1 AGREEMENT FOR SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
HR GREEN PACIFIC, INC.
FOR ON CALL CAPITAL IMPROVEMENT PROGRAM MANAGEMENT AND
ELECTRONIC PLAN CHECK CONSULTING SERVICES
This Agreement for Services (“Agreement”) is entered into as of February 09 , 2022 (“Effective Date”) by and between the City of Cathedral Ci ty, a municipal corporation (“City”) and HR Green Pacific, Inc., a California Corporation (“Service Provider”). City and Service Provider are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought, by request for qualifications, the performance of the services defined and described particularly in Section 2 of this Agreement.
B. Service Provider, following submission of a proposal for the performance of the services defined and descr ibed particularly in Section 2 of this Agreement, was selected by the City to perform those services.
C. Pursuant to the City of Cathedral City’s Municipal Code, City has authority to enter into this Services Agreement and the City Manager has authority to execute this Agreement.
D. The Parties desire to formalize the selection of Service Provider for performance of those services defined and described particula rly in Section 2 of this Agreement and desire that the terms of that p erformance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained h ere and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT.
Subject to the provisions of Section 19 "Termination of Agreement" of this Agreement, the Term of this Agreement is for one (1) year commencing on the Effective Date.
2 SECTION 2. SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE. (a) Scope of Services . Service Provider agrees to perform the services set forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services”) and made a part of this Agreement by this reference.
(b) Schedule of Performance . The Service s shall be completed pursuant to the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to that schedule, the Service Provider shall be deemed to be in Defa ult of this Agreement.
The City, in its sole discretion, may choose not to enforce the Default provisions of this Agreement and may instead allow Service Provider to continue performing the Services.
SECTION 3. ADDITIONAL SERVICES.
Service Provider shall not be comp ensated for any work rendered in connection with its performance of t his Agreement that are in a ddition to or outside of the Services unless such additional services are authorized in advance and in writing in accordance with Section 25 “Administration and Implementation” or Section 27 “Amendment” of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a) Subject to any limitations set forth in this Agreement, City agrees to pay Service Provider the amounts specified in Exhibit “B” “Compensation” and made a part of this Agreement by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed One Hundred and Fifty Thousand and 00/100 Cents ($150,000.00) per year, unless additional com pensation is approved in writing in accordance with Se ction 2 5 “Administration and Implementation” or Section 2 7 “Amendment” of this Agreement.
(b) Each month Service Provider shall furnish to City an original invoice for all work performed and expenses incurr ed during the preced ing month. The invoice shall detail charges by the following categories: labor (by sub -category), travel, materials, equipment, supplies, and sub -Service Prov ider contracts. Sub -Service Provider charges shall be detailed by the follow ing categories: labor, travel, materials, equipment and supplies. If the compensation set forth in subsection (a) and Exhibit “B” include payment of labor on an hourly basis (as opposed to labor and materials being paid as a lump sum), the labor category in each invoice shall include detailed descriptions of task performed and the amount of time incurred for or allocated to that task. City shall independently review each invoice submitted by the Service Provider to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. In the event that no charges or expenses are disputed, the invoice shall be approved and paid according to the terms set forth in subsection (c).
In the event any charges or exp enses are disputed by City, the original invoice shall be returned by City to Service Provider for correction and resubmission.
3 (c) Except as to any charges for work performed or expe nses incurred by Service Provider which are disputed by City, City will use i ts best efforts to c ause Service Provider to be paid w ithin forty -five (45) days of receipt of Service Provider ’s correct and undisputed invoice.
(d) Payment to Service Provider for w ork performed pursuant to this Agreement shall not be deemed to waive any def ects in work perform ed by Service Provider.
SECTION 5. INSPECTION AND FINAL ACCEPTANCE.
City may inspect and accept or reject any of Service Provider’s work under this Agreement, either duri ng performance or when completed. City shall reject or finally accept Service Provider’s work within sixty (60) days after submitt ed to City. City shall reject work by a timely written explanation, otherwise Service Provider’s work shall be deemed to have been accepted. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud.
Acceptance of any of Service Provider’s work by City shall not constitute a waiver of any of t he provisions of this Agreement including, but not limited to, Section 1 5 “Indemnification” and Section 16 “Insurance.”
SECTION 6. OWNERSHIP OF DOCUMENTS.
All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer file s, files and other documents prepared, developed or discovered by Service Provider in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without th e permission of the Service Provider . Upon completion, expiration or termination of this Agreement, Service Provider shall turn over to City all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents.
If and to the extent that City utilizes for any purpose not related to this Agreement any maps, mo dels, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents prepar ed, developed or discovered by Service Provider in the course of providing th e Services pursuant to this Agreement, Service Provider’s guarantees and warranties in Section 9 “Standard of Performance ; Familiarity With Work ” of this Agreement shall not exten d to such use of the maps, models, designs, drawings, photographs, studies, s urveys, reports, dat a, notes, computer files, files or other documents.
SECTION 7. SERVICE PROVIDER'S BOOKS AND RECORDS.
(a) Service Provider shall maintain any and all documents and records demonstrating or relating to Service Provider’s performance of the Services. Service Provider shall maintain any and all ledgers, boo ks of account, invoices, vouchers,
4 canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to City pursuant to this Agreement.
Any and all such docum ents or records shall be maintaine d in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Service Provider pursuant to this Agreement. Any and all such documents or rec ords shall be maintained for three (3) years from the date of execution of this Agreement and to the extent required by laws relating to audits of public agencies and their expenditures. (b) Any and all rec ords or documents re quired to be maintained pursuant t o this section shall be made available for inspection, audit and copying, at any time during regular business hours, upon req uest by City or its designated representative. Copies of such documents or r ecords shall be prov ided directly to the City for insp ection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such docum ents and records shall be made available at Service Provider’s address indicated for receipt of notices in this Agreement. (c) Where Ci ty has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Service Provider’s business, City may, by writt en request, require that custody of such documents or records be given to the City. Access to such documents and records shall be granted to City, as well as to its successors-in-interest and authorized representatives.
SECTION 8. INDEPENDENT CONTRACTOR.
(a) Service Pro vider is and shall at all times re main a wholly independent contractor and not an officer, employee or agent of City. Service Provider shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability o f any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City.
(b) The personnel performing the Services under this Agreement on behalf of Service Provider shall at all times be un der Service Provider’s exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officia ls, employees or agents of City, shall have control over the conduct of Service Provider or any o f Service Provider’s officers, employees, or agents except as set forth in this Agreement.
Service Provider shall not at any time or in any manner represent t hat Service Provider or any of Service Provider’s officers, employees, or age nts are in any manne r officials, officers, employees or agents of City.
(c) Neither Service Provider, nor any of Service Provider ’s officers, employees or agents, shall obtain any rig hts to retirement, health care or any other benefits which may otherwise accr ue to City’s employe es. Service Provider expressly waives any claim Service Provider may have to any such rights.
5 SECTION 9. STANDARD OF PERFORMANCE; FAMILIARITY WITH WORK. (a) Service Provider represents and warrants that it has the qualifications, knowledge, skill experience and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent and professional manner consistent with that degree of car e and skill ordinarily exercised by members of the same profession currently practicing at the same time and in the same o r similar locality. Service Provider shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services. In meeting its obligations under this Agreement, Service Provider shall employ, at a minimum, gen erally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Service Provider under this Agreement. In addition to the general standards of performance set forth this section, additional spe cific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Work” that shall also be applicable to Service Provider’s work under this Agreement. Where there is a conflict between a general and a specific standard of p erformance or performance criteria, the specific standard or criteria shall prevail over the general. (b) Service Pro vider warrants that ( 1) it has tho roughly investigated and considered the work to be per formed, (2) it has investigated the issues, regarding the scope of services to be provided, (3) it has carefully considered h ow the work should be performed, and (4) it fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement.
SECTION 10. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES.
Service Provider shall keep itself in formed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effec t during the term of this Agreement. Service Provider shall obtain any and all licenses, permits and authorizations necessar y to perform the Services set forth in this Agreement. Neither City, nor any elected or appointe d boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Service Provider to comply with this section.
SECTION 11. PREVAILING WAGE LAWS
It is the understanding of C ity and Service Provider that Cal ifornia prevailing wage laws do not apply to this Agreement because the Agreement does not involve any of the following services subject to prevailing wage rat es pursuant to the California Labor Code or regulations promulga ted thereunder: Construction, alteration, demolition, installation, or repair work performed on public buildings, facilities, streets or sewers done under contract and paid for in whole or in part out of public funds. In this context, “construction" includes work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work.
6 SECTION 12. NONDISCRIMINATION.
Service Provider shall not discriminate, in any way, in the employment of persons to perform the Services in violation of a ny federal or state law prohibitin g discrimination in employment, including based on the race, religious creed, color, national origin, ancestry, physical disa bility, mental disability, medical condition, genetic informatio n, marital status, sex, gender, g ender identity, gender expression, age, sexual orientation, of any person, except as provided under California Government Code section 12940.
SECTION 13. CONFLICTS OF INTEREST.
(a) Service Provider covenants that neither it, nor any office r or principal of its firm, has o r shall acquire any interest, dire ctly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Service Provider’s performance of the Services. Service Provider further covenants tha t in the performance of this Agreement, no person havi ng any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Service Provider agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
(b) City may determine that Service Provider must discl ose its financial interests by completing and filing a Fair Poli tical Practic es Commission Form 7 00, Statement of Economic Interest s. If such a determination is made, Service Provider shall file the subject Form 700 with the City Clerk ’s Office pursuant t o the written instructions provided by the Office of the City Clerk within ten (10) days of the request. (c) City understands and ackno wledges that Service Provider is, as of the date of execution of this Agreement, independently involved in the performance of non- related services for other governmental agencies and privat e parties. Service Provider is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest f or purposes of this section.
(d) City understands and acknowledges t hat Service P rovider will perform non-related services for other go vernmental agencies and private Parties following the completion of the Services under this Agreement. Any such future servi ce shall not be considered a conflict of interest for purposes of this section.
SECTION 14. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All information gained or work product produced by Service Provider in performance of this Agreement shall be considered confi dential, unless such information is in the public domain or alre ady known to Service Provider . Service Provider shall not release or disclose any such information or work product to persons
7 or entities other than City without prior written authorization f rom the City Manager, except as may be required by law.
(b) Service Provider, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories o r other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Service Provider gives City notice of such court order or subpoena.
(c) If Service Provider, or any off icer, employee, agent or subcontra ctor of Service Provider , provides any information or work product in violation of this Agreement, then City shall have the r ight to reimbursement and indemnity from Service Provider for a ny damages, c osts and fees, inclu ding attorney’s fees, caused by or incurred as a result of Service Provider’s conduct.
(d) Service Provider shall promptly notify City should Service Provider , its officers, employees, agents or subcontractors, be served with a ny summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Service Provider or be present at any deposition, hearing or similar proceeding. Service Provider agrees to cooperate fully with City and to provide City with the opportunity to review any response to dis covery requests provided by Service Provider. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
SECTION 15. INDEMNIFICATION.
(a) Indemnification for Professional Liability. Where th e law establi shes a professional standard of care for Service Provi der’s services, to the fullest extent permitted by law, Service Provider shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents (“Ind emnified Parties”) from and again st any and all liability (includin g liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threat ened, including attorney’s fees and costs, court costs, interest, d efense costs, and expert witness fees) arise out of, are a consequence of, or are in any way attributable to, in whole or in part, any negligent or wrongful act, error or omission of Service Provider , o r by any individual or entity for which Service Provid er is legally liable, including but not limited to officers, agents, employees or subcontractors of Service Provider , in the performance of professional services under this Agreement.
(b) Indemnification for Other than Pr ofessional Liability. Other than in the performance of professional services and to the full extent permitted by law, Service
8 Provider shall indemnify, protec t, defend and hold harmless City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, ex penses or costs of any kind, whether actual, alleged or threatened, including attorney’s fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, i n whole or in part, the performance of this Agreement by Service Provider, or by any individual o r entity for which Service Provide r is legally liable, including but not limited to officers, agents, employees or subcontractors of Service Provider.
(c) Indemnification from Sub -Service Provider s. Service Provider agrees to obtain executed indemnity agreements with provisions identical to those set forth in this section from each and every sub-Service Provider or any other person or entity involved by, for, w ith or on behalf of Service Provider in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Service Provider fails to obtain such indemnity obligations from others as required herein, Service Provider agrees to be fully responsible according to the terms of this sec tion.
Failure of City to monitor compliance with these requirement s imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the s uccessors, assigns or heirs of Service Provider and shall survive the termination of this Agreement or this section.
(d) Limitation of Indemnification. Notwithstanding any provision of this section to the contrary, design professionals are required to def end and indemnify the City only to the extent permitted by Civil Code Section 2782.8, which limits the liability of a design professional to claims, suits, actions, arbitration proceedings, ad ministrative proceedings, regulatory proceedings, losses, expenses or costs that arise out of, pertain to, or relate to the neglige nce, recklessness, or willful misconduct of the design professional. The term “design professional,” as defined in Section 2 782.8, is limited to licensed architects, licensed landscape arc hitects, regi stered professional engineers, professional land surve yors, and the business entities that offer such services in accordance with the applicable provisions of the California Busin ess and Professions Code.
(e) City’s Negligence . The provisions of this sect ion do not apply to claims occurring as a result of Ci ty’s sole negligence. The provisions of this section shall not release City from liability arising from gross negligence or w illful acts or omissions of City or any and all of its officials, employees and agents.
SECTION 16. INSURANCE.
9 Service Provider agrees to obtain and maintain in full force and effect during the term of this Agreement the insurance policies set forth in Exhibit “C” “Insurance” and made a part of this Agreement. All insurance p olicies shall be subject to appro val by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Service Provider agrees to provide City with copies of required policies upon request.
SECTION 17. ASSIGNMENT.
The expertise and experience of Service Provider are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and en tities who will fulfill the duties and obligations imposed upon Service Provi der under this Agree ment. In recognition of that inte rest, Service Provider shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Service Provider’s duties or obligations under this Agreemen t without the prior written consent of the City. Any attempted ass ignment shall be ineffective, null and void, and shall constitute a material breach of this Agreement entitling City to any a nd all remedies at law or in equity, including termination of this Agreement pursuant to Section 19 “Termination of Agreement.” Ci ty acknowledges, however, that Service Provider, in the performance of its duties pursuant to this Agreement, may utilize subcontractors.
SECTION 18. CONTINUITY OF PERSONNEL.
Service Provider shall make every reasonable effort to main tain the stability and continuity of Service Provider’s staff and subcontractors, if any, assigned to perform the Services. Service Provider shall notify City of any changes in Service Provider’s staff and subcontractors, if any, assig ned to perform the S ervices prior to and during any such performance.
SECTION 19. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, at any time by giving thi rty (30) days written notice of termination to Service Provider . In the even t such notice is given, Service Provider shall cease immediately all work in progress. (b) Service Provider may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City. (c) If either Service Provider or City fail to perform any mater ial obligation under this Agreemen t, then, in addition to any other remedies, either Service Provider, or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agreement by either Service Provider or City, all property belonging exclusively to City which is in Service Provider’s possession shall be returned to City. Service Provider shall furnish to City a final invoice for work performed and expenses incurred by Service Provider , prepa red as set fo rth in Section 4
10 “Compensation and Method of Payment” of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 4 “Compensation and Method of Payment” of this Agreement.
SECTION 20. DEFAULT.
In the event that Service Provider is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Service Provider for any work performed after the date of default. Instead, the City may give notice to Service Provider of the default and the reasons for the default. The notic e shall include the timeframe in which Service Provider may cure the default. This timeframe is presumptively thirty (30) da ys, but may be extended, though not reduced, if circumstances warrant. During the period of time that Service Provider is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of th e outstanding invoic es during the period of default. If Service Provider does not cure the default, the City may take necessary steps to terminate this Agreement under Section 19 “Termination of Agreement.” Any failure on the part of the Cit y to give notice of the Service Provider’s default shall not be dee med to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
SECTION 21. EXCUSABLE DELAYS.
Service Provider shall not be liable for damages, includ ing liquidated damages, if any, c aused by delay in performance or f ailure to perform due to causes beyond the control of Service Provider. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any d elays due to such causes.
SECTION 22. COOPERATION BY CITY.
All public inform ation, data, reports, records, an d maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Service Provider in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.
SECTION 23. NOTICES.
All notices r equired or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telec opier or certified mail, postage prepaid and return receipt requested, addressed as follows:
11 To City: City of Cathedral City
Attn: City Manager
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
To Service Provider: HR Green Pacific, Inc.
Attn. George A. Wentz
1260 Corona Pointe Court
Corona, CA 92879
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the cus tody of the United States Postal Service.
SECTION 24. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Service Provider represents and warrants that he/she/they has/hav e the authority to so execute this Agreement and to bind Service Provider to the performance of its obligations hereunder.
SECTION 25. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated rep resentative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, inclu ding amendments that commit additional funds, cons istent with Se ction 2 7 “Amendment” and the City Manager’s contracting authority under the Cathedral City Municipal Code.
SECTION 26. BINDING EFFECT.
This Agr eement shall be binding upon the heirs, executors, administra tors, successors and assigns of the Parties.
SECTION 27. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Service Provider and by the Cit y. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the City Manager’s cont racting authority under the Cathedral City Municipal Code. All oth er amendments shall be approved by the City Council. The Part ies agree that the requirement for written modific ations cannot be waived and that any attempted waiver shall be void.
SECTION 28. WAIVER.
12 Waiver by any Party to this Agreement of any term, condition, or cov enant of this Agreement shall not constitute a waiver of any other term, condition, or covenant.
Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent brea ch or violation of any provision of this Agreement. Acceptance by City of any work or services by Service Prov ider shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 29. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, constru ed and governed according to the laws of the State of Califor nia. In the event of litigation between the Parti es, venue in state trial courts shall lie exclusively in the County of Riversi de, California. In the event of litigation in a U.S. District Cour t, venue shall lie exclusively in the Central District of California, in Riverside.
SECTION 30. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and exp enses, in addition to any other relief to which it may be entitled.
SECTION 31. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits "A" through "C", is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed therein an d supersedes all other agreements or understandings, whether oral or written, or entered into between Service Provider and City prior to the execution of this Agreement. No statements, repres entations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and bindi ng.
SECTION 32. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jur isdiction to be invalid, void or unenforceable, th e remaining provisions of this Agreement shall not be affected thereby, and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 33. CONFLICTING TERMS.
Except as otherwise stated herein, if the terms of this Agreeme nt conflict with the terms of any Exhibit hereto, or with the terms of any do cument incorporated by reference into this Agreement, the terms of this Agreement shall control.
13 IN WITNESS WHEREOF , the Part ies hereto have executed this Agreement on the date and year first-above written.
CITY OF CATHEDRAL CITY Service Provider
__________________________ _______________________
Charles P. McClendon By:________________________
City Manager Its:________________________
ATTEST: ___________________________
By:________________________
Its:________________________
___________________________
Tracey R. Hermosillo, CMC
City Clerk
APPROVED AS TO FORM
___________________________
Eric S. Vail
City Attorney
NOTE: SERVICE PROVIDER’S SIGNATURES SHALL BE DULY NOTA RIZED,
AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY
BE REQUIRED BY THE B YLAWS, ARTICLES OF INCORPORATION,
OR OTHER RULES OR REGULATIONS APP LICABLE TO SERVICE
PROVIDER’S BUSINESS ENTITY.
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.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
COUNTY OF RIVERSIDE )
On ____________________, 2022, before me, , Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”) personally appeared , Name of Signer(s) 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/h er/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behal f of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws o f the State of Ca lifornia that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or fraudulent reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT Signer's Name:
¨ Individual
¨ Corporate Officer
Title(s) Title or Type of Document
¨ Partner(s) ¨ Limited
¨ General
¨ Attorney-In-Fact Number Of Pages
¨ Trustee(s)
¨ Guardian/Conservator
¨ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Date Of Document
Signer(s) Other Than Named Above
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.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
On ____________________, 2022, before me, , Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”) personally appeared , Name of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/a re subscribed to the within instrument and acknowledged to me that he/she/they ex ecuted 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 perso n(s) acted, execu ted the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is tr ue and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or fraudulent reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT Signer's Name:
¨ Individual
¨ Corporate Officer
Title(s) Title or Type of Document
¨ Partner(s) ¨ Limited
¨ General
¨ Attorney-In-Fact Number Of Pages
¨ Trustee(s)
¨ Guardian/Conservator
¨ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Date Of Document
Signer(s) Other Than Named Above
A-1
EXHIBIT "A"
SCOPE OF SERVICES
I. Service Provider will perform the following Services:
Service Provider will provide On Call Capital Improvement Program Management and As Needed Electronic Plan Re view Services as described in their proposal submitted on January 10, 2022, attached.
B-1
EXHIBIT "B"
COMPENSATION
I. Service Provider shall use the following rates of pay in the performance of the Services:
Service Provider will provide On Call Capital Improvement Program Management and As Needed Electronic Plan Review Services in accordance with the Fee Proposal and As-Needed Services – Civil Engineering Plan Review fee schedule included within their proposal submitted on January 10, 2022, attached .
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EXHIBIT "C"
INSURANCE
A. Insurance Coverages. Service Provider shall provide and maintai n insurance, acceptable to the City, in full force and effect throughout the term of this Agreement, against claims for in juries to persons or damages to property which may arise from or in connection with the performance of the Services by Service Provider, its agents, representatives or employees. Service Provider shall procure and maintain the following scope and limits of insurance:
Only the following “marked” requirements are applicable:
X Commercial General Liability (CGL): Insurance written on an occurrence basis to protect Service Provider and City against liability or claims of liability which may arise out o f this Agreement in the amount of one million dollars ($1,000,000) per occurrence and subject to an annual aggregate of two million do llars ($2,000,000).
Coverage shall be at least as broad as Insurance Servic es Office form Commercial General Liability co verage (Occurrence Form CG 0001). There shall be no endorsement or mo dification of the CGL limiting the scope of coverage for either insured vs. additional insured claims or contractual liability. All defense costs shall be outside the limits of the policy.
X Vehicle Liability Insurance: Vehicle liability insuranc e in an amo unt not less than $1,000,000 for injuries, including accidental death, to any one person, and subject to the same minimum for eac h person, in an amount not less than one milli on dollars ($1,000,000) for each accident, and property damage insuran ce in an am ount of not less than one million dollars ($1,000,000). A combined single limit policy with aggregate limits in an amount of not less than $2,000,000 shall be considered equi valent to the said required minimum limits. Coverage shall be at leas t as broad as Insurance Services Office form number CA 0001 cove ring Automobile Liability, including code 1 "any auto" and endorsement CA 0025, or equivalent forms subject to the approval of the City.
__X___ Workers’ Compensation Insurance: Workers’ Compensation insurance that includes a minimum of one million dolla rs ($1,000,000) of employers’ liability coverage.
Service Provider shall pro vide an endorsement that the insurer waives th e right of subrogation against the City and its respective elected off icials, off icers, employees, agents and representatives. In the event a claim under the provisions of the California Workers’ Compensation Act is filed against City by a bona fide employee of Service Provider par ticipating under this Agreement, Service Provider is to defend and indemnify the City from such claim.
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X Professional Liability Insurance: Professional liability insurance appropriate to the Service Provider’s profession in an amount not less than one million dollars $1,000,000 per occurrence claim. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability . The professional liabilit y insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or rel ated to Services performed under this Agreement. The insurance must be maintained for at least three (3) consecutive years following the completion of Service Provider’s services or the termination of this Agreement. During this additional three (3) year period, Service Provider shall annually and upon request of the City submit written evidence of this continuous coverage.
B. Other Provisions . Insurance policies required by this Agreement sha ll contain the following provisions:
1. All Coverages.
a. Each insurance policy required by this Agreement shal l be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to thi s Agreement, reduced in coverage or in limits except after 30 days' prior written notice by certified mail, return receipt requested, has been given to City.
b. Insurance is to be pl aced with insurers with a current A.M.
Best's rating of no less than A:VII.
2. Commercial General Liability and Automobile Liability Coverages.
a. City, and its respective elected and appointed offic ers, officials, and employees and volunteers a re to be covered as additional insureds as respects: liability arisin g out of ac tivities Service Provider performs; products and completed operations of Service Provider ; premises owned, occupied or used by Service Provider; or automobiles owned, leased, hired or borrowed by Service Provider.
The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, or employees.
b. Service Provider ’s insurance cover age shall be primary insurance with respect to City, and its respectiv e elected a nd appointed, its officers, officials, employees and volunteers. Any insurance or self -insurance maintained by City, and its res pective elected and appointed officers, offici als, employees or volunteers, shall apply in excess of, and not contri bute with, Service Provider ’s insurance.
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c. Service Provider’s insurance shall apply separately to each insured against whom claim is ma de or suit is brought, except with respect to the limits of the insurer's liability.
d. Any failure to comply with the reporting or other provisions of the insurance polic ies, including breaches of warranties, shall not affect coverage provided to City , and its respective elected and appointed off icers, officials, employees or volunteers.
e. The insurer waives all rights of subrogation against the City, its elected or appointed officers, officials, employees or agents.
3. Workers' Compensation Coverag e. Unless the City Manager otherwise agrees in writing, the insurer s hall agree to waive all rights of subrogation against City, and its respective elected and appointed officers, officials, employees and agents for losses arising from work performed by Service Provider.
C. Other Requirements. Service Provider agrees to deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contra ct have been complied with. The City may require that Service Provide r furnish C ity with copies of original endorsements effecting coverage required by this Exhibit “C”. The certificates and endorsements are to be signed by a person authorized by that in surer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance po licies, at any time.
1. Service Provider shall furnish c ertificates and endorsements from each subcontractor identical to those Service Provider provides.
2. Any deductibles or self -insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed o fficers, officials, employees and volunteers, or the Service Provider shall procure a bond guaranteeing payment of losses and rel ated investigations, claim administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall not be construed to limit Service Provider ’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.