C” attached hereto and incorporated herein by this reference.
3.3.2 Change in Scope of Work. Any change in the scope of the Work, method of performance, nature of materials or price thereof, or any other matter materially affecting the performance or nature of the Work shall not be paid for or accepted unless such change, addition or deletion is approved in advance and in writing by a valid change order executed by the City.
3.3.3 Change Orders. Changes to the Contract Time (as defined in Section
3.3) or Total Contract Price shall be in the form of a written Change Order, either signed by both parties or issued unilaterally by the City. No adjustment shall be made to the Contract Time unless the delay impacts the critical path to completion and the delay was not caused in whole or in part by the Contractor. The City’s liability to Contractor for delays for which the City is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. Failure to timely request a Change Order shall constitute a waiver of any right to adjust the Contract Time or the Total Contract Price. All requests for Change Orders shall be accompanied by detailed supporting documentation, including but not limited to payroll records, invoices, schedules, and any other documentation requested by the City for the purpose of determining the additional costs or the impact of any delay. If the change involves Work bid at a unit price, then the Total Contract Price shall be increased at the unit price. If there is no unit price, then the Total Contract Price shall be adjusted to account for costs actually incurred plus an allowed mark-up of fifteen percent (15%), which shall constitute the entire amount of profit, markups, field or home office overhead costs, including personnel, equipment or office space, any materials, or any costs of equipment idle time for such work. Regardless of ownership, equipment rates shall not exceed the listed prevailing rates at local equipment rental agencies, or distributors, at the time the work is performed. Nothing herein shall prevent the Parties from agreeing to a lump sum cost.
3.3.4 Changes Ordered By City. City may at any time issue a written directive ordering additions, deletions, or changes to the Work. Contractor shall proceed with the work in accordance with the directive. To the extent the directive results in extra work or requires additional Contract Time, Contractor shall request a Change Order within seven (7) days of receiving the Work Directive. If any costs are not capable of being determined within seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined.
3.3.5 Changes Requested By Contractor. With respect to any matter that may involve or require an adjustment to the Contract Time or the Contract Price, Contractor shall provide written notice of the underlying facts and circumstances that gave rise to the potential change within seven (7) days or prior to the alteration of conditions, whichever is earlier. Failure to give notice shall constitute a waiver of Contractor’s right to a change order. If any costs are not capable of being determined within seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined.
3.4 Substitutions/”Or Equal”. Pursuant to Public Contract Code Section 3400(b), the City may make a finding that designates certain products, things, or services by specific brand or trade name. Unless specifically designated in this Contract, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such Specifications shall be deemed to be used for the purpose of facilitating the Item 1F - Page 66
description of the material, process or article desired and shall be deemed to be followed by the words “or equal.”
Contractor may, unless otherwise stated, offer for substitution any material, process or article which shall be substantially equal or better in every respect to that so indicated or specified in this Contract. However, the City may have adopted certain uniform standards for certain materials, processes and articles. Contractor shall submit requests, together with substantiating data, for substitution of any “or equal” material, process or article no later than thirty-five (35) days after award of the Contract. To facilitate the construction schedule and sequencing, some requests may need to be submitted before thirty-five (35) days after award of Contract. Provisions regarding submission of “or equal” requests shall not in any way authorize an extension of time for performance of this Contract. If a proposed “or equal” substitution request is rejected, Contractor shall be responsible for providing the specified material, process or article. The burden of proof as to the equality of any material, process or article shall rest with Contractor.
The City has the complete and sole discretion to determine if a material, process or article is an “or equal” material, process or article that may be substituted. Data required to substantiate requests for substitutions of an “or equal” material, process or article data shall include a signed affidavit from Contractor stating that, and describing how, the substituted “or equal” material, process or article is equivalent to that specified in every way except as listed on the affidavit.
Substantiating data shall include any and all illustrations, specifications, and other relevant data including catalog information which describes the requested substituted “or equal” material, process or article, and substantiates that it is an “or equal” to the material, process or article. The substantiating data must also include information regarding the durability and lifecycle cost of the requested substituted “or equal” material, process or article. Failure to submit all the required substantiating data, including the signed affidavit, to the City in a timely fashion will result in the rejection of the proposed substitution.
Contractor shall bear all of the City’s costs associated with the review of substitution requests. Contractor shall be responsible for all costs related to a substituted “or equal” material, process or article. Contractor is directed to the Special Conditions (if any) to review any findings made pursuant to Public Contract Code section 3400.
3.5 Period of Performance and Liquidated Damages.
3.5.1 Contractor shall perform and complete all Work under this Contract within 160 working days, beginning the effective date of the Notice to Proceed (“Contract Time”).
Contractor shall perform its Work in strict accordance with any completion schedule, construction schedule or project milestones developed by the City. Such schedules or milestones may be included as part of Exhibits “A” or “B” attached hereto, or may be provided separately in writing to Contractor. Contractor agrees that if such Work is not completed within the aforementioned Contract Time and/or pursuant to any such completion schedule, construction schedule or project milestones developed pursuant to provisions of the Contract, it is understood, acknowledged and agreed that the City will suffer damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the City as fixed and liquidated damages the sum of One Thousand Dollars ($1,000) per day for each and every calendar day of delay beyond the Contract Time or beyond Item 1F - Page 67
any completion schedule, construction schedule or Project milestones established pursuant to the Contract.
3.5.2 If Contractor is delayed in the performance or progress of the Work by a Force Majeure Event (as defined herein), then the Contractor shall be entitled to a time extension, as provided herein, when the Work stopped is on the critical path and shall not be charged liquidated damages. Such a non-compensable adjustment shall be Contractor’s sole and exclusive remedy for such delays and the Contractor will not receive an adjustment to the Total Contract Price or any other compensation. Contractor must submit a timely request in accordance with the requirements of the Contract.
3.5.3 A Force Majeure Event shall mean an event that materially affects a party’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the work); (4) pandemics, epidemics or quarantine restrictions; and (5) strikes and other organized labor action occurring at the project site and the effects thereof on the work, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its subcontractors, of every tier, and to the extent the effects thereof cannot be avoided by use of replacement workers. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.
3.6 Standard of Performance; Performance of Employees. Contractor shall perform all Work under this Contract in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Work. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Work assigned to them.
Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Work, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Contract. As provided for in the indemnification provisions of this Contract, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any work necessary to correct errors or omissions which are caused by Contractor’s failure to comply with the standard of care provided for herein. Any employee who is determined by the City to be uncooperative, incompetent, a threat to the safety of persons or the Work, or any employee who fails or refuses to perform the Work in a manner acceptable to the City, shall be promptly removed from the Project by Contractor and shall not be re-employed on the Work.
3.7 Control and Payment of Subordinates; Contractual Relationship. City retains Contractor on an independent contractor basis and Contractor is not an employee of City. Any additional personnel performing the work governed by this Contract on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance under this Contract and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance.
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3.8 City’s Basic Obligation. City agrees to engage and does hereby engage Contractor as an independent contractor to furnish all materials and to perform all Work according to the terms and conditions herein contained for the sum set forth above. Except as otherwise provided in the Contract, the City shall pay to Contractor, as full consideration for the satisfactory performance by Contractor of the services and obligations required by this Contract, the belowreferenced compensation in accordance with compensation provisions set forth in the Contract.
3.9 Labor.
3.9.1 Prevailing Wages. Contractor is aware of the requirements of California Labor Code Section 1720 et seq., and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. Since the Work is being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Contract. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at Contractor’s principal place of business and at the project site. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Contractor and any subcontractor shall forfeit a penalty of up to $200 per calendar day or portion thereof for each worker paid less than the prevailing wage rates.
3.9.2 Apprenticeable Crafts. When Contractor employs workmen in an apprenticeable craft or trade, Contractor shall comply with the provisions of Section 1777.5 of the California Labor Code with respect to the employment of properly registered apprentices upon public works. The primary responsibility for compliance with said section for all apprenticeable occupations shall be with Contractor. The Contractor or any subcontractor that is determined by the Labor Commissioner to have knowingly violated Section 1777.5 shall forfeit as a civil penalty an amount not exceeding $100 for each full calendar day of noncompliance, or such greater amount as provided by law.
3.9.3 Hours of Work. Contractor is advised that eight (8) hours labor constitutes a legal day’s work. Pursuant to Section 1813 of the California Labor Code, Contractor shall forfeit a penalty of $25.00 per worker for each day that each worker is permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week, except when payment for overtime is made at not less than one and one-half (1-1/2) times the basic rate for that worker.
3.9.4 Payroll Records. Contractor and each subcontractor shall keep an accurate payroll record, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her in connection with the public work. The payroll records shall be certified and shall be available for inspection at all reasonable hours at the principal office of Contractor in the manner provided in Labor Code section 1776. In the event of noncompliance with the requirements of this section, Contractor shall have 10 days in which to comply subsequent to receipt of written notice specifying in what Item 1F - Page 69
respects such Contractor must comply with this section. Should noncompliance still be evident after such 10-day period, Contractor shall, as a penalty to City, forfeit not more than $100.00 for each calendar day or portion thereof, for each worker, until strict compliance is effectuated. The amount of the forfeiture is to be determined by the Labor Commissioner. A contractor who is found to have violated the provisions of law regarding wages on Public Works with the intent to defraud shall be ineligible to bid on Public Works contracts for a period of one to three years as determined by the Labor Commissioner. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payments then due. The responsibility for compliance with this section is on Contractor.
In accordance with Labor Code section 1771.4, the Contractor and each subcontractor shall furnish the certified payroll records directly to the Department of Industrial Relations (“DIR”) on a weekly basis and in the format prescribed by the DIR, which may include electronic submission.
The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
3.9.5 Contractor and Subcontractor Registration. Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the DIR. No bid will be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the DIR to perform public work. Contractor is directed to review, fill out and execute the Public Works Contractor Registration Certification attached hereto as Exhibit “E” prior to contract execution. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
3.9.6 Labor Compliance; Stop Orders. This Project is subject to compliance monitoring and enforcement by the DIR. It shall be the Contractor’s sole responsibility to evaluate and pay the cost of complying with all labor compliance requirements under this Contract and applicable law. Any stop orders issued by the DIR against Contractor or any subcontractor that affect Contractor’s performance of Work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Contractor or any subcontractor.
3.10 Performance of Work; Jobsite Obligations.
3.10.1 Water Quality Management and Compliance.
3.10.1.1 Water Quality Management and Compliance. Contractor shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); local ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State.
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3.10.1.2 Compliance with the Statewide Construction General Permit.
Contractor shall comply with all conditions of the most recent iteration of the National Pollutant Discharge Elimination System General Permit for Storm Water Discharges Associated with Construction Activity, issued by the California State Water Resources Control Board (“Permit”). It shall be Contractor’s sole responsibility to file a Notice of Intent and procure coverage under the Permit for all construction activity which results in the disturbance of more than one acre of total land area or which is part of a larger common area of development or sale. Prior to initiating work, Contractor shall be solely responsible for preparing and implementing a Storm Water Pollution Prevention Plan (SWPPP) as required by the Permit. Contractor shall be responsible for procuring, implementing and complying with the provisions of the Permit and the SWPPP, including the standard provisions, and monitoring and reporting requirements as required by the Permit. The Permit requires the SWPPP to be a “living document” that changes as necessary to meet the conditions and requirements of the job site as it progresses through difference phases of construction and is subject to different weather conditions. It shall be Contractor’s sole responsibility to update the SWPPP as necessary to address conditions at the project site.
3.10.1.3 Other Water Quality Rules Regulations and Policies. Contractor shall comply with the lawful requirements of any applicable municipality, drainage City, or local agency regarding discharges of storm water to separate storm drain systems or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.
3.10.1.4 Cost of Compliance. Storm, surface, nuisance, or other waters may be encountered at various times during construction of the Work. Therefore, the Contractor, hereby acknowledges that it has investigated the risk arising from such waters and assumes any and all risks and liabilities arising therefrom.
3.10.1.5 Liability for Non-Compliance. Failure to comply with laws, regulations, standards, ordinances, and permits listed in Sections 3.10.1.1, 3.10.1.2, 3.10.1.3, and 3.10.1.4 of the Contract is a violation of federal and state law. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to defend, indemnify and hold harmless the City and its directors, officials, officers, employees, volunteers and agents for any alleged violations. In addition, City may seek damages from Contractor for any delay in completing the Work in accordance with the Contract, if such delay is caused by or related to Contractor’s failure to comply with the Permit.
3.10.1.6 Reservation of Right to Defend. City reserves the right to defend any enforcement action brought against the City for Contractor’s failure to comply with the Permit or any other relevant water quality law, regulation, or policy. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to be bound by, and to reimburse the City for the costs (including the City’s attorney’s fees) associated with, any settlement reached between the City and the relevant enforcement entity.
3.10.1.7 Training. In addition to the standard of performance requirements set forth in this Contract, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies described in paragraph 3.10.1.
Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in paragraph 3.10.1 as they may relate to the Work provided under this Contract. Upon Item 1F - Page 71
request, City will provide the Contractor with a list of training programs that meet the requirements of this paragraph.
3.10.2 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. Contractor shall comply with the requirements of the specifications relating to safety measures applicable in particular operations or kinds of work. In carrying out its Work, Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the Work and the conditions under which the Work is to be performed. Safety precautions as applicable shall include, but shall not be limited to, adequate life protection and lifesaving equipment; adequate illumination for underground and night operations; instructions in accident prevention for all employees, such as machinery guards, safe walkways, scaffolds, ladders, bridges, gang planks, confined space procedures, trenching and shoring, fall protection and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and adequate facilities for the proper inspection and maintenance of all safety measures. Furthermore, Contractor shall prominently display the names and telephone numbers of at least two medical doctors practicing in the vicinity of the Project, as well as the telephone number of the local ambulance service, adjacent to all telephones at the Project site.
3.10.3 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Contract or the Work, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with the Work. If Contractor observes that the drawings or specifications are at variance with any law, rule or regulation, it shall promptly notify the City in writing. Any necessary changes shall be made by written change order. If Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Contract to the same extent as though set forth herein and will be complied with. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.10.4 Permits and Licenses. Contractor shall be responsible for securing City permits and licenses necessary to perform the Work described herein, including, but not limited to, a City Business License. While Contractor will not be charged a fee for any City permits, Contractor shall pay the City’s applicable business license fee. Any ineligible contractor or subcontractor pursuant to Labor Code Sections 1777.1 and 1777.7 may not perform work on this Project.
3.10.5 Trenching Work. If the Total Contract Price exceeds $25,000 and if the Work governed by this Contract entails excavation of any trench or trenches five (5) feet or more in depth, Contractor shall comply with all applicable provisions of the California Labor Code, including Section 6705. To this end, Contractor shall submit for City’s review and approval a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or Item 1F - Page 72
trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer.
3.10.6 Hazardous Materials and Differing Conditions. As required by California Public Contract Code Section 7104, if this Contract involves digging trenches or other excavations that extend deeper than four (4) feet below the surface, Contractor shall promptly, and prior to disturbance of any conditions, notify City of: (1) any material discovered in excavation that Contractor believes to be a hazardous waste that is required to be removed to a Class I, Class II or Class III disposal site; (2) subsurface or latent physical conditions at the site differing from those indicated by City; and (3) unknown physical conditions of an unusual nature at the site, significantly different from those ordinarily encountered in such contract work. Upon notification, City shall promptly investigate the conditions to determine whether a change order is appropriate.
In the event of a dispute, Contractor shall not be excused from any scheduled completion date and shall proceed with all Work to be performed under the Contract, but shall retain all rights provided by the Contract or by law for making protests and resolving the dispute.
3.10.7 Underground Utility Facilities. To the extent required by Section 4215 of the California Government Code, City shall compensate Contractor for the costs of: (1) locating and repairing damage to underground utility facilities not caused by the failure of Contractor to exercise reasonable care; (2) removing or relocating underground utility facilities not indicated in the construction drawings; and (3) equipment necessarily idled during such work. Contractor shall not be assessed liquidated damages for delay caused by failure of City to provide for removal or relocation of such utility facilities.
3.10.8 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Although CARB limits and requirements are more broad, Contractor shall specifically be aware of their application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify City against any fines or penalties imposed by CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Contract.
3.10.9 State Recycling Mandates. Contractor shall comply with State Recycling Mandates. Any recyclable materials/debris collected by the contractor that can be feasibly diverted via reuse or recycling must be hauled by the appropriate handler for reuse or recycling.
3.10.10 Inspection Of Site. Contractor has visited sites where Work is to be performed and has become acquainted with all conditions affecting the Work. Contractor warrants that it has made such examinations as it deems necessary to determine the condition of the Work sites, its accessibility to materials, workmen and equipment, and to determine the Contractor’s ability to protect existing surface and subsurface improvements. No claim for allowances–time or money–will be allowed as to such matters.
3.10.11 Field Measurements. Contractor shall make field measurements, verify field conditions and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents before commencing activities.
Item 1F - Page 73
Errors, inconsistencies or omissions discovered shall be reported to the City immediately and prior to performing any work or altering the condition.
3.11 Completion of Work. When Contractor determines that it has completed the Work required herein, Contractor shall so notify City in writing and shall furnish all labor and material releases required by this Contract. City shall thereupon inspect the Work. If the Work is not acceptable to the City, the City shall indicate to Contractor in writing the specific portions or items of Work which are unsatisfactory or incomplete. Once Contractor determines that it has completed the incomplete or unsatisfactory Work, Contractor may request a re-inspection by the City. Once the Work is acceptable to City, City shall pay to Contractor the Total Contract Price remaining to be paid, less any amount which City may be authorized or directed by law to retain.
Payment of retention proceeds due to Contractor shall be made in accordance with Section 7107 of the California Public Contract Code.
3.12 Claims; Government Code Claim Compliance.
3.12.1 Intent. Effective January 1, 1991, Section 20104 et seq., of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims.
The intent of this Section is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code. This Section shall be construed to be consistent with said statutes.
3.12.2 Claims. For purposes of this Section, “Claim” means a separate demand by the Contractor, after a change order duly requested in accordance with the terms of this Contract has been denied by the City, for (A) a time extension, (B) payment of money or damages arising from Work done by or on behalf of the Contractor pursuant to the Contract, or (C) an amount the payment of which is disputed by the City. A “Claim” does not include any demand for payment for which the Contractor has failed to provide notice, request a change order, or otherwise failed to follow any procedures contained in the Contract Documents.
3.12.3 Filing Claims. Claims governed by this Section may not be filed unless and until the Contractor completes all procedures for giving notice of delay or change and for the requesting of a time extension or change order, including but not necessarily limited to the change order procedures contained herein, and Contractor’s request for a change has been denied in whole or in part. Claims governed by this Section must be filed no later than fourteen (14) days after a request for change has been denied in whole or in part or after any other event giving rise to the Claim. The Claim shall be submitted in writing to the City and shall include on its first page the following in 16 point capital font: “THIS IS A CLAIM.” Furthermore, the claim shall include the documents necessary to substantiate the claim. Nothing in this Section is intended to extend the time limit or supersede notice requirements otherwise provided by contract for the filing of claims, including all requirements pertaining to compensation or payment for extra Work, disputed Work, and/or changed conditions. Failure to follow such contractual requirements shall bar any claims or subsequent lawsuits for compensation or payment thereon.
3.12.4 Supporting Documentation. The Contractor shall submit all claims in the following format:
Item 1F - Page 74
3.12.4.1 Summary of claim merit and price, reference Contract Document provisions pursuant to which the claim is made
3.12.4.2 List of documents relating to claim:
(A) Specifications
(B) Drawings
(C) Clarifications (Requests for Information)
(D) Schedules
(E) Other
3.12.4.3 Chronology of events and correspondence
3.12.4.4 Analysis of claim merit
3.12.4.5 Analysis of claim cost, including calculations and supporting documents
3.12.4.6 Time impact analysis in CPM format
3.12.5 City’s Response. Upon receipt of a Claim pursuant to this Section, City shall conduct a reasonable review of the Claim and, within a period not to exceed 45 days of receipt of the Claim, or as extended by mutual agreement, shall provide the Contractor a written statement identifying what portion of the Claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of the Claim will be processed and made within 60 days after the City issues its written statement.
3.12.5.1 If City needs approval from its governing body to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the Claim, and the governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a Claim sent by registered mail or certified mail, return receipt requested, City shall have up to three (3) days following the next duly publicly noticed meeting of the governing body after the 45-day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion.
3.12.5.2 Within 30 days of receipt of a Claim, City may request in writing additional documentation supporting the Claim or relating to defenses or claims City may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of City and the Contractor. City’s written response to the Claim, shall be submitted to the Contractor within 30 Days (if the Claim is less than $50,000, within 15 Days) after receipt of the additional documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater.
3.12.6 Meet and Confer. If the Contractor disputes City’s written response, or City fails to respond within the time prescribed, the Contractor may so notify City, in writing, within 15 Days of receipt of City’s response or the City’s failure to respond, and demand an informal Item 1F - Page 75
conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand, City shall schedule a meet and confer conference within 30 Days for settlement of the dispute.
3.12.7 Mediation. Within 10 business days following the conclusion of the meet and confer conference, if the Claim or any portion of the Claim remains in dispute, City shall provide the Contractor a written statement identifying the portion of the Claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the Claim shall be processed and made within 60 Days after City issues its written statement. Any disputed portion of the Claim, as identified by the Contractor in writing, shall be submitted to nonbinding mediation, with City and the Contractor sharing the associated costs equally. City and Contractor shall mutually agree to a mediator within 10 business days after the disputed portion of the Claim has been identified in writing, unless the Parties agree to select a mediator at a later time.
3.12.7.1 If the Parties cannot agree upon a mediator, each Party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each Party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator.
3.12.7.2 For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the Parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this section.
3.12.7.3 Unless otherwise agreed to by City and the Contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.
3.12.7.4 The mediation shall be held no earlier than the date the Contractor completes the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved Claims shall be considered jointly in a single mediation, unless a new unrelated Claim arises after mediation is completed.
3.12.8 Procedures After Mediation. If following the mediation, the Claim or any portion remains in dispute, the Contractor must file a claim pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code. For purposes of those provisions, the running of the period of time within which a claim must be filed shall be tolled from the time the Contractor submits his or her written Claim pursuant to subdivision (a) until the time the Claim is denied, including any period of time utilized by the meet and confer conference or mediation.
3.12.9 Civil Actions. The following procedures are established for all civil actions filed to resolve Claims of $375,000 or less:
3.12.9.1 Within 60 Days, but no earlier than 30 Days, following the filing or responsive pleadings, the court shall submit the matter to non-binding mediation unless waived by mutual stipulation of both Parties or unless mediation was held prior to commencement of the action in accordance with Public Contract Code section 9204 and the terms of these procedures.
The mediation process shall provide for the selection within 15 Days by both Parties of a disinterested third person as mediator, shall be commenced within 30 Days of the submittal, and Item 1F - Page 76
shall be concluded within 15 Days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court.
3.12.9.2 If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration.
3.12.9.3 In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in construction law, and (B) any party appealing an arbitration award who does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, also pay the attorney’s fees on appeal of the other party.
3.12.10 Government Code Claim Procedures.
3.12.10.1 This section does not apply to tort claims and nothing in this section is intended nor shall be construed to change the time periods for filing tort claims or actions specified by Chapter 1 (commending with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.5 of Title 1 of the Government Code.
3.12.10.2 In addition to any and all Contract requirements pertaining to notices of and requests for adjustments to the Contract Time, Contract Price, or compensation or payment for extra work, disputed work, claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City.
3.12.10.3 Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to adjustment of the Contract Time, Contract Price, or compensation or payment for extra work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor may not file any action against the City.
3.12.10.4 A Government Code claim must be filed no earlier than the date the work is completed or the date the Contractor last performs work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved Claims known to the Contractor excepting only new unrelated Claims that arise after the Government Code claim is submitted.
3.12.11 Non-Waiver. City’s failure to respond to a Claim from the Contractor within the time periods described in this section or to otherwise meet the time requirements of this section shall result in the Claim being deemed rejected in its entirety and shall not constitute a waiver of any rights under this section.
3.13 Loss and Damage. Except as may otherwise be limited by law, Contractor shall be responsible for all loss and damage which may arise out of the nature of the Work agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or Item 1F - Page 77
be encountered in the prosecution of the Work until the same is fully completed and accepted by City. In the event of damage proximately caused by an Act of God, as defined by Section 7105 of the Public Contract Code, the City may terminate this Contract pursuant to the termination provisions in this Contract; provided, however, that the City needs to provide Contractor with only one (1) day advanced written notice.
3.14 Indemnification.
3.14.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its officials, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s services, the Project or this Contract, including without limitation the payment of all expert witness fees, attorneys’ fees and other related costs and expenses.
Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Contractor’s indemnity obligation shall not apply to such loss or damage which is caused by the sole or active negligence or willful misconduct of the City.
3.14.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and authorized volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and authorized volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Contract, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and authorized volunteers.
3.15 Insurance.
3.15.1 Time for Compliance. Contractor shall not commence Work under this Contract until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Contract for cause.
3.15.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder by Contractor, its agents, representatives, employees or subcontractors. Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the Item 1F - Page 78
duration of the Contract. Such insurance shall meet at least the following minimum levels of coverage:
3.15.2.1 Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 00 01) OR Insurance Services Office Owners and Contractors Protective Liability Coverage Form (CG 00 09 11 88) (coverage for operations of designated contractor); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 00 01, code 1 (any auto); (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance; and (4) Builders’/All Risk: Builders’/All Risk insurance covering for all risks of loss, including explosion, collapse, underground excavation and removal of lateral support (and including earthquakes and floods if requested by the City). Policies shall not contain exclusions contrary to this Contract.
3.15.2.2 Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence and $4,000,000 general aggregate for bodily injury, personal injury and property damage; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; (3) Workers’ Compensation and Employer’s Liability: Workers’ compensation limits as required by the Labor Code of the State of California.
Employer’s Liability limits of $1,000,000 each accident, policy limit bodily injury or disease, and each employee bodily injury or disease; and (4) Builders’/All Risk: Completed value of the project.
Defense costs shall be available in addition to the limits. Notwithstanding the minimum limits specified herein, any available coverage shall be provided to the parties required to be named as additional insureds pursuant to this Contract.
3.15.2.3 Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Contract does not comply with these specifications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the City may suspend or terminate this Contract.
3.15.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements (amendments) on forms supplied or approved by the City to add the following provisions to the insurance policies:
3.15.3.1 General Liability. (1) Such policy shall give the City, its officials, employees, agents and volunteers additional insured status using ISO endorsements CG20 10 10 01 plus CG20 37 10 01, or endorsements providing the exact same coverage, with respect to the Work or operations performed by or on behalf of Contractor, including materials, parts or equipment furnished in connection with such work; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the City, its Item 1F - Page 79
officials, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its officials, employees, agents and volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it.
3.15.3.2 Automobile Liability. (1) Such policy shall give the City, its officials, employees, agents and volunteers additional insured status with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Contractor or for which Contractor is responsible; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the City, its officials, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its officials, employees, agents and volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it in any way.
3.15.3.3 Workers’ Compensation and Employer’s Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its officials, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by Contractor.
3.15.3.4 All Coverages. Each insurance policy required by this Contract shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its officials, employees, agents and volunteers.
3.15.4 Builders’/All Risk Policy Requirements. The builders’/all risk insurance shall provide that the City be named as loss payee. In addition, the insurer shall waive all rights of subrogation against the City.
3.15.5 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its officials, employees, agents and volunteers.
3.15.6 Professional Liability Insurance. All architects, engineers, consultants or design professionals retained by Contractor shall also procure and maintain, for a period of five (5) years following completion of the Contract, errors and omissions liability insurance with a limit of not less than $1,000,000 per occurrence. This insurance shall name the City, its directors, officials, officers, employees, agents and volunteers as additional and insureds with respect to Work performed, and shall otherwise comply with all requirements of this Section. Defense costs shall be paid in addition to the limits.
3.15.7 Deductibles and Self-Insurance Retentions. Any deductibles or selfinsured retentions must be declared to and approved by the City. Contractor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or selfinsured retentions as respects the City, its officials, employees, agents and authorized volunteers; Item 1F - Page 80
or (2) the Contractor shall procure a bond or other financial guarantee acceptable to the City guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
3.15.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VII, licensed to do business in California, and satisfactory to the City. Exception may be made for the State Compensation Insurance Fund when not specifically rated.
3.15.9 Verification of Coverage. Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Contract on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
3.15.10 Subcontractors. All subcontractors shall meet the requirements of this Section before commencing Work. Contractor shall furnish separate certificates and endorsements for each subcontractor. Subcontractor policies of General Liability insurance shall name the City, its officials, employees, agents and authorized volunteers as additional insureds using form ISO 20 38 04 13 or endorsements providing the exact same coverage. All coverages for subcontractors shall be subject to all of the requirements stated herein except as otherwise agreed to by the City in writing.
3.15.11 Reporting of Claims. Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Work under this Contract.
3.16 Bond Requirements.
3.16.1 Payment Bond. If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Contract a Payment Bond in an amount required by the City and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the City.
3.16.2 Performance Bond. If specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Contract a Performance Bond in an amount required by the City and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the City.
3.16.3 Bond Provisions. Should, in City’s sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the effected bond within (ten) 10 days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due Item 1F - Page 81
or will be made under this Contract until any replacement bonds required by this Section are accepted by the City. To the extent, if any, that the Total Contract Price is increased in accordance with the Contract, Contractor shall, upon request of the City, cause the amount of the bond to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. If Contractor fails to furnish any required bond, the City may terminate the Contract for cause.
3.16.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in California Code of Civil Procedure Section 995.120, shall be accepted. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the City.
3.17 Warranty. Contractor warrants all Work under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the Work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the Work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Work or non-conformance of the Work to the Contract, commence and prosecute with due diligence all Work necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the Work (or work of other contractors) damaged by its defective Work or which becomes damaged in the course of repairing or replacing defective Work. For any Work so corrected, Contractor’s obligation hereunder to correct defective Work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected Work.
Contractor shall perform such tests as the City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the Work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non-conforming Work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense.
Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.
3.18 Employee/Labor Certifications.
3.18.1 Contractor’s Labor Certification. By its signature hereunder, Contractor certifies that he is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Work. A certification form for this purpose, Item 1F - Page 82
which is attached to this Contract as Exhibit “D” and incorporated herein by reference, shall be executed simultaneously with this Contract.
3.18.2 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
3.18.3 Verification of Employment Eligibility. By executing this Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors and sub-subcontractors to comply with the same.
3.19 Termination. This Contract may be terminated by City at any time, either with our without cause, by giving Contractor three (3) days advance written notice. In the event of termination by City for any reason other than the fault of Contractor, City shall pay Contractor for all Work performed up to that time as provided herein. In the event of breach of the Contract by Contractor, City may terminate the Contract immediately without notice, may reduce payment to Contractor in the amount necessary to offset City’s resulting damages, and may pursue any other available recourse against Contractor. Contractor may not terminate this Contract except for cause. In the event this Contract is terminated in whole or in part as provided, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. Further, if this Contract is terminated as provided, City may require Contractor to provide all finished or unfinished documents, data, diagrams, drawings, materials or other matter prepared or built by Contractor in connection with its performance of this Contract. Contractor shall be required to provide such document and other information within fifteen (15) days of the request.
3.20 City Officers and Employees: Non-Discrimination.
3.20.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor-in-interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Contract.
3.20.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Contract nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Contract and for one (1) year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Contract.
3.20.3 Covenant Against Discrimination. In connection with its performance under this Contract, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that Item 1F - Page 83
applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Contract, and in executing this Contract, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting.
3.21 General Provisions.
3.21.1 City’s Representative. The City hereby designates the City Manager, or his or her designee, to act as its representative for the performance of this Contract (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. Contractor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
3.21.2 Contractor’s Representative. Before starting the Work, Contractor shall submit in writing the name, qualifications and experience of its proposed representative who shall be subject to the review and approval of the City (“′Contractor’s Representative”). Following approval by the City, Contractor’s Representative shall have full authority to represent and act on behalf of Contractor for all purposes under this Contract. Contractor’s Representative shall supervise and direct the Work, using his best skill and attention, and shall be responsible for all construction means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work under this Contract. Contractor’s Representative shall devote full time to the Project and either he or his designee, who shall be acceptable to the City, shall be present at the Work site at all times that any Work is in progress and at any time that any employee or subcontractor of Contractor is present at the Work site. Arrangements for responsible supervision, acceptable to the City, shall be made for emergency Work which may be required. Should Contractor desire to change its Contractor’s Representative, Contractor shall provide the information specified above and obtain the City’s written approval.
3.21.3 Contract Interpretation. Should any question arise regarding the meaning or import of any of the provisions of this Contract or written or oral instructions from City, the matter shall be referred to City’s Representative, whose decision shall be binding upon Contractor.
3.21.4 Anti-Trust Claims. This provision shall be operative if this Contract is applicable to California Public Contract Code Section 7103.5. In entering into this Contract to supply goods, services or materials, Contractor hereby offers and agrees to assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Section 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the Contract. This assignment shall be made and become effective at the time the City tender final payment to Contractor, without further acknowledgment by the Parties.
3.21.5 Notices. All notices hereunder and communications regarding interpretation of the terms of the Contract or changes thereto shall be provided by the mailing Item 1F - Page 84
thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows:
CONTRACTOR:
SHADE STRUCTURES, INC. DBA USA SHADE & FABRIC STRUCTURES 2580 ESTERS BLVD., SUITE 100, DFW AIRPORT, TX 75261
ATTN: ASHLEY DONDE, SENIOR REGIONAL MANAGER
CITY:
CITY OF PALM SPRINGS
3200 E. TAHQUITZ CANYON WAY
PALM SPRINGS, CA 92262
ATTN: CITY MANAGER & CITY CLERK
Any notice so given shall be considered received by the other Party three (3) days after deposit in the U.S. Mail as stated above and addressed to the Party at the above address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.21.6 Time of Essence. Time is of the essence in the performance of this Contract.
3.21.7 Assignment Forbidden. Contractor shall not, either voluntarily or by action of law, assign or transfer this Contract or any obligation, right, title or interest assumed by Contractor herein without the prior written consent of City. If Contractor attempts an assignment or transfer of this Contract or any obligation, right, title or interest herein, City may, at its option, terminate and revoke the Contract and shall thereupon be relieved from any and all obligations to Contractor or its assignee or transferee.
3.21.8 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.21.9 Laws; Venue. This Contract shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Contract, the action shall be brought in a state or federal court situated in the County of Riverside, State of California.
3.21.10 Attorneys’ Fees. If either Party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Contract, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all other costs of such action.
3.21.11 Counterparts. This Contract may be executed in counterparts, each of which shall constitute an original.
Item 1F - Page 85
3.21.12 Successors. The Parties do for themselves, their heirs, executors, administrators, successors, and assigns agree to the full performance of all of the provisions contained in this Contract.
3.21.13 Solicitation. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Contract. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, City shall have the right to terminate this Contract without liability.
3.21.14 Certification of License.
3.21.14.1 Contractor certifies that as of the date of execution of this Contract, Contractor has a current contractor’s license of the classification indicated below under Contractor’s signature.
3.21.14.2 Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O.
Box 26000, Sacramento, California 95826.
3.21.15 Authority to Enter Contract. Each Party warrants that the individuals who have signed this Contract have the legal power, right and authority to make this Contract and bind each respective Party.
3.21.16 Entire Contract; Modification. This Contract contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Contract may only be modified by a writing signed by both Parties.
3.21.17 Non-Waiver. None of the provisions of this Contract shall be considered waived by either party, unless such waiver is specifically specified in writing.
3.21.18 City’s Right to Employ Other Contractors. City reserves right to employ other contractors in connection with this Project or other projects.
3.22 Compliance with Economic Sanctions in Response to Russia's Actions in Ukraine. When funding for the services is provided, in whole or in part, by an agency controlled of the State of California, Consultant shall fully and adequately comply with California Executive Order N-6-22 (“Russian Sanctions Program”). As part of this compliance process, Consultant shall also certify compliance with the Russian Sanctions Program by completing the form located in Attachment “G” (Russian Sanctions Certification), attached hereto and incorporated herein by reference. Consultant shall also require any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section. [Signatures on Next Page]
Item 1F - Page 86
SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND SHADE STRUCTURES INC. DBA USA SHADE & FABRIC
STRUCTURES
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _____________________________________ By: _________________________________________ Signature Signature (2nd signature required for Corporations) Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _10/10/2024______ Item No.
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By______________________________ City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
Lauri Aylaian,
Interim Parks & Recreation Director
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
Item 1F - Page 87
EXHIBIT “A”
SERVICES / SCHEDULE
Scope of services shall include the purchase and installation of shade structure equipment at Ruth Hardy Park as identified in Exhibit B, in accordance with the Cooperative Purchase Pricing identified by Sourcewell Contract #010521-LTS.
Item 1F - Page 88
EXHIBIT “B”
PLANS AND SPECIFICATIONS
SCHEDULE OF COMPENSATION
Item 1F - Page 89
Item 1F - Page 90
O,usASHADE'
Ruth Hardy Park
Priced per SOURCEWELL Contract Number 010521-LTS-6
Pricing Valid' for JO Days
Purchaser: City of Palm Springs Contact: Tabtha Richards Project Name: Ruth Hardy Park Phone: (760) 3=202
Quote No: CA0924NH16462-R0 Email:
BIiiing Address Information: Sh1ppmg Address Information:
Harne: City of Palm Springs Harne: Rutt, Hardy PaJI<
Address: Address:
City: City : Pal m Springs
State: State : CA
Zip Code: Zip Code:
Contact: Tabitha Richards Contact:
Email: IIDlra.ri:m~~ Email:
Phone: (760) 323-8202 Phone:
CORPORATE ADDRESS: MAILING ADDRESS:
2580 Esters Blvd., Suffe 100 DFW
Airport, TX 75261
P.O. Box 3467 Coppel, TX 75019
ARIZONA:
Sales Rep: Nathan Hrabal
Phone: +13144888121
Jobsrte Information:
Name: Ruth Hardy Pall<
Address:
City: Palm Springs
State: CA
Zip Code:
Contact:
Email:
Phone:
REMITTANCE ADDRESS:
P.O. Box 734158 Do/las, TX 75373-
4158
SOUTHERN CALIFORN LAS VEGAS: IA:
1085 N. Main Street, Suite C
Oange, CA 92867
NORTHERN CALIFORNIA:
g27 Enterprise Way. Sutte A
Napa. CA 94558
2.a15 s. 1am P{ou
Phoenix, AZ 85024 3 111 so. VOiley View Blvd. suite B-117 cos Vegas, NV 8 9102
NOTE: This message is intended only for the use of the individual to whom it is addressed, and contains information tnat is privileged, confidertial, and exempt from disclosure under applicable law. If you are not tile intended recipient, or tile en~ee or agent responsible for delivering this message to the irtended recipient, you are hereby notified that any unauthorized disclosure, distribution, or copying of this communication is strictly prohibited. If you have received this corrmunication in error, please notify us immediately by pnone and return the original message to the applicable address above.
www.usa-shade.co m 800-966-S00S
AZ.: 2&9388 CA: 9894 58 LA: 61718 NV: 78724 NV: 78724 NM : 383826 TN: 68712 DIR: 1000003533 Item 1F - Page 91
DESCRIPTION
Integrated Joined SOIis, 8 Tops, 15
Columns, Per CA1223NH10295-
2000A
USASHADE. PROOUCTS
DETAILS
Model Number
Colourshade_FR
Powder Coated
Footing Type Mountiing Type
Drilled Pier Reoessed Base Plate
SOURCEWELL PRICING
DESCRIPTION UN IT PRICE
Integrated Joined Sails, 8 Tops, 1 S
Columns Per CA1223NH10295-2000A
6 6
Anchor Bolts
Excluded
Gable/HOW Finish
Gatvanized
Anchor Bolts
Included
Unit ?flee Le65 10%
$228,062..50
TOT AL PRICE:
INCLUSIONS / EXCLUSIONS
INCLUDED i EXCLUDED ENGJNEERING REQUIRaENTS INCLUDED/EXCLUDED INSTALLATION - MISCELLANEOUS Included Sealed Drawings & Calculations Exducled P revailing Wage / Certifie-d Payroll Excluded Penn.it Submittal Exducled Union Wages
Excluded Permit Fee Exducled Fenca'lg
Excluded DSA Submittal & Fees Exducled Water and Electrical Included 0esi"1 and Engineering of Structure Exducled Landscape Repai'r Included Design and Engineering of Foundation Exducled Demolition (Existing Structures) Excluded Reactions and Loads for attachment to Exducled Payment and Perionnance Bonds Walls Rooft.-.nc: cc Other Excluded Foundation Location and Elevation Exducled Special Inspection Fees Survev Exducled Concrete Cutting
Exducled Dirt Removal
Surface Type
Included Installation
Exduded Foundation
Construction Assumptions
w ww .usa-sh ade .com 800-966-SOOS
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1) The designated area for our structures will be accessible by drive-up for unloading of our trucks and equipment, including personnel man-lifts, forl<lifls, etc. Should a crane be required and direct access not available, additional costs for such will be submitted by a Change Order.
2) Our pricing is based on the ability to perfonm all of our work with clear, sequential, and continuous access without interruption during normal daytime working hours. We have assumed one mobilization for the installation of foundations, steel and fabric; if additional mobilizations are required, there will be an additional charge. We will require exclusive access to the area for our wor1< during the construction process. 3) Our pricing does not include daily site delays accessing the wor1< areas. USA SHADE will submit a Change Order for any delays caused by other trades which interfere or cause us to stop working.
4) We will require srte sanitary facilities and refuse containers by others within 200 feet of our wor1<.
5) USA SHADE will leave its work and materials in a clean condition at the conclusion of our wor1<.
6) Barricades and public security requirements are not included. 7) Unless specifically included in this proposal, this agreement does not include, and Company will not provide, services, labor, or materials for any of the following work: (a) removal and disposal of any materials containing asbestos or any hazardous materials as defined by the EPA; (b) moving Owne~s property around the installation site; (c) repair or replacement of any Purchaser or owner-supplied materials; or (d) repair of damage to existing surfaces that may occur when construction equipment and vehicles are being used in the nom1aI course of construction.
8) Pricing for foundation design is based on drilled pier footings. In the event the geotechnical report requires an alternate configuration, any additional costs incurred will be submitted to the client by a Change Order.
9) Digging of our foundations will not be constrained by any existing concrete or utilrties. USA SHADE will not be responsible for moving or repairing any underground utility lines such as electrical, telephone, gas, water, or sprinkler lines that may be encountered during installation.
10) Any additional costs incurred as a result of hard rock conditions requiring extra equipment, utility removal or repair, resulting in delay, will result in additional charges unless they are detailed on as-built site drawings provided to USA SHADE or marl<ed on the ground and communicated to USA SHADE in writing prior to installation. www.usa-sha.de.c:om 800-966-SOOS
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GENERAL TERMS & CONDITIONS AND WARRANTY
1) Proposal: The above proposal is valid for 30 days from the date first set forth above. After 30 days, we reserve the right to increase prices due to the rise in cost of raw materials, fuel, or other cost increases. When applicable, USA SHADE & Fabric Structures reserves the right to implement a surcharge for significant increases in raw materials, including, but not limited 10; fuel, steel, and concrete. Due to the du·ation of time between proposals, contracts, and final installation, USA SHADE & Fabric Structures reserves the right to implement this surcharge, when applicable.
2) Purchase: By executing this proposal, or submittng a purchase order pursuant to this proposal (which shall incorporate the terms of this agreement specifically by reference) which is accepted by USA SHADE & Fabric Structures (the "Company"), the purchaser ide-ntified above- ("you" or the •Purchaser") agrees to purchase- Shade Structures brand shade structures ("Structures") and the services to be provided by the Company, as detaile<i in the "Structure Pricing• and "General Scope of Work" sections of this agreement, above, or in the relevant purchase order accepted by the Company, for use by Purchaser or for installation by Company or Purchaser on behalf of a third-party who will be the ultimate owner of the Structures (the ultimate owner of a Structure, whether Purchaser or a third-party, being the "Owner").
3) Short Ship Claims: Purchaser has 30 days from receipt of the structures to file a short ship report in writing to its sales representative. Company will not honor claims made after this time.
4) Short Ship Claims: Purchaser has 30 days from receipt of the structures to file a short ship report in writing to its sales representative. Company will not honor claims made after this time.
5) Bona Ing Guidelines: II Purcnaser w111 use or prov1ae me Structures ana services ror an Owner other than Purchaser (including, wnhout limitation, as a subcontractor of Purchaser), Purchaser will include the following statement in Purchaser's contract wnh Owner:
'The manufacturer's warranty for the Shade Structures brand shade structures is a separate document between USA SHADE & Fabric Structures and the ultimate owner of the Shade Structures brand shade structures, which will be provided to the ultimate owner at the time of completion of the installation and other services to be provided by USA SHADE & Fabric Structures. Due to surety re<iuirements, any performance and/or payment bond will cover only the first year of the USA SHADE & Fabric Structures warranty."
6) Insurance Requirements : Company is not required to provide any insurance coverage in excess of Company's standard insurance. A copy of theCompany's standard insurance is available for your review prior to acceptance of the Company's proposal. 7) Payment: Terms of payment are defined in the "Pricing Details" section and are specific to this contract. For purposes of this agreement, "Completion" is defined as being the point at which the Structure is sunable for ns intended use, the issue of occupancy consent, or a www.usa-shade.com 800-366-S00S
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final building department approval is issued, whichever occurs first. Progress billing and payment will be required. All payments must be made to Shade Structures, Inc., P.O. Box 734158, Dallas, TX 75373-4158. Company may use all remedies available to it under current laws including, but not limited to, filing of liens against the property and using a collection agency or the courts to secure the collection of the outstanding debt. 8) Lien Releases: Upon request by Owner, Company will issue appropriate partial lien releases as corresponding payments are re:eived from Purchaser, but prior to receiving final payment from Purchaser or Owner. Company will provide a full release of liens upon receipt of final payment. In accordance with state laws, Company reserves the right to place a lien on the property if final payment has not been received 10 days prior to the filing deadline for liens.
9) Site Plan Approval, PermiVs, Permit Fees, Plans, Engineering Drawings, and Surveying: Site plan approval, permrts, pennit fees, plans, engineering drawings, and surveying are specifically excluded from this agreement and the Services unless specified under the "General Scope of Work". The Company does not in any way warrant or represent that a permit or site plan approval for construction will be obtained. Sealed engineered drawings that are required but not included in the "General Scope of Work" will result in an additional cost to Purchaser.
10) Manufacturing & Delivery: Manufacturing lead-time from Company's receipt of the "Notice To Proceed' is approximately 6 to 8 weeks for standard structures, and 8 to 12 weeks for custom structures. Delivery is approximately 1 week thereafter. Delivery of structures may be prior to or at start of assembly. Please note that these timelines do not include approval or permitting timeframes.
11) Return Policy for USA Shade: At USA Shade, we strive to provide high.qualrty shade structures that are built to order and tailored to meet the unique needs of our customers.
Due to the nature of our business and the customization involved, we have implemented the following return policy:
1. No Cancellations or Changes: Once an order has been released for production, we cannot accept any cancellations or changes to the order. II is crucial for customers to review their order details carefully before finalizing the purchase.
2. No Returns: Due to the customized nature of our shade structures, we do not accept returns. Once the order has been delivered and installed, it is considered a final sale. We encourage customers to thoroughly assess their requirements and specifications before ordering.
3. Product Quality Assurance: We take pride in delivering high-quality shade structures that meet industry standards. Our products undergo rigorous quality control measures to ensure they meet or exceed customer expectations. In the unlikely event that there is a manufacturing defect or an issue with the product, please get in touch with our customer service department immediately for assistance.
4. Warranty Coverage: Our shade structures are backed by a warranty against manufacturing defects or material faults. If you encounter any issues the warranty covers, please take a look at our warranty policy for more instructions on how to proceed.
5. Customer Support: We are committed to providing excellent customer service throughout your purcoasing journey. If you have any questions or www.usa-sh a.de .c:om 800-966-SOOS
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concerns or need help with your order, our dedicated customer support team is here to help. Don't hesitate to contact us via phone, email, or our websrte's contac.t fom1, and we will gladly a ssist you.
It is essential for customers to understand and acknowledge these terms and conditions before placing an order with USA Shade. Customers agree to abide by this return policy by proceeding with a purchase.
12) Concealed Conditions: •concealed conditions" include, without limitation, water, gas, sprinkler, electrical and sewage lines, post tension cables, and steel rebar. This agreement is based solely on observations the Company was able to make either by visual inspection or by drawings and/er plans submitted by Owner at the time this agreement was bid. If additional Concealed Conditions are discovered once work has commenced, which were not visible at the time this proposal was bid, Company will stop work and indicate these unforeseen Concealed Conditions to Purchaser or Owner so that Purchaser and Company can execute a Change Order for any additional work. In any e,ent, any damage caused by or to unforeseen Concealed Conditions is the sole responsibilrty of the Purchaser and Gompany sna11 not be neta 11abIe ror any sucn aamage. :;ou conamons are assumed 10 be soil that does not contain any water, hard rock (such as limestone, caliche, etc.), rocks larger than 4 inches n diameter, or any other condrtion that will require additional labor, equipment and/or materials not specified by the Purchaser or Owner in the bidding process.
Any condition requiring additional labor, e<iuipment, and/or materials to complete the drilling or concrete operations will re<iuire a Change Order before Company will complete the process. Price quotes are based on a drilled pier footing. Any variation will incur additional charges (i.e. spread footings, concrete mat, sand, water, landfill, etc.). Costs for footing and installation do not include any allowance for extending below frost lines (the additional costs for which vary by geographical region)
13) Changes in the Work : During the course of this project, Purchaser may order changes in the work (both additions and deletions). Additionally, an approving agency may require changes in the work from the original design or engineering quoted and provided by the Company (both additions and deletions.) The cost of these ch,mges will be determined by the Company, and a Change Order form must be completed and signed by both the Purchaser and the Company, which will detail the "General Scope of the Change Order".
Should any Change Order be essential to the completion of the project, and the Purchaser refuses to authorize such Change Order, then Company will be deemed to have performed rts part of the project. and the project and services will be terminated. Upon such termination, Company will submit a final billing to Purchaser for payment, less a labor allowance for work not performed but including additional charges incurred due to the stoppage. No credit will be allowed for materials sold and supplied, which will remain the property of the Purcr.aser.
14) Indemnification: To the fullest extent pem1itted by law, Purchaser shall indemnify, defend, and hold harmless the Company and rts consultants, agents, and employees or any of them from and against claims, damages, losses and expenses, including, but not limited to, attorneys' fees related to the installation of the Structure or pelformance of the services, provided that such claim, damage, loss, or expense is attributable to bodily injury to, sickness, disease, or death of a person, or to injury to or destruction of tangible property, but only to the extent caused by the neolioent acts or omissions of the Purchaser or rts agents, employees, or subcontractors, or anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, www.usa-sha.de,c:om 800-966-SOOS
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damage, loss, or expense is caused in part by a party indemnified hereunder. Such obligation sh,all not be construed to negate, abridge, or reduce other rights o r obligations of indemnity that would otherwise exist as to a party or person described in Section 15. 15) Statement of limited Warranty:
• The structural integrity of all supplied steel is warranted for ten years. • If assembly is provided by the Company, workmanship of the structure is covered for one year, including labor for the removal of any failed part, disassembly (if necessary), cost of shipping, and reassembly.
• All steel surface finishes are warranted for one year. • Shad'.esure™, Colourshade® FR, extreme 32"', Commercial 95"', SaFRshade™, and Monotec 370"' fabrics all carry a ten year limited manufacturer's warranty against failure from significant fading, deterioration, breakdown, outdoor heat, cold, or discoloration. Should the fabric need to be replaced under the warranty, the Company will manufacture and ship a new replacement fabric at no charge for the first s ix years, thereafter pro-rated at 20% per year over the remaining four years.
The following are exceptions to the preceding warranty terms:
o Shadesure ™ fabrics in Red, Yellow, Atomic Orange, Electric Purple, Zesty Lime, Cinnamon, Olive, and Mulberry carry a five year prorated o Fabric tops attached to Coolbrella"' structures carry a three year warranty;
o Individual fabric tops measuring greater than 40' in lemgth are covered by a non-prorated five year warranty;
o Precontraint 502™ waterproof membrane is subject to an eight year pro-rated warranty.
• Sewing thread is warranted for ten years.
, Thes,e limited warranties are effective from the date of sale, or, if assembly is provided by the Company, upon receipt by Company from Purchaser of a comp leted and signed •c ustomer Checklist and Sign-off form. • In its sole discretion, the Company will repair and or/replace defective structures, products or wor1<manship, or refund that portion of the price related to the defective product, labor, or service rendered.
• The Company reserves the right, in cases where certain fabric colors have been discontinued, to offer the Purchaser or Owner a choice of available a lternative colors to replace the warranted fabric. The Company does not guarantee that any particular color will be available for any period of time, and reserves the right to discontinue any color for any reason, without recourse by the Purchaser or Owner of the discontinued fabric color.
• Shou:ld the Purchaser or Owner sell the structures to another party, the warranty cannot be transferred to the new owner without a complete and thorough on-site inspection performed by a Company representative. Please contact the Company at [email protected] for more details.
• All warranty claims covering Company supplied structures, products. and services must be submitted by Purchaser or Owner in writing to the Company within thirty www.usa-sha.de.c:o m 800-966-SOOS
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*USASHADE'
days from the date of discovery of the alleged defect and must include a detailed description and applicable photographs of the alleged defect or problem. Warranty claims should be submitted by email to [email protected]. • Purchaser or Owner agrees that venue for any court action to enforce these limrted warranties shall be in the City or County of Dallas in the State of Texas, USA. , These limited warranties are void if:
o the supplied structures, products, services and/or labor are not paid for in full;
o the structures are not assembled in strict compliance with USA SHADE specITications;
o any changes, modITications, additions, or attachments are made to the structures in any way, without prior written approval from the Company. Specifically, no signs, objects, fans, light fixtures, etc. may be hung from the structures, unless specifically engineered by the Company.
, These limited warranties do not cover defects and/or damages caused by:
o normal wear and tear;
o misuse, willful or intentional damage, vandalism, contact wrth chemicals, cuts and Acts of God (i.e. tornado, hurricane, micro/macros burst, earthquake, wildfires, etc.);
o ice, snow or wind loads in excess of the designed load parameters engineered for the supplied structures;
o use, maintenance, neglect, repair, and/or service inconsistent with the Company's written care and maintenance instructions, provided with the order.
, The limited warranties explicrtly exclude:
o workmanship related to assembly not provided by the Company or rts agents;
o fabric curtains, valances, and flat vertical panels;
o fabric tops installed on structures that were not engineered and originally supplied by the Company.
• THE COMPANY SHALL NOT BE LIABLE FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL, LIQUIDATED, EXEMPLARY, OR PUNITIVE
DAMAGES, OR ANY LOSS OF REVENUE, PROFIT, USE OR GOODWILL,
WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR
ANY OTHER LEGAL THEORY, ARISING OUT OF A BREACH OF THIS
WARRANTY OR IN CONNECTION WITH THE SALE, INSTALLATION,
MAINTENANCE, USE, OPERATION OR REPAIR OF ANY PRODUCT OR SERVICE. IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY AMOUNT
GREATER THAN THE PURCHASE PRICE FOR ANY PRODUCT OR SERVICE PROVIDED BY THE COMPANY.
• THE FOREGOING LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE
WARRANTY FOR THE COMPANY'S PRODUCTS AND SERVICES, ANO IS IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN LAW OR IN FACT. SELLER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, www.usa-sha.de,c:om 800-966-SOOS
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O,usASHADE'
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE
OR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, OR PERFORMANCE OR TRADE USAGE. PURCHASER, BY
ACCEPTANCE AND USE OF THIS LIMITED WARRANTY, WAIVES ANY RIGHTS
IT WOULD OT HERWISE HAVE TO CLAIM OR ASSERT THAT THIS LIMITED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
Coloursllade ® and ex treme 32- are registered trademarks of Multiknit pty. Ltd.
Commercial 95™ and SaFRshade™ are registered trademarks of Gale Pacific USA Inc Monotec 370- is a registered trademark of PRO.KNIT Industries pty. Ltd.
Precontraint 502,.., is a registered trademark of Serge Ferrari North Ame-rica, Inc. 16) Assembly/Installation:
• Company will notify Purchaser of the scheduled assembly date. Owner agrees to have an owner representative meet the assembly crew at the job site on the scheduled assembly date to verify the exact location where the structure(s) is to be placed. • Labor for the removal, assembly, and/or freight charges will only be covered by Company in instances where the structures supplied and installed by Company are determined by the Company to be defective. In all cases where structures are not installed by Company, all labor for the removal, assembly, and/or freight of the structures will be the Purchaser's responsibility.
• Installation prices are based on a single mobilization charge. II additional mobilizations are required, there will be additional charges.
• II the requested services require Company access to Owner's premises, Company will be provided access to the Owner s premises free and clear of debris, automobiles, or other interference Monday - Friday during the hours ol 8:00am to 6:00pm, and Company will have access to water and electrical facilities during installation. Additional charges will apply ii utilrties are not easily accessible. Where applicable, all vehicles will be moved prior to Company's crew beginning any installation. • Company will not. be responsible for moving or repairing any underground utility lines such as electrical, telephone, gas, water, or sprinkler lines that may be encountered during installation .
• Any additional costs incurred as a result of hard rock conditions requiring extra equipment, utility removal or repair resulting in delay will result in additional charges unless they are detailed on as-built site drawings provided to Company or marked on the ground and comm unicated to Company in writing prior to fabrication and installation.
17) lnstallation/AssemlJly on.site: Where installation/assembly is part of the services, Purchaser must prov,ide the Company with a detailed drawing prepared by or for the Owner showing exactly where the structures are to be assembled as well as detailing any obstacles or other impediments that may cause the assembly process to be more difficult.
Any fixture(s), e.g., p'layground, pools, etc., that the structures are to be assembled over must also be detailed , along with their peak heights (ii applicable). 18) Site/Use Review by Purchaser: Company relies on the Purchaser to determine that the structures ordered are appropriate and safe for the Owner s installation site and/or intended use. Company is not responsible for damages or injuries resulting from collisions by moving www.usa-shade.com 800-966-S00S
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*USASHADE'
objects or persons with the structure post(s). Company can recommend, or supply at additio,al cost, padding for posts from a third party manufacturer. 19) Preparatory Work: Where installation/assembly is part of the seivices and in the event that the fotndation or job site is not suitable or ready for assembly to begin on the scheduled day, a Delay of Order notification must be sent to Company at least 4 working days prior, in order to allow Company to reschedule the project. In the event that Company is not notified and incurs an expense in attempting to execute the assembly, a re-mobilization charge may be charged to Purchaser before Company will reschedule the assembly. 20) Delegation: Subcontractors : The services and the manufacturing and assembly of the structures may be performed by subcontractors under appropriate agreements with the Company.
21) Force Maj eure: Impracticabi lity: The Company shall not be charged with any loss or damage for failure or delay in delivering or assembling of the structures when such failure or delay is due to any cause beyond the control of the Company, due to compliance with governmental regulations or orders, or due to any Acts of God, strikes, lockouts, slowdowns, wars, or shortages in transportation, materials or labor. 22) Dispute Resolution: Any controversy or claim arising out of or related to this agreement must be settled by binding arbitration administered in Dallas, TX by a single arbitrator selected by the parties or by the American Arbitration Association, and conducted in accordance with the construction industry arbitration rules. Judgment upon the award may be entered in any court having jurisdiction thereof.
23) Entire Agreement; No Reliance: This agreement represents and contains the entire agreement between the parties. Prior discussion or verbal representations by the parties that are not contained in this agreement are not part of this agreement. Purchaser hereby acknowledges that rt has not received or relied upon any statements or representations by Company or rts agents which are not expressly stipulated here n, including without limitation any statements as to the structures, warranties, or seivices provided hereunder. 24) No Third-Party Beneficiaries: This agreement creates no third-party rights or obligations between Company and any other person, including any Owner who is not also a Purchaser.
It is understood and agreed that the parties do not intend that any third party should be a beneficiary of this agreement.
25) Governing Law: The agreement will be construed and enforced in accordance wrth tile laws of the State of Texas.
26) Assignment: Purchaser may not assign this agreement, by operation of law or otherwise, without the prior written consent of Company. The agreement shall be binding upon and insure lo the benefit of the Company and the Purchaser, and their successors and permitted assigns.
Electronic Signatures. Each party agrees that the electronic signatures of the parties to this Agreement, whether digital or encrypted, including but not limited to the use of a typed name, are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party wrth w ww.usa-sh a.de.c:om 800-966-SOOS
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*USASHADE'
the intent to sign such record, including but not limited to typed or email electronic signatures.
www.usa-shade .com 800-966-S00S
AZ.: 2&9388 CA: 9&94 S8 LA: 61718 NV: 78724 NV:78724 NM : 383826 TN: 68712 DIR: 1000003533 EXHIBIT “C”
SPECIAL CONDITIONS
ARTICLE 1. BONDS
Concurrently with this Contract, the Contractor shall deliver to the City four identical counterparts of the Performance Bond and Payment Bond on the forms supplied by the City and included as Exhibit “F” to the Contract. The surety supplying the bond must be an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, authorized to do business as such in the State of California and satisfactory to the City. The Performance Bond and the Payment Bond shall be for one hundred percent (100%) of the Total Contract Price.
Item 1F - Page 101
EXHIBIT “D”
CERTIFICATION
LABOR CODE - SECTION 1861
I, the undersigned Contractor, am aware of the provisions of Section 3700, et seq., of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of the Code, and I, the undersigned Contractor, agree to and will comply with such provisions before commencing the performance of the Work on this Contract.
SHADE STRUCTURES INC. DBA USA SHADE & FABRIC STRUCTURES By: _________________________
Signature
_________________________
Name (Print)
_________________________
Title (Print)
Item 1F - Page 102
---
EXHIBIT “E”
PUBLIC WORKS CONTRACTOR REGISTRATION CERTIFICATION
Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. See http://www.dir.ca.gov/PublicWorks/PublicWorks.html for additional information.
No bid will be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work.
Contractor hereby certifies that it is aware of the registration requirements set forth in Labor Code sections 1725.5 and 1771.1 and is currently registered as a contractor with the Department of Industrial Relations.1
Name of Contractor:
DIR Registration Number:
DIR Registration Expiration: __________________________ Small Project Exemption: _____ Yes or _____ No
Unless Contractor is exempt pursuant to the small project exemption, Contractor further acknowledges:
1. Contractor shall maintain a current DIR registration for the duration of the project.
2. Contractor shall include the requirements of Labor Code sections 1725.5 and 1771.1 in its contract with subcontractors and ensure that all subcontractors are registered at the time of bid opening and maintain registration status for the duration of the project.
3. Failure to submit this form or comply with any of the above requirements may result in a finding that the bid is non-responsive.
Name of Contractor:____________________
Signature:
Name and Title:
Dated:
1 If the Project is exempt from the contractor registration requirements pursuant to the small project exemption under Labor Code Sections 1725.5 and 1771.1, please mark “Yes” in response to “Small Project Exemption.” Item 1F - Page 103
EXHIBIT “F”
PAYMENT AND PERFORMANCE BONDS
Item 1F - Page 104
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the City of Palm Springs (hereinafter referred to as “City”) has awarded to Shade Structures Inc. dba USA Shade & Fabric Structures, (hereinafter referred to as the “Contractor”) an agreement for Ruth Hardy Park Playground Shade Structures (hereinafter referred to as the “Project”).
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated October 14, 2024, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.
NOW, THEREFORE, we, Shade Structures Inc. dba USA Shade & Fabric Structures, the undersigned Contractor and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of Four Hundred Eighty-Six Thousand Twenty-Eight Dollars and Sixty-Six Cents, ($486,028.66), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one-year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officers and agents, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship, Surety shall undertake and faithfully fulfill all such obligations. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the City’s rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.
Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City’s option:
Item 1F - Page 105
(1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
(2) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
(3) Permit the City to complete the Project in any manner consistent with local, California and federal law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents.
Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.
Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the City, when declaring the Contractor in default, notifies Surety of the City’s objection to Contractor’s further participation in the completion of the Project.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__).
(Corporate Seal)
Contractor/ Principal
By
Title
Item 1F - Page 106
(Corporate Seal)
Surety
By
Attorney-in-Fact
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)
THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
(Name and Address of Agent or
Representative for service of
process in California, if different
from above)
(Telephone number of Surety
and Agent or Representative for
service of process in California)
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
Item 1F - Page 107
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally
appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
Item 1F - Page 108
I I
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the City of Palm Springs (hereinafter designated as the “City”), by action taken or a resolution passed on October 10, 2024 has awarded to Shade Structures Inc. dba USA Shade & Fabric Structures hereinafter designated as the “Principal,” a contract for the work described as follows:
Ruth Hardy Park Playground Shade Structures (the “Project”); and WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated October 14, 2024 (“Contract Documents”), the terms and conditions of which are expressly incorporated by reference; and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.
NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the City in the penal sum of Four Hundred Eighty-Six Thousand Twenty-Eight Dollars and Sixty-Six Cents, ($486,028.66) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by City in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.
This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement Item 1F - Page 109
pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__.
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal) Surety
By
Attorney-in-Fact
Title
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached. A Power-of-Attorney authorizing the person signing on behalf of the Surety to do so much be attached hereto.
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
Item 1F - Page 110
Notary Acknowledgment
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally
appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
Item 1F - Page 111
I I
EXHIBIT “G”
EXECUTIVE ORDER N-6-22 CERTIFICATION
Executive Order N-6-22 issued by Governor Gavin Newsom on March 4, 2022, directs all agencies and departments that are subject to the Governor’s authority to (a) terminate any contracts with any individuals or entities that are determined to be a target of economic sanctions against Russia and Russian entities and individuals; and (b) refrain from entering into any new contracts with such individuals or entities while the aforementioned sanctions are in effect.
Executive Order N-6-22 also requires that any contractor that: (1) currently has a contract with the City of Palm Springs funded through grant funds provided by the State of California; and/or (2) submits a bid or proposal or otherwise proposes to or enter into or renew a contract with the City of Palm Springs with State of California grant funds, certify that the person is not the target of any economic sanctions against Russia and Russian entities and individuals.
The contractor hereby certifies, SUBJECT TO PENALTY FOR PERJURY, that a) the contractor is not a target of any economic sanctions against Russian and Russian entities and individuals as discussed in Executive Order N-6-22 and b) the person signing below is duly authorized to legally bind the Contractor. This certification is made under the laws of the State of California.
Signature:
Printed Name:
Title:
Firm Name:
Date:
Item 1F - Page 112
ATTACHMENT C
Item 1F - Page 113
Item 1F - Page 114
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
1. Name of Entity
c~ .
2. e ,<a f. w &o
3. Local or California Address (if different than #2)
4. State where Entity is Registered with Secretary of State
5. Type of Entity
~ poration D Limited Liability Company D Partnership D Trust D other (please specify)
6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust or other entity -"16!,l--lvl-\'f-1 • .zcV::;.;.. ""-=-----P" ' L~,-U:: ....... ~<+-- -------- ~ cer • Director • Member • Manager 1" "'t' [name] D General Partner D Limited Partner
D Other
____________ _
_ G ___ ~l--...... [_,,r'-'l'-'Ct_,,_-tj----------- ~ cer D Director D Member D Manager ' [name] D General Partner D Limited Partner
• Other
____________ _
-~--1,
_
w___;;__c\ =---.;.,_ w .... -.... ·"-"-' -Ul ....... ..av.ar .alll, '"-----------~ er • Director • Member • Manager [name]
(Revised 09 13 18)
D General Partner D Limited Partner
• Other
___ _ _ _ _ _ ____ _
CITY OF PALM SPRINGS- PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
Page1of2
Item 1F - Page 115
7. Ownersflnvestors with a 5% beneficial interest in the Aoolicant Entitv or a related entitv
EXAMPLE
JANEDOE 50%, ABC COMPANY, Inc.
[name of owner/investor] [percentage of beneficial interest in entity and name of entitvl
A.
k i .~~er/investor]
I Oo
[percentage of beneficial interest in
entity
and name of entitv]
B.
[name of owner/investor] [percentage of beneficial interest in entity
and name of entitvl
C.
[name of owner/investor] [percentage of beneficial interest in entity
and name of entitvl
D.
[name of owner/investor] [percentage of beneficial interest in entity
and name of entity]
E.
[name of owner/investor] (percentage of beneficial interest in entity and name of entity]
I DECLARE UNDER PENAL TY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
(Revised 09 13 18)
CITY OF PALM SPRINGS- PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM