-1-
AGREEMENT FOR DESIGN PROFESSIONAL SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
NCE, INC.
This Agreement for Design Prof essional Services (“Agreement”) i s entered into as of November 9, 2022 (“Effecti ve Date”) by and between the Ci ty of Cathedral City, a municipal corporation (“City”) and NCE, Inc. (“Design Professio nal”). City and Design Professional are sometimes herei nafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought, by request for proposals the performance of the engineering services defined and described particularly in Section 2 of this Agreement.
B. Design Professional, followi ng submission of a proposal for the performance of the services defined and described particularly in Section 2 of this Agreement, was selected by the City to perform those services.
C. Design Professional was sele cted by the City on the basis of Design Professional’s demonstrated co mpetence and the professional qua lifications necessary for the satisfactory performance of the services required.
D. Pursuant to the City of Cathedr al City’s Municipal Code, City has authority to enter into this Design Profe ssional Services Agreement and t he City Manager has authority to execute this Agreement.
E. The Parties desire to formaliz e the selection of Design Prof essional for performance of those services def ined and described particularl y i n S e c t i o n 2 o f t h i s Agreement and desire that the terms of that performance be as p articularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and cov enants made by the Parties and contained here 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 Se ction 19 "Termination of Agreeme nt" of this Agreement, the Term of this Agreement is for two (2) years comm encing on the Effective Date.
-2-
SECTION 2. SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE. (a) Scope of Services. Design Professional agrees to perform t he 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 Services shall be completed p ursuant to the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to that schedule, the Design Professional shall be deemed to be in Default of this Agreement. The City, in its sole discretion, may choose not to enforce the Default provisions of this Agreement and may instead allow Design Profe ssional to continue performing the Services.
SECTION 3. ADDITIONAL SERVICES.
Design Professional shall not be compensated for any work rende red in connection with its performance of this 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 “Admin istration and Implementation” or Section 27 “Amendment” of this Agreement. If and when such additional wor k 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 Design Professional 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 Seventy Six Thousand One Hundred Forty Three dollars ($76,143), unless additional compensation is approved in writing in accordanc e with Section 25 “Administration and Implementation” or Section 27 “Amendment” of this Agreement.
(b) Each month Design Professional shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month. The invoice shall detail charges by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub-Design Professional contracts. Sub-Design Professional charges shall be detailed by the following 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 per formed and the amount of time incurred for or allocated to that task. City shall independently review each invoice submitted by the Design Professional 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 expenses are disputed by City,
-3-
the original invoice shall be re turned by City to Design Profes sional for correction and resubmission.
(c) Except as to any charges for work performed or expenses inc urred by Design Professional which are disputed by City, City will use i ts best efforts to cause Design Professional to be paid within thirty (30) days of recei pt of Design Professional’s correct and undisputed invoice.
(d) Payment to Design Profession al for work performed pursuant to this Agreement shall not be deemed to waive any defects in work perf ormed by Design Professional.
SECTION 5. INSPECTION A ND FINAL ACCEPTANCE.
City may inspect and accept or reject any of Design Professiona l’s work under this Agreement, either during performance or when completed. C ity shall reject or finally accept Design Profession al’s work within sixty (60) day s after submitted to City.
City shall reject work by a tim ely written explanation, otherwi se Design Professional’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 s uch gross mistakes as amount to fraud. Acceptance of any of Design Professional’s wo rk by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 15 “Indemnification” and Section 16 “Insurance.” SECTION 6. OWNERSHIP OF DOCUMENTS.
All original maps, models, desi gns, drawings, photographs, stud ies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by Design Professional in the course of providing th e Services pursuant to this Agreement shall become the sole property of City and may b e used, reused or otherwise disposed of by City without the permission of the Des ign Professional. Upon completion, expiration or termi nation of this Agreement, Design Professional shall turn over to City all such original m aps, 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, models, designs, drawings, photographs, studies, surv eys, reports, data, notes, computer files, files or other documents prepared, devel oped or discovered by Design Professional in the course of providing the Services pur suant to this Agreement, Design Professional’s guarantees and warranties in Section 9 “S tandard of Performance; Familiarity With Wo rk” of this Agreement shall not extend to such use of the maps, models, designs, dr awings, photographs, studies, surv eys, reports, data, notes, computer files, files or other documents.
-4-
SECTION 7. DESIGN PROFESSION AL'S BOOKS AND RECORDS.
(a) Design Professional shall maintain any and all documents an d records demonstrating or relating to Des ign Professional’s performance of the Services.
Consultant shall maintain any and all ledgers, books of account , invoices, vouchers, canceled checks, or other documents or records evidencing or re lating to work, services, expenditures and disbur sements charged to City pursua nt to this Agreement.
Any and all such documents or records shall be maintained in ac cordance with generally accepted accounting principles and shall be sufficien tly complete and detailed so as to permit an accurate evaluation of the services provided by Design Professional pursuant to this Agreement. Any and all such documents or reco rds shall be maintained for three (3) years from the date of execution of th is Agreement and to the extent required by laws relating to audits of public agencies and their expenditures. (b) Any and all records or documents required to be maintained pursuant to this section shall be made available for inspection, audit and copying, at any time during regular business hours, upon reques t by City or its designated representative. Copies of such documents or records s hall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and reco rds shall be made available at Design Professional’s address indicated for receipt of notices in this Agreement. (c) Where City 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 Des ign Professional’s business, C ity may, by written request, require that custody of such documents or records be g iven 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) Design Professional is and shall at all times remain a whol ly independent contractor and not an officer, employee or agent of City. Design Professional shall have no authority to bind City in any manner, nor to incur any oblig ation, debt or liability of any kind on behalf of or against City, whether by contract or o therwise, unless such authority is expressly conferred under this Agreement or is oth erwise expressly conferred in writing by City.
(b) The personnel performing the Services under this Agreement on behalf of Design Professional shall at all times be under Design Professional’s exclusive direction and control. Neither City, nor any elected or appointed boards , officers, officials, employees or agents of City, shall have control over the conduct of Design Professional or any of Design Professional’s officers, employees, or agents except as set forth in this Agreement. Design Professional shall not at any time or in any manner represent that Design Professional or any of Design Professional’s officers, e mployees, or agents are in any manner officials, officers, employees or agents of City.
-5-
(c) Neither Design Professional, nor any of Design Professional ’s officers, employees or agents, shall obtain any rights to retirement, hea lth care or any other benefits which may otherwise accr ue to City’s employees. Desig n Professional expressly waives any claim Design Professional may have to any such rights.
SECTION 9. STANDARD OF PERFORMA NCE; FAMILIARITY WITH WORK. (a) Design Professional represents that it has the qualificatio ns, knowledge, skill, and facilities necessary to properly perform the Service s required under this Agreement in a thorough, compet ent and professional manner cons istent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing at the same time and in the same location or similar locality. Design Professional shall at all times competently perform all Service s. In meeting its obligations under this Agreemen t, Design Professional shall emp loy, at a minimum, generally accepted standards and pr actices utilized by persons engaged in providing services similar to the Services required of Design Professiona l under this Agreement.
In addition to the general standar ds of performance set forth t his section, additional specific standards of performanc e and performance criteria may be set forth in Exhibit “A” “Scope of Work” that shall also be applicable to Design Pro fessionals work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criter ia, the specific standard or c riteria shall prevail over the general.
(b) Design Professional represents that (1) it has thoroughly i nvestigated and considered the work to be perfo rmed, (2) it has investigated th e issues, regarding the scope of services to be provided, (3) it has carefully consider ed how the work should be performed, and (4) it fully understands the facilities, difficu lties and restrictions attending performance of the work under this Agreement.
SECTION 10. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES.
Design Professional shall keep itself informed of and comply wi th all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreemen t. Design Profe ssional shall o btain any and all licenses, permits and authorizations necessary to perform the S ervices set forth in this Agreement. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equi ty, as a result of any failure of Design Professional to comply with this section.
SECTION 11. PREVA ILING WAGE LAWS.
It is the understanding of City a nd Design Professional that Ca lifornia prevailing wage laws do not apply to this Agreement because the Agreement does not involve any of the following services subject to prevailing wage rates purs uant to the California Labor Code or regulations promulgated thereunder: Construction, alteration, demolition, installation, or repair work performed on public buildings, fac ilities, streets or sewers
-6-
done under contract and paid for in whole or in part out of pub lic 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.
SECTION 12. NONDISCRIMINATION.
Design Professional shall not discriminate, in any way, in the employment of persons to perform the Services in violation of any federal or state law prohibiting discrimination in employment, in cluding based on the race, reli gious creed, color, national origin, ancestry, physical disability, mental disabili ty, medical condition, genetic information, marital status, sex, gender, gender identity, gend er expression, age, sexual orientation, of any person, exc ept as provided under California Government Code section 12940.
SECTION 13. CONFLI CTS OF INTEREST.
(a) Design Professional covenants that neither it, nor any offi cer or principal of its firm, has or shall acquire a ny interest, directly or indire ctly, which would conflict in any manner with the interests of City or which would in any way hinder Design Professional’s performance of the Services. Design Professional further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City M anager. Design Professional agrees to at all times avoid conflicts of interest or the appearance of any conflicts of int erest with the interests of City in the performance of this Agreement.
(b) City may determine that Design Professional must disclose i ts financial interests by completing and fili ng a Fair Political Practices C ommission Form 700, Statement of Economic Interests. If such a determination is ma de, Design Professional shall file the subject Form 700 with the City Clerk’s Office pu rsuant to the written instructions provided by the Office of the City Clerk within ten (10) days of the request. (c) City understands and acknowled ges that Design Professional is, as of the date of execution of this Agr eement, independently involved in the performance of non- related services for other gov ernmental agencies and private pa rties. Design Professional is unaware of any s tated position of City relative to such projects. Any future position of City on such projects shall not be considere d a conflict of interest for purposes of this section.
(d) City understands and acknowled ges that Design Professional will, perform non-related services for other governmental agencies and privat e parties following the completion of the Services under this Agreement. Any such futu re service shall not be considered a conflict of interest for purposes of this section.
-7-
SECTION 14. CONFIDENT IAL INFORMATION; RELEASE OF INFORMATION. (a) All information gained or work product produced by Design P rofessional in performance of this Agreement s hall be considered confidential, unless such information is in the public domain or already known to Design Professional. Design Professional shall not release or disclose any such information or work product to persons or entities other than City without prior written autho rization from the City Manager, except as may be required by law.
(b) Design Professional, its officers, employees, agents or sub contractors, shall not, without prior written authorization from the City Ma nager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to inte rrogatories or other informatio n concerning the work performed under this Agreement. Response to a subpoena or cour t order shall not be considered "voluntary" provided D esign Professional gives City notice of such court order or subpoena.
(c) If Design Professional, or any officer, employee, agent or subcontractor of Design Professional, provides any information or work product i n violation of this Agreement, then City shall have the right to reimbursement and indemnity from Design Professional for any damages, co sts and fees, including attorne y’s fees, caused by or incurred as a result of Design Professional’s conduct.
(d) Design Professional shall promptly notify City should Desig n Professional, its officers, employees, agents or subcontractors be served wit h any summons, complaint, subpoena, notice of deposition, request for document s, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunde r. City retains the right, but has no obligation, to represent Desig n Professional or be present at any deposition, hearing or similar proceeding. Design Professional agrees to cooperate fully with City and to provide City wit h the opportunity to review an y response to discovery requests provided by Design Professional. However, this right to review any such response does not imply or mean the right by City to control, d irect, or rewrite said response.
SECTION 15. INDEMNIFICATION.
(a) With respect to its operations, other than the performance of design professional services and to the full extent permitted by law, Design Professional agrees to indemnify, defend, and hold harmless the City, its officers, employees and agents (“Indemnified Parties”) against any and all actions, either jud icial, administrative, arbitration or regulatory clai ms, damages to persons or propert y, losses, costs, penalties, obligations, errors, omissions or liabilities whethe r actual or threatened (herein “claims or liabilities”) that may be asserted or claime d by any person, firm or entity arising out of or in c onnection with the negligent perfo rmance of the work, operations, or activities provided herein of Design Professiona l, its officers, employees, agents, subcontractors, or invitees, or any individual or entit y for which Design
-8-
Professional is legally liable (“indemnitors”), arising from Design Professional’s reckless or willful misconduct, or arising from Design Professional’s or indemnitors’ negligent performance of or failure to perform any term, provision, coven ant, or condition of this Agreement, and in connection therewith:
(i) Design Professional will defend any action or actions file d in connection with any of said claim s or liabilities and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith; (ii) Design Professional will prom ptly pay any judgment rendere d against the City, its officers, agents, or employees for any su ch claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activi ties of Design Professional here under; and Design Professional agrees to save and hold the City, its officers, ag ents, and employees harmless therefrom;
(iii) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against D esign Professional for such damages or other claims arising out of or in connection wi t h t h e n e g l i g e n t performance of or failure to perform the work, operation or act ivities of Design Professional hereunder, Design Professional agrees to pay to th e City, its officers, agents, or employees, any and all costs and expenses incurred b y the City, its officers, agents, or employees in such act ion or proceeding, including bu t not limited to, legal costs and attorneys’ fees.
(b) With respect to its operations in the performance of Servic es to be performed by a “design professional,” as that term is defined u nder Civil Code Section 2782.8, Design Professional agrees to indemnity, defend, and ho ld harmless the City, its officers and employees, from and against liability for dama ges to the extent caused by Design Professional’s, reckl essness, negligent acts, errors or omissions, or willful misconduct in the performance of services under this Agreement, except such loss or damage caused by the negligence or willful misconduct of the Ci ty. Design Professional has no obligation to pay any a mount that exceeds Design Profes sional’s finally determined percentage of liabilit y based upon the comparative f ault of Design Professional, except as provided in Civil Code Section 2782.8(a) and (e). (c) City's Negligence. The provisions of this section do not ap ply to claims occurring as a result of the City’s negligence. The provision of this section shall not release City from liability aris ing from gross negligence or wi llful acts or omissions of City or any and all of its officials, employees and agents.
SECTION 16. INSURANCE.
Design Professional 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. A ll insurance policies shall be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if
-9-
so approved in writing by the City Manager. Design Professional agrees to provide City with copies of required policies upon request.
SECTION 17. ASSIGNMENT.
The expertise and experience of D esign Professional are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and entities who will fulf ill the duties and obligation s imposed upon Design Professional under this Agreemen t. In recognition of that inte rest, Design Professional shall not assign or transfer th is Agreement or any portion of t his Agreement or the performance of any of Design Pro fessional’s duties or obligations under this Agreement without the prior written consent of the City. Any attempted a ssignment shall be ineffective, null and void, and shall constitute a material bre ach of this Agreement entitling City to any and all remedies at law or in equity, inc luding termination of this Agreement pursuant to Section 19 “Termination of Agreement.” C ity acknowledges, however, that Design Professional , in the performance of its du ties pursuant to this Agreement, may utilize subcontractors.
SECTION 18. CONTINUI TY OF PERSONNEL.
Design Professional shall make every reasonable effort to maint ain the stability and continuity of Design Profe ssional’s staff and subcontractor s, if any, assigned to perform the Services. Design Professional shall notify City of any changes in Design Professional’s staff and subcontractors, if any, assigned to perform the Services prior to and during any such performance.
SECTION 19. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, a t any time by giving thirty (30) days written notice of termination to Design Professional. In the event such notice is given, Design Professional shall cease immediately all work in progress. (b) Design Professional may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City. (c) If either Design Professiona l or City fail to perform any m aterial obligation under this Agreement, then, in addi tion to any other remedies, either Design Professional, or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agr eement by either Design Profess ional or City, all property belonging exclusively to City which is in Design P rofessional’s possession shall be returned to City. Desi gn Professional shall furnish t o City a final invoice for work performed and expenses incurred by Design Professional, pr epared as set forth in Section 4 “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.
-1 0-
SECTION 20. DEFAULT.
In the event that Design Professional is in default under the t erms of this Agreement, the City shall not hav e any obligation or duty to co ntinue compensating Design Professional for any work performed after the date of de fault. Instead, the City may give notice to Design Prof essional of the default and the r easons for the default.
The notice shall include the time frame in which Design Professi onal may cure the default. This timeframe is presu mptively thirty (30) days, but may be extended, though not reduced, if circumstances warr ant. During the period of ti me that Design Professional is in default, the City shall hold all invoices an d 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 the outstanding invoice s during the period of default. If Design Professional 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 City to give notice of the Design Professional’s default shall not be deemed to result in a waiver o f the City’s legal rights or a ny rights arising out of any provision of this Agreement.
SECTION 21. EXCUSABLE DELAYS.
Design Professional shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to p erform due to causes beyond the control of Design Professional. Such causes include , but are not limited to, acts of God, acts of the public e nemy, acts of federal, state o r local governments, acts of City, court orders, fires, floods, epidemics, strikes, embar goes, and unusually severe weather. The term and price of t his Agreement shall be equitab ly adjusted for any delays due to such causes.
SECTION 22. COOPER ATION BY CITY.
All public information, data, rep orts, records, and maps as are existing and available to City as public records, and which are necessary fo r carrying out the Services shall be furnished to Des ign Professional in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.
SECTION 23. NOTICES.
All notices required or permitted to be given under this Agreem ent shall be in writing and shall be personally de livered, or sent by telecopie r or certified mail, postage prepaid and return receipt requested, addressed as follows:
To City: City of Cathedral City
Attn: City Manager
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
-1 1-
To Design Professional: NCE, Inc.
Attn: Margot Yapp, P.E.
17050 Bushard St. Suite 200
Fountain Valley, CA 92708
Notice shall be deemed effective on the date personally deliver ed or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
SECTION 24. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Des ign Professional represents and warrant s that he/she/they has/have the authority to so execute this Agreement and to bind Design Professional to the p erformance of its obligations hereunder.
SECTION 25. ADMINISTRAT ION AND IMPLEMENTATION.
This Agreement shall be adminis tered and executed by the City M anager or his or her designated representativ e. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, inclu ding amendments that commit additional funds, consist ent with Section 27 “Amendment” a n d t h e C i t y Manager’s contracting authority under the Cathedral City Municipal Code.
SECTION 26. BI NDING EFFECT.
This Agreement shall be binding upon the heirs, executors, admi nistrators, 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 Desi gn Professional and by the City . The City Manager shall have the authority to approv e any amendment to this Agree ment if the total compensation under this Agreemen t, as amended, would not exceed t h e C i t y Manager’s contracting authority under the Cathedral City Munici p a l C o d e . A l l o t h e r amendments shall be approved by the City Council. The Parties a gree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void.
SECTION 28. WAIVER.
Waiver by any Party to this Agreement of any term, condition, o r covenant of this Agreement shall not constitute a waiver of any other term, cond ition, or covenant.
Waiver by any Party of any breach of the provisions of this Agr eement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or
-1 2-
violation of any provision of this Agreement. Acceptance by City of any work or services by Design Professional shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 29. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed acc ording to the laws of the State of Californi a. In the event of litigation be tween the Parties, venue in state trial courts shall lie exclusively in the County of River side, California. In the event of litigation in a U.S. District Court, venue shall lie exclusi vely 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 enfo rce or interpret any provision of this Agreement, t he prevailing Party in such litig ation or other proceeding shall be entitled to an award of reasonable attorney's fees, co sts and expenses, 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 re spect to the matters addressed therein and supersedes a ll other agreements or unders tandings, whether oral or written, or entered into between Design Professional an d City prior to the execution of this Agreement. N o statements, repr esentations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 32. SEVERABILITY.
If any term, condition or covenant of this Agreement is declare d or determined by any court of competent jurisdiction to be invalid, void or unen forceable, the 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. CONFLI CTING TERMS.
-1 3-
Except as otherwise stated herein, if the terms of this Agreement conflict with the terms of any Exhibit hereto, or with the terms of any document incorporated by reference into this Agreement, the terms of this Agreement shall control.
IN WITNESS WHEREOF , the Parties hereto have executed this Agreement on the date and year first-above written.
CITY OF CATHEDRAL CITY NCE, Inc.
__________________________ _______________ ____________ Charles P. McClendon By: Margot Yapp, P.E.
City Manager Its: Principal-in-Charge
ATTEST: ___________________________
By:_______________ _________
Its:________________________
___________________________
Tracey R. Hermosillo
City Clerk
APPROVED AS TO FORM
___________________________
Eric S. Vail
City Attorney
NOTE: DESIGN PROFESSIONAL’S SIGNATURES SHALL BE DULY
NOTARIZED, AND APPROPRIAT E ATTESTATIONS SHALL BE
INCLUDED AS MAY BE R EQUIRED BY THE BYLAWS, ARTICLES OF
INCORPORATION, OR OTHER RULES OR REGULATIONS
APPLICABLE TO DESIGN PROFESSIONAL’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 )
On ____________________, 2022 ,
before me, , D a t e 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 th e 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 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 DOCUM ENT 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, , D a t e 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 th e 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 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 DOCUM ENT 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
B - 1
EXHIBIT "B"
COMPENSATION
C - 1
EXHIBIT "C"
INSURANCE
A. Insurance Coverages. Service Provider shall provide and ma intain insurance, acceptable to the City, in full force and effect thr oughout the term of this Agreement, against claims for injuries 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 p rocure 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 of this Agreement in the amount of one million dollar s ($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 Services Offic e form Commercial General Liability coverage (Occurrence Form CG 0001). There sh all be no endorsement or modification of t he CGL limiting the scope of co verage 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 insurance in an amount not less than $1,000,000 for injuries, including accidental death, to an y one person, and subject to the same minimum for each per son, in an amount not less than one million dollars ($1,000,000) for each accident, and property damage insurance i n an amount 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 consid ered equivalent to the said required minimum limits. Coverage shall be at least as br oad as Insurance Services Office form number CA 0001 covering Automobile Liabili ty, 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 millio n dollars ($1,000,000) of emplo yers’ liability coverage.
Service Provider shall provide an endorsement that the insurer waives the right of subrogation against the City and its respective elected officia ls, officers, employees, agents and representatives. In t he event a claim under the pro visions of the California Workers’ Compensation Act is filed against City by a bona fide employee of Service Provider participating under this Agreement, Service Provider i s to defend and indemnify the City from such claim.
X Professional Liability Insurance: Professional liability insurance appropriate to the Service Provider’s profession in an amount not less than one million dollars
C - 2
$1,000,000 per occurrence. This co verage may be written on a “ claims made” basis, and must include coverage for contractual liability. The profe ssional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to Services performed under this Agre ement. The insurance must be maintained for at least three (3) consecutive years fol lowing the completion of Service Provider’s services or the termination of this Agreemen t. 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 Agre ement shall contain the following provisions:
1. All Coverages.
a . E a c h i n s u r a n c e p o l i c y required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to th is 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 . I n s u r a n c e i s t o b e p l a c e d w i t h i n s u r e r s w i t h a c u r r e n t A .M.
Best's rating of no less than A:VII.
2. Commercial General Liability and Automobile Liability Coverages.
a . C i t y , and its respective elected and appointed officers, officials, and employees and volunteers are to be covered as ad ditional insureds as respects: liability arising out of activities Service Provider performs; products and completed operations of Service Provider; premises owned, occup ied or used by Service Provider; or automobiles owned, leased, hired or borrowed by Service Provider.
The coverage shall contain no s pecial limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, or employees.
b . S e r v i c e P r o v i d e r ’ s i n s u r a n c e c o v e rage shall be primary insurance with respect to City, and its respective elected and appointed, its officers, officials, employees and volunteers. Any insurance or self-ins urance maintained by City, and its respective elected and appointed officers, offici als, employees or volunteers, shall apply in exce ss of, and not contribute with, Service Provider’s insurance.
c . S e r v i c e P r o v i d e r ’ s i n s u r a n c e s h a l l a p p l y separately to each insured against whom claim is made or suit is brought, except w ith respect to the limits of the insurer's liability.
C - 3
d . A n y f a i l u r e t o c o m p l y w i t h t h e reporting or other provisions of the insurance policies, includi ng breaches of warranties, shall not affect coverage provided to City, and its respective elected and appointed offi cers, officials, employees or volunteers.
e . T h e i n s u r e r w a i v e s a l l r i g h t s o f s u b rogation against the City, its elected or appointed officers, officials, employees or agents.
3. Workers' Compensation Coverage. Unless the City Manager otherwise agrees in writing, the insurer shall agree to waive a ll 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. Servic e Provider agrees to deposit wit h City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisio ns of this contract have been c omplied with. The City may require that Service Provider furnish City with copies of o riginal endorsements effecting coverage required by this Exhibit “C”. The certifica tes and endorsements are to be signed by a person authorized by that insurer to bind cov erage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. Service Provider shall furnish certificates and endorsemen ts from each sub-contractor identical to those Service Provider provides.
2. Any deductibles or self-insured retentions must be declare d to and approved by City. At the option of City, either the insurer sh all reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, emp loyees and volunteers, or the Service Provider shall procure a bond guaranteeing payment of losses and related inves tigations, claim administration, defense expenses and claims.
3. The procuring of such requi red policy or policies of insur ance shall not be construed to limit Servi ce Provider’s liability hereunde r nor to fulfill the indemnification provisions and requirements of this Agreement.